The politics/philosophy blog Crooked Timber, is organising an online symposium on political philosopher Joseph Carens’ book, The Ethics of Immigration. I published my contribution last week. These are links to the other contributions so far. Carens himself will respond in time, and all contributions will be published as an e-book.
Some worries about Carens’s democratic consensus
One difficulty I have in thinking about how to discuss the work in a symposium such as this is in finding ways to disagree with it. The earlier chapters, in particular, are thoroughly persuasive to me on the topics of citizenship and integration. Carens takes the argument quite slowly, introducing each topic with a vignette about the personal situation of a migrant and then going on to demonstrate the injustice in their status or what has happened to them. It is hard to think that a humane and liberal person will disagree with much in Carens’s theory of social membership: the idea that real material connection to a society ought to be the central criterion for membership and citizenship rather than inheritance or birthplace.
Persuading me of such conclusions, however, is a relatively easy thing to do. I already believe them and I also believe in the supposedly shared democratic norms that Carens claims imply them. However, I’m less confident than he is that there is widespread agreement on such principles outside of a minority liberal elite. My worries about the book’s argument are twofold: first, I think that support for the norms he relies upon is much narrower than he believes; second, it is sometimes unclear what the content of the area of supposed agreement is. I try to bring this latter point out with reference to what Carens has to say about temporary workers and the phenomenon of ‘brain drain’.
The theory of social membership
Carens’s claim is that over time people come to have a fundamental interest in being legally recognized as members of the community in which they live.There are many questions to be asked about this theory. Briefly consider two.
First, what should we think about individuals who neither form, nor wish to form, social connections? Perhaps an individual moves to a cabin in very rural Montana with the specific intention of avoiding social connections and relationships. According to Carens, such an individual is nevertheless entitled to citizenship.
The recluse who is the descendent of several generations of citizens is still a member of society, not because of her ancestry but because of where she lives. The immigrant recluse has the same claims to social membership. But, since the recluse does not have the kinds of social connections that are supposed to justify claims of citizenship, this remark seems to suggest that it is not the ‘rich networks of relationships’ that justifies granting individuals citizenship. What, then, is it? And if we are willing to depart from the theory of social membership in this case, how can we be confident that it is correctly guiding us in other instances?
Second, we should ask how the theory applies in other contexts. For example, I have taught at New York University for some 5 years now. I have forged relationships, acted as a member of the community, built expectations around the assumption that I will continue to be an NYU faculty member, and so forth. Still, although some might think it sad or unfortunate if NYU dismissed me, few would think that it loses the right do so once I forge sufficient social connections.
Movement within and between states
The fact that there is free movement within liberal democracies undermines some of the more outlandish predictions of the opponents of open borders. Carens quotes Michael Walzer saying that we need closed borders to preserve ‘communities of character’. But Vermont has open borders (on three sides at least) and is (or at least contains) as good a community of character as one might aim for in designing policy. By the same token, reflection on currently existing polities without borders should tamper our enthusiasm for the benefits that open borders would bring. There aren’t any closed borders, in the sense Carens is interested in, between Trenton, NJ and Princeton, NJ. There are even trains that run between the two dozens of times a day. And yet the wealth of one doesn’t seem to have done much to benefit the residents of the other. This hasn’t happened by chance, and it is worth worrying that the mechanisms involved would be seen more in a world of open borders.
It is tempting to think of borders between states as much more important than borders within states because of the greater inequalities between rather than within states. Indeed, some of Carens’s qualifications to his conclusions seem to acknowledge this temptation. For instance, he writes: ‘Our deepest moral principles require a commitment to open borders (with modest qualifications) in a world where inequality between states is much reduced.’ (288, emphasis added). But I’m not sure that is a relevant concern given the world we actually live in. Already, inequality within states is almost as significant as inequality between states. And if Piketty is right, the trend is that inequality within states is rising, perhaps substantially, while all the evidence suggests that inequality between states is falling.
Right arguments, wrong order
Joseph Carens’s important, engaging and superbly written book aims to offer ‘a general account of how democrats should think about immigration’ based on ‘fundamental democratic principles’ that Carens believes most people in Europe and North America already hold (p5). This methodological stance dictates the structure of the book. What is most controversial is pushed to the back. Chapters 11 and 12 make the argument Carens is most famous for: the case for open borders. Chapters 1-10 set that all aside to address a range of everyday migration controversies, from naturalisation to religious dress codes, under the assumption that states have a broad right to control immigration as they wish. The boast of the book is that it can adopt this underlying assumption and still defend a set of progressive policy proposals requiring states to extend a variety of rights to migrants. The case for open borders is meant to be Carens’s encore – a treat performance once the main show is over – not a premise upon which the whole thing hinges. Does Carens pull it off? In my view, no. Most of the arguments that Carens makes for migrants’ rights in Chapters 1-10 fail unless the right of states to control immigration is called into question. Conversely, if one accepts not only the common assumption that states have a right to control immigration but also the common beliefs that lie behind that assumption, then one has reason to resist the extension of rights to migrants.
Social membership and territorial rights
The idea of social membership does a great deal of work for Carens in the first part of his book. The simple facts of residence and time are understood as proxies for rich networks of social belonging – for, that is, particular relationships to places and persons, to particular forms of social institution and to particular polities. These social forms of membership are understood as sufficiently important that those who have them must be given what is needed to go on having them; those who are members in fact, that is, ought to be given what is needed to go on being members, including the legal right to remain within their places of residency. This idea grounds a great many specific guarantees Carens endorses, including birthright citizenship for children, residency rights for the undocumented (after a certain number of years), and a general hostility to long-term guest worker status. I share Carens’s belief that social membership is morally important; I am not convinced that it necessarily has the implications Carens describes.
