The Ethics of Immigration symposium: Joseph Carens replies (part one of two)

It is an author’s dream for his or her work to receive the sort of wide-ranging, substantive, thoughtful and generous reactions that this symposium on my book has elicited. So, I want to begin by expressing my deep appreciation to Chris Bertram for organizing the symposium and to all of the contributors, including Chris, for their comments. Among other things, I felt that all of the contributors understood my project and discussed it in a fairminded way, whether they agreed with me or not. That is not always the case in these sorts of exchanges, and I feel fortunate to have had this set of interlocutors.

I am dividing my response into two posts. In this first post I will respond to Chris Bertram, Jo Shaw, Kenan Malik, Sarah Fine, Phil Cole and Speranta Dumitru. I choose these six because all of them are concerned in one way or another with the approach that I use in my book and several of them are concerned with the open borders issue. The next post will be concerned with the moral significance of social membership (David Owen, Michael Blake, Ryan Pevnick and Kieran Oberman) and with the reasons why free movement within a state should be seen as a human right (Patti Lenard and Brian Weatherson). Although I agreed with much of what the different contributors said (especially the nice things they said about my book, of course), I’ll devote most of my time to their challenges and disagreements.

I spent a lot of time thinking about the audience(s) for my book and about the kind of book that I wanted to write. As Chris and others have noted, I wanted to produce a book that would be accessible to ordinary people as well as to philosophers. Partly for that reason (though also as a challenge to the usual philosophical approach), I said that I would start from a loosely defined set of democratic principles that are widely shared among people in North America and Europe and would trace out the implications of these principles for immigration. Chris asks whether these democratic principles really are widely shared and, even if they are, whether people will be willing to hold onto the principles once they see their implications.

At one level, this is just an empirical question about what most people believe and how they are likely to behave. Perhaps Chris’s pessimism about the views of ordinary people is warranted. In retrospect, I think I should have been more cautious about some of my statements about certain views being widely shared. On the other hand, even if what I call democratic principles are not as widely and deeply held as I say, that does not really change the nature of my arguments or their relevance for those who do share these principles. I acknowledge from the outset that I am working within certain presuppositions (even in the open borders chapters). One of those presuppositions has to do with the content of the moral views of those to whom the book is most directly addressed. If Chris is right, it means that the audience for the book is somewhat smaller than I had hoped, but the arguments are still relevant for that audience (i.e., people who do accept democratic principles).

Two implicit presuppositions of my book are that it is worthwhile articulating the implications of the ideas and principles that we profess to hold and also that people normally want to think that they are acting in accord with their principles. Chris himself does not challenge these presuppositions but some of those posting in response to him seemed to be questioning the political relevance of ideas altogether and the value of pursuing questions about consistency and coherence among ideas. I have to say that I was tempted to ask why one would read a blog like Crooked Timber if one held such a deeply skeptical view of the role of ideas in public life.

Let me put this another way. If you say to someone that a proposed course of action with respect to immigration is unjust, and she says in response, “I know it’s unjust but I’m going to support it anyway because it’s good for me and people like me,” my book won’t do much to persuade her to behave differently. But then it is pretty unlikely that a person with that attitude would read the book in the first place.

Chris rightly draws attention to the pandering of politicians, and it is perfectly true that politicians tend to be much more concerned with saying what they think people want to hear than with asking themselves whether what they are saying is really consistent with their professed principles. But that is why it is the responsibility of intellectuals to remind both politicians and the wider public of their professed principles.

Finally, I don’t think that we should simply accept the suggestion that democratic principles have weak roots in the soil of contemporary liberal democracies in Europe and North America. It matters that, as Chris himself says, “For the most part, mainstream politicians do not explicitly reject constitutional and human rights principles in the name of some other set of principles.” I think that it would not be so easy for mainstream politicians to jettison these principles openly. The fact that politicians feel the need to disguise their views is itself an important indication of what people think is right and wrong. As the old saying goes, hypocrisy is the tribute that vice pays to virtue.

Some fringe groups do reject democratic ideas openly, of course, and the centre of gravity could shift in their direction. Then we would face a different sort of intellectual and political challenge. At the moment, however, despite recent developments, what I have called democratic principles still carry considerable weight. Most people want to think that they can pursue the policies they favour without violating these principles. That is why Theresa May talks of “foreign criminals,” for example. She is implicitly appealing to a certain understanding of what justice requires, and she is attempting to communicate that her policies are compatible with, indeed an outgrowth of, those requirements. But I accept the general point that a book like mine will only be relevant to an audience that takes democratic ideas seriously and cares about their consistency.

