The Ethics of Immigration symposium: The argument from democratic principles

This is a fantastic symposium inspired by a fantastic book, and it is clear that all the contributors agree on at least one key point: Joseph Carens’s majestic The Ethics of Immigration is an intensely important text and all of us are deeply in debt to Carens’s work on this crucial subject. There is no doubt that over the years Carens has done more than anyone else to bring the ethics of immigration to the attention of mainstream Anglo-American political philosophy, and he has set the agenda for the discussion for many years to come.

From that shared starting point, the commentators then fall into two groups. There are those who are in broad agreement with most of Carens’s conclusions and are generally sympathetic to his overall agenda (but may disagree with parts of his approach, and even may wish to push his open borders arguments further). And there are those who disagree with a number of Carens’s conclusions and are less sympathetic to his overall agenda. I fall in with the first group; my comment is intended as a friendly intervention, which also takes seriously some of the concerns of the second group (concerns not necessarily expressed directly in the symposium pieces, but which appear in writings elsewhere). And rather than go over terrain that has already been covered in the symposium, I want to concentrate on one particular point regarding Carens’s argument from democratic principles.

Carens introduces his project in the book thus: ‘I want to show that debates about immigration raise ethical questions, that many of these ethical questions are interconnected, and that a commitment to democratic principles greatly constrains the kinds of answers we can offer to these questions’ (p. 2). As far as I can see, almost all of the political philosophers working on the ethics of immigration (across the spectrum of views on the subject) agree with all of that. Of course the more controversial part is how far democratic principles actually constrain things in the direction of more open borders and away from more state discretion with respect to immigration policies.

As Carens makes clear at the outset, he is employing ‘the term “democratic principles” in a very general sense to refer to the broad moral commitments that underlie and justify contemporary political institutions and policies through North America and Europe’ and he notes that ‘others might use the terms “liberal” or “liberal democratic” or “republican” to characterise the principles and ideas for which I use the term “democratic”’ (p. 2). In short, he isn’t using ‘democratic principles’ in a narrow sense to refer just to the principles that may flow from a commitment to something like ‘rule of the people’.

I wonder whether, in taking such a broad approach to ‘democratic principles’ throughout and not really focusing on democratic principles more strictly construed, Carens may be giving short shrift to what is one of the most potent democratic arguments in favour of states and their citizens retaining greater control over their immigration and naturalisation policies. Now, I share what I think is Carens’s (and Arash Abizadeh’s) view that, ultimately, democratic principles (more strictly speaking) do not provide support for the idea that states have what Abizadeh has called a ‘unilateral right’ to keep out unwanted immigrants. But I think it takes quite a bit of work to get there (as I try to show in my forthcoming book, Immigration and the Right to Exclude), and I also think that there are powerful arguments on the other side.

One of the principles which Carens mentions under the heading of ‘democratic principles’ is what we might call the more ‘strictly democratic’ idea ‘that legitimate government depends upon the consent of the governed’ (p. 2). It is this more narrowly democratic of Carens’s principles that I will focus on here. For our purposes, we might just talk about it as the principle of self-government.

In his seminal discussion of this in Spheres of Justice, Michael Walzer argued that if we are committed to the principle that legitimate government depends on the consent of the governed then we should also be committed to the principle that resident non-citizens eventually ought to be granted the opportunity to become citizens and obtain full rights to political participation. In the absence of that option, resident non-citizens are governed without their consent, at least insofar as they are subject to the state’s authority without any say in the making of the law. Just as famously, though, Walzer also argued that, while they are not entitled permanently to withhold citizenship from long-term residents, states must have a right to choose whom to admit in the first place (and thus who may become a citizen). Without such a right, they would not be able to maintain control over their own membership practices and, by extension, their own ‘common life’. In effect, Walzer  develops an argument apparently based in part on ‘democratic principles’ in defence of what Carens calls the ‘conventional view on immigration’, which is that states are ‘morally entitled to exercise considerable discretionary control over the admission of immigrants’ (p. 10).

Walzer sets up an important challenge here for democrats because he gestures towards two sides of the democratic connection between legitimate government and the consent of the governed. On the one hand, there is the side which suggests that all those who are governed ought to have a say in the practice of government (‘the governed’, in Walzer’s view, includes all long-term residents, rather than just existing citizens). That is democracy’s inclusionary force. On the other hand, there is the side which suggests that only those who are governed should have a say—it is for the governed, and the governed alone, to make the decisions about their common life. It is not for others, who are not governed by that government, to take part in the governing process. They must remain excluded from governing. Why? Well, because it’s the future of the governed that is on the line. The governed are the ones who have to live with those decisions and build their lives around them. Walzer argues that decisions about admitting immigrants, as potential future members, are just the sorts of decisions over which the governed ought to have control.

