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

My apologies for the delay in posting the second half of my reply to the symposium. I was traveling. Let me repeat at the outset my deep appreciation for the insightful comments provided by the contributors to this symposium. This is the sort of exchange that makes intellectual life rewarding. Given the delay since the original postings, I did not want to assume that readers of this post would remember what was said in the earlier ones, and I’ve tried to write this in a way that will be intelligible on its own. I take up here the six contributions that I did not discuss in the previous post. I’ll begin with David Owen, Michael Blake, Kieran Oberman and Ryan Pevnick, all of whom have related concerns. At the end, I’ll discuss the posts by Brian Weatherson and Patti Lenard.

In various, sometimes overlapping ways, David, Michael, Kieran and Ryan have raised questions about my theory of social membership. To recall (or, for those who have not read the book, to summarize), the central claim of that theory is that immigrants become members of society over time and their social membership gives them a moral claim to most of the legal rights that citizens enjoy and eventually to citizenship itself. It is important to note, however, that I do not start with a general theory of social membership that I try to justify on the basis of abstract principles and then apply to particular issues. Rather I start with the actual practices of democratic states and ask whether these practices seem to make moral sense. It is only after I have explored arguments about particular practices that I try to show that the idea of social membership is a common thread in many of these arguments. Moreover, my theory of social membership is not presented as a full account of why immigrants are morally entitled to legal rights. I contend that immigrants also have claims to legal rights based on the duty of every state to protect the human rights of anyone within the state’s jurisdiction and based on other considerations like reciprocity and proportionality as well. I think that this way of doing political theory “from the ground up” differs from the approach of some of my interlocutors, especially Kieran and Ryan. My approach is likely to be less systematic and involve more balancing of competing considerations, but I think that it is more closely connected to ordinary moral views, even when, as in the open borders chapters, it leads to radical conclusions.

David’s position is the one closest to my own, and indeed he articulates a couple of arguments that I will use to respond to the others. But he worries a bit that I don’t pay sufficient attention to the differences between people who come with a long term stay in view and those who come with a shorter stay in mind but who then remain longer than initially intended for one reason or another. He suggests that these differences are apt to affect the nature and extent of the social ties that migrants develop, and so the differences might be relevant to the question of when immigrants acquire social membership. Since David does generally agree with the claim that social membership is acquired over time, regardless of such initial intentions, I don’t think that this is really a big difference between us. Nevertheless, let me suggest some reasons for not pursuing the sort of more differentiated approach that he seems to be suggesting.

One of the central cases for my account is the European experience with “guestworkers” in the post World War II period. As the name “guestworkers” suggests, these were people who were explicitly admitted with a time-limited horizon in view, and who agreed to the limitation on their admission. At the outset neither the guestworkers nor the receiving society expected their stay to become permanent, and some did return home within a few years. But many stayed on, and, after a while, it seemed unreasonable (in part to courts, in part to the wider public) to force them to leave. This experience has now been more or less officially codified in an EU rule that says that anyone who has been legally resident in an EU country for five years should be granted permanent resident status, regardless of the initial terms of admission. I think that the best way to make sense of that rule is to see it as reflecting a view like the one I have offered about the moral relevance of social membership.

Keep in mind that I am simply proposing a minimum standard, not a limit on more extensive grants of legal rights. Nothing in my proposal (or in the current EU rule) prevents a state from offering some immigrants quicker access to permanent residence and a fuller set of legal rights (so long as the reasons for distinguishing among different categories of immigrants are morally defensible). There are also prudential reasons for relying only on time and residence as measures of social connection. The main concern here is to avoid discriminatory or arbitrary distinctions. I discuss these concerns more fully in the book.

Both Michael and Kieran suggest that my account of social membership gives too little weight to the role of consent. If people agree to accept a lesser bundle of legal rights and/or to leave at the end of a specified period of time and if the agreement is truly voluntary, why isn’t that sufficient to trump the claims of social membership? Kieran also emphasizes the fact that giving immigrants fewer rights might serve the interests of the majority of current citizens, and that citizens generally feel entitled to put their interests ahead of the interests of foreigners.

I agree that consent matters morally and that one can sometimes decide voluntarily to give up the rights that come with social membership. After all, that is what immigrants do when they leave their country of origin, at least if they are acting freely. But consent is not a trump. It is not the only relevant moral consideration. And while states are sometimes entitled to favour citizens over foreigners, often they are not.