Chris mentions at one point that reasoning on the basis of principles is becoming “more and more the province of jurists and academics.” He is probably right about that, for institutional reasons if nothing else, and that is one reason why Jo Shaw’s contribution is so important (despite her diffidence about what a lawyer can contribute to a discussion of normative theory).

One might try to draw a distinction between lawyers and theorists by saying that lawyers are concerned with what the law is and theorists with what the law ought to be. There is merit to that distinction, but the relationship between ‘is’ and ‘ought’ in the law is a lot more complex than that simple dichotomy suggests. Lawyers, and especially legal academics, are expected to connect their claims about what the law is in a particular area with deeper legal principles, often principles that are assumed to have normative force. At the same time, a detailed discussion of what the law is can bring to light a range of important normative questions that theorists will simply overlook if they rest content with abstract (and highly indeterminate) general principles.

We see these dynamics at work both explicitly and implicitly in Jo’s contribution. As she points out, citizenship in one EU state gives rise to a legal entitlement (with some qualifications) to move to any other EU state to live and work, and this means that other EU states have reason to care about the bases on which citizenship is handed out. This can and should prompt us to ask about the moral limits to policies governing the acquisition of citizenship. Non-discrimination is already one such formal limit, which Jo mentions, but one can also ask whether it is morally permissible to grant access to citizenship on the basis of ethnicity or in return for economic investment. I touch on these issues in my book, but I don’t pursue them in depth. Other scholars have begun to do so, and Jo’s contribution tells us why this is an important topic. Similarly, her discussion of the differences between the rhetoric and the reality of free movement draws our attention to a set of issues that deserve further normative analysis. Freedom of movement is never entirely unqualified, but it is important to ask whether particular restrictions are justifiable or not. Even though the EU created and still maintains a regime of internal free movement for economic and political reasons rather than moral ones, the establishment of that regime has generated new moral principles that ought to be taken into account in the implementation of policies.

Like Chris Bertram, Kenan Malik is concerned with the relationship between morality and politics, but Kenan focuses more on the relationship between the first ten chapters of the book, which accept the conventional view that the state has a moral right to exercise considerable discretionary control over immigration, and the last few chapters, which develop the open borders argument. He is generally sympathetic to the underlying rationale of this dual approach, but he worries that starting from the more realistic perspective of the first ten chapters may make it more difficult to persuade people to accept the more idealistic perspective of the last three chapters. What is needed, he says, is “a narrative of social transformation” that will enable people to see the ideal of open borders as a real social possibility that they can and should embrace.

I agree with Kenan that it is likely to be difficult to get people to move from a realistic perspective to a more idealistic one. Indeed, Chris’s point was that the “realistic” perspective of the first part of the book is already likely to be seen as too demanding by many people. I would just complicate that claim a bit by observing that the likelihood that people would object to what I am proposing varies enormously from one issue to another even within the chapters that start from the conventional view. In some cases, as, for example, in most of my discussion of the legal rights of residents, what I say justice requires is very close to what already exists (though that was not the case in the past) and is not seriously contested today even by anti-immigration forces. In other cases, such as the treatment of irregular migrants or the resettlement of refugees, what I think justice requires is very unlikely to be accepted by many people, and in that sense my arguments about those issues are not actually “realistic,” even though they are developed within the constraints of the conventional view. Other issues fall in between in terms of how much they depart from the status quo or make demands that are likely to evoke resistance.

I also agree with Kenan that it would be highly desirable to have an account of how to bring about the kind of social change that I say is required by justice, and I agree that my book does not provide that account. As Kenan recognizes, that was not the goal of my book. I did try to show that what I was proposing was not intrinsically impossible. In that sense, I accept the idea that ought implies can. But I did not undertake the (important) task of identifying possible agents or mechanisms of social change, and I would be delighted if others were to do so.

One final point about Kenan’s concerns. I am not persuaded that it is always a mistake to ask the “Who are we?” question or to emphasize the history and heritage of a political community. On the contrary, I think that this question is inescapable. The challenge, as I emphasize in chapter four, is to answer that question and to interpret that heritage in a way that includes immigrants and their descendants, rather than marginalizing them.

I don’t have much to say about Sarah Fine’s contribution because we agree so much. She thinks that it is possible to strengthen the argument for open borders by paying closer attention than I do in the book to the principle of self-government, and meeting more fully the objections to free movement that arise from that perspective. I’ve read earlier versions of Sarah’s forthcoming book, and I agree that this line of argument strengthens the case for open borders from a perspective that is different from but complementary to the one I offer.

As Phil Cole notes, he has also been arguing for open borders for a long time, and he and I agree that this is what justice ultimately requires, given an understanding of justice based on the moral equality of human beings. He suggests, however, that a commitment to moral equality is also what undergirds my answers in the earlier chapters of the book to questions about temporary workers, irregular migrants, asylum seekers and so on. So, he asks whether we can already see in the answers to these earlier questions that open borders is the ultimate destination.