I would expect the average voter shares Walzer’s belief that democratic principles, in the narrow sense relating to self-government, support the conventional view on immigration, i.e. that states are entitled to a large degree of discretion over immigration decisions (even if she might disagree with Walzer’s arguments about the inclusion of resident non-citizens). I’m not sure that Carens actually challenges head on that particular, very popular view of the implications of democratic principles, and yet doing so successfully would enhance his case in the second part of the book against the conventional view.

Now, we can use Walzer’s starting point to try to push the democratic argument in a more inclusionary direction than Walzer does himself. While agreeing that all the governed and only the governed should have access to a say in the making of the law, we can attempt to show that in many cases ‘the governed’ comprises not just residents of the state but also extends or can extend to people beyond the states borders. We might do this by arguing that being ‘governed’ in the relevant sense is, say, to have one’s interests affected by the state’s policies, or to be subject to coercion by the state in question, or to be part of some other set, as a variety of political philosophers have done. And then we might try to illustrate the various ways in which people beyond the state’s borders may have their interests affected or may be subject to coercion, and so forth. One of the more obvious ways in which people outside the borders of a state seem to be governed in the relevant sense is via the state’s immigration laws, for example. If that is right, then we can begin to marshal a democratic argument against Walzer’s more restrictive view, along the lines that unilaterally imposed immigration restrictions lack democratic legitimacy when they serve to ‘govern’ would-be immigrants without giving them a say in the making of those decisions.

Nonetheless, we still have to be aware of the important insight in the second part or side of the democratic principle of self-government: that those who ought to have a say in the making of state policy are those who have to live with the decisions. Most democrats don’t think that tourists should get a right to vote in national elections while they are temporarily present in a country, and in part that’s because they won’t be sticking around to bear the consequences. They won’t have to live with the decisions. They are not included within the governed in that sense.

One of the key reasons this represents a challenge to more inclusionary readings of democratic principles—the kind which point to the ways in which the practices of states may demand some forms of inclusion for those currently beyond borders—is that being governed in the sense which appears to demand access to political participation (e.g. being subject to coercion by some or other law, in the manner of would-be immigrants) may not always coincide with being governed in the sense of being one of those who has to live with the state’s decisions, or at least not all, or not the majority,or even not a large number of the state’s decisions. It looks as though it is normally—not always, and in all cases, but normally—residents of the state who shoulder much more of that burden. There are many decisions, aside from immigration related ones, which do not seem to ‘govern’ non-residents in the relevant sense. And so it appears that there are a lot of important questions to answer here in order to show that the arguments for greater inclusion of current non-residents really are in fact properly consistent with the complete ‘democratic principle’ of self-government. I think this challenge can be met, and I try to do that in my book, but I also believe that democrats need to take it very seriously.

Does Carens take that side of the principle of self-government seriously enough in his book? He is clearly very serious indeed about the moral salience of ‘membership’ in a particular sense. Towards the end of the book, he reiterates that he thinks ‘ongoing subjection within a political community has great moral significance. That is precisely why I argued… that those who settle permanently within a political community should be regarded as members and given access to citizenship. Not everyone is a member, and membership does matter morally. Even if borders were open, there would still be important and legitimate distinctions between a state’s responsibilities for those within its borders and its responsibilities for those outside’ (p. 257). In what ways does membership matter morally? For Carens, that’s partly explained by his own theory of social membership, already discussed at length in other contributions to this symposium, the central gist of which is that ‘living within the territorial boundaries of a state makes one a member of a society, that this social membership gives rise to moral claims in relation to the political community [claims to legal rights and to legal status], and that these claims deepen over time’ (p. 158).

Yet I don’t think that he explains why democratic principles, at least in the narrow sense, do not support the right of insiders (long-term residents) to decide whether non-residents may join the community. That doesn’t matter so much if you accept his argument in the second part of the book that there is a human right to international freedom of movement. If that part of his argument is correct, then insiders would not have a general right to try to keep would-be immigrants out anyway. As Carens notes, however, that is one of the most controversial aspects of the book, and many people will not go all the way with him on that point. So it seems to be worth trying to push the argument from democratic principles (narrowly construed) further, in an attempt to show that those who are committed to the principle of self-government actually are also committed not just to the extension of citizenship to long-term residents, but also to resisting the state’s unilateral right to exclude would-be immigrants.

As I noted at the start, though, this is a friendly intervention. I find myself in agreement with so much of what Carens writes that I can only conclude he must be very sensible indeed and absolutely right!

Sarah Fine teaches political philosophy at King’s College London. She the author of Immigration and the Right to Exclude and the co-editor (with Lea Ypi) of Migration in Political Theory: The Ethics of Movement and Membership, both forthcoming with Oxford University Press.