Liberalism and borders: finding moral consensus in the open borders debate

In recent decades liberal political philosophy has debated a significant question: If the basic commitment of liberal political theory is the equal moral standing of all individuals, how do we justify the presence of borders and their control such that individuals receive different consideration and treatment based solely upon their status as members of a particular political community? One position claims that hard borders are unjustifiable; borders must be open as a matter of right and respect for all individuals. At the other end of the spectrum is the position that hard borders are justifiable; borders can be closed as a matter of the right of particular communities to the goods that community creates and the preservation of that community's unique identity. A third category of arguments considers the problem from the perspective of the nonideal circumstances in the world; opening borders is an appropriate and necessary response to resolving problems of hunger, poverty and violence in the world. I examine several arguments in each of these categories, finding that the arguments offered are problematic in ways which make them less than fully persuasive, even though they explore in valuable ways different aspects of the debate. A second problem is that this moral debate has failed to influence in any meaningful way the ongoing public policy debate related to immigration. To overcome this second problem I utilize a model proposed by Jonathan Wolf and Avner de-Shalit in which philosophically fragmented concepts, which cannot influence policy in their fragmented state, are brought to bear upon policy through the identification of the moral consensus present in the debate. This moral consensus, which represents the central moral concern of the debate, can be effectively applied to the appropriate policy debate. The proposed consensus is based upon the central moral concern of the open borders debate, the effect of immigration control policies upon the well-being of individuals, and argues that states may control their borders constrained by the obligation to give consideration to the effects of control policies and to ameliorate the negative effects of such policies.

LIBERALISM AND BORDERS: FINDING MORAL CONSENSUS IN THE OPEN BORDERS DEBATE by Russell Wayne Askren A dissertation submitted to the faculty of The University of Utah in partial fulfillment of the requirements for the degree of Doctor of Philosophy Department of Philosophy The University of Utah August 2012 Copyright © Russell Wayne Askren 2012 All Rights ReservedThe University of Utah Graduate School STATEMENT OF DISSERTATION APPROVAL The dissertation of Russell Wayne Askren has been approved by the following supervisory committee members: Bruce Landesman , Chair June 19, 2012 Date Approved Margaret Battin , Member June 19, 2012 Date Approved Deen Chatterjee , Member June 19, 2012 Date Approved Mark Button , Member June 19, 2012 Date Approved Darrel Moellendorf , Member June 19, 2012 Date Approved and by Stephen Downes , Chair of the Department of Philosophy and by Charles A. Wight, Dean of The Graduate School. ABSTRACT In recent decades liberal political philosophy has debated a significant question: If the basic commitment of liberal political theory is the equal moral standing of all individuals, how do we justify the presence of borders and their control such that individuals receive different consideration and treatment based solely upon their status as members of a particular political community? One position claims that hard borders are unjustifiable; borders must be open as a matter of right and respect for all individuals. At the other end of the spectrum is the position that hard borders are justifiable; borders can be closed as a matter of the right of particular communities to the goods that community creates and the preservation of that community's unique identity. A third category of arguments considers the problem from the perspective of the nonideal circumstances in the world; opening borders is an appropriate and necessary response to resolving problems of hunger, poverty and violence in the world. I examine several arguments in each of these categories, finding that the arguments offered are problematic in ways which make them less than fully persuasive, even though they explore in valuable ways different aspects of the debate. A second problem is that this moral debate has failed to influence in any meaningful way the ongoing public policy debate related to immigration. To overcome this second problem I utilize a model proposed by Jonathan Wolf and Avner de-Shalit in which philosophically fragmented concepts, which cannot influence policy in their fragmented state, are brought to bear upon policy through the identification of the moral consensus present in the debate. This moral consensus, which represents the iv central moral concern of the debate, can be effectively applied to the appropriate policy debate. The proposed consensus is based upon the central moral concern of the open borders debate, the effect of immigration control policies upon the well-being of individuals, and argues that states may control their borders constrained by the obligation to give consideration to the effects of control policies and to ameliorate the negative effects of such policies. TABLE OF CONTENTS ABSTRACT………………………………………………………………………. iii ACKNOWLEDGEMENTS………………………………………………………. vii Chapters 1. INTRODUCTION……………………………………………………………. 1 Methodological Approach………………………………………………... 5 Chapter Summaries…………………………………………….…………. 5 2. LIBERALISM AND OPEN BORDERS……………………….…………….. 10 The Common Conclusion Argument……………………….…………….. 11 Nozick, Property and Borders…………………………….…………. 13 Rawls, Justice as Fairness and Borders……………….…….……….. 24 Utilitarianism and Open Borders……………………….……………. 33 Other Critiques of Carens…………………………...…….…………. 36 Open Borders and Single Principle Arguments…………….…………….. 39 Freedom of Movement and Open Borders…………….…………….. 39 Freedom of Association and Open Borders.………….………...……. 54 Resource Entitlement and Open Borders……………….……………. 58 Conclusion………………………………………………………………… 67 3. LIBERALISM AND CLOSED BORDERS.………………..….…………….. 69 The Membership Argument………………………………………………. 71 Membership and Walzer's Theory of Goods………………………… 71 Cole's Critique of Walzer……………………….…………………… 81 The Problem of Membership as a Dominant Good…….……….…… 93 National Identity and Culture Arguments………………………………… 99 Miller on National Identity and Culture………….………………….. 101 Cole on Liberal Nationalism……………………….………………… 113 Arguments from Single Principles……..…………………………………. 119 Freedom of Association and Closed Borders..…….………………… 119 Conclusion.……………………………………..………………………… 128 vi 4. NONIDEAL ARGUMENTS AND INTERNATIONAL REGIMES.…..…... 131 Nonideal Arguments……………………………………………………… 133 The Question of Aid or Immigration………………………………… 134 Wilcox and the Global Principle of Harm…………………………… 143 International Regimes..…………………………………………………… 152 The Global Agreement on the Movements of People..……………… 153 The New International Regime for the Orderly Movements of People...…………………………………… 166 Conclusion.……………………………………..………………………… 174 5. MORAL CONSENSUS IN THE OPEN BORDERS DEBATE.…………….. 177 Developing Moral Consensus.…….……………..….…………………… 179 Consensus in the Open Borders Debate.…………….…………………… 185 Identifying the Consensus…………...……………………………… 185 The State in the Consensus..…………...…………………………… 187 Rights and Constraints in the Consensus.…………...……………… 193 Individual and State Interests..…………...………………………… 198 Determining Negative Effects.…………...………………………… 204 Conclusion……………………………………..………………………… 208 6. CONCLUSION.……………………………………..…………………….… 211 SELECTED BIBLIOGRAPHY..………………………..…………………….… 217 ACKNOWLEDGEMENTS My philosophical interests are driven by the commitment that philosophy should change the way we live our lives. This pragmatic commitment has caused me no end of trouble. I owe deep thanks to Bruce Landesman for his unfailing support and guidance as I learned how to be both philosophical and practical at the same time. The success of this thesis and my completion of the program are in no small way due to his support. I hope it has not been this task that has sent him into retirement. I wish him well. I owe similar support to Darrel Moellendorf, of San Diego State University, who has supported me since I decided to turn my life upside down by leaving the comfortable world of business and turn to academia. Darrel has been supportive of my work since the very beginning, including participating in this thesis, which is above and beyond the call of duty. Through this process he has become a good friend. To the other members of my committee, Peggy Battin, Deen Chatterjee and Mark Button I owe varying levels of thanks for their support to this thesis and to other aspects of my academic career and interests, both in the classroom and outside. They have each taught me much and provided interesting and useful guidance during the program. I would also like to think Douglas G. Adler, M.D., Associate Professor of Gastroenterology and Hepatology, Department of Medicine, School of Medicine at the University of Utah. Dr. Adler has not only helped me to stay healthy during my studies, viii but amazingly always remembers to ask about the progress of the dissertation. Dr. Adler - It's done! I often joke that I am living life backwards, pursuing goals that are usually pursued by people half my age. So I must thank my family for their many sacrifices along the way. My wife, Lynn Conger, joined me partway through this journey. Marrying a manager in the software industry in idyllic San Diego, she has without hesitation supported me as I have pursued new endeavors that have taken us far from home. She has been supportive, encouraging and borne far more of the duties at home for our family than she should have needed to do. Our children, Simon, Rowan and Naomi, have also given up much time with their father, especially over the last ten months. They do not fully understand what I am doing, but they sacrifice anyway. There will be more time to play now. I promise. CHAPTER 1 INTRODUCTION Since the first human left the Olduvai Gorge, humans have been on the move. Whether pushed from a place by hunger, disease, war or natural disaster, or pulled to a place by better weather, better resources, or better opportunities, people have migrated from old places to new places, sometimes in hope of a better life and other times without any choice. For most of history, when people have moved they did so without regard for the invisible lines we call borders. Since the initiation of the Peace of Westphalia in the mid-seventeenth century, international law has recognized the state rights of political sovereignty and territorial integrity. Countries had the right to control their borders, but none did except in the case of war. State control of borders, especially as regards controlling the movement of people across them, is a recent phenomenon. Passports were created during the First World War and formal state policies are only a few decades older. Migrating peoples have often clashed with the established population, but the clash with state authority is a recent problem. Immigration policies developed to control borders and those who would move across them often lead to difficult decisions with ugly results. People die in ship holds and in deserts trying to reach the Promised Land. When they make it, they are often not allowed to stay. France deports thousands of Roma, Israel hundreds of Arabs and the United States thousands of Mexicans, splitting families, sending children to countries 2 they have never seen and denying to many any hope of prosperity. Policies that result in such a grave impact upon human lives are rightfully questioned and morally suspect. Liberal political philosophy, which as an approach to political philosophy is younger than the rights accorded to states in the Westphalian model, has engaged in a robust discussion over the last thirty years about the right of states to control borders if the foundation of our thought and political systems is that of liberal political philosophy. Although there is no single agreed to conception of liberal political philosophy, those views that fall within this school of thought may be, according to John Gray, broadly characterized as individualist, egalitarian, universalist and meliorist.1 It is the individual that is primary in our consideration of social systems and within these systems each individual is to be treated with equal moral standing. But this attitude of equality is not limited to those with whom we are already associated, but extends to all humanity, even to those outside our existing social systems. Finally, these social systems, because they are human social systems, are fallible and always open to improvement. Lomansky puts the problem this way: Liberals posit the existence of human rights that proclaim the essential moral status of persons qua persons. Correlative to these rights are duties of forbearance falling upon those who transact with rights-holders. These rights and associated duties are universal; they are possessed by everyone and owed everyone…the rule among liberal theorists is to take states in whatever form and variety they come down to us as the relevant objects for molding in accord with precepts of justice.2 From this conception of liberalism the question arises that if all people have fundamental equal moral value and should be considered equal by the political systems of the world, then on what grounds do we justify treating people differently because of their state 1 Gray, John. Liberalism, second ed. (Minneapolis: University of Minnesota Press, 1995), 6. 2 Loren Lomansky, "Toward a Liberal Theory of National Boundaries," in Boundaries and Justice, edited by David Miller and Sohail H. Hashmi (Princeton: Princeton University Press, 2001), 55-56. 