Book review of Pevnick (2011) and Cole & Wellman (2011).

Many believe that we have a duty not to discriminate when we act in certain ‘public’ capacities, for example when it is our job to select among various candidates for a job. In contrast, they deny that we have duties of a similar kind in our private lives, for example in our romantic lives. In this paper, we challenge this well‐entrenched asymmetry. We do so primarily by canvassing and rebutting central arguments to the effect that acting discriminatorily, for example when (...) we date, is something we have a right to, including arguments from: (1) freedom of association, (2) legitimate self‐interest, (3) power and (4) love versus duties. In this way, we challenge a common permissive view regarding private discrimination. (shrink)

The philosophical debate on the freedom of movement focuses almost exclusively on long-term migration, what I call, migration as settlement. The normative justifications defending border controls assume that the movement of people across political borders, independent of its purpose and the length of stay, refers to migration as settlement. “Global mobility,” “international movement,” and “immigration” are oftenused interchangeably. However, global mobility also refers to the movements of people across international borders for a short length of time such as travel, short-term (...) and circular migration. While most scholarly attention has focused on long-term migration, the vast majority of cross-border movement of people (approximately 85% of all cross-border movements in 2019) is short-term. The existing literature offers normative arguments for border controls, which are grounded on states’ right to self-determination, the freedom of (dis)association, the welfare state, the duty to compatriots, and brain drain. In this paper, I argue that these arguments do not justify excluding travelers, short-term and circular migrants from the territory. (shrink)

In Justice for People on the Move, Gillian Brock constructs an elaborate normative framework, based on human rights practice, to assess how states must treat international migrants in order to legitimate exclusionary claims to self-determination. In this discussion piece, I argue that this framework cannot always satisfactorily explain when and why it is impermissible for legitimate states to remove irregular migrants from their territory (i.e. deport them). I show that Brock’s intuitions about at least one of her own paradigm cases (...) – the removal of long-settled immigrants whose irregular immigration was tacitly approved at the time – are not accommodated by her own framework. However, Brock also acknowledges that deportation is often harmful to persons and that this is morally problematic. Although this concern with harm is not systematically elaborated in Brock’s discussion, I think it should be. I suggest that a purely harm-based framework is fully able to negotiate Brock’s moral worries about deportation and outline the cornerstones of such a framework, stressing that harm in deportation may count as permissible only if it satisfies the joint desiderata of necessity and proportionality. I conclude by giving a sense of how one of Brock’s paradigm cases – the tacit-approval case – could be assessed within this framework, arguing that such an analysis would likely bolster Brock’s intuitions about this case whilst satisfactorily explaining if and why exactly the deportation practice in question cannot permissibly be pursued by legitimate states. (shrink)

Answers to the question of immigrant admissions have been debated extensively by political philosophers since the 1980s. A wide variety of normative approaches to the question have been taken, but very nearly zero have been expressly feminist. Generalizing from Alison Jaggar's articulation of a feminist methodological approach to the political morality of abortion, this article proposes a feminist methodological approach to immigrant admissions. This article does not defend a substantive view on what policies states ought to adopt, but it does (...) describe several features of our social world that are salient for a feminist methodological approach to the assessment of the justice of states’ immigrant admissions policies. (shrink)

The political theory of migration has largely occurred within a paradigm of methodological nationalism and this has led to the neglect of morally salient agents and causes. This article draws on research from the social sciences on the transnationalism, globalization and migration systems theory to show how methodological nationalist assumptions have affected the views of political theorists on membership, culture and distributive justice. In particular, it is contended that methodological nationalism has prevented political theorists of migration from addressing the roles (...) of non-state agents and of transnational economic, social and political structures. These agents and structures contribute to the asymmetrical distribution of goods and opportunities and thus have important implications for debates about migration and distributive justice. (shrink)

Certain states in the Global North have responded to refugees seeking safety on their territories through harmful practices of border violence, detention, encampment and containment that serve to prevent and deter refugee arrivals. These practices are ostensibly justified through an appeal to a right to control borders. This paper therefore assesses whether these harmful practices can indeed be morally justified by a state’s right to control borders. It analyses whether Christopher Heath Wellman’s account of a state’s right to freedom of (...) association, which represents the most restrictive account of a state’s right to control borders available in the literature, can extend to justify current harmful practices against refugees. If not, then no available justification will be able to do so, and thus contemporary harmful practices used against refugees cannot be justified by a state’s right to control borders. (shrink)

States cannot legitimately enforce their borders against migrants if dominant conceptions of sovereignty inform enforcement because these conceptions undermine sufficient respect for migrants’ basic human rights. Instead, such conceptions lead states to assert total control over outsiders’ potential cross-border movements to support their in-group’s self-rule. Thus, although legitimacy requires states to prioritize universal respect for basic human rights, sovereign states today generally fail to do so when it comes to border enforcement. I contend that this enforcement could only be rendered (...) legitimate if it was predicated on more desirable conceptions of sovereignty that supported the universal prioritization of basic human rights. Specifically, desirable conceptions would not establish and require absolute state sovereignty over borders as a necessary precondition for true popular self-governance. (shrink)

Supporters of open borders sometimes argue that the state has no pro tanto right to restrict immigration, because such a right would also entail a right to exclude existing citizens for whatever reasons justify excluding immigrants. These arguments can be defeated by suggesting that people have a right to stay put. I present a new form of the exclusion argument against closed borders which escapes this “right to stay put” reply. I do this by describing a kind of exclusion that (...) has not been discussed in depth, which I call “territorial exclusion.” Territorial exclusion is the process according to which the group that wishes to exclude current citizens secedes from the territory in which those citizens reside. I argue that the wrongness of territorial exclusion explains why there is no pro tanto right for a state to exclude immigrants, because otherwise there would be a pro tanto right for the state to kick people out by seceding from the territory they inhabit. Because kicking people out like this is typically wrong, borders cannot be closed. (shrink)

Within the immigration debate, libertarians have typically come down in favor of open borders by defending two main ideas: i) individuals have a right to free movement; and ii) immigration restrictions are economically inefficient, so that lifting them can make everyone better off. This entry describes the rationale for open borders from a libertarian perspective (in part by analogy to the debate around minimum wage laws). Three main objections within the immigration literature are then discussed: i) the view that states (...) may restrict immigration to protect the interests (e.g. jobs) of their domestic needy; ii) the claim that restrictions are justified as a means of preserving culture; and iii) the influential argument that the right to freedom of association entails a right to exclude. These arguments are well-known, and I describe some of the compelling responses to be found in the recent literature. The essay then turns to more neglected critiques. The first concerns how liberal regimes should think about immigration from countries where the dominant norms are