5.1 iNTROdUCTiON
Existing nationalist and cosmopolitan approaches to the regulation of immigration falter on a variety of grounds, but one flaw that most share is a failure to treat the fact that all national societies are constituted by institutions that create distinct groups of individuals, privileging some and disadvantaging others, as morally salient. By contrast, the moral principle for evaluating policy proposals for regulating immigration that I developed in the previous chapter, the Priority of Disadvantage Principle (PDP), foregrounds these social divisions, holding that immi-gration policies that avoidably harm social groups that are already unjustly disadvantaged are unjust.
The purpose of the present chapter is to defend the PDP against competing views on immigration justice. In the following section (section 5.2), I confront the most basic of challenges to my principle:
that states ought to be regarded as having moral (as opposed to mere legal) sovereignty over immigration. This view, which I call the moral sovereignty of states view, holds that states are entitled to grant and to refuse admission to foreigners as they will, free of the constraints of alleged principles of justice. The moral sovereignty of states view does not uniquely challenge the PDP; it challenges all views on which the state’s selection of immigration policies is subject to principles of politi-cal morality, whether cosmopolitan or nationalist.
In section 5.3, I consider in a general way the view that the justice of immigration policies ought to be evaluated according to nationalist principles of political morality (that is, principles on which the state ought to show greater concern for the effects of its immigration policies on citizens than on foreigners). (This section contrasts with Chapter 2, in
which I criticized specific nationalist approaches to immigration justice.) This view, prescriptive nationalism with respect to immigration policy, is a challenge to all cosmopolitan approaches to immigration justice, including my own, which regards the nationality of members of unjustly disadvantaged social groups as morally irrelevant in itself.
I take my arguments in sections 5.2 and 5.3 to establish that (1) it is not the case that states’ selection of immigration policies is morally unconstrained and (2) nationalist principles of political morality are inappropriate for evaluating the justice of states’ immigration poli-cies. Section 5.4 begins from the observation that all national policies inevitably benefit some groups while harming others. If a policy’s distribution of benefits and burdens is morally significant, then we must develop principles for determining which distributions are just and which are not. I consider a handful of candidate principles in this regard, and conclude that, in terms of justice, the best distributions are those under which unjustly disadvantaged social groups have the most expansive sets of capabilities (that is, are not avoidably harmed).
5.2 THE mORAl SOVEREiGNTY OF STATES
One assumption underlying my view that it is unjust for states to adopt immigration policies that avoidably harm social groups that are already unjustly disadvantaged is that states’ immigration policies may be just or unjust—that is, that states’ immigration policies should be subject to principle of justice. This assumption is rejected by those who advocate what I call the moral sovereignty of states view.
In order to make sense of what this view holds, it is useful to contrast it with one with which it might easily be confused. In contrast to the moral sovereignty of states view, the legal sovereignty of states view holds that the legal authority to control the global movement of people should rest with states. In other words, according to this view, states ought to be legally (not necessarily morally) free to regulate immigra-tion as they wish. This is not a descriptive but a normative claim, and it can in principle be given moral justification.1 The legal sovereignty of states view does not by itself have any implications for how states should regulate immigration, or for whether they should do so at all.
(Thus, a defense of a moral principle for evaluating states’ immigration policies, such as the PDP, need not overcome the legal sovereignty of states view; one could without contradiction hold that states’ selection
of immigration policies is constrained by principles of justice yet think that states ought to have the legal or political authority to set immigra-tion policy.) The rejecimmigra-tion of the legal sovereignty of states with respect to immigration policy entails that states ought not legally regulate immigration, although it is compatible with the idea that someone else (whether an supra-national institution, sub-national units, or indi-vidual property owners) should.2
For the most part, philosophers discussing immigration have been substantially more interested in the moral sovereignty of states view.