3 affiliation. Specifically for the problem of borders, on what grounds do states prevent, by means which may include the use of physical force, people from entering and taking up residence in a country? Is it morally permissible for the state to take up arms, build fences, and engage in other actions that prevent some person, or group of persons from entering the country? The answer to these types of questions generally falls into two schools of thought. Associated with the membership arguments of Michael Walzer, those who argue for closed borders claim that communities of people that share political arrangements have the right to shape those communities according to their own desires. This includes deciding who does and who does not benefit from the arrangements the people of that community choose to have. Although this view is often thought to be in support of the standard Westphalian approach to the problem of borders, it is more sophisticated and subtle than the Westphalian model. The second school of thought, which has become the predominant school in liberal political philosophy, is associated with the work of Joseph Carens. Carens has developed, over the years, a set of arguments in support of the claim that states do not, except under very limited and unusual sets of circumstances, have the right to close borders and prevent people from moving from one place to another. Both the open and the closed borders proponents also argue from single principles of significance to liberals, such as the freedom of movement or the freedom of association and claim that when properly understood, a commitment to this principle leads to the conclusion that borders should be open or closed. These first two classes of arguments aim at theoretical consistency. In addition to these two divergent views, there is a set of arguments focused upon nonideal 4 circumstances which reach more limited conclusions. These arguments find open migration, under particular conditions or for particular reasons, an important solution to these problems. Frederick Whelan has considered the argument that migration is more effective than aid, and more recently Shelley Wilcox has argued that migration is the best way to resolve particular dilemmas related to the vast discrepancy in well-being in the world and to deal with extreme circumstances. Taking a more limited economic focus, the arguments of Bimal Ghosh and Thomas Straubhaar propose international regimes that support the open movement of people as producing the best economic results. The standard approach to this "open borders debate" is to develop arguments which support the conclusion that countries whose core political commitments are those of liberal political philosophy either are, or are not, permitted to close their borders to those who live outside them. Unfortunately this approach has not, over the approximately thirty years that the debate has gone on, enabled the resolution of this theoretical controversy. During this same period the political world around us has struggled, and continues to struggle, with the very real effects of both legal and illegal migration. The goal of this thesis is to evaluate the standard arguments regarding borders and identify problems in the arguments that prevent them from being completely persuasive. I will then argue that one possible way around the stalemate is to identify the moral consensus within the debate. This moral consensus will help to focus the debate upon the most important and central concerns of the debate in a manner that will support the subsequent development of moral principles reflective of this consensus and applicable to contemporary immigration control policy. I will propose and explore a consensus for the open borders debate that claims the central concern of the debate is the 5 negative effects of border controls upon individual lives of both those inside and outside the state. Methodological Approach Standard philosophical practice is to engage in the construction of arguments and the analysis of concepts used within those arguments in order to create deductively and inductively sound arguments. This will be my approach as well for the first three chapters to follow. I will analyze the arguments offered and claim that problems exist in them that either makes them invalid or unsound. However, following this analysis I will make a positive argument that there is a shared concern in these failed arguments, a kind of moral consensus that reflects the heart of the debate. The idea that a moral consensus can often be identified within contentious normative debates is part of the three-step process Jonathan Wolff and Avner de-Shalit use in their book Disadvantage. Wolff and de-Shalit's claim is that fields of political theorizing that are fractured by a large number of competing views often possess a theoretical consensus that is translatable into policy terms. This consensus can be used to influence policy. Identifying the consensus is the first step of their process and is the focus of this thesis. I will identify and develop a consensus for the open borders debate. Chapter Summaries The present chapter, Chapter 1, "Introduction," introduces the problem of borders for liberal political philosophy, provides a brief overview of methodology, and presents an overview by chapter of the content of this thesis. 6 Chapter 2, "Liberalism and Open Borders," considers the argument that the central commitments of liberalism lead to a claim that states do not, under almost all circumstances, have the right to close their borders to those who are outside them. The positive statement of these arguments is that generally, people should have the right to move across national borders unconstrained. I will consider two arguments of Joseph Carens. The first is his common conclusion argument in which he claims that several divergent liberal political philosophies all lead to the conclusion that borders should be open. I will offer my own critique of Carens' position which concludes that the liberal arguments considered by Carens do not support the claim of open borders and, in fact, can support the claim for border controls. I will also consider and reject Peter Mailaender's critique of Carens, which claims that Carens' argument is incomplete because of its reliance upon liberalism without providing a justification for that reliance. I will also consider Carens' second argument, based on the claim that liberalism leads to a robust commitment to the freedom of movement which is violated by the control of borders. I will reject this argument, including a variation from the libertarian perspective of Chandran Kukathas, by specifying a principle of freedom of movement and demonstrating that freedom of movement can be constrained in ways that are not objectionable to liberals. The final portion of this chapter considers two left-libertarian arguments of Hillel Steiner. The first is based upon the claim that freedom of association prevents states from controlling borders because it violates the right of individuals to associate with those outside the border. The second argument is based upon the idea of world-ownership. If each of us is part owner of the natural resources in the world, and 7 borders prevent us from accessing those resources we own, then borders violate individual rights and cannot be justified. I will reject both of these arguments. Chapter 3, "Liberalism and Closed Borders," considers the closed borders arguments of Michael Walzer, David Miller and Christopher Wellman. These arguments, communitarian in flavor, fall within political liberalism. Walzer reflects upon the nature of communities and the goods they produce, which includes determining who should share in those goods. In his famous membership argument, Walzer uses neighborhoods, clubs, and families to understand why states are justified in controlling borders. I will consider and reject Phillip Cole's critique of Walzer's membership argument, but propose my own critique of Walzer in which I argue that membership, as conceived by Walzer, violates his own theory of justice because membership is a dominant good. Miller's arguments focus upon the role that national identity plays in communities, the right of communities to self-determination and the claim that nations are ethical communities. This right to self-determination justifies the right of communities to control the changes that occur within those communities. I will consider and reject Cole's critique of Miller, which is based upon the conflict between ethical particularism and ethical universalism. Cole claims the two views are exclusive. I will argue that not only are they not exclusive, but that ethical universalism also can't solve the problems that Cole believes arise from ethical particularism. I will close by examining the recent work of Christopher Wellman, whose freedom of association argument is receiving significant attention. Wellman's argument is troubling for two reasons. The first is that he seems to conflate the ideas of self-determination and freedom of association, sometimes assuming that freedom of association is constitutive of self-determination. The second problem is that Wellman 8 fails to properly consider the problem of political disassociation for people at the state level. Chapter 4, "Nonideal and International Regime Arguments," considers two nonideal arguments in which the claim is made that immigration is a preferred means, and in some cases the only means, of resolving the horrendous circumstances and inequities in the world. I begin with Frederick Whelan's consideration of the claim that immigration is superior to the provision of foreign aid. Whelan will reject this argument. This is largely an empirical argument and I will consider some of the issues related to determining the benefit of aid as opposed to migration. In the second nonideal argument I will consider Shelley Wilcox's Global Principle of Harm. This principle argues that states that cause harm are responsible for ending their harmful practices and ameliorating the harmful conditions. Permitting immigration is one method of helping those who have been harmed. I will critique this argument, building on Thomas Pogge's rejection of migration as a solution to poverty, and point out the difficulties in the conditions that Wilcox specifies to identify when states have violated her Global Principle of Harm. Bimal Ghosh and Thomas Straubhaar, as part of the New International Regime for the Orderly Movements of People project, propose international regimes to which countries can voluntarily commit themselves. These regimes, with a strong economic flavor, are patterned after existing agreements related to trade in goods and services, to which countries would commit themselves to follow. I will critique Ghosh and Straubhaar as being inadequate due to their focus upon economic concerns and the neglect of moral concerns, leading to significant questions about who benefits and what the benefits would be under the proposed international regimes. 9 Chapter 5, "Moral Consensus in the Open Borders Debate," will explore the methodological approach of developing moral consensus for fragmented theoretical concepts as a means of enabling these concepts to influence public policy. This chapter will propose that the central concern of the open borders debate is the negative effects of immigration control policies upon individuals, both inside and outside the controlled borders. I will propose and explore a statement of moral consensus that reflects this concern. Chapter 6, "Conclusion," will summarize the thesis and point towards the next step in applying the moral consensus to national immigration control policies. CHAPTER 2 LIBERALISM AND OPEN BORDERS The claim that state borders should be open to the unconstrained movement of people is deeply rooted in various commitments of liberal political philosophy. There are two main variants of this argument. The first and oldest variant is rooted in claims that open borders are a moral ideal because many prominent and divergent political theories, when pushed to examine the problem of borders, result in a conclusion that borders should be open. When many different theories point to the same conclusion, that conclusion gains strength. I call this the common conclusion argument. The second variant, and perhaps the most common one expressed today, appeals to some principle of liberalism and then develops an argument for open borders based upon that principle. I call this category single principle arguments. This approach comes in several forms. The first form is rooted in egalitarian claims. Individuals are moral equals with rights to a freedom of movement that requires a robust expression in order for their standing as moral equals to be meaningful. People choose a kind of life to live and constraining movement in pursuit of that kind of life denies their moral equality. Life and opportunity require the possibility of movement. Hence, constraints upon that movement are unjustified and immoral. A variant of this form is rooted in the liberal commitment to liberty. People have rights to liberty that the state should not constrain. Principal among these rights is the freedom of movement. Constraining movement in most cases is, 11 therefore, unjustified and immoral. The distinction between these first two variants is that the second emphasizes freedom of movement as a right in itself whereas the first emphasizes moral equality with freedom of movement as instrumental in achieving other purposes. The third form is an appeal to the right of freedom of association. Rights to association are denied when borders prevent the voluntary association of free individuals. The fourth form of the argument for open borders has not gained much traction in the open borders debate. This approach relies upon a left-libertarian view regarding shared ownership of the world with a corresponding entitlement to resources. The denial of movement to resources to which one has ownership rights without compensation is a violation of an individual's rights. Therefore, there must be open borders or compensation. In this chapter I will discuss each of these arguments, laying out the specific structures of each argument as exemplified in its most well-known proponent. I will argue that each of these arguments is problematic and therefore do not justify the claim that borders should be open. In some cases I will claim that the argument can be used to justify the opposite claim, that borders should be closed, or at least controlled. I will begin with the common conclusion argument since it is the oldest of the arguments, turning afterward to the single principle arguments. The Common Conclusion Argument The liberal argument for open borders is widely regarded as having its initial, and most influential statement, in the 1987 article of Joseph Carens, "Aliens and Borders: The Case for Open Borders." In this article Carens argues that when we examine the issue of open borders from the perspective of three divergent political theories, we find that each 12 of the theories supports the claim that borders should be open. These three theories, the minimalist state and entitlement arguments of Robert Nozick, the "justice as fairness" arguments of John Rawls and standard utilitarian approaches to political theory, all reach the conclusion that borders should be open, albeit for different reasons. When such divergent theories all reach the same conclusion, we are justified in claiming that the conclusion has great warrant and the burden of proof shifts to those claiming otherwise. Carens writes, "The fact that all three theories converge upon the same basic result with regard to immigration despite their significant differences in other areas strengthens the case for open borders."1 It is possible to understand the structure of Carens' argument in standard inductive format. Each of the three theories forms a premise leading to the conclusion that border should be open. In propositional format the argument is this: 1. Theories divergent in their basic claims should lead to different conclusions on significant issues. 2. When divergent theories support the same claim, that claim is stronger than if only one theory supported that claim. 3. Nozick's theory of the minimalist state and entitlement theory supports the claim that borders should be open. 4. Rawls' theory of justice as fairness supports the claim that borders should be open. 5. Utilitarian political theory, in which the greatest good for the greatest number is pursued, supports the claims that borders should be open. 1 Joseph H. Carens, "Aliens and Citizens: The Case for Open Borders," The Review of Politics, 49 (1987): 252. 13 6. Each of these theories is divergent in its basic claims, expecting one to lead to different conclusions. (1, 2) 7. However, each of these theories leads to the same claim regarding open borders. (3, 4, 5) 8. Each of these theories is a form of liberal political theory. 