Immigration and freedom of association

Ethics

Volumn 119, Issue 1, 2008, Pages 109-141

  Wellman, Christopher Heath ^a  

^a NONE

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[No Author keywords available]

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EID: 58849108651     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/592311     Document Type: Article

References (53)

1. Stuart White, "Freedom of Association and the Right to Exclude," Journal of Political Philosophy 5 (1997): 373-91, 373.
2. David Gauthier, "Breaking Up: An Essay on Secession," Canadian Journal of Philosophy 24 (1994): 357-92, 360-61.
3. Some also object to the Boy Scouts' refusal to admit girls.
4. For an extended discussion of some of the issues associated with group autonomy, see chap. 3 of my book A Theory of Secession (New York: Cambridge University Press, 2005).
5. Here one might be tempted to object that Canada's right to independence is more straightforwardly accounted for in terms of its right to self-determination. But, as I shall argue below, it is misleading to contrast freedom of association with self- determination because freedom of association is actually a central component of the more general right to self-determination. In the case of political states, for instance, a state cannot fully enjoy the right to political self-determination unless its rights to freedom of association are respected.
6. White, "Freedom of Association and the Right to Exclude," 381 (emphasis added).
7. It should be noted White is not necessarily committed to this line of argument because his analysis is explicitly restricted to "secondary" groups (which I take to be groups within states) which adopt "categorical" exclusion (i.e., exclusion based upon an individual's race, gender, sexuality, or religion).
8. See Michael Walzer, Spheres of Justice (New York: Basic, 1983), 31-63; and David Miller, "Immigration: The Case for Limits," in Contemporary Debates in Applied Ethics, ed. Andrew I. Cohen and Christopher Heath Wellman (Maiden, MA: Blackwell, 2005), 193-206.
9. In Toward a Theory of Immigration (New York: Palgrave, 2001), the only monograph I know of which defends a state's right to craft its own immigration policy, Peter Meilander takes a similar tack, arguing that legitimate national identities have a right to defend themselves against the threat posed by immigration.
10. Walzer, Spheres of Justice, 62.
11. Miller, "Immigration: The Case for Limits," 200. Miller also stresses the role that limiting immigration can play in curbing population growth, but his flagship argument features the importance of preserving culture.
12. Chandran Kukathas, "The Case for Open Immigration," in Cohen and Wellman, Contemporary Debates in Applied Ethics, 207-20, 211.
13. Joseph H. Carens, "Aliens and Citizens: The Case for Open Borders," Review of Politics 49 (1987): 251-73, 252.
14. Jean Hampton, Political Philosophy (Boulder, CO: Westview, 1996), 158.
15. Other prominent defenses include David Miller, "What Kind of Equality Should the Left Pursue?" in Equality, ed. Jane Franklin (London: Institute for Public Policy Research, 1997), 83-99;
16. Jonathan Wolff, "Fairness, Respect, and the Egalitarian Ethos," Philosophy & Public Affairs 27 (1998): 97-122;
17. Andrew Mason, "Equality, Personal Responsibility, and Gender Socialisation," Proceedings of Aristotelian Society 100 (1999-2000): 227-46;
18. and Samuel Scheffler, "What Is Egalitarianism?" Philosophy & Public Affairs 31 (2003): 5-39.
19. Elizabeth S. Anderson, "What Is the Point of Equality?" Ethics109 (1999): 287-337, 314.
20. Ibid., 316.
21. Harry Frankfurt makes a similar point in "Equality as a Moral Ideal," Ethics 98 (1987): 21-43.
22. Incidentally, this point both explains, and is confirmed, by, the fact that Chandran Kukathas's quote listed earlier is offered, under the banner of a principle of "humanity" rather than one of equality.
23. I do not claim that Michael Blake would follow me in putting this point in terms of samaritanism, but in some important respects the position I outline here squares well with what he says about international distributive justice in his excellent article "Distributive Justice, State Coercion, and Autonomy," Philosophy & Public Affairs 30 (2001): 257-96.
24. This appears to be another respect in which my views diverge from those which Blake develops in "Distributive Justice, State Coercion, and Autonomy." According to Blake, the relationship among compatriots is singled out because the state's coercion is key to determining when relative equality is important.
25. Walzer, Spheres of Justice, 61.
26. As Jonathan Glover explains in his book Humanity (New Haven, CT: Yale University Press, 2001): "The idea of the family was attacked. People who were allowed to stay in their villages had to share everything, down to pots and pans. Communal meals for hundreds of families together were compulsory. Many families were split up, with men and women being forced to sleep in segregated communal dormitories" (303).
27. Here one might reassert the objection to my analogy between immigration and marriage. In particular, because political unions are not nearly as intimate as marriages, an egalitarian might consistently protect freedom of association in the marital realm without being similarly impressed with a state's right to craft its own immigration policy. I agree that it would be more of an imposition to restrict one's discretion to select one's spouse, but this concession does not trouble me because I need not press the marriage analogy as far as this objection presumes. My limited hope is that our firmly held and familiar views on marriage will confirm my contention that a state's right to control its territorial borders need not conflict with its duties of distributive justice, even when the latter are cashed out in starkly luck egalitarian terms. If this is right, then arguments like Peter Singer's (which compares refugees to people desperately clamoring for shelter from the fallout of a nuclear bomb) are fallacious because, unlike those exposed to the fallout (whose only hope is to be admitted to the shelter), potential immigrants can be effectively helped without being admitted into one's country. See Peter Singer, "Insiders and Outsiders," in Practical Ethics (Cambridge: Cambridge University Press, 1993), 247-63.
28. Miller, "Immigration: The Case for Limits," 198-99.
29. Thomas Pogge and Eric Cavallero have offered similar arguments. See Pogge's "Migration and Poverty," in Citizenship and Exclusion, ed. Veit M. Bader (Houndmills: Macmillan, 1997), 12-27;