The moral sovereignty of states view, as I have already articulated it, is that states’ selection of immigration policies is not constrained by principles of morality or justice. (Different defenders of this view, as this chapter demonstrates, may argue for various qualifications on this position.) In other words, states have moral discretion with respect to their choice of immigration policies; they are morally (not merely legally) free to do as they like. The moral sovereignty of states view is incompatible (except insofar as the view is qualified) with any suggestion as to what kinds of immigration policies morally ought to adopt. Thus, this view permits states to choose in accordance with
“the national interest,” but it does not (and cannot consistently) morally require this. One aspect of the moral sovereignty of states view that is often misunderstood is that its rejection does not entail, in contrast to the legal sovereignty view, that states abandon restric-tions on immigration. Rather, rejecting the moral sovereignty view entails that states’ selection of immigration policies is subject to prin-ciples of morality or justice. Depending on what these prinprin-ciples are (whether they are nationalist or cosmopolitan, and what their content is) and the contingent features of our world that are relevant to their application, states may be morally required to open their borders—or not.
There is surely something morally anomalous about the claim that states’ selection of immigration policies is morally unconstrained.
What initial plausibility this claim seems to have rests, Phillip Cole comments, with an analogy between states and individuals (Cole 2000:
181). Liberals believe that individuals ought to be free from legal and moral interference in the private sphere. Insofar as individuals and states are analogous actors, states similarly ought to be free from exter-nal legal and moral interference in the selection of domestic policies.
However, as Cole argues, this analogy is clearly untenable, since there
is by definition no private sphere for states; state action is always public, in the sense that it always has consequences for others—citizens as well as foreigners. It is perhaps inevitable that when states adopt new immigration policies or repeal extant ones some groups will benefit and others will be harmed. What, then, can justify the claim that states morally need take no account of principles of justice in the selection of immigration policies? In this section, I consider four attempts to supply this justification.
5.2.1 The International Order as a State of Nature
The first attempt to justify the moral sovereignty of states with respect to immigration policies explicitly relies on an analogy between states and individuals. This view, the Hobbesian theory of state sovereignty, holds that states, in the absence of a sovereign power to which they are subject, like individuals in a pre-social state of nature, are in a constant state of war with one another, in virtue of which they are morally free to enact policies that best promote the national interest. John Scanlan and O.T. Kent, who qualifiedly defend the Hobbesian theory of state sovereignty specifically with respect to immigration policy, invoke Hobbes’ view that:
during the time men live without a common power to keep them all in awe, they are in that condition which is called war . . . For WAR consisteth not in battle only, or the act of fighting, but in a tract of time wherein the will to contend by battle is sufficiently known . . . For as the nature of foul weather lieth not in a shower or two of rain, but in an inclination thereto of many days together, so the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assur-ance to the contrary. (Hobbes [1668] 1994: 76)
For individuals, the threat of war in the state of nature is eliminated by the creation of a state, brought into being by the consent of its subjects, who, seeking security, endow it with a monopoly on the legitimate use of force within a given territory.
According to Hobbes, the same exchange of freedom for security is not possible for states themselves. Scanlan and Kent again invoke Hobbes, who argues that:
in all times kings and persons of sovereign authority, because of their independency, are in continual jealousies and in the state and posture of gladiators, having their weapons pointing and their eyes fixed on one another, that is, their forts, garrisons, and guns upon the frontiers of their kingdom, and continual spies upon their neighbours, which is a posture of war. (Hobbes [1668] 1994: 78) Prior to the creation of the state, individuals in the state of nature, under constant threat of attack, are therefore entitled, in Hobbes’ view, to “the liberty each man hath to use his own power, as he will himself, for the preservation of his own nature, that is to say, of his own life, and consequently of doing anything which, in his own judgment and reason, he shall conceive to be the aptest means thereunto” (Hobbes [1668] 1994: 79). Individuals have this liberty because in the state of nature, Hobbes asserts, “nothing can be unjust. The notions of right and wrong, justice and injustice, have there no place. Where there is no common power, there is no law; where no law, no injustice” (Hobbes [1668] 1994: 78).