9. Therefore, liberal political theory strongly supports the claim of open borders. (6, 7, 8) As an inductive argument Carens' claim is vulnerable in a number of ways. One may weaken the conclusion by showing cases of liberal political theory that don't support the claim of open borders. I shall take this approach in the next chapter when I discuss the closed borders claims of liberal thought with a communitarian emphasis. Another way to undermine this argument is to demonstrate that one or more of the premises, which are themselves arguments, is incorrect. The balance of this section shall take this tactic in regard to premises 3, 4 and 5, thereby, undermining the conclusion. The argument, as it stands and as it is widely used, will no longer be sound. An additional tactic for undermining this argument, which will not be explored here, is to claim that the political theories of Nozick, Rawls and utilitarianism, all forms of liberalism that assume the equal moral worth of individuals, are not sufficiently divergent in their basic claims to meet the claim of the first premise. If that is the case, it is not surprising that they all reach a shared conclusion regarding open borders. Nozick, Property and Borders Carens claims there is a popular property rights argument in support of closed borders. It is embodied in the colloquial claim, "[t]his is our country. We can let in or 14 keep out whomever we want."2 Carens interprets this statement to mean "the right to exclude aliens is based on property rights, perhaps collective and or national property rights."3 This general argument is as follows: 1. People have rights to private property, which includes the acquisition, use and disposition of property. 2. The territory within state boundaries is owned by the citizens of the state. 3. Government, as representative of the citizens of the state, has the right to control all of the property within the state. 4. Therefore, the closing of state borders by the state is permissible as an exercise of the property rights citizens hold regarding private property. (1, 2, 3) Carens claims that the argument of Robert Nozick in Anarchy, State and Utopia is representative of this class of property rights arguments. I will argue against this claim on two fronts. The first is that understanding Nozick as an example of this property rights argument is not the only way, or the best way, to understand Nozick. I will argue that there are other ways to interpret Nozick which permit the control and possible closing of borders. If my argument holds, then Carens must justify the claim that his approach to Nozick is the correct approach, which he does not do. The second approach will argue against Carens' interpretation of the initial colloquial claim. Nozick is well known for the libertarian arguments he makes in Anarchy, State and Utopia. Carens' interpretation of Nozick begins with the recognition that people have property rights, extending from the concept of self-ownership, in the state of nature. Self-ownership is the idea that each person has a moral right to their body and to the use 2 Ibid. 3 Ibid. 15 of that body. G.A. Cohen writes, "each person is the morally rightful owner of himself…if I am the moral owner of myself, and therefore of this right arm…no one is entitled, without my consent, to press it into their own or anybody's else's service, even when my failure to lend it voluntarily to others would be morally wrong."4 But it isn't just the self that is owned. The ownership of self enables one to become the owner of property through the use of one's labor. Cohen again: "persons can become, with equally strong moral right, sovereign owners of unequal shares of natural resources, as a result of proper exercises of their own…personal powers."5 These natural rights to the ownership of self and of property are held equally by each person. Various inconveniences of the state of nature lead to the establishment of the minimalist state, whose sole role is to protect people from the violation of their rights. This means that the state cannot enforce rights that are not held by individuals in the state of nature. The state as an institution holds no special significance; it is merely instrumental in achieving the end of protecting rights that people cannot protect for themselves. The minimalist state protects both citizen and noncitizen within its territory. Therefore, citizenship gives rise to no distinct claims - both citizen and noncitizen are treated alike. Based upon entitlement theory, individuals may enter into voluntary exchanges regarding their property with whomever they choose. The state has no basis for interfering with these exchanges, so long as they are voluntary, because the right to participate in these exchanges is held by the individual qua individual, not by the individual qua citizen.6 4 G.A. Cohen, "Self-Ownership, World-Ownership, and Equality," in Justice and Equality Here and Now, edited by Frank S. Lucash (Ithaca, NY: Cornell University Press, 1986), 109. 5 Ibid., 110. 6 Carens, "Aliens and Citizens," 253. 16 The implications of Carens' interpretation of Nozick for migration related issues are significant. The state has no grounds for preventing voluntary exchanges.7 If this exchange involves someone entering the state, for example, in the case of an American farmer who wishes to hire a Mexican laborer for harvest, the state cannot prevent this. To do so is to prevent the farmer from entering into a voluntary exchange. The disadvantage to American workers that results from this exchange is not a state concern and American workers should not be protected by the state from being disadvantaged by private, voluntary exchanges. Since all individuals are treated alike, foreigners may enter the country provided they are nonviolent and rights respecting. If the state prevents entry it violates the individual rights of both parties. The exclusion of a person from some piece of property can only be performed by the owner of that property; for another, be it individual or state, to exclude is to violate individual property rights. Carens' conclusion is that closed borders are, therefore, a violation of individual property rights on Nozick's account. Carens allows that Nozick provides a caveat to this scenario. Individuals may undertake collective action to restrict entry. But this right is limited to small communities, nothing on the scale of either the minimalist state or the modern nation state. These communities can restrict entry but only if they permit exit so that individuals may exercise their individual rights elsewhere if they so choose. This caveat of Nozick's is of little significance here as it applies only in the context of utopian societies, a circumstance in which the current debate does not take place. 7 Under the Nozickian approach it is unclear how movement unrelated to exchanges, such as passing through to perform an exchange elsewhere or just passing through without any intent other than to pass through. This problem is deferred until Carens' later work on movement is considered below. 17 Carens argues that this view of Nozick is problematic for the claim that states may close borders. Entitlement theory recognizes that individuals have the right to determine the disposition of justly held holdings. Each individual chooses whether, and to whom, a holding should be transferred. The state has no role to play unless this process is violated in some way. Suppose that I hold some object that I wish to sell. If the state interferes with this process by closing borders so that I cannot deal with particular individuals, in this case foreign individuals, the state has interfered with my right to dispose of my property as I see fit. The state has violated my rights. Similarly, if the state refuses to permit entry, it has violated the rights of the entering individual. Only by permitting a completely open border can the state fully honor my property rights as well as the property rights of those outside the border. Carens' claim is that Nozick contains a property rights argument for completely open borders. He concludes, "Prohibiting people from entering a territory because they did not happen to be born there or otherwise gain the credentials of citizenship is no part of any state's mandate. The state has no right to restrict immigration."8 This is a strong and definitive conclusion to draw from Nozick's arguments. But is it justified? Nozick's libertarian arguments in Anarchy, State and Utopia accomplish two purposes, of which Carens considers only one. Nozick offers both a theory of the state and a theory of goods. From the opening line of the "Preface" in which Nozick claims, "Individuals have rights, and there are things no person or group may do to them (without violating their rights),"9 to the statement of Entitlement Theory in Chapter 4, rights held by people in the state of nature, which include the right to hold property as an extension 8 Ibid., 254. 9 Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974), ix. 18 of self-ownership, hold a central position in Nozick's argument. Entitlement theory is built around three principles which are intended to demonstrate how individuals come to hold things justly and how these individual holdings, when just, also lead to a claim about the justice of holdings across society. History, that is the actual process by which individuals come to hold particular things, determines whether any particular holding is just. The sole role of the minimalist state regarding the distribution of material goods is the protection of property rights by enforcement of the rules of entitlement theory. However, this role is not to ensure that holdings are distributed in some particular way in accordance with some principle of distribution (what Nozick calls a patterned distribution), but rather to ensure that the process is correctly followed. When the process is violated then the state uses its power to restore the proper distribution, which is the state of holdings prior to the violation. For example, if I steal someone's crops, the state may require me to either return the crops or pay for the crops, because I came to hold them in violation of the process. Carens' claim of Nozick as an example of a property rights theorist might be justified if this was the central component of Nozick's argument. There are other ways to cast the central concerns of Nozick. Nozick is a natural rights theorist with a robust perspective on who possesses those rights and how they might be infringed upon. However, Nozick's central concern is the nature of the state: What kind of state can be justified before it violates the rights of individuals? Nozick's most basic question is, "If the state did not exist would it be necessary to invent it? Would it be needed and would it have to be invented?"10 His answers to these questions are that it is needed and it would be invented. But it would be only a limited state: "Our main conclusions about the state are that a minimal state, 10 Ibid., 3. 19 limited to the narrow functions of protection against force, theft, fraud, enforcement of contracts, and so on, is justified."11 Drawing on Locke's conception of the state of nature and the laws of nature, individuals are entitled to many things, including the rights to "life, health, liberty or possessions"12 The inconveniences of individuals protecting these things themselves will, on Nozick's account, lead first to mutual-protection associations and eventually to dominant protective agencies and finally to the state, which wields a complete monopoly on enforcement power over some geographic region. Thus, individual rights are protected. The central concern of a Nozickian state is protection of the complete set of natural rights, not just the distributive property rights of individuals. What can the state do to protect the complete set of rights? I will argue that the state may do a lot, at least as concerns borders. Nozick's justification for the state is complex and doesn't rely solely upon the inconvenience of individuals protecting their own rights. In the step from the ultraminimal state to the minimal state Nozick considers the problems that result from having members and nonmembers of the protective association residing within the geographic area for which the protective association is responsible. What happens when this group of nonmembers chooses to exercise its natural rights of enforcement upon members? If the means of enforcement are appropriate and reliable there is no problem. However, in the case in which those means are not reliable, or are not known to be reliable, a rights violation for the protective association's member might occur, one which the protective association is obligated to protect against. Nozick uses this problem to engage in a general discussion regarding border crossings. 11 Ibid., ix. 12 Nozick, 10; John Locke, Two Treatises of Government, in Two Treatises of Government and A Letter Concerning Toleration, edited by Ian Shapiro (New Haven: Yale University Press, 2003), 102. 20 A border crossing occurs when a person's natural rights are violated without prior permission. The sense of border used here is not that of a boundary between countries, but involves the moral space that surrounds individuals in which others are not permitted to act.13 An action that under some circumstances would be considered a border crossing is not a border crossing if prior permission is obtained. Some border crossings in which permission has not been obtained prior to the crossing can be set right by providing the victim with compensation such that the victim is no worse off than he otherwise would have been. Although this simple set of conditions is straightforward, meeting them is often not. Permission to violate may not always be obtainable because either the victim is unavailable or the victim is unknown or cannot be individually identified. Compensation poses problems because it may not be possible to adequately determine the amount of compensation required or the perpetrator of the border crossing may not have adequate resources to compensate the victim. In many cases it will not be possible to identify the perpetrator after the fact. Nozick's concern is whether protective association can prevent actions in such circumstances. The conclusion is that the protective association can prevent such actions, because of the risk and fear that the possibility of such border crossings creates.14 People living under the threat of border crossings, as a part of natural human psychology, experience fear because of what might happen. Even in a system which requires compensation for these kinds of border crossings, people still experience fear because of the risk that the perpetrator won't be identified or be able to compensate or the harm might be greater than expected. This 13 The natural rights held by a person create a kind of sphere, or boundary, in which the person is permitted to act and others are not permitted to act. "A line (or hyper-plane) circumscribes an area in moral space around an individual." Nozick, Anarchy, State and Utopia, 57. 14 Ibid., 69. 21 "argument from fear" focuses upon the fear of being harmed as well as the result of a system that permits such harm, individually and across the community. Nozick writes, "The argument from general fear justifies prohibiting those boundary-crossing acts that produce fear even when it is known that they will be compensated for."15 There are also circumstances in which actions might not create a border crossing but bear the risk of a border crossing. Such cases might apply to single actions or to cases in which any single action contains low risk, but the risk of a border crossing and the associated fear, grows as a result of repeated actions. In either case, Nozick concludes that the protective association can prohibit actions that possess these kinds of risk. The caveat is that the person who is prevented from acting must be compensated for the disadvantage that results from being prohibited from acting: "those who are disadvantaged by being forbidden to do actions that only might harm others must be compensated for these disadvantages foisted upon them in order to provide security for the others."16 With this understanding of the permissible actions of Nozick's state, it will be useful to consider some examples of border crossings of the kind involved in the open borders debate. Consider an example of this form. A wants to enter country Z in order to buy or sell X from, or to B, a member of country Z. This is a fairly nonproblematic case. Carens claims that the Nozickian state would be prevented from acting in this case because preventing A's entry would violate the rights of both A and B to enter into voluntary exchange, rights they hold as individuals, not as citizens. Any action the state takes to interfere with the voluntary exchange must be based upon a rights violation. So, 15 Ibid., 71. 