Democratic equality and internal movement
The right to move within states is a basic human right, acknowledged by multiple international human rights documents including the Universal Declaration of Human Rights. For Joseph Carens, what is puzzling, and ultimately unjustified, is that the right to move internationally is not similarly recognized as a basic human right – in his view, it ought to be recognized as such. According to Carens, the right to move domestically (or internally – I use these terms interchangeably to mean movement within the borders of a state) and internationally protect the same interest: ‘the vital interest that is at stake here is…freedom itself. You have a vital interest in being free, and being free to move where you want is an important aspect of being free. Carens defends this view from attack by those who think that there are important distinctions between internal and international freedom of movement. In this brief comment, I outline the argument as Carens describes it, and then I join the ranks of those who nevertheless want to justify distinguishing between the internal and international rights to movement. I suggest that Carens gives short shrift to two important ways in which the distinction can and, in my view, should be justified, and then argue that we ought to understand the right to move internally as a membership-specific human right, according to a slightly modified account of what such a right entails.
On social membership
we need to address Carens’s theory of social membership as a theory designed to make our judgments cohere across a range of cases. Perhaps the central controversy to which this theory gives rise is Carens insistence that it is the fact of social membership that matters and that law should be constrained by the acknowledgment of this fact. When the relevant threshold has been passed and the immigrant has become social member, then they should be entitled to access to citizenship. I want to focus on three aspects of this theory addressing, in turn, the idea of social membership, the idea of thresholds and the relationship to law.
Is Carens still advocating open borders?
Political theorists are much indebted to Joseph Carens for his 1987 article ‘Aliens and Citizens: the Case for Open Borders’. Written in a period of increased restrictions on migration, Carens’s article was pioneering in two ways: it introduced the migration question to political theory’s agenda and set the terms of the debate from the free movement side. Carens’s recent book, The Ethics of Immigration, is less pioneering. It explicitly aims to engage with the ‘conventional view of immigration’ and to show that it can accommodate some measures which improve citizenship and admission policies. The open borders argument is not abandoned but is left to only one of the twelve chapters. Carens’s main concern, however, is to show that the open borders argument does not conflict with the measures he proposes.
It is possible to have the opposite concern: are the proposed measures a way to advance towards a world of open borders? In other words, is Carens still advocating open borders? My analysis here will be limited to the first measure he proposes in the book, this is that ‘justice requires that democratic states grant citizenship at birth to the descendants of settled immigrants’. Whether justice requires this or not, many ‘democratic states’ already conform to this principle and my argument is not that they should stop. Rather, my worry is that such an argument is not a way to advance towards an open borders world.
The argument from democratic principles
Carens introduces his project in the book thus: ‘I want to show that debates about immigration raise ethical questions, that many of these ethical questions are interconnected, and that a commitment to democratic principles greatly constrains the kinds of answers we can offer to these questions’. As far as I can see, almost all of the political philosophers working on the ethics of immigration (across the spectrum of views on the subject) agree with all of that. Of course the more controversial part is how far democratic principles actually constrain things in the direction of more open borders and away from more state discretion with respect to immigration policies.
As Carens makes clear at the outset, he is employing ‘the term “democratic principles” in a very general sense to refer to the broad moral commitments that underlie and justify contemporary political institutions and policies through North America and Europe’ and he notes that ‘others might use the terms “liberal” or “liberal democratic” or “republican” to characterise the principles and ideas for which I use the term “democratic”’. In short, he isn’t using ‘democratic principles’ in a narrow sense to refer just to the principles that may flow from a commitment to something like ‘rule of the people’.
I wonder whether, in taking such a broad approach to ‘democratic principles’ throughout and not really focusing on democratic principles more strictly construed, Carens may be giving short shrift to what is one of the most potent democratic arguments in favour of states and their citizens retaining greater control over their immigration and naturalisation policies.
Despite the fact that I have been arguing for the ethics of open borders and that Joseph’s work has had a foundational role in those arguments, I have always been aware that there is an area of difference, and it is one that he reflects on in his book, especially in the Appendix, where he discusses method. That difference is whether as theorists we should argue directly for open borders, or whether we need to get there step by step. I have taken the direct position, while, despite the fact that we agree on the ultimate destination, Joseph has taken the view that we need to move more slowly.
So what does The Ethics of Immigration tell us about the European Union?
So why did the organisers of this symposium also offer the opportunity to a European Union lawyer – not a theorist mind, but a vanilla lawyer – to make a comment on Joseph Carens’ magisterial book on The Ethics of Immigration? It should have been obvious that I could add nothing to the excellent contributions by other normative theorists who are commenting directly on these aspects of Carens’ work. So it must have been for some other reason.
It was presumably in order to provoke a reflection upon the peculiarities of the EU’s own combined system of internal soft borders (‘free movement’) and external hard borders (‘Fortress Europe’, some might say) in the light of Carens’ arguments about the ethical demands of states in relation to borders and migrants. To that extent, my reflections are less about the book than about the issues which the book is helping me to think through – and for that I am very grateful to Joseph Carens for his wonderful text and also to the organisers for indulging my preferences.
The paintings are from the Migration series by Jacob Lawrence