States, perpetually in a state of nature with respect to each other, are similarly free to adopt whatever policies best promote the national interest, says Hobbes: “in states and commonwealths not dependent on one another every commonwealth . . . has an absolute liberty to do what it shall judge (that is to say, what that man or assembly that representeth it shall judge) most conducing to their benefit” (Hobbes [1668] 1994: 76). The selection of immigration policies in particular must be within a state’s moral discretion, Scanlan and Kent argue, in consideration of the catastrophic consequences that may ensue from the failure of a state to control immigration:
In Hobbesian terms, immigration of aliens, particularly in large numbers, simultaneously poses internal and external threats to the stability of the receiving state. Both the external and the inter-nal threat derive from Hobbes’ identification of a “place to live” as one of the necessities of life that the individual cannot be obligated to relinquish in his or her “covenant” with the state. Hobbes appears to anticipate Thomas Malthus by more than a century in recognizing that increasing population threatens the wealth, well-being, and governability of particular nations. (Scanlan and Kent 1988: 73–4)
Thus, according to the Hobbesian argument, as Scanlan and Kent articulate it, the prospect that failing to restrict immigration will hasten the destruction of the state entails that states have absolute moral dis-cretion in regard to the selection of immigration policies.
The Hobbesian defense of the moral sovereignty of states with respect to immigration policy faces several difficulties. The first con-cerns the normative assumption underlying it: that when an agent’s survival is under threat, that agent may do whatever it pleases, in relation to that threat, in service of its self-interest. The normative assumption of the Hobbesian argument is hardly uncontroversial even for individuals, let alone for states. For states, it is explicitly challenged by traditional principles of just war theory, on which, for example,
“the damage to be inflicted and the costs incurred by the war must be proportionate to the good expected by taking up arms,”3 and on which
“the lives of innocent persons may never be taken directly, regard-less of the purpose alleged for doing so” (Holmes 1992: 213). Like deontological advocates of just war theory, consequentialists will also challenge the principle that agents under serious threat are morally free to do what they deem necessary to promote their own interests, since, first, the utility of one’s own survival may be outweighed by the utility of the survival of one’s competitors, and second, some means of promoting one’s interests may involve great costs to third parties. In other words, the inference from “the international order is a state of nature” to “principles of justice do not constrain states’ conduct” rests on a normative assumption that is widely regarded as false.
Second, even if one accepts the normative assumption on which the Hobbesian argument relies, there is good reason for thinking that the argument is not applicable in the case of immigration policy. The rele-vance to immigration policy of the Hobbesian argument presumes that adhering to principles of justice in the selection of immigration policies will hasten the destruction of the state. However, while it is conceiv-able that the adoption of certain immigration policies by certain states might hasten their destruction, there is no reason to think that it is true, in general, that principles of justice will require all states to adopt immigration policies that (non-trivially) increase their vulnerability to annihilation. It is worth noting that Scanlan and Kent’s articulation of the Hobbesian argument predicts catastrophe only as a consequence of open borders; thus, Scanlan and Kent themselves provide no reason to think that the Hobbesian argument is applicable to immigration
policy except against those who hold that justice requires the elimina-tion of restricelimina-tions on immigraelimina-tion. In defense of the relevance of the Hobbesian argument to immigration policy, one might argue that there are other policies that states might (be required by principles of justice to) adopt, besides open borders, which might hasten their destruction.
This rejoinder could not be denied in principle, but the mere possibil-ity of a case in which principles of justice require a state to adopt an immigration policy that hastens it destruction does not support the conclusion that all states may select immigration policies without regard for principles of justice. At the least, the burden of proof must surely be thought to rest with the state to show that it is exempt from principles of justice because respecting them, in a particular instance, would hasten its destruction.