16 Ibid., 83. 22 as long as A doesn't steal, trespass, defraud or commit any other action that violates a right of any member of country Z, A is permitted to enter the country. If some other member of Z, say C, is disadvantaged by A entering the country because A takes B's business away from C the state cannot take action so long as the exchange between A and B is voluntary. No one has the right to be protected from competitive disadvantage whether citizen or not.17 I want to argue, however, that there are other cases in which the state is justified in acting, and if it is justified in acting in these cases it is also justified in acting in the first case as part of its justifiable actions in these other cases. Consider any of the following cases:  A wants to enter country Z to kill B.  A wants to enter country Z to steal from B.  A wants to enter country Z to destabilize Z. Each of these cases warrants preventing the entry of A into Z on either mine or Carens' account of the Nozickian state because they violate the rights of individuals the state should protect. The problem in each case is determining the intentions of A prior to entering Z. This cannot be known without stopping A for questioning. Such a method is not foolproof, but the failure to do so, especially in certain conditions may increase the amount of risk and fear felt by members of the state. This risk and fear justifies the border controls, not only in these circumstances, but also in the circumstances of the case presented by Carens. For it cannot be known which of the cases is present without applying controls to each case. Hence, rather than an argument for open borders, it appears that an argument based upon Nozick's ideas18 supports an argument for the 17 Carens, "Aliens and Citizens," 253. 18 Nozick never directly addresses the problems of migration within his theory. 23 implementation of border controls thereby, closing borders to the kind of free movement Carens envisions. That the current international scheme provides no compensation for those disadvantaged by it doesn't undermine my argument that Nozick's state can control international migration; it only means that the current system doesn't comply with Nozick's conditions for such control. The problem with Carens' argument regarding Nozick is that it focuses upon one narrow section of Nozick's theory to demonstrate that Nozick supports open borders. I have argued that this approach does not work because it is the wrong interpretation of Nozick. The Nozickian state may exercise power to prevent harm and protect the individuals within the state. This power may include preventing border crossings that cause harm or create fear through the risk of causing harm. Preventing border crossings that cause harm may require controlling the borders of the state and may include a variety of common immigration policies such as performing background checks in advance of entering, limiting stays, limiting activities or requiring documentation such as passports or visas.19 Let me now turn briefly to the base argument for which Carens uses Nozick as representative. Recall that the argument is, "It's our country. We can let in or keep out whomever we want." Rather than understanding this argument as being about the exercise of property rights, it should be understood as an argument about sovereignty and control over a recognized geographic entity. This argument is most reasonably understood as nothing but an assertion of Westphalian rights. In Nozickian terms this appears to be equivalent to the claim of monopoly of force that turns the dominant 19 It is worth noting that this understanding might also serve to limit internal movement for similar reasons. 24 protection agency into a state.20 It is not a claim based upon what a group of people can do with their property, but rather a claim about what a political institution can do in exercising its rights within an established international order. Admittedly, in the context of a discussion about the justifiability of border controls and exclusion, it is question begging.21 It assumes that states have the right to control borders in arguing that states can control their borders to keep others out. But without any mention of property or individual property rights in the argument, Carens has overreached to interpret this popular argument in terms of Nozick. It is more plausibly an argument about control, rather than holdings. If my arguments in this section stand, then I have weakened the support for the conclusion regarding open borders in Carens' common conclusion argument. Let me turn now to the premise of the argument regarding Rawls. Rawls, Justice as Fairness and Borders The broad structure of Rawls' justice as fairness is well known. Individuals in the original position, behind the veil of ignorance, choose the principles of justice to be used to shape their society. Two principles would be chosen. The first principle is a system of equal liberties for all. The second principle establishes that offices and opportunities shall be open to all under conditions of fair equality of opportunity and that differences in economic distributions shall be permitted only if to the benefit of the least advantaged. Rawls' doubly hypothetical statement of the social contract has received widespread acceptance and holds wide appeal within liberal political philosophy. For Rawls, the 20 Ibid., 23-24. 21 As is noted by Phillip Cole, Philosophies of Exclusion: Liberal Political Theory and Immigration (Edinburgh: Edinburgh University Press, 2000), 154. 25 scope of social justice is bound by the borders of domestic society. Social justice is to be achieved within the state, not between states. This constraint has long been questioned22 and Carens will set it aside in order to utilize the Rawlsian approach to domestic justice on an international scale. Carens' application of justice as fairness to the problems of borders and immigration focuses upon four aspects of Rawls' theory. The first relates to the scope of justice, the already mentioned domestic vice global constraint. The second relates to the principles and rights which people would choose behind the veil. The third problem relates to freedom of movement, which Carens argues would be chosen behind the veil. The fourth concerns Rawls' public order constraint, which might be used to constrain freedom of movement.23 I will examine each of these in turn. The scope of justice in Rawls' thought has long been debated. Rawls limited the scope of justice to domestic society, principally because it is the effective reach of social institutions. Because institutions are based within the state, their reach is bounded by state borders. By agreement nations may extend their commitments to justice beyond their own borders, but it is by agreement only. There is no manner of effectively implementing social institutions across all societies. Carens, however, claims that the ideas that make justice as fairness appealing at the domestic level also make it appealing at the global level. The Rawlsian principles of justice should be extended outside the 22 For example, see Charles R. Beitz, Political Theory and International Relations (Princeton: Princeton University Press, 1979) and Thomas Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989). 23 Whelan has expressed similar views regarding choices as they relate to the principles of justice and added to this the perspective of equality of opportunity which is neglected by Carens. See Frederick Whelan, "Citizenship and Freedom of Movement: An Open Admission Policy?," in Open Borders? Closed Societies?: The Ethical and Political Issues, edited by Mark Gibney (Westport, CT: Greenwood Press, 1988), 7-10. For more on liberal requirements of equality of opportunity see Simon Caney, "Cosmopolitanism Justice and Equalizing Opportunity," Metaphilosophy, 32(2001): 13-34 and David Miller, "Against Global Egalitarianism," The Journal of Ethics 9(2005): 55-79. 26 boundaries of the state.24 There are two aspects to this appeal. The first relates to conditions of interaction between societies. When people interact with one another across borders, justice as fairness should raise questions about the fairness of the context in which such interactions take place. Other practices that include the reach across borders, such as the violence of war, require justification. This justification of state practices should be required of all cross border interactions. The principles that apply domestically seem equally relevant at the international level if all people are free and moral equals. The second aspect appeals to the conditions of the social contract. The purpose of the veil is to eliminate the arbitrary effects of "social contingencies and natural endowments." Citizenship is a social contingency with significant effects on people's lives, effects profound enough that Carens likens them to the problems associated with feudalism: "Citizenship in Western liberal democracies is the modern equivalent of feudal privilege - an inherited status that greatly enhances one's life chances."25 In feudalism an individual has few options for rising above the status of their birth: born a peasant, always a peasant. Just as political theory has come to realize the immoral nature of that kind of birth constraint, so also should we come to realize the immoral nature of the birth constraint known as citizenship. The effects of citizenship should be eliminated.26 If we are to take seriously a moral commitment to the free and equal status of persons, we should commit to a global original position, wherein all persons are behind the veil of ignorance. 24 Note that Rawls himself denied this approach in work after this idea of globalizing justice as fairness became common. See John Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999). 25 Carens, "Aliens and Citizens," 252. 26 Rawls did not embrace this extension of his thought. The concept of citizenship is important throughout The Law of Peoples. 27 What would people choose behind the veil? Presumably they would start by choosing the same two principles of justice that were chosen under the domestic constraint. Appropriate institutions would be designed to implement the principles in a global context. The crucial question raised by Carens is whether a system of states would be part of this system of institutions. There is no reason why a system of states would be chosen, or, that if it were chosen, that states would possess the same powers they do currently. Carens is willing to grant that people might choose to create states as a result of linguistic, historical and cultural differences, but not for any other reason. Whatever powers the states possess will be constrained by the two principles of justice. States will not have the same kind of power they have today. But this is not all. Carens questions whether people in the original position would claim freedom of movement between states as a right which can be demanded of states. Freedom of movement is instrumentally valuable and guaranteed within the state. Whatever reasons justify unconstrained movement within the state would also justify unconstrained movement between states. These reasons are not limited to economic prosperity, but also include opportunities for marriage, recreation and other social activities. If this is the case, then people in the original position will choose as a basic right a principle of freedom of movement that permits them to move between these cultural states. Freedom of movement is on par with the right of religious freedom. This commitment to movement is the most effective means of eliminating the arbitrary effects of citizenship.27 27 Joseph H. Carens, "Migration and Morality: A Liberal Egalitarian Perspective," in Free Movement: Ethical Issues in the Transnational Migration of People and of Money, ed. by Brian Barry and Robert E. Goodin (University Park, PA: The Pennsylvania State University Press, 1992) offers a more thorough discussion of the argument from freedom of movement and is discussed below in this chapter. 28 A final problem arises. Rawls permits that some liberties might be constrained in order to provide a similar scope of liberty for others, or when the need arises to maintain public order. This latter constraint has been labeled the "public order restriction."28 The realization of justice through the application of the principles of justice by each member of society requires stable social conditions. When these conditions become unstable, the state may restrict the exercise of rights in order to restore or maintain public social order. Carens' worry is that this restriction might justify closing borders if misapplied. Rawls' conditions for these kinds of restrictions, however, are very tight. The threat must be actual ("reasonable expectation") rather than hypothetical and any restrictions implemented are limited to those required to preserve or restore public order. In the case of immigration, this means that society must be truly overwhelmed by immigrants in such a manner that society is breaking down. Further, the breakdown cannot be due to a negative reaction against the immigrants. It must be that the ability of social institutions to function is undermined. In an ideal world where a global difference principle is operative and has eliminated much of the discrepancy in social well-being, Carens believes that the possibility of such a threat is negligible. Carens' global justice as fairness, which includes cultural states, will permit constraint of movement only in the condition that the intent of a person is to overthrow functional and just institutions. All others will be permitted to move, with priority of movement granted, in accordance with a global difference principle, to those who have been denied basic liberties (of the first principle). Carens conclusion is that "ideal theory 28 John Rawls, A Theory of Justice, Cambridge: Harvard University Press, 1971/1999 rev. See §34 and 35 for Rawls' discussion regarding the intolerant, public order and restrictions on liberty. 29 holds up the principle of free migration as an essential part of the just social order toward which we should strive."29 Each of the four points Carens emphasizes is intended to demonstrate that Rawls' theory of justice supports a claim for open borders. However, I do not believe this is the case, and for each of the four points there are reasons not to interpret Rawls in the way in which Carens does. I will address each one in turn. The problem of the scope of justice is not a new problem and is one which has long been debated. Rawls' own argument against expanding the scope of justice in The Law of Peoples, including the desire of peoples to create different kinds of society, is useful here, although it should be noted that these arguments were not available at the time of Carens' early work. Holding all societies to the same standard denies the opportunity of people to develop different lives, although Rawls would not grant that just any type of society is acceptable.30 As each society develops institutions appropriate to its own vision of the good life it will be difficult to justify their active reach into other communities. There is a second reason to reject this first claim of Carens which is simply that once the scope of justice is expanded to encompass the globe and all peoples, the problem of borders has been dissolved because there are no borders. Even with Carens' cultural states, the problem is nonexistent because these states do not have the kind of power that creates the problem. A state whose purpose is to foster and protect language and other cultural elements is an emaciated state, without the important purposes and powers traditionally associated with the state. A state that doesn't provide security, manage economies or provide for social well-being won't encounter any of the 29 Carens, "Aliens and Citizens," 262. 