Migration and borders

> And when they [the wise men] were departed, behold, the angel of the Lord appeared to Joseph in a dream, saying, Arise and take the young child and his mother, and flee into Egypt, and be thou there until I bring thee word: for Herod will seek the young child to destroy him. When he arose, he took the young child and his mother by night, and departed into Egypt: And was there until the death of Herod: that it might be fulfilled which was spoken of by the Lord by the prophet, saying, Out of Egypt have I called my son. (Matthew 13-14).

Joseph, Mary and Jesus were able to get asylum in Egypt, having, as they did, a well-founded fear of persecution, and when it was safe for them to return, they did. Today, by contrast, wealthy states (like the Egypt of the time) do all they can to prevent those fleeing political or religious persecution from getting across the border. The barriers are such that many people take desperate risks to escape the regimes they are threatened by in Syria or Eritrea, and end up drowning in the Mediterranean. Those that do make it are often disbelieved, stigmatized as “bogus” asylum-seekers, and even prosecuted for using false documents to enter.

Many of the citizens of those wealthy states will take part in Christian religious services over the next few days, perhaps the only time they do that year. Many will be people who vote for parties committed to “clamping down” on migrants and erecting further barriers to the persecuted. Let’s hope that at least some of them notice that the Christmas story is also a story of refugees.

Yesterday was Human Rights Day, and I spent the evening at an excellent gathering organized by Bristol Refugee Rights about the UK’s record on indefinite detention of migrants. Around 30,000 people every year, mostly men, are detained by the British state by bureaucratic processes without judicial oversight. Some of them include extremely vulnerable people who have been torture victims in the countries they have fled from. When they are detained, often after a routine visit to a police station, they then face a future with no certainty at all. Some people have been detained for up to eight years: as a criminal you’d have to have done something pretty serious actually to serve that long. And these are prison-like conditions, administered mainly by private companies with poor records (to put it mildly) of looking after the interests of those in their charge.

It wasn’t the only news on Human Rights Day. We also heard what we’ve long known, that the United States routinely tortured on an industrial scale after 9/11. And then we have the seemingly endless series of post-Ferguson stories of police ill-treatment of black Americans and the failures of the judicial branch of that state to hold such official perpetrators to account.

Meanwhile, here’s a commonplace statement within political theory about what “legitimacy means”. It is from Andrew Altman and Christopher Heath Wellman’s book *A Liberal Theory of International Justice*.

> “a state has earned legitimacy if it is willing and able (a) to protect its members against ‘substantial and recurrent threats’ to a decent human life – threats such as the arbitrary deprivation of life or liberty, and the infliction of torture – and (b) to refrain from imposing such threats on outsiders”. (p.4).

In other work, on immigration, Wellman has argued for the right of states to exclude would-be migrants, just so long as those states are legitimate. The trouble is, that lots of modern states, the ones tacitly referred to by liberal theorists when they distinguish between legitimate states, outlaw states and so forth, don’t actually meet the criteria for legitimacy that the same theorists endorse. Here, I’m not intending a dig at Wellman, but rather a statement of what participants in these conversations presuppose when they enunciate principles, give policy examples, and so forth. But when we leave the seminar room, there’s not an awful lot of legitimacy in the world.

What should be our attitude? I’m not completely sure, but here’s a stab at an answer. As campaigners, I think that lowering our standards for legitimacy would be a mistake as these express important principles which politicians play lip service to on high days an holidays. Just the other day, in a much-promoted speech on immigration, the British PM David Cameron went on about Britain’s proud record of providing sanctuary for those fleeing persecution. Did he believe what he was saying? Is his capacity to hold contradictory beliefs that developed? Or is he just a hypocrite? We should hold them to the ideals they profess. But for other purposes, such as political theory, maybe threshold standards of legitimacy have to go and we should take a more piecemeal attitude, granting authority to states, including non-democratic ones, in some of their functions (directing traffic, macroeconomic management, maintaining public health) but refusing it to them as a whole? Piecemeal philosophical anarchism.

Yesterday I was listening to BBC Radio 4, and they were remembering the people who died, shot by East German border guards. It doesn’t seem to occur to our official voices of commemoration that there are parallels today with the thousands who die trying to escape tyranny, war or poverty and who drown in the Mediterranean, perish from thirst in the Arizona desert, or with those who the Australian government turns back at sea or interns offshore. Nor do such barriers as the “separation wall” in Palestine seem to evoke such horror in those voices as the Berlin Wall did then. These newer barriers are treated as necessary and normal and those deaths as self-inflicted by people naive enough to believe that a better life awaits in prosperous liberal democracies. Not that free movement is the only thing where official attitudes have changed. It isn’t long since the comprehensive surveillance of citizens depicted in Anna Funder’s *Stasiland* and in the film *Das Leben der Anderen* was emblematic of how communist states would trample on the inalienable rights of people in pursuit of state security. Today we know that our states do the same. I’m not making the argument that Western liberal democracies are “as bad” as those states were, lest any commenter come along and moan about “moral equivalence”. But I note that these kinds of violations were not seen back then as being impermissible because those states were so bad in other ways — undemocratic, dirigiste — but rather were portrayed to exemplify exactly why those regimes were unacceptable.

