The Ethics of Immigration symposium: Social Membership and Territorial Rights

I

There is a wonderful passage in Julian Barnes’s Flaubert’s Parrot, in which Barnes expresses his anger at a dismissive critic of Flaubert:

All in all, it seems a magisterial negligence towards a writer who must, one way and another, have paid a lot of her gas bills. Quite simply, it makes me furious. Now do you understand why I hate critics?

I have had this passage in mind while I have been reading Joseph Carens’s book. I have written several articles about Carens’s view of immigration, and much of it has been critical. I take it that Barnes’s point is that we must express a certain sort of respect towards those we make the subject of our critical attentions, given how much we would be at sea without them. This seems exactly right, given how much I owe Carens; I would never have started thinking seriously about immigration had he not thought so seriously, and so well, about it first. One way or another, Carens has paid a lot of my gas bills, and done a lot more besides; he has been more gracious, both in print and in person, than he has ever needed to be. His book summarizes and extends his thinking about immigration, and I have come to respect that view and its creator enormously. It is not my view, but it is the very best the field has produced, and I hope I have not treated it with negligence.

In what follows, I am going to ignore much of the dispute I have had with Carens over the moral permissibility of exclusion, and focus on a topic found primarily within the first half of the book: the idea of social membership, and what rights can be adequately grounded in that idea. My arguments here are going to be similar to those made by Ryan Pevnick in his own post, although I hope I will make them in a slightly different way.

II

The idea of social membership does a great deal of work for Carens in the first part of his book. The simple facts of residence and time are understood as proxies for rich networks of social belonging – for, that is, particular relationships to places and persons, to particular forms of social institution and to particular polities. These social forms of membership are understood as sufficiently important that those who have them must be given what is needed to go on having them; those who are members in fact, that is, ought to be given what is needed to go on being members, including the legal right to remain within their places of residency. This idea grounds a great many specific guarantees Carens endorses, including birthright citizenship for children, residency rights for the undocumented (after a certain number of years), and a general hostility to long-term guest worker status. I share Carens’s belief that social membership is morally important; I am not convinced that it necessarily has the implications Carens describes. We might imagine that there are two distinct stories of how social membership ought to lead to legal rights to remain:

(1) Social membership is so important that it can never be rightfully taken away; after social membership is established firmly established, the circumstances under which it began become irrelevant. Social membership is a factual matter, not a legal one, and law must respect social membership – which, on this view, “does not depend upon official permission.” (150)

(2) Social membership is so important that it creates a presumption that it ought to be permanent; this presumption, however, can be overcome – when, for instance, there is a freely made agreement to forego the right to maintain that membership; or, when that social membership was wrongfully acquired, by means of a freely made decision to break a just law precluding access to the territory on which that social membership was developed. On this view, social membership is an important good, but one that can sometimes be rightly forfeited.

I think that some version of the latter view is right; Carens believes that the former is correct. I think we ought to note, first off, that the two views will agree on a great deal. Children, for example, are not capable of freely making decisions of the sort imagined here; Marguerite Grimmond is not rightly subject to deportation. I would also note, further, that the second view is importantly incomplete. It depends upon a story about what makes it rightful for a state to exclude outsiders, and when, and how. My purpose here is not to develop such an account, but to show that some such alternative to Carens’s view might exist, and might have its own attractions.

One such attraction, of course, is that we accept in many other areas of life some version of this view. Lives built on morally faulty foundations may sometimes be legitimately undermined, even at great cost to the one whose life is disrupted. Katherine Ann Power, for example, escaped from custody after a violent bank robbery, and lived as a fugitive for 23 years; she built a life during those 23 years that included a family, education, and a career – all the things that Carens identifies as the markers of a life that cannot be rightly taken from one who lives that life. Power was, of course, made to do just that, and was imprisoned after turning herself in. The point here is not that those who cross the border without right are criminals; as I will discuss, many of those who emigrate without right are fleeing objectionable forms of poverty or oppression, and we have good moral reasons to extend amnesty to those individuals. My only concern is that the passage of time is not enough, in isolation, to establish the right to remain. The fact that imprisonment would disrupt the life Power built during two decades as a fugitive does not make that imprisonment wrongful. Power’s imprisonment might look cruel, or unnecessary; the best version of that claim, though, would say that we have reason to extend mercy to her after seeing the peaceful life she has built – not that we are not within our rights to respond to her crime with imprisonment. Neither can we say that Power’s crime should be regarded as too far in the past to bother with. Contrary to Carens’s suggestion, the statute of limitations generally finds its justification in the fact that evidence, over time, tends to decay – not in the psychic needs of those who have broken the law. The general point, then, is that an individual can sometimes do something to make the life she has created justly subject to disruption. The fact that social membership is valuable to the member in question does not exhaust our moral evaluation; sometimes, that membership can be rightly sacrificed, if there is a good enough reason for us to demand that sacrifice.