If we look at actual practices in democratic states, we can see this complex pattern. Sometimes we let consent play a decisive role and sometimes we don’t. Similarly, sometimes we put the interests of citizens ahead of the interests of (resident) foreigners and sometimes we don’t. Over the past several decades democratic states greatly reduced the differences that they drew between the rights of citizens and the rights of legally resident immigrants, not because (most) immigrants were unwilling to come under more restrictive terms but because the restrictions came to seem unfair. As I observed above, the European experience with guestworkers shows that democratic states found it difficult to send people back after they were settled for a while, even though the guestworkers had accepted that possibility at the time of admission and the states (and the majority of the citizenry) came to think that it would be in their interest to send at least some of the immigrants home. I think that my discussion of social membership (and other supporting considerations) makes sense of these developments. Of course, one could argue that we ought to give more weight to consent or to the interests of current citizens, but that would be a radical departure from the status quo and I don’t think either Michael or Kieran is actually arguing for that sort of position.

Let me qualify all this a bit. Michael’s story about Molly, the graduate student from Canada who has spent 10 years in the US, usefully separates out the question of time spent in the country from a range of other considerations that may make us sympathetic to the idea of letting people stay. But I don’t know how much work is being done in this example by the fact that Molly is a student. Would Michael’s view of whether or not it was acceptable to send Molly home be affected if she had been (legally) working in the US for this period instead?

I had once planned to write a separate section on foreign students in my book to explore the question of whether the fact that a foreigner is (legally) present as a student rather than as a worker or a family member makes any difference to her moral claims. One of the things that made many Europeans reluctant to expel the guestworkers was the recognition of how much they had contributed to building the economy. One could argue that students are recipients of societal benefits rather than contributors. On the other hand, there are alternative perspectives that emphasize how much foreign students contribute by their presence. Foreign students are often quite restricted in the kinds of work they can do. I’m not inclined to see that as morally problematic (if one accepts the conventional view about state control over immigration), but I might be wrong. In any event, I think there are many issues to explore about the moral claims of foreign students, and how they resemble or differ from the moral claims of other foreign residents. This is an underexplored topic and I hope that someone else will pursue it further.

All four of these interlocutors say something about irregular migrants and social membership. David defends a position similar to the one I take in the book (i.e., that irregular migrants become members over time and so are morally entitled to have their status regularized) while the others challenge it. It will come as no surprise to learn that I agree with David. I will acknowledge, however, that this is a very difficult issue.

Kieran thinks that this issue shows that it is a mistake to work within the conventional view of the state’s right to control immigration, because within the confines of that view one cannot make an effective case for letting irregular migrants stay or for protecting their rights. I disagree.

Take the firewall issue first. I say that states are morally obliged, even under the conventional view, to protect the human rights of irregular migrants. I then argue that to protect the human rights of irregular migrants effectively, and not just in name only, states are obliged to create a firewall between immigration enforcement and the protection of those rights so that information acquired in the course of protecting the human rights of migrants could not be used to identify them to immigration authorities or to deport them. The elements that Kieran would add to my account of the conventional view (the value of national self-determination, the priority due to the interests of citizens over foreigners, and the belief that irregular migration threatens important interests) do not alter the fundamental responsibility of the state to protect basic human rights, even of irregular migrants, on any ordinary understanding of democratic morality. Of course, some people do not accept this view of democratic morality but that takes us back to the issues discussed in my previous post.

Kieran’s discussion includes a hypothetical example of an irregular migrant named Anna who needs treatment for cancer but is afraid to seek it lest she run afoul of the immigration authorities. The use of cancer as an example creates complications that I don’t have space to explore here. To avoid those complications, imagine instead that Anna is hit by a car. Under those circumstances, the state is morally obliged to provide her with emergency medical care, and this obligation is reflected in the laws of almost every democratic state. Even in the United States, hospitals are legally obliged not to turn away a patient in need of this sort of urgent care, regardless of immigration status. But the state has that obligation precisely because the person is within its jurisdiction. This does not translate into an obligation to provide emergency medical care to people involved in accidents elsewhere (nor would it in an ideal world). I think that Kieran’s discussion ignores the moral relevance of physical presence within a territory. Every state has a moral responsibility to people present on its territory that does not extend to people elsewhere (and this would be true even in a world of open borders).