30. and Cavallero's "An Immigration-Pressure Model of Global Distributive Justice," Politics, Philosophy and Economics 5 (2006): 97-127.
31. It is important to note, though, that those who make an exception for refugees (as defined by international law) apparently cannot do so on principled grounds. As theorists like Andrew Shacknove and Michael Dummett have pointed out, restricting the status of refugees to those who have crossed an international border because of a well-founded fear of persecution is morally arbitrary. See Andrew Shacknove, "Who Is a Refugee?" Ethics 95 (1985): 274.-84;
32. and Michael Dummett, On Immigration and Refugees (New York: Routledge, 2001).
33. Of course, interventions will typically take time, and in these cases the intervening state should not return the refugees to their home state (at least without protecting them) until the intervention is successfully completed.
34. For more on the permissibility of armed humanitarian intervention (as well as a more expanded critique of Walzer's position), see Andrew Altman and Christopher Heath Wellman, "From Humanitarian Intervention to Assassination," Ethics 118 (2008): 228-57.
35. Miller, "Immigration: The Case for Limits," 198.
36. Carens, "Aliens and Citizens: The Case for Open Borders," 253.
37. This inference from libertarianism to anarchism is admittedly very quick. I defend this claim at greater length in my essay "Liberalism, Samaritanism and Political Legitimacy," Philosophy & Public Affairs 25 (1996): 211-37. Very briefly, though, notice that even the most minimal state must nonconsensually force all constituents within the territory to do at least two things: (1) defer to the state's judgments regarding criminal punishments (e.g., individuals must refrain from vigilante justice) and (2) pay taxes so that the state has enough money to maintain its monopolistic coercive power over the criminal law. 31. A thorough-going libertarian might well deny that states are entitled to determine the terms of international trade, but of course this is not because there is anything distinctive about international trade. Such a libertarian will deny that a state has any moral dominion which each individual has not voluntarily surrendered. And since no state has garnered the morally valid consent of all of its constituents, staunch (and consistent) libertarians must reject all forms of statism.
38. In a referendum in August of 1905, 368, 392 Norwegians voted in favor of political divorce and only 184 voted against.
39. Walzer (Spheres of Justice, 59) characterizes the situation of guest, workers as follows: "These guests experience the state as a pervasive and frightening power that shapes their lives and regulates their every move-and never asks for their opinion. Departure is only a formal option; deportation, a continuous practical threat. As a group, they constitute a disenfranchised class. They are typically an exploited or oppressed class as well, and they are exploited or oppressed at least in part because they are disenfranchised, incapable of organizing effectively for self-defense."
40. One might object that this argument presumes a relational theory of equality, which a libertarian might reject. I do not worry about this argument's reliance upon the relational theory of equality, however, both because those drawn to libertarianism are likely to be much less uncomfortable with relational egalitarianism than with luck egalitarianism and because one cannot summarily dismiss all concerns regarding inequality on the grounds that they require some type of positive rights unless one is willing to embrace anarchism (since statism also requires the existence of positive rights).
41. I suspect that Walzer himself would not even object to this, since presumably a key factor triggering his concern about the Turkish guest, workers in Germany was the extended duration of their stays.
42. Carens, "Aliens and Citizens: The Case for Open Borders," 267.
43. As Phillip Cole puts it, "one cannot consistently assert that there is a fundamental human right, to emigration but no such right to immigration; the liberal asymmetry position is not merely ethically, but also conceptually, incoherent" (Philosophies of Exclusion: Liberal Political Theory and Immigration [Edinburgh: Edinburgh University Press, 2000], 46).
44. Miller, "Immigration: The Case for Limits," 197.
45. I should, acknowledge that, when the level of welfare benefits varies considerably from province to province, the stakes of internal migration can also be much higher.
46. Samuel Huntington, Who Are We? (New York: Simon & Schuster, 2004).
47. Although this is less clear, it may be that a country which de facto discriminates according to these types of criteria, may be just as blameworthy as one which has a de jure policy to do so. See, e.g., Dummett's discussion of British immigration practices in On Immigration and Refugees.
48. Walzer, Spheres of Justice, 47.
49. Miller, "Immigration: The Case for Limits," 204.
50. The view I advance here is similar to that which Michael Blake develops in "Immigration," in A Companion to Applied Ethics, ed. R. G. Frey and Christopher Heath Wellman (Maiden, MA: Blackwell, 2003), 224-37.
51. My favoring the relational theory of equality also explains why I do not accept Carens's rejection of Walzer's view. Carens invokes the distinction between the private and public spheres to explain why, while you "can pick your friends on the basis of whatever-criteria you want," you may not invoke categories like race to discriminate among applicants for immigration ("Aliens and Citizens: The Case for Open Borders," 267). For reasons that the relational theory of equality helps illuminate, though, even if one should not use racial categories to discriminate among applicants (for positions within the public sphere) within a given community, it does not follow that these categories may not be used when deciding who should get in to this community.
52. Blake, "Immigration," 233.
53. Defenders of Israel's Law of Return often cite the Convention on the Elimination of All Forms of Racial Discrimination Article I (3). which allows states to give a group preferential treatment in immigration (as long as no group is discriminated against). More important, in my view, is the historical context in which the Law of Return was enacted. Given how many Jews were massacred for lack of a political safe haven, it is altogether understandable that Israel would decide, with the Knesset's first law, to open its doors to Jewish people everywhere. (Here we might, invoke the Convention on the Elimination of All Forms of Racial Discrimination Article I (4), which permits preferential treatment as a remedy for past discrimination.)