We might imagine, then, that there are some circumstances under which a life built within a place is, as it were, justly subject to disruption; if, in particular, the individual makes a free decision to accept that disruption, or a decision to break a justified law precluding entry. Imagine two possible cases to fix our intuitions; both of these are based on real persons, although both are pseudonymous:

(1) Morgan, an artist from Vancouver, enters on a tourist visa, but stays in Portland, working construction jobs to pay for his artistic ambitions. He makes this choice because construction pays more in Portland than in Vancouver, and because the arts scene is better in Portland than in Vancouver. He stays in Portland for ten years.

(2) Molly, a student from Edmonton, enters on a student visa, which allows her to stay within the United States for the duration of her studies. Upon the end of the dissertation, she is obligated by the terms of her visa to exit the United States. She is now reaching the end of her program, after ten years spent as a graduate student; she has no desire to return to Canada.

I take it that Carens would extend to both Morgan and Molly the right to stay within the United States. I would not; I share with Carens the conviction that social membership is morally relevant – but I am convinced that there are cases in which the right to such membership can be rightly alienated. Molly, for instance, seems to have no particular right to stay in the United States, even if all her friends are here. The simple fact is that she agreed, against a fair and free backdrop, to forego the right to stay, and all the relationships she made here should be viewed in light of this agreement. To hold her agreement here as null and void seems oddly disrespectful of her as an agent; allowing people to give up rights in the name of other goods is often a way of demonstrating respect for persons. I can sign myself up for the army, or become a parent – both of which are big decisions, and both of which might lead to some regrets down the line. We allow people to make these decisions, though, and feel these regrets, because the alternative is to undermine freedom to make such decisions for ourselves. Here, Molly is a grownup, and faces no particular oppression or injustice in Canada; she can decide for herself if being educated in another country is worth the social costs of temporary residence.

Morgan seems to have even less of a right to stay. If he is coming from a reasonable set of circumstances in Canada, then he has freely chosen to build a form of life for himself on a set of foundations to which he has no particular right. I am not sure why liberal politics should feel any need to protect him from the consequences of that decision. To use Ronald Dworkin’s language, this seems like a case of option luck, not brute luck; he is making a bet that he will not be discovered and deported. If he is, I do not think he is wronged. He will doubtless experience pain from the deportation, but not all forms of pain constitute forms of injustice. It is, instead, as if he had chosen to create artwork on someone else’s walls. If the rightful owner of the property chooses to paint over those walls, Morgan will experience pain, and perhaps the owner ought to exercise mercy and allow Morgan to take his artwork home. But Morgan is not wronged by someone who refuses this mercy. Morgan has chosen, freely, to build on foundations he had no right to claim as his own, and all the consequences of that decision should fall rightly on him.

III

This may look rather abstract, and unfair; we are rightly concerned with Miguel Sanchez, and not with Morgan or Molly. That, though, is the point I am trying to make. We are concerned, in the case of Miguel, not simply with what he has built here, but what pushed him to leave his home in the first place. Many of the people who become irregular migrants, or work temporarily in another country, are deeply disadvantaged, and willingly accept what look like terrible terms of employment simply because their alternatives are so bad. (Carens spends some time, after all, going over the terrible circumstances under which temporary laborers tend to work; part of the reason this matters, I think, is that only the truly disadvantaged would seek out such terrible jobs.) If this is true, though – and I think it is – then we have occasion to extend our analysis, from the simple metric of time spent in a place, to something more complex, involving not simply the pain of deportation but the circumstances under which the decision was made to cross the border or to accept temporary employment. Miguel, for example, may be facing objectionable forms of poverty and violence in his home country, and a choice between crossing the border and remaining in poverty and oppression. I think the second version of social membership, as described above, can account for our reactions here; we are likely to think that Miguel’s choice is considerably less free than, for instance, Morgan’s choice, and that our reactions to it ought to be different as well. Morgan and Molly might be rightly regarded as making their choices against a backdrop of attractive and morally acceptable alternatives; they are rightly held accountable for their choices. To view Miguel in the same light seems an evasion of reality.

I believe, then, that Carens’s simple metric, on which time spent in a place is enough to establish a claim to residency, isn’t quite enough to tell us which people do in fact have a right to remain. There are many people who spend a lot of time in a place, but have no particular right to remain there. (If we wanted to look out beyond Morgan and Molly, we could consider the tax-avoiding phenomenon of “permanent tourism,” in which the wealthy live year-round in a low-tax country, while their money lives on and grows elsewhere. Why do we think these people have a right to remain, simply because they have made friends with the locals?) There are many other people whose claim is considerably stronger; the grounds for that, though, must be some idea both that their social membership is morally significant, and that the circumstances under which they acquired that membership do not negate their rights to that membership. This is messier, perhaps, and perhaps harder to instantiate in law – although I am not sure that it would be impossible; careful legal drafting might enable us to get closer to what morality here actually demands.

I do, in conclusion, disagree with Carens about the moral value of social membership. I agree with his overall conclusion about Miguel, although for reasons that are distinct from his own. I am more convinced, though, that once again Carens is deserving of our thanks – and my thanks in particular – for having started this conversation; I look forward to disagreeing with him for years to come.