30 Rawls, Law of Peoples, 17-18, 23-25. 30 challenges or concerns that immigration presents in these areas. By changing the scope of justice, Carens doesn't demonstrate why borders should be open between autonomous political entities; rather, he simply does away with the problem by changing the context of the discussion. The elimination of the difference between domestic and international justice through the elimination of a system of states appears to make the second and third concerns of Carens to be without force. On the one hand, it seems unreasonable to think that an original position that encompasses the entire world would be any different than what Rawls specifies in A Theory of Justice since it is based upon a shared human nature, unless for some reason the characteristics of people are different. But Carens offers no reason to believe that this is the case. Rawls does not specify a principle of freedom of movement as part of the basic liberties in either A Theory of Justice31 or Justice as Fairness: A Restatement.32 Rawls' commitment to freedom of movement is made explicit only in Political Liberalism33 where it is mentioned as part of the basic liberty regarding personal integrity.34 It is mentioned again as part of the second principle regarding distributive justice related to equality of opportunity.35 In those contexts 31 Rawls, Theory of Justice, 61/53 rev. The list of basic liberties is "political liberty (the right to vote and to hold public office) and freedom of speech and assembly; liberty of conscience and freedom of thought; freedom of person…; the right to hold personal property and freedom from arbitrary arrest and seizure as defined by the concept of the rule of law." 32 John Rawls, Justice as Fairness: A Restatement (Cambridge: Harvard University Press, 2001), 44. The list of basic liberties is "freedom of thought and liberty of conscience; political liberties…and freedom of association; as well as the rights and liberties specified by liberty and integrity (physical and psychological) of the person; and finally, the rights and liberties covered by the rule of law." 33 John Rawls, Political Liberalism, expanded edition (New York: Columbia University Press, 2005), 228, 291. Here the list of basic liberties is "freedom of thought and liberty of conscience; the political liberties and freedom of association, as well as the freedoms specified by the liberty and integrity of the person; and finally, the rights and liberties covered by the rule of law." In other places Rawls associates freedom of movement with equality of opportunity where it is related to the second principle as a problem of distributive justice rather than an issue of basic liberty. 34 Ibid., 232, 335. 35 Ibid., 228. 31 movement is regarded not as basic in itself, but as supportive of the integrity of the person and equality of opportunity. Such movement is context dependent in ways which Carens ignores.36 A person doesn't have an absolute freedom to move, but will find that freedom bound by a system of similar liberties for all, a problem I will take up later in this chapter.37 Finally, Carens misinterprets the public order restriction in Rawls. In §34 of A Theory of Justice Rawls' concern is with problems caused by the liberty of conscience and the problem of tolerating the intolerant. Liberal societies must tolerate the intolerant so long as their existence does not threaten the order of society. This is, as Rawls notes, because there is a "common interest in public order and security."38 This common interest of the representative equal citizen relates to individual interests and life plans. Citizens have an interest in the government maintaining an environment in which individuals can pursue their interests. If the liberty of conscience undermines this order then liberty might be constrained. Carens misinterprets the public order restriction here in the scope of its application. Despite this misinterpretation of Rawls by Carens, it isn't unreasonable to apply this concept to other aspects of the public order than the intolerant. Various other problems as well, such as civil disobedience, might affect the public order in ways that upset the environment and affect all citizens. Granting that this restriction might reasonably apply to the problems of immigration brings us to the problem of what is reasonably certain or imminent. Carens holds that no amount of movement will ever 36 Generally, discussion of the principle of the freedom of movement ignores the context in which the movement occurs. See the section "Freedom of Movement and Open Borders" below. 37 Rawls, Theory of Justice, 203/178 (rev). Rawls distinguishes between regulation and restriction noting that "The best arrangement of the several liberties depends upon the totality of limitations to which they are subject." Text is different between the two editions with the text from the revised edition cited in this note. 38 Ibid., 212/187 rev. 32 unsettle the public order. Yet it is plain from cases of refugee movement, that large numbers of new immigrants for which plans have not been made, can threaten the public order, if in no other manner than by overwhelming the resources available to support them.39 Other migrant movements might also threaten the public order. In fact, this is precisely the claim made in the current American debate. The claim is that there are such a large number of immigrants that social support networks are stretched thin and forced to supply services to a free-riding population. Whether this is actually the case is an empirical matter and the data is mixed. What is relevant for my argument is that the claim is being made that the public order is threatened and threatened in ways that are different than tolerating the intolerant. The effects of immigration under consideration are substantively different than those involving toleration of the intolerant because they potentially prevent the state from functioning as it should, thereby, meeting the Rawlsian condition for restricting liberty. If the public order is threatened then Carens' claim that these conditions cannot arise is wrong. They have in fact arisen. If this is the case, then border controls limiting people's liberty might be justifiable. One could argue further that the long term maintenance of these border controls is justifiable to ensure that the circumstances don't occur again. If my arguments in this section stand, then I have weakened, again, the support for the conclusion regarding open borders in Carens' common conclusion argument. Let me turn now to the premise regarding utilitarianism. 39 Consider the influx of Tunisian and Libyan refugees into Italy during the 2011 revolutions. The refugees overwhelmed Italy's ability to provide food and shelter, leading Italy to grant them residency to the state and thereby permitting the refugees to move throughout the European Union, against the wishes of other European Union members. Rachel Donadio, "Italy Lashes Out at European Union Over Immigrants," New York Times, April 11, 2011 and Rachel Donadio, "Fears about Immigrants Deepen Divisions in Europe," New York Times, April 12, 2011. 33 Utilitarianism and Open Borders Utilitarianism, in its simplest formulation, seeks the greatest good for the greatest number through the production of pleasures and the reduction of pains across the affected group of people. Once those affected by any action have been identified, the increase in pleasure and the reduction in pain that results from an action can be summed and the morality of the action determined. It is this simplistic expression of utilitarianism that Carens uses. Applied to the problem of immigration, Carens focuses upon the economic gains for impoverished people against the economic losses of those in prosperous countries and concludes that it is likely that a utilitarian calculation of an open border policy will result in an increase in the total amount of good across those affected. Admittedly, some citizens will be harmed as others gain, but this will be greatly outweighed by the benefit to noncitizens at being able to move from poor to prosperous countries. This will be the case even if we factor in the effects upon cultures. Cultural gains from the mixing of cultures are likely to outweigh the loss of cultural characteristics due this mixing. It is also not clear which aspects of lives, besides the economic features, should be utilized. Regardless of how wide we make the scope of the utilitarian calculus, the gains will be positive and therefore, count for open borders. This general calculation may be strengthened with a second calculation of a rule-based format. Most migrants are economic migrants, that is, they move for economic benefit. Classical economic theory indicates that economies perform better when there is free movement of capital, resources and labor. By permitting the market-based exchange of these components, markets generate a greater total output than they would if they are more tightly managed. Free movement of this sort requires open borders. Therefore, we 34 must have open borders if we are to maximize economic output. We now have both act and rule utilitarian calculations in support of open borders. There are problems in Carens use of this simplistic view of the utilitarian calculation. The first problem is the focus solely upon economic goods without regard for any of the other kinds of goods that count. These goods, especially the "higher pleasures"40 associated with the cultivation of humanistic and artistic capabilities will be affected by migration in ways that Carens simply does not consider. Throughout the world today there are concerns about the protection of languages and cultures against the forces of globalization, especially when these are held by small groups. It may be that the pleasures associated with these goods would not outweigh the benefits to noncitizens, but without considering them the calculation is insufficient. A further problem is that utilitarianism calculates from individual pleasures and pains across a group affected by an action rather than from group measures. Carens' approach relies upon a group measure (gross domestic product (GDP)) as indicative of individual pleasure. It is not the case that GDP reflects in a meaningful way the pleasures and pains experienced at the individual level and is not reliable in all cases. In the economic recovery from the 2008-2009 recession national GDPs, corporate profits and economic productivity were climbing at the same time that individual welfare was still in decline. Given this situation, a utilitarian could question the usefulness of GDP as a measure of individual utility. An additional problem is the role that pragmatic judgment has in utilitarian assessments. Given a particular set of facts regarding benefits, different weights will be placed upon the value of these benefits, resulting in a different assessment of the 40 John Stuart Mill, Utilitarianism, in On Liberty and Other Essays, edited by John Gray (Oxford: Oxford University Press, 1991), 140. 35 circumstance. Utilitarian calculations to be shared across large groups of people require some agreement about the rankings of the goods generated to reach any conclusion that would be widely shared. Additional evidence for the complexity of this kind of utilitarian calculation that Carens ignores is manifest in what has become known as the "brain drain hypothesis." In this kind of circumstance, the emigrants who leave a country create holes in the social network they leave behind because they take their important skills with them. Examples of this include estimates that the Philippines has a nursing shortage even though it trains an adequate number of nurses, because 85% of them work overseas for better pay and the emigration of physicians from sub-Saharan Africa to the prosperous countries of Europe.41 The negative impact of these movements must be involved in the calculation. The other end of the brain drain hypothesis is the "crowding out effect" in which locals lose work to immigrants because there are more people looking for work than the number of positions available. Carens assumes that this effect will be positive, but this is not always the case. Balancing these labor forces in practice, rather than theory is likely to be a very difficult pathway, and it is not obvious this will always lead to a positive calculation of utility. If this is the case, utilitarian arguments may actually lead to an argument for closed borders in some cases. Certainly, the security provided by controlled or closed borders also would count for something in utilitarian calculations and dependent upon the facts of particular circumstances, such as immediately post 9/11, may count for quite a bit in the calculation, creating an even stronger utilitarian argument for controlled borders. 41 Nir Eyal, "Physician Brain Drain: Can Nothing Be Done?," Public Health Ethics 1(2008): 181. 36 Finally, Carens appears to miss the irony of appealing to a utilitarian morality which will compromise the liberal principles that originally led him to the open border conclusion. Rawls thoroughly rejects the relevance of utilitarian thought for liberal political communities because of the likelihood of violation of the first principle of justice.42 The account of economic utilitarianism has also recently been forcefully critiqued by Nussbaum.43 If these critiques are sound, then the utilitarian calculation must be rejected. The claim that the calculation is far more complicated than Carens envisions and is more likely than he expects to lead to a closed borders argument is not a claim that aliens don't count or don't count equally. In fact, the approach I have outlined takes into account a more robust picture of the world and gives full recognition to all aspects of their lives, not just their economic lives. At this point I have undermined each of the key premises in Carens' common conclusion argument sufficiently to claim that the common conclusion argument is inadequate to justify the claim that liberal political philosophies must support open borders. This is not, however, the only criticism that might be applied to Carens. Other Critiques of Carens The open borders arguments of Carens have become representative of contemporary liberal political philosophy with little critical assessment. They are routinely cited as canonical. Joseph Meilaender has written, to my knowledge, the sole critical assessment of Carens' work. Meilaender's critique is substantively different than the critique I have offered to this point, and therefore, requires review. 42 Rawls, Theory of Justice, 183-192/160-168 rev. 43 Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, MA: Harvard University Press, 2006), 71-74, 281-284. 