I want to resist this line of argument because I think it is important for intellectual as well as practical reasons to see the arguments in the first several chapters as distinct from the ones for open borders. The central theme of the first several chapters is that social membership — not citizenship, notice — matters morally, and I try to show in chapter 13 that social membership would still be morally important even in a world of open borders. In claiming that social membership matters morally, I am not rejecting the principle of moral equality, but rather saying that, in some contexts, moral equality entails certain sorts of differences. In my view, it is a mistake to leap from the abstract principle of moral equality to the conclusion that every legal and political distinction among human beings is morally problematic.

The central problem is this. The idea of moral equality is both fundamental and highly abstract. It is so fundamental that it is probably not possible to find a moral view within the liberal tradition that is presented as incompatible with the principle of moral equality. But because the principle of moral equality is highly abstract, it is also highly indeterminate. That is why there are so many different and conflicting views within the liberal tradition, all of which claim to be interpretations of moral equality. So, by itself, the abstract principle of moral equality does not take us very far in thinking about the legitimacy of alternative institutions and policies. Everything depends on what one might call the intervening variables such as claims about the moral relevance of consent in particular contexts or about the consequences of different institutional arrangements.

Those who oppose open borders and defend the conventional view do not present themselves as rejecting the idea of moral equality, but as offering a more satisfactory interpretation of what moral equality entails than the one offered by open borders advocates like Phil and me. That is why I spend so much time responding to their arguments in chapter 12. It is not possible to simply assume that the conventional view is wrong. That requires detailed arguments, and the arguments that are required are in fact quite different, for the most part, from the ones offered in the earlier chapters with respect to irregular migrants, temporary workers and so on.

Finally, there is a further reason not to take the direct route to open borders that Phil recommends. Many of the most pressing moral issues that we face in practice, like the questions about irregular migrants and refugees, disappear from view when we begin by asking what a just world requires and conclude that it requires open borders. After all, in a just world with open borders, there would be no irregular migrants or refugees. It is important to be able to think through the requirements of morality in an imperfect world without endorsing those imperfections, and, in my view that is precisely what my approach makes possible.

I have left Speranta Dumitru to the end of this post because hers is the most fundamental challenge to my project. She argues that my discussion of access to citizenship is based on methodological nationalist premises and undermines efforts to advance toward a world of open borders. In one respect I agree with her. I do think that my book is based on one methodological nationalist premise, namely that it assumes, even in the open borders chapters, that the world is divided into states and it takes the question of what states ought to do as its central concern. (This does not mean, however, that I accept an ethnic or culturally homogeneous conception of the nation, and I don’t, as should be clear from the text.) But I would suggest that Speranta’s critique cuts deeper than she acknowledges. After all, the open borders argument is also built upon the methodological nationalist premise that there are states with (open) borders. Indeed, her own recommendation in the next to last paragraph that we should just worry about the protection of human rights and not about the assignment of citizenship itself evokes the methodological nationalist premise that “countries” should do the protecting. I am happy to endorse the view that there are other normative questions one can ask that may not be built, as my inquiry is, upon a methodological nationalist premise, though whether one can discuss “immigration” (as distinct from the broader phenomenon of human migration) without a methodological nationalist premise is less clear.

The crucial question here is whether or not one thinks that one morally legitimate way of organizing the world politically might involve distinct territorial jurisdictions. If the answer to that is yes, then the legal rights that any individual enjoys will depend, at least in part, on the territorial jurisdiction in which the person is located. That will be true even if one focuses only on human rights because, as I point out in the book, different jurisdictions have different interpretations of human rights like the right to freedom of speech or the right to a fair trial. The further question is whether a person’s legal rights may legitimately depend in some way on how long the person has been present in the jurisdiction and/or on her relationship with that jurisdiction.

I argue in my book that, even though there are general human rights which everyone within a jurisdiction ought to enjoy equally, there are many other legal rights that are legitimately restricted to people who are members rather than visitors. Of course, this gives rise to the question of who should count as a member and why, and that is an issue to which I devote much of my attention in Part I of the book. While I explore that issue first within the constraints of the conventional view about discretionary control over immigration, I argue in chapter 13 that there would still be important differences between the legal rights of members and non-members even in a just world with open borders and relative equality between states. If that argument is correct, then we cannot ignore questions about the appropriate legal assignments of rights, including the status of citizenship if that continues to be an important way of marking a certain kind of membership. And if that is correct, Speranta’s Plessy analogy fails. Getting clear about the moral relevance of social membership will not impede the advance towards a just world, because a just world will include membership rights as well as open borders.