The problem is that Anna probably won’t seek care if she knows that the hospital will report her to immigration officials. So, I say, if we are serious about protecting her human right to emergency medical care, we need a rule that prohibits the hospital from reporting her. Contrary to Kieran’s claim, I explicitly acknowledge that this interferes with immigration enforcement, but I argue that the protection of basic rights often interferes with the pursuit of other important and legitimate state interests. There is a tradeoff, but the fact that a basic human right is at stake tells us that we should give priority to it rather than to immigration enforcement.

What about my argument that the passage of time erodes the right of the state to deport irregular migrants? I accept Ryan’s point that it is important to distinguish between the claim that a policy is morally permissible and the claim that it is a policy we should pursue. Ryan and I are in agreement on what policies we want the state to pursue: grant legal status to long-term irregular migrants. Ryan simply wants to argue that it is not unjust to pursue a more stringent policy, deporting irregular migrants even after many years of residence. I also agree with Ryan that some key examples in my book (Marguerite Grimmond and Miguel Sanchez) involve other considerations that strengthen their claims to remain (though I did explore briefly an imaginary Marguerite Grimmond who arrived as an adult). In any event, Michael’s example of Morgan (an artist from Canada who came to the US as an adult because he liked the art scene in Portland and who has been living there for ten years) clarifies some aspects of the debate by isolating length of irregular residence from other considerations.

I agree that the fact that irregular migrants are violating immigration law must be weighed against the claims of social membership. That makes their cases different from ones in which the state has authorized people to enter and settle. But I think that the claims of social membership still have moral force under these sorts of circumstances and that time erodes the moral significance of the fact that someone has settled without authorization. In my view it would be unjust to deport Morgan, even though he chose to come and even though it would not be a terrible fate to have to return to Canada. Overall, I don’t really have anything to add to David’s comments on this issue. I recognize that reasonable people may give different weight to these competing considerations.

As my last point in this section, I want to draw attention to David’s discussion of the distinction between the necessary conditions for a general rule regulating the distribution of legal rights and the necessary conditions for an individual entitlement to some set of legal rights. I did not myself articulate this distinction in my book, but it was implicit in some of my arguments and I am very happy that David has expressed it so clearly. I think that it captures an important general point about how we ought to engage in political philosophy. In trying to identify the principles that should govern our public life, we should pay attention to the normal course of events. There are few moral absolutes. Almost every principle admits of exceptions. Often these arise when some case departs from what is normally expected. And often the appropriate way to deal with such cases is to recognize them as exceptions rather than to see such cases as calling into question the merits of the general principle. Of course, it is preferable, other things being equal, to find principles that admit of fewer rather more exceptions, but we should be cautious about pressing our search for generality too far. Political philosophers sometimes write as though that it is sufficient to find one contrary example, however unrealistic or unusual, to refute a claim about a general principle. But there is an old saying in the common law: “Hard cases make bad law.” The point is that it is a mistake to focus on extremely unusual or ambiguous cases as distinct from typical ones in developing legal principles (since the common law builds its principles from particular cases). I think that the same caution should apply to the articulation of principles in political philosophy, and David’s comment helps us to see why.

I turn now to Brian Weatherson and Patti Lenard. Brian is generally sympathetic to my position, but he raises two challenges to which I want to respond. The first involves a clarification more than a disagreement. Brian suggests that it is a mistake to link the argument for open borders to concerns about inequalities between states given that the inequalities within states are as large as the inequalities between them. But the reason why I emphasize inequalities between states is that they often motivate people to migrate. People frequently seek to move from poor states to rich ones because they think (rightly, for the most part) that the economic opportunities in the rich states will be better. By contrast, inequalities of income and wealth between individuals within a state do not by themselves provide any reason for people to move from one place within the state to another. (Regional inequalities can generate motivations to move but these are not the sorts of inequalities that Brian was discussing.) Inequalities of income and wealth within states do raise important questions of justice, but my book is focused on the ethics of immigration, and so I simply bracket questions about distributive justice within a state for the most part. I also acknowledge that enabling people to move may not be the best way of reducing inequalities between states, but I contend that preventing people from moving helps to sustain those inequalities and rests implicitly on the assumption that those inequalities are not wrong. The open borders argument is intended to challenge that view.