Here’s my photoblog from five years ago:

Two photos today. My partner, Pauline Powell and I visited East Germany and West Berlin in 1984. The first picture is a shot of the Berlin Wall from the western side, and seems appropriate as tomorrow is the 20th anniversary of its fall. The second shot, taken inside the Nikolaikirche in Leipzig, announces one of the prayers for peace meetings that helped to build the popular movement that would eventually contribute to the fall of the regime. Both pictures are Pauline’s, not mine (all rights reserved etc). We believe the swords into ploughshares picture is unique on the web, though perhaps others exist as prints. As such, it is something of a historic document.

Tim Harford has [a column in the Financial Times claiming that citizenship matters more than class for inequality](http://www.ft.com/cms/s/0/d9cddd8e-6546-11e4-91b1-00144feabdc0.html). In many ways it isn’t a bad piece. I give him points for criticizing Piketty’s default assumption that the nation-state is the right unit for analysis. The trouble with the piece though is the immediate inference from two sets of inequality stats to a narrative about what matters most, as if the two things Harford is talking about are wholly independent variables. This is a vice to which economists are rather prone.

Following Branko Milanovic, Harford writes:

> Imagine lining up everyone in the world from the poorest to the richest, each standing beside a pile of money that represents his or her annual income. The world is a very unequal place: those in the top 1 per cent have vastly more than those in the bottom 1 per cent – you need about $35,000 after taxes to make that cut-off and be one of the 70 million richest people in the world. If that seems low, it’s $140,000 after taxes for a family of four – and it is also about 100 times more than the world’s poorest people have. What determines who is at the richer end of that curve is, mostly, living in a rich country.

Well indeed, impressive stuff. And as Joseph Carens noticed long ago, and Harford would presumably endorse, nationality can function rather like feudal privilege of history. People are indeed sorted into categories, as they were in a feudal or class society, that confine them to particular life paths, limit their access to resources and so forth. But there’s a rather obvious point to make which rather cuts across the “X matters more than Y” narrative, which is that citizenship isn’t a barrier for the rich, or for those with valuable skills. It is the poor who are excluded, who are denied the right to better themselves in the wealthy economies, who drown in the Mediterranean, or who can’t live in the same country as the love of their life. Citizenship, nationality, borders are ways of controlling the mobility of the poor whilst the rich pass effortlessly through. It isn’t simply an alternative or competitor to class, it is also a way in which states enforce class-based inequality.

I can remember back when I was just a wee sleekit lass that read the Economist… OK maybe I was also a bit daft, but I got better when I realized it was, in the words of a recent Gawker article, a news aggregator magazine for people who want to pretend their seat in Economy Plus is a chair by the roaring fire in a manor house. Anyway, they always used to talk about Scottish Devolution and I thought it couldn’t possibly ever amount to anything very serious. But now it seems as if maybe really power will devolve to its utmost, since there’s going to be a vote on independence and everything, and the polls are tight. Scottish readers, are ye voting aye or nay? Subjects of HRH* generally, are Scottish subjects going to keep on keeping on being subjects of HRH, or what? Might she have to give back that big castle she’s apparently so fond of? Who gets the, um, nukes? Enlighten me with an open thread about how Scots maun live in the future.

*Commenters In The Sky and ZM have pointed out that the Queen is HM and only lesser royals mere Highnesses.

Now that Francis Spufford has shown up to do the work of knowing things about the subject, which is what open threads are for (i.e. making the readers do the work) I am hoisting his discussion with SF author Ken McLeod against Scottish Independence up here so that you may watch it more easily. John and I only watched the very very beginning, in which it was explained that Francies Spufford has a very posh accent (which he has come by in an honest, middle-class fashion) and that Lanark is important in some way, which has led us to extrapolate that perhaps giant crabs will come up through cracks in the ground if the two nations are divided, an outcome we naturally deplore. When it is not 10:22 at night and roughly two hours after I took the meds that are supposed to be, welp, going to bed for sure now, so it won’t hurt to take these topamax is very…what now? I will listen more fully and contribute intelligently to the debate. Possibly. Though I have my second Japanese lesson tomorrow! I had to learn katakana and hiragana in a week, that was sort of my own fault though. My brain is oozing knowledge at night in a way peculiar to language-acquisition. Like when I was cold at night and thought I had to curl up in the pages of the big Liddell to stay warm (insufficient heating in SF + Greek MA exams.) Thanks Francis!

It is the end of Refugee Week, a week of campaigning for and celebrating the rights of refugees and asylum seekers. In Bristol there’s an event in Queen Square every year, with music, food, stalls for the campaigning groups and so on. These are the Tan Teddy Singers, a Jamaican women’s singing group. Very fine they were too.