37 In two related works Meilaender offers a critique of Carens. The first, and most substantive, is in "Liberalism and Open Borders: The Argument of Joseph Carens."44 The second, more recent but less substantive, occurs in his book Toward a Theory of Immigration.45 Meilaender acknowledges that Carens' argument is built upon a solidly liberal foundation. However, this foundation is undefended. This creates a kind of confusion about his work. Is Carens arguing for a view to which only liberals are committed or does the view have wider reach such that all countries, regardless of philosophical commitments, should be committed to open borders?46 If Carens intends his argument to apply to all governments, regardless of commitments, then Carens must provide an argument for why the commitments of liberalism should prevail over other kinds of commitments. On the other hand, if Carens intends his argument to apply only to liberal governments, then he has failed to acknowledge and resolve the great differences in the views that liberals hold regarding borders. Why is Carens' view regarding borders the correct view rather than the ones held by Steiner, Walzer or Miller? In either case, this makes Carens' argument incomplete. Meilaender writes: However we choose to understand it, then, Carens's [sic] argument remains incomplete. If it is really only intended as an argument for people who are already liberals, then the reader expecting a case for genuinely open borders is bound to be disappointed; furthermore, it then seems obliged to return to and address the broad, continued disagreement within liberalism. If, on the other hand, it really is what it claims to be, an argument for open borders, then we must conclude that its reliance on and reflection of certain liberal principles and certain interpretations of them, even, leave it with little to say to countries that do not already share these principles. One of the two arguments is incomplete: either the argument 44 Peter C. Meilaender, "Liberalism and Open Borders: The Argument of Joseph Carens," International Migration Review, 33(1999): 1062-1081. 45 Peter C. Meilaender, Toward a Theory of Immigration (New York: Palgrave, 2001). 46 Another question Meilaender raises is whether Carens intends, as a byproduct of his approach, to claim that only governments that hold liberal commitments are legitimate governments. Meilaender, "Liberalism and Open Borders," 1077. 38 about liberalism and its implications, or the argument for liberalism and its principles.47 I am not convinced that these problems cause Carens' argument to suffer in ways that undermine it significantly. Carens argument begins from liberal principles, a point which Meilaender readily concedes. These principles, although not always well defined, are well known. They provide a starting point for theorists to explore what a community would be like if it shared and applied this particular set of values. Carens' argument claims that open borders is the correct position for liberal communities to hold. But his argument intends to reach farther than just liberal communities. It does apply to all countries. In 1992, regarding human rights, Carens writes "From a liberal egalitarian perspective all states are obliged to respect such rights…"48 Liberal philosophy is committed to pluralism, but pluralism within liberalism, not a pluralism that lies outside liberalism. Pluralism outside liberalism would deny the universal aspect of liberal principles. Once the broad commitments of liberalism are recognized, then the acceptance of many conceptions of the good life, or comprehensive doctrines in Rawls' words, is required. But these conceptions of the good life cannot lead to the rejection of the political world envisioned by liberalism. Although in the nonideal world, Carens owes us an argument for why nonliberals should accept the liberal conclusions regarding borders and immigration, this ideal work does not require it. The perspective of the nonideal world is a larger, more difficult argument to make, and lies outside the requirements of Carens' project. That Carens is making an argument about open borders from the perspective of liberal political philosophy is recognition that there is, or might be, disagreement over what the correct 47 Ibid., 1079. 48 Carens, "Migration and Morality," 36. 39 conclusion might be from this perspective. Carens is arguing that open borders should be the conclusion regarding borders that extends from liberal principles. This is a matter in which there is no possibility of pluralism because justice demands open borders. I am not persuaded that Meilaender's critique undermines the argument of Carens if the limited scope of Carens' project is properly understood. Open Borders and Single Principle Arguments Freedom of Movement and Open Borders The work of Carens discussed thus far, represents his first approach to the problem of liberal egalitarianism and borders, one about which he has expressed some uncertainty and hesitation.49 In a subsequent work, "Migration and Morality: A Liberal Egalitarian Perspective," Carens develops an argument based upon the principle of the freedom of movement that he believes is not subject to the problems of the consensus argument. In this argument his claim is that, "Liberal egalitarianism entails a deep commitment to freedom of movement as both an important liberty in itself and a prerequisite for other freedoms."50 Therefore, movement should be as unrestricted as possible and the burden of justification rests with those who would place restrictions upon it. Carens makes no attempt in his argument to take account of the complexity of the idea of freedom of movement and how it might legitimately be constrained. I will take up this issue in more detail below. The basic structure of Carens' arguments looks like this: 49 Carens writes regarding his work in "Aliens and Citizens": "I felt somewhat ambivalent about the argument, uncertain whether it revealed a deep moral problem with the exclusionary practices of liberal states (which was the view I emphasized in the article) or the limitations of abstract liberal theory (which was a concern I pursued in subsequent work). At this point I think that both are true to some extent." Joseph H. Carens, "A Reply to Meilaender: Reconsidering Open Borders," International Migration Review 33(1999): 1082. 50 Carens, "Migration and Morality," 25. 40 1. Liberal egalitarians care about human freedoms, such as the ability to pursue individual projects. 2. Liberal egalitarians care about equality of opportunity with access to social positions determined by talents rather than arbitrary characteristics. 3. Liberal egalitarians seek to keep actual inequalities (economic, social, and political) as small as possible. 4. Freedom of movement is necessary for achieving each of these liberal egalitarian goals. 5. Therefore, liberal egalitarians support unrestricted freedom of movement. Although Carens claims that freedom of movement is important in itself, the argument provided finds value only in its instrumental characteristics. Freedom of movement is important because it is required to achieve other goals that liberal egalitarians care about. If those goals could be achieved through other means, then it is unclear from Carens' argument whether we would still care about freedom of movement. It also needs to be recognized that the first three claims in the argument are not absolute. The first claim is limited by the recognition that individual projects are constrained by the requirement that these projects not interfere with the legitimate claims of other individuals to likewise pursue their own projects. Individual projects may be constrained because of their effects upon others. I have also glossed over the nuances of the relationship between freedom of movement and the concerns of liberal egalitarianism. Carens has expressed the relationship as "closely connected" for the pursuit of individual projects, "essential" for equality of opportunity, and as "would contribute" to achieving various types of equality in the world. My restatement of these as necessary might be too strong. Nonetheless, 41 although my use of "necessary" might be stronger than his claim, it represents in a reasonable manner the full force of Carens' argument. Freedom of movement is necessary for the achievement of liberal egalitarian concerns, and denying such freedom undermines the central concerns of liberal egalitarianism. To this main argument, Carens adds four additional reasons why liberal egalitarians should care about freedom of movement that are tied to illiberal consequences of not supporting freedom of movement. The first is the feudal practice argument which was also mentioned as part of the common conclusion argument. Restricting movement across borders because a person is born in one country rather than another is like the constraints placed upon an individual's life in feudalism. Carens writes: "Citizenship in the modern world is a lot like feudal status in the medieval world. It is assigned at birth; for the most part it is not subject to change by the individual's will and efforts; and it has a major impact upon that person's life chances."51 In feudalism a person's prospects in life were largely determined by the status a person was given at birth. Born into a landed aristocratic family and one could expect do fairly well. Born into a peasant family bound to a lord and one's life prospects were greatly limited. Liberal egalitarians object to feudal practices, so also, they should object to constraints on movement which are bounded by one's citizenship as established at birth.52 A second reason offered is the problem of the asymmetry of the right to exit and the right to enter. The right to exit (and return) is enshrined in international documents of 51 Ibid., 26. 52 In making this argument Carens does not appeal to the idea that citizenship might be arbitrary because it is an element of one's social circumstance. In this piece the focus is upon the lack of autonomy one had in feudal practices. In "Aliens and Citizens" Carens does appeal to citizenship as an arbitrary fact of one's social circumstance. This argument was discussed in the preceding section. 42 human, civil and political rights.53 But it is possible that the right to exit might be only formal, rather than substantive. Consider the case where an individual has both the desire and the means to leave a country but cannot do so because all countries refuse entrance. The right to exit is meaningless for this individual, indicating that an unrestricted right to exit without a corresponding unrestricted right to enter is meaningless. If both rights are required for the rights to be meaningful, then liberal egalitarians must support unrestricted movement. The failure to do so is to treat people illiberally and make their rights meaningless. A third reason, for which Carens offers no justification, is that individuals should be able to change their citizenship at will, a position known as jus nexi. Carens defends the practice of granting citizenship based upon birth (jus soli) as being required as part of a community's recognition of ties to others. But this initial determination of citizenship should not constrain the ability to change one's citizenship as one desires. The final reason offered is the comparison of internal movement to external movement. Within most countries in the world a person is free to move within the boundaries of their country and the right of internal movement is contained in international rights documents.54 However, most of the reasons that motivate people to move within a country also might motivate people to move internationally. People fall in love, seek new jobs, or seek new associations. If the motivations for internal and external movement are the same then the right to move should also be the same. Like the right to exit and return, movement within states is often treated as a moral imperative and 53 See Universal Declaration of Human Rights, Article 13; International Covenant on Civil and Political Rights, Article 12. 54 See Universal Declaration of Human Rights, Article 13(1); International Covenant on Civil and Political Rights, Article 12 (1). 43 necessary civil right. The treatment of external movement as a matter of national political decision is therefore, unjustifiable. This freedom of movement argument, like the common conclusion argument, is problematic in many ways. The most significant problem in the argument is that Carens has failed to give careful consideration to what the principle of freedom of movement is. Before I turn my attention to that substantial problem, however, I want to address the other reasons Carens offers. The feudal practices analogy is only partially effective because Carens overplays the comparison. Feudal practices were much more stringent than contemporary practices restricting international movement. Feudal practices might keep one from moving from one village to another or even retaining the fruit of one's labor.55 Feudal constraints were based upon the ties between individuals requiring permission from the ruling individual for movement to occur. International constraints on movement do not carry these same kinds of constraints. Constraints on movement, where they exist in contemporary society, are not tied to movement but to other aspects of the constraining society, such as security or issues of social welfare. The permission required to move is granted by states rather than a single individual whose own well-being is affected by movement. Contemporary constraints on movement might be troubling, but it is not because they are comparable to feudal constraints on movement. Individuals today retain far more autonomy over their lives, even in circumstances in which they can't move, than did most individuals in the medieval period. Further, his commitment to a jus nexi approach to citizenship overstates the conclusion of his 55 Our traditional understanding of feudalism and its affect upon people's lives has been the subject of significant debate over the last 25 years since the publication of Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (Oxford: Oxford University Press, 1994). 44 argument.56 One could grant freedom of movement without granting the right to change citizenship at will. Even if one admits that states cannot deny citizenship to individuals who have integrated into the community because it leaves this individual in a disadvantaged position, it doesn't follow that one must be allowed to change citizenship at will. Some requirements might still apply, such as the successful integration into society.57 Carens is not alone in criticizing the asymmetry of the right to enter and exit. Leah Ypi, in her recent work,58 has also argued that any grounds used to justify limiting entry must also be applicable to exit. But to argue in this manner is to ignore the real effects of movement and the problems caused by the uncoordinated movement of people. As Carens and others readily admit, sending countries are many but receiving countries are few. Large numbers of people moving to the same or a limited number of locations can be problematic. States struggle to provide the social services required to support migrants, both short term and long term. Teaching large numbers of new people a language, laws, or the role of social institutions requires vast resources from a limited pool of resources. There are economic impacts as larger numbers of people compete for a limited number of jobs. The effects of movement and the actions states must take to accommodate such movement are different in sending and receiving communities. This difference justifies treating the two kinds of movement differently, at least in some cases, and perhaps in all cases. 56 For more on the jus nexi approach to citizenship, see Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Cambridge, MA: Harvard University Press, 2009). 57 For an argument of this type, see Joseph H. Carens, Immigrants and the Right to Stay (Cambridge, MA: MIT Press, 2010). 58 Lea Ypi, "Justice in Migration: a Closed Borders Utopia?," The Journal of Political Philosophy, 16 (2008): 391-392. 