The second challenge concerns my claim that we should regard international freedom of movement as a human right. In my book, I point out that freedom of movement within a state is widely recognized as a human right. I then suggest that every reason for seeing free movement within a state as a human right is also a reason for seeing free movement between states as a human right, and so I argue that we should recognize free movement between states as a human right. Both Brian and Patti criticize this argument, though in slightly different ways.

Brian focuses on what he believes most people think about the right to move freely within a country. He suggests that most people regard freedom of movement within a state as a right that belongs to members and that need not be extended to non-members who happen to be present. To support this claim, he asks us to consider a couple of hypothetical cases in which a democratic state decides to restrict the internal movement of non-members more than the movement of members, and he suggests that most of his readers would not find these restrictions very troubling.

From my perspective, this way of arguing places too much weight on the presumed intuitive responses of readers to a hypothetical and too little weight on the actual practices of democratic states. All democratic states have signed international human rights documents and these documents do not limit the right to free movement to members. For example, Article 13 of the Universal Declaration of Human Rights says, “Everyone has the right to freedom of movement and residence within each state.” This right is not limited to citizens or even to citizens and residents. The next sentence, however, says the following: “Everyone has the right to leave any country, including his own, and to return to his country.” Notice how the use of the possessive adjective changes the nature of the right. Everyone has the right to leave any country, but the right to return is limited to one’s own country.

In my book, I suggest that we can take note of this difference by distinguishing between general human rights (like the right to a fair trial) which the state is obliged to establish as an identical legal right for everyone in its jurisdiction and membership-specific human rights (like the right to return to one’s own country or the right to participate in an election) which the state is obliged to establish as a legal right only for citizens or, sometimes, for citizens and residents. This is my terminology, by the way. So far as I know, the distinction between a general human right and a membership-specific human right is not commonly used in discussions of human rights, but I think it draws attention to an important feature that distinguishes some human rights from others, a feature that is obscured if one only speaks of human rights as universal.

In the open borders argument, I am asserting that what is now a membership-specific human right under international law (the right to enter one’s own country) should instead be accepted as a general human right. But internal freedom of movement is not a membership-specific human right under international law. It is a general human right, one enjoyed by everyone present on the territory of a state, whether most people understand that or not. You could argue that freedom of internal movement should only be a membership-specific right, but then you have to offer an argument as to why that is morally preferable. Appealing to intuitive reactions (which might change if people knew what the relevant human rights documents actually say) is not sufficient.

I would add that it is not an accident that Brian has to conjure up hypothetical examples to support his case. It would be very difficult to find any real examples of a democratic state distinguishing between citizens (or residents) and others with respect to internal free movement, in part because of the constraints of international law and human rights documents. And, as I noted above in discussing David’s contribution, this sort of general pattern matters. Even if one could find an isolated example of the sort that Brian imagines, that would not provide a sufficient basis for rejecting my claim internal freedom of movement is widely regarded as a (general) human right. There are exceptions to almost every rule.

Patti’s approach is somewhat different. She focuses on the ways in which restrictions on internal freedom of movement through zoning or other public policies can be challenged or defended from the perspective of democratic equality, the understanding of which will vary to some extent from one political community to another. Freedom of movement should be regarded as a membership-specific human right, she says, because “members especially are entitled to justifications that affect their movement.”

I don’t disagree with Patti that members have a stronger claim to justification than do those present on a temporary basis, and I find her discussion of the relationship between democratic equality and restrictions on movement helpful. Nevertheless, I don’t think that her analysis really challenges the claim that I was putting forward because she is using the term “membership-specific human right” differently from the way I used it. That is her prerogative, of course, but the consequence is that we wind up talking past one another. Her claim that freedom of movement is a membership-specific human right (in her sense of that term) does not challenge my claim that there is no justification for keeping freedom of movement as a membership-specific human right (in my sense of that term) rather than transforming it into a general human right. Indeed, in Patti’s usage, (almost) every human right should be regarded as a membership-specific human right since (almost) every human right is subject to restrictions and interpretations of one kind or another and it is (almost) always members (citizens?) who have a special claim to a justification of these restrictions and interpretations. By contrast, in my sense of the term, membership-specific human rights are relatively unusual (though sometimes perhaps justifiable). Ultimately, Patti’s argument here is perfectly compatible with my own.