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.
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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.
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The first part of our symposium on Joseph Carens’s The Ethics of Immigration is now concluded. While we wait for Joe to compose his reply, here’s an index of the contributions:

• Chris Bertram Some worries about Carens’s democratic consensus
• Ryan Pevnick The theory of social membership
• Brian Weatherson Movement within and between states
• Kenan Malik Communities, social anxiety and open borders
• Kieran Oberman Right arguments, wrong order
• Michael Blake Social membership and territorial rights
• Patti Lenard Democratic equality and internal movement
• David Owen On social membership
• Speranta Dumitru Is Carens still advocating open borders
• Sarah Fine The argument from democratic principles
• Phillip Cole On method
• Jo Shaw So what does The Ethics of Immigration tell us about the European Union?

Update: Joe Carens’s replies in two parts: Part One and Part Two.

So why did the organisers of this symposium also offer the opportunity to a European Union lawyer – not a theorist mind, but a vanilla lawyer – to make a comment on Joseph Carens’ magisterial book on The Ethics of Immigration? It should have been obvious that I could add nothing to the excellent contributions by other normative theorists who are commenting directly on these aspects of Carens’ work. So it must have been for some other reason.

It was presumably in order to provoke a reflection upon the peculiarities of the EU’s own combined system of internal soft borders (‘free movement’) and external hard borders (‘Fortress Europe’, some might say) in the light of Carens’ arguments about the ethical demands of states in relation to borders and migrants. To that extent, my reflections are less about the book than about the issues which the book is helping me to think through – and for that I am very grateful to Joseph Carens for his wonderful text and also to the organisers for indulging my preferences.
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The appearance of Joseph Caren’s book, The Ethics of Immigration, has been a long-awaited event and it does not disappoint. The breadth and depth of its vision is extraordinary and it will shape the debate for many years to come as an indispensable text. It also gives those of us who teach the ethics of migration on our courses the chance to introduce our students to that vision in its entirety, instead of guiding them to glimpses of it in journal articles and book chapters.

However, my task here is not to praise Joseph and his book, but to raise challenges to which he can respond so that we can continue the dialogue he began in the 1980s. Therefore I have to do something that is very difficult and strange to me, and to write contra JosephCarens.
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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.
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Political theorists are much indebted to Joseph Carens for his 1987 article “Aliens and Citizens: the Case for Open Borders”. Written in a period of increased restrictions on migration, Carens’s article was pioneering in two ways: it introduced the migration question to political theory’s agenda and set the terms of the debate from the free movement side. Carens’s recent book, The Ethics of Immigration, is less pioneering. It explicitly aims to engage with the “conventional view of immigration” and to show that it can accommodate some measures which improve citizenship and admission policies. The open borders argument is not abandoned but is left to only one of the twelve chapters. Carens’s main concern, however, is to show that the open borders argument does not conflict with the measures he proposes.

It is possible to have the opposite concern: are the proposed measures a way to advance towards a  world of open borders? In other words, is Carens still advocating open borders? My analysis here will be limited to the first measure he proposes in the book, this is that “justice requires that democratic states grant citizenship at birth to the descendants of settled immigrants” (p. 20). Whether justice requires this or not, many “democratic states” already conform to this principle and my argument is not that they should stop. Rather, my worry is that such an argument is not a way to advance towards an open borders world.
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Joe Carens’s The Ethics of Immigration is just the book that the growing field of the political theory of migration needed. Rich in argumentation, wide in its coverage, fluently and reflectively written, it will act as a locus of, and focus for, discussion and debate.

It is also a book with a distinctive methodological structure. In the first part, Carens presupposes ‘(1) the contemporary international order which divides the world into independent states with vast differences of freedom, security, and economic opportunity among them and (2) the conventional moral view on immigration, i.e., that despite these vast differences between states, each state is morally entitled to exercise considerable discretionary control over the admission of immigrants’ (p.10) and seeks to reconstruct how liberal democratic states should, in acting on their own deepest commitments, treat immigrants. In the second part, Carens focuses on admission and in the final two chapters drops this presumption of state control and re-articulates his well-known argument for open borders. In this commentary, I will focus on the first part of the book.

The arguments of the first part build to Carens’s theory of social membership (chapter 8) on which I’ll focus but we should preface this discussion by noting how they build to this theory. Carens is committed to a contextualist form of political theory that works from the ground up. The discussions of birthright citizenship, permanent residents, temporary worker, irregular migrants can be seen as the cases from which Carens is attempting to reconstruct a norm of social membership that will make coherent sense of our democratic practices of social and political membership. The norm that Carens reconstructs is ‘that living within the territorial boundaries of a state makes one a member of society, that this social membership gives rise to moral claims in relation to political community, and that these claims deepen over time.’ (p.158)
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