45 Finally, the comparison of internal and external movement also falls short. I have already discussed the problems encountered by Carens in arguing that individuals behind the veil of ignorance would choose to move. If all movement is to be treated the same, Carens is obligated to offer up an account of political authority and obligation that would support such movement. What obligations do immigrants take on when they move? To their old community? To their new community? What rights of authority do states retain over citizens who leave? What rights do receiving states have over new immigrants? It is not the case that one can't be offered; Carens just doesn't offer one. The claim that internal movement between different political jurisdictions within the same country is similar to international movement fails to recognized one significant fact: different jurisdictions within the same larger political jurisdiction have only limited political autonomy. Their actions are subject to the constraints of the national government. Utah cannot limit movement from those in other states because the higher political authority does not permit it. But international movements cross autonomous political jurisdictions that do not answer to any common authority. Their decisions are independent and not constrained by other authority in the way internal jurisdictions are. The parallel between the two kinds of movement are different and Carens must explain how political authority and obligation are to work in this environment. On this problem Bader writes, The argument by analogy - that international free movement should be treated exactly like internal free movement - is not convincing: it either neglects moral principles of democratic self-determination completely, or it neglects the importance of democratic states among other unite in emerging democratic multi-level polities.59 Presumably Carens intends for movement between countries to work similar to movement between states, but one can argue that this internal movement works because 59 Veit Bader, "The Ethics of Immigration," Constellations, 12(2005): 340. 46 of the shared political authority above the local jurisdictions. Without this shared higher authority in the international arena, it is not obvious that movement can function in the same manner. The governance issues related to shared practices without enforcement authority have been evident in recent years in the European Union in both movement and the euro. Member states determine policy that affects the shared practices without the ability of other states to constrain that policy even as they are affected by it. If we remove the problem by establishing a single authority, Carens cannot make the claim that this condition applies to the case of multiple authorities. Global authorities come in for suspicion in the well known critiques of Kant,60 Rawls61 and others.62 Carens is not the only contemporary theorist to claim unrestricted movement based upon a principle of freedom of movement. Chandran Kukathas, writing from a libertarian perspective, claims an even more unrestricted right to international movement than Carens does.63 Understanding the problems of migration as principally one of competition for state resources between immigrants and natives, Kukathas argues for an unrestricted right to movement as a robust expression of freedom, which entails redefining the modern state. Restricting movement is foremost a denial of freedom and requires a strong justification. People denied the opportunity to move are denied opportunity to create the lives they desire, flee from tyrannical regimes (and if people can't leave, why should these regimes reform), and denies to people their freedom to 60 Immanuel Kant, To Perpetual Peace: A Philosophical Sketch, in Perpetual Peace and Other Essays, translated by Ted Humphrey (Indianapolis: Hackett Publishing, 1983), 124-125. 61 Rawls, Law of Peoples, 36. 62 For example, see the lesser known response of Walzer where the concern is the loss of social pluralism. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), 39. 63 Chandran Kukathas, "The Case for Open Migration," in Contemporary Debates in Applied Ethics, edited by Christopher H. Wellman and Andrew Cohen, (Malden, MA: Blackwell, 2005). 47 associate, whether the reasons for association be family, love, work or worship. Denying people these things through the denial of freedom of movement is difficult to defend. The common reasons offered for denial of movement are, on Kukathas' account, easily rebutted. The economic impacts associated with affects upon employment are difficult to measure. But Kukathas claims, without support, that the effects of immigration are "at best, positive, and at worst, only mildly negative."64 If we expand our view to a global perspective, then the effects will be positive as well from the beneficial redistribution of labor throughout the world. While it is possible to quibble over the statistics that might support this claim, Kukathas offers a more extended moral argument related to the economic effects of migration. People within nations hold a privileged position under the current international system. They have access to a wide range of benefits and opportunities denied to those outside the local political system. These benefits and opportunities are of two types. First, there is access to local economic markets for employment and exchange. Secondly, there is access to state provided benefits, such as welfare. Are such privileges morally warranted? Kukathas claims they are not, because even though opening markets disadvantages natives, those denied access are also disadvantaged. "Restricting access to markets certainly benefits some people, but at the expense of others, and generally to the disadvantage of all. If particular privileges should be accorded to some because of their state membership, the justification cannot be economic…"65 Open markets benefit all, closed or control markets benefit a more limited group of people. Markets should benefit all by being open to all. The problem of benefits accorded by the welfare state presents 64 Ibid., 212. 65 Ibid., 213. 48 different problems. The main problem to address for the welfare state is the movement of poor people, those who utilize benefits without contributing. This means that at least rich people should have unconstrained movement. But Kukathas believes this is problematic and that the poor should also be allowed to move with the possibility of being excluded from the welfare system. Even though the moving poor are disadvantaged in such a scheme, their lot may be better off than if they were denied the opportunity to move. Kukathas recognizes the difficulties that migration presents for the welfare state and the moral challenges of different levels of membership. The obvious choice for many is to restrict migration. Kukathas raises a different question: "While one obvious response to this is to say, ‘so much the worse for open immigration,' it is not less possible to ask whether the welfare state is what needs rethinking."66 In other words, if open immigration is problematic for the welfare state, then perhaps it is the welfare state that must change (or go away), rather than open immigration. Carens and Kukathas both raise significant challenges to closed borders based upon claims of freedom of movement and the associated affects of constraining movement. Claims of equal moral worth for all individuals do raise questions regarding the justification of differential treatment. But one central problem here, is that both Carens and Kukathas rely upon a vague specification of the principal of freedom of movement. I want to turn to that problem now and then revisit their arguments. Specifying the Principle of Freedom of Movement 66 Ibid., 219. For more on this approach, see Chandran Kukathas, "Social Justice and the Nation-State: A Modest Attack," in Forms of Justice: Critical Perspectives on David Miller's Political Philosophy, edited by Daniel A. Bell and Avner de-Shalit (Lanham, MD: Rowman and Littlefield, 2002). Carens makes it plain: "Preservation of the welfare state does not justify restriction of immigration from poor countries to rich ones." Joseph H. Carens, "Immigration and the Welfare State," in Democracy and the Welfare State, edited by Amy Gutman (Princeton: Princeton University Press, 1988), 227. 49 Although I have already offered critiques of the different arguments for open borders based upon a principle of the freedom of movement there remains one significant problem with this argument. There is no specification of exactly what the principle of the freedom of movement is. For a principle that is so widely appealed to, it is unsettling to be unable to find any conceptual consideration or specification of this principle. It is appealed to with the assumption that its meaning is obvious. This stands in stark contrast, for example, to such principles as the Harm Principle or the Precautionary Principle in engineering. Both of these principles have received substantial consideration resulting in precise characterizations of these principles. Unfortunately, this is not the case for the principle of the freedom of movement. The following is a common formulation of this principle. Every person has the right to move from one location to another. Three things stand out in this claim. The first is that the locus of this right is the individual. It is something each of us has, presumably because we are independent and rational creatures. The second is that this is a right, something which we can claim of others. However, in this formulation it is somewhat uncertain what we can actually claim of others - noninterference, or something more. It is also uncertain of whom it is we should claim this right - simply of others or from institutional bodies. In an apolitical world we would claim this of others; in a political world it necessarily is a claim against both individuals and institutions and governments. Finally, this right is about spatial movement, although it does not require that the space be significant. My exercise of the right occurs whether I move one foot, one mile or half-way around the world. Noticeably 50 missing from this statement is any consideration of the purpose of my movement or the effect of my movement. A person may move for the most trivial of reasons, to move out of the sun into the shade, or for the most significant reasons, to build a better life. The principle as stated is the form behind the libertarian commitment to freedom of movement used by theorists such as Chandran Kukathas, and is easily shown to be inadequate. As David Miller notes, there are all kinds of constraints on our ability to move.67 I cannot choose to move into the space which you occupy (at least not without interfering with your right to be in that space or the integrity of your body).68 More significantly, I cannot move in to your house and make myself at home. Common definitions of private property make such movement inappropriate. If we accept the principle as we have characterized it so far, we are not far from a Hobbesian state of nature. I am free to move wherever and for whatever purposes I wish, constrained only by your ability to prevent me from moving to these spaces. Within civilized society such a principle is not very useful. Let me offer a modification that takes into account these kinds of considerations. Every person has the right to move from one location to another provided that movement does not interfere with the prior rightful occupation of that space by another person. A few comments on this version of the principle are in order. The principle now recognizes that movement should not affect others already in the space to which I wish to move, provided their occupation of this space is appropriate (and perhaps even if the 67 David Miller, National Responsibility and Global Justice (Oxford: Oxford University Press, 2007), 205. See also David Miller, "Immigration: The Case for Limits," Contemporary Debates in Applied Ethics, edited by Christopher H. Wellman and Andrew Cohen (Malden, MA: Blackwell, 2005), 195. 68 Ypi, "Justice in Migration," also claims that this kind of constraint is not troubling from a liberal standpoint, 394. 51 occupation of that space is not appropriate). A person cannot move into the physical space I occupy if I am already rightfully there. If I stand on the sidewalk you cannot come and push me aside in order to stand where I was. You cannot move into my dwelling provided that I am rightfully in that dwelling. If my own occupation is inappropriate, then I am without grounds to complain about your occupation of that dwelling. We are both in violation of someone else's right to that property. I can only claim that you not push me from the physical space I occupy. What it means for occupation of a space or a dwelling to be prior and rightful needs exploration beyond my purposes here, other than to say that it at least means chronologically prior and that occupation means my physical presence in some cases, and something other than my physical presence in others. But there is potentially a problem in this definition as well. Suppose for a moment that I am standing still on the sidewalk. As you walk by you stumble in such a manner that you push me aside and end up occupying the place where I was on the sidewalk. This seems fundamentally different from the case where you intentionally push me from my spot and take it over. While I certainly am not happy about being accidentally removed from my spot, I recognize its accidental nature and hopefully do not take too much offense. In all likelihood you apologize and return my rightful position on the sidewalk to me. But in the intentional case, I take greater offense because of its intentional nature. Although this case is trivial, it seems to point to the idea that it may be appropriate to make intention part of our principle. Distinguishing between intentional and unintentional actions anticipates that our response to the effects of inappropriate movement might be different depending on the intentions involved. Suppose now I 52 modify the case slightly such that instead of just being pushed aside I am pushed in front of a passing vehicle and suffer injury. Now it is not only intention that comes into play but the consequences (negative) of the action. Even in the case of an accidental push, I want take into account the effect of the action. That I suffer harm, even unintentional, is a relevant factor. Let me now suggest a new set of revisions. Every person has the right to move from one location to another provided that movement does not interfere with the prior rightful occupation of that space by another and that movement does not result in either intentional or unintentional harm to others. I have now built both intentions and consequences of movement into this principle and it is nearly adequate. Two problems remain to address. The first is whether the principle should address intention without effect. This is often the focus of security claims and offered as a reason for preventing someone from entering. It raises significant issues, as intention is often difficult to assess. It is further complicated in that in some cases it may be intentional to move me from my spot, but not to cause harm (assuming the movement itself causes no harm). The other problem remaining to address, looking forward to the problem of migration, is the problem of groups. A principle that is useful for individuals might not be useful when applied to group movement, be it coordinated or uncoordinated. This notion is well recognized in moral and political literature. It is the caveat we find in the phrase "compatible with a similar right for all." The principle can now be modified into its final form. 53 Every person has the right to move from one location to another provided that movement does not interfere with the prior rightful occupation of that space by another and that movement is not for the purposes of harming others, does not result in either intentional or unintentional harm to others, either as the result of single actions or cumulative actions, and compatible with an equal right to movement for others. Carens and Kukathas Revisited From the perspective of the principle of the freedom of movement just developed, liberal communities do not have to support the unconstrained freedom of movement claimed by Carens and Kukathas. Movement will be constrained in ways that supports a system that minimizes harm to others while still respecting the rights of those who wish to move.69 This kind of system requires controls and the opportunity to evaluate the intentions of movement as well as the effects of movement, sometime simultaneous to, and other times in advance of movement. Such a system will utilize empirical data to evaluate how movement effects the functioning of institutions in receiving countries and whether there are resources available to integrate immigrants into new social circumstances. For security purposes the movement of some individuals might be barred, either for specific reasons or because there is inadequate information available to make informed decisions. It does not matter for my argument that this principle might result in different immigration control systems than those in use today. The development of a migration system that responds to the principle of the freedom of movement that I have 69 Note that Rawls also limits immigration based upon the responsibility of those moving: "they are to recognize that they cannot make up for their irresponsibility in caring for their land and its natural resources by conquest in war or by migration into other people's territory without their consent." Rawls, Law of Peoples, 39. 