Finally, the Hobbesian defense of the moral sovereignty of states is anachronistic. The contemporary international order does not satisfy the conditions Hobbes specifies for it to be properly characterized as a state of nature. Scanlan and Kent seem to mistake the role that the state plays in bringing an end to the state of nature; they treat the exist-ence of the state as a condition that must be met for the state of nature to cease. However, it does not follow from Hobbes’ argument that the creation of the state is itself strictly necessary for the cessation of the state of nature; it is, rather, one means for bring about the cessation of the state of nature. What is necessary to eradicate the state of nature, at the individual level, is that individuals become mutually dependent on one another for the satisfaction of their interests. Under these cir-cumstances, it is no longer rational, in Hobbes’ sense, for individuals to quarrel with or to threaten one another; individuals cannot satisfy their own interests without cooperating with others to some degree. At the individual level, Hobbes surmises, the best way to institutionalize this mutual dependency of interests is to create a state. Conflicts of interest similarly put states at odds with one another at the international level:
according to Hobbes, states are in a continual state of war with one another “because of their independency,” and this condition of war will persist so long as states are “not dependent on one another.” Scanlan and Kent (and perhaps Hobbes too) assume that at the international level, a sovereign global authority is similarly necessary to bring about an end to the international state of nature. Since there is no sovereign global authority, states are at war with one another, in Hobbes’ sense;
thus the conditions of individual states’ moral sovereignty obtain.
However, despite the absence of a sovereign global authority, it would be descriptively inaccurate to characterize contemporary states as inhabiting a state of nature with respect to each other. This is chiefly because, as Charles Beitz argues, states are not the only actors in interna-tional relations (as individual persons are in Hobbes’ interpersonal state of nature). Rather, states share the world with a variety of international and transnational organizations and institutions that are capable of reshaping the circumstances that characterize states’ relations with one another in ways that suspend the state of war. For example, Beitz argues that such institutions have the capacity to mediate conflict, coordinate collective action, insulate states from competition, enable the sharing of risks, and encourage the formation of less competitive attitudes on the part of states (Beitz 2008: 30). In addition, these institutions have arisen in response to and have further entrenched and systematized the interdependence of states, making it instrumentally rational for states to cooperate with one another—thus dissolving the state of war—even in the absence of a unified, effective global authority. For example, Beitz notes that “meeting domestic economic goals (such as full employment, control of inflation, balanced economic growth) requires substantially higher levels of cooperation among governments than has been the case in the past” (Beitz 2008: 33). Moreover, Beitz argues, these institutions include stable associations and coalitions involving “rules of coopera-tion” with “reliable expectations of reciprocal compliance” that contem-porary states have established for addressing common problems. These rules ensure that states become somewhat dependent on one another for the satisfaction of their interests despite “the absence of a superior power capable of enforcing [them]” (Beitz 2008: 34–5).4
Examples abound of international, transnational, and global organi-zations and institutions that mediate conflicts of interest, systematize interdependence, and make reliable inter-state cooperation possi-ble. These include regional political and economic organizations (for example, the EU, NAFTA, and the presently expanding Trans-Pacific Strategic Economic Partnership), global economic institutions (for example, the WTO, the IMF, and the World Bank), the UN, NATO, international criminal courts, international covenants on human rights, the international postal system. The observance of these institutions demonstrate that states are not in a state of nature with respect to each other; thus, the conditions under which the Hobbesian argument
Examples abound of international, transnational, and global organi-zations and institutions that mediate conflicts of interest, systematize interdependence, and make reliable inter-state cooperation possi-ble. These include regional political and economic organizations (for example, the EU, NAFTA, and the presently expanding Trans-Pacific Strategic Economic Partnership), global economic institutions (for example, the WTO, the IMF, and the World Bank), the UN, NATO, international criminal courts, international covenants on human rights, the international postal system. The observance of these institutions demonstrate that states are not in a state of nature with respect to each other; thus, the conditions under which the Hobbesian argument