54 specified here might increase or decrease movement, but it will do so based upon the effects of the movement rather than for other more troubling reasons. What is important for my purposes here, is that the unconstrained principle of movement utilized by Carens and Kukathas cannot be defended from a liberal point of view when it is given close consideration. Freedom of Association and Open Borders Other principles beyond freedom of movement are available for use in grounding a liberal argument for open borders. Writing from a left-libertarian perspective, Hillel Steiner has offered at least two principled arguments supporting open borders. Left-libertarianism needs to be distinguished from right-libertarianism (represented by Nozick and Kukathas in this thesis). Both approaches characterize rights as property rights subject to control by the individual understood by the concept of self-ownership. In both accounts individuals own their bodies, their labor and the artifacts they produce using that labor. The difference between the two accounts is evident in the approach to the ownership of natural or raw resources, those things that exist without human intervention. Whereas right-libertarianism holds that natural resources were initially unowned and can be freely appropriated to private ownership in accordance with some principle (e.g., Locke's labor mixing principle), left-libertarianism holds that natural resources are jointly owned by all, including posterity, in an egalitarian fashion. Privatization of natural resources requires compensation to any who are denied access to or use of the natural resources being privatized. Only when such compensation has been paid can natural resources be privatized. Vallentyne summarizes this succinctly: "Left-libertarian theories of justice hold that agents are full self-owners and that natural resources are 55 owned in some egalitarian manner."70 Steiner's first argument utilizes the shared perspective of both forms of libertarianism, arguing that the right of freedom of association leads to a commitment to open borders and will be discussed in this section. The second argument reflects the distinct commitments of left-libertarianism, arguing that borders deny people access to their rights to resources and requires either that borders be open or that people be compensated appropriately. This argument is covered in the next section. In a short passage in "Hard Borders, Compensation and Classical Liberalism," Steiner argues in rebuttal to Walzer that freedom of association requires that borders be open.71 Walzer claims that emigration and immigration may be treated asymmetrically because the latter respects the voluntariness of actions, whereas to constrain the former replaces commitment with coercion,72 a practice that requires justification in liberal communities. In other words, the decision of immigration, in which the migrant voluntarily decides to leave and the receiving community decides to admit the migrant, is accepted because it is voluntary on the part of both parties. Emigration on the other hand, represents the voluntary decision of a person to separate from the community and denying that separation is to coerce that person into remaining part of the community. The decision to stay is not voluntary. It is a principle of autonomy and respect for autonomy that justifies the distinction between immigration and emigration. Steiner 70 Peter Vallentyne, "Introduction: Left-Libertarianism - A Primer," in Left-Libertarianism and Its Critics, edited by Peter Vallentyne and Hillel Steiner, (New York: Palgrave, 2000), 1. See also John Cunliffe, "Introduction: Left-Libertarianism - Historical Origins," in The Origins of Left-Libertarianism, edited by Peter Vallentyne and Hillel Steiner (New York: Palgrave, 2000). 71 Hillel Steiner, "Hard Borders, Compensation and Classical Liberalism," in Boundaries and Justice: Diverse Ethical Perspectives, edited by David Miller and Sohail H. Hashmi, (Princeton: Princeton University Press, 2001), 80-81. In Chapter 3 I will discuss Christopher Wellman's extended argument for closed borders based upon freedom of association. 72 Walzer, Spheres of Justice, 39-40. 56 believes this argument of Walzer's is flawed because it assumes that all individuals within a community share identical commitments, a condition that is unlikely to obtain in a pluralistic community. Members of the community will hold different levels of commitment to the various values held within the community. In the case where no member of the community desires to associate with outsiders, then Steiner holds it is acceptable for the state to control the borders in a manner that denies entry to all. However, if any member desires to associate with an outsider, denying that member the opportunity to do so is to coerce that member and deny the exercise of freedom. This is unacceptable within a liberal community. Walzer's argument fails because it doesn't recognize the different manners in which members can be coerced. Walzer's argument focuses upon coercion related to leaving a country, neglecting that those who stay may be coerced in ways not tied to leaving the country. If coercion is presumed to be wrong because it violates autonomy and personal respect, then one must examine all of the ways in which people are coerced by states related to migration before forming a policy regarding migration. Constraining people from associating with those outside of the country by denying admission also coerces those who live in the country and this coercion is on par with the coercion Walzer identifies. If this is the case, then how hard can borders be? Steiner's claim is that national borders may only be as hard as the softest private (individual) domain. Each person has the right to the control of his or her own private property, doing business or associating with whomever is chosen. Borders for these private domains are set individually and are morally justifiable based upon the concept of self-ownership. In order for the state to not violate these morally justified private border settings, the state's border must be no more 57 rigid than the weakest of these private domains. If the national border is more rigid than the weakest private domain, then the community members are denied their right to freedom of association. Suppose that A desires to associate with people from countries X, Y and Z, but B desires to only associate with people from countries X and Y. The national border should be controlled in a manner that satisfied the desires of A, the weakest private domain, rather than B which is a stronger, or more restrictive domain. If the borders are controlled in accordance with B's desires, A's rights to associate are being denied because people from country Z are not admitted to A's country. In the cases where national borders are harder than the weakest private border, Steiner maintains that the state is no longer representing the interests of all the members of the community; rather, it is representing the interest of some group within the community that desires the harder borders. These harder borders, however, violate the rights of individuals who wish more open borders and without compensation are unjustifiable. Steiner does not address the problem that by using the weakest private domain he forces people with stronger private domains to be forced in some way to associate with those they do not desire to associate. The problem with Steiner's argument is, as I noted also with Carens on freedom of movement, it sets up any individual's interest as a trump to state interest or the interest of other groups in the community. In the example above, A's desires will always be the determining factor because they are the least restrictive. In a pluralistic community this will create the situation where the state is hamstrung because it must always implement the least restrictive domain, 73 unable to make any but the most trivial of decisions out of 73 The phrase "least restrictive" is perhaps misleading. Steiner's view is that the largest group of rights possible must be honored from the perspective of rights. Ibid., 80. 58 respect for each individual opinion. If state policies are limited by the lowest level of commitment of any member, then the state cannot, in fact, exist because it is doubtful it will have any authority at all. All that is required is for one person to have some desire that runs counter to all other desires. It is that single desire that must then become policy. Even in the case where one might claim, as in a social contract situation, that the members of the community have surrendered their rights in some particular area, Steiner asks why it would be necessary for the state to have a border control policy. Would not it be acceptable for each member to exercise his or her individual commitment? Theoretically such a circumstance is conceivable but raises significant questions about what the nature of the state is and whether what results from such a scenario could be considered a state. Ultimately, this claim by Steiner is inadequately considered and ignores the considerations of Nozick regarding border crossings discussed above that enable the state to act in advance of actual violations of rights or the case of those unable to defend their own property. Steiner's argument from the freedom of association, included here in anticipation of Wellman's argument for closed borders from the freedom of association considered in the next chapter, is inadequately developed and lacks force within the open borders debate. Resource Entitlement and Open Borders In the same article in which Steiner presents his brief argument for open borders based upon freedom of association, he also presents a more robust libertarian argument based upon individual entitlement to resources. Setting the stage for this argument is Steiner's commitment that any argument offered must focus upon the rights of outsiders as well as the rights of insiders. 59 For the concern of human rights violations that, for classical liberals, constitutes the acid-test of policy permissibility, has thus far figured in our discussion only with reference to the rights of insiders….But outsiders, too, have human rights…classical liberal theory can be shown to assign them (other) rights which have a direct bearing on the permissibility of their exclusion by hard borders.74 Conceivably, insider's rights might never be violated by hard borders. The rights of outsiders, however, may always be violated by hard borders and it is this violation that receives inadequate attention in the liberal argument for closed borders. Classical liberal commitments to the equality and rights of every individual, however, obligate us to give equal consideration to both insiders and outsiders. When equal consideration is given to outsiders and insiders, then a different kind of argument must obtain in order to support hard borders. Steiner argues for open borders and then proposes how it is that borders might become closed. I will recount Steiner's argument in a different form than Steiner himself offers it. I do this to offer a clearer view of what feature in the world obligates states to a policy of open borders because it is this feature that is disputable and exposes the weakness of the argument. Steiner's construction of the argument first claims outsiders and insiders will view private property conventions differently. Steiner then offers an argument that relies upon the notion of shared ownership of all world resources to demonstrate that hard borders can be implemented only if outsiders are compensated for the loss of their share of ownership in the world. In my reconstruction I will present the argument of ownership first, and then consider the argument of insiders and outsiders. In this manner it will be more evident how Steiner reaches the conclusion of open borders. The issue of compensation is then plainly seen as rectification of a rights violation. 74 Ibid., 82. Emphasis is Steiner's. 60 Steiner argues that in the state of nature all property is jointly owned by all people who thereby, hold a share of the resources. In propositional format, the argument is as follows: 1. Property appropriation rules and national borders are derivative of individual rights. 2. Locke's appropriation rule utilizes labor (indicative of self-ownership) mixed with land, constrained by the Lockean proviso of "enough and as good as" to justify the private appropriation of unowned land. 3. The Lockean proviso entails that each person holds an entitlement to an equivalent portion of land. (1, 2) 4. This entitlement provides ownership in all land prior to appropriation. (2, 3) 5. Kant's appropriation rule utilizes human autonomy, the a priori concept of an ahistorical community of land and the general will of humanity to justify private property appropriations.75 6. All persons are shareholders in the land prior to private appropriation. (5) 7. Therefore, all unowned property prior to private appropriation is owned by all individuals. (4, 6) The end result of this argument is that each and every person holds an undifferentiated and equal share in all of the natural resources of the earth. In Locke's argument this share is evident in the proviso. Steiner interprets the proviso's commitment that everyone should have "enough and as good" as recognition that each holds ownership and does not surrender this ownership without granting permission or receiving appropriate 75 For Steiner's argument for this premise, see Hillel Steiner, "Kant, Property and the General Will," in The Enlightenment and Modernity, edited by Norman Geras and Robert Wokler, (London: Macmillan, 2000). 61 compensation. Ownership also means the ability to use the land productively or to receive an appropriate share of the proceeds from that land. Kant's commitment is to an abstract conceptualization of the community outside of history in which land is unowned but becomes owned as the result of an agreement of the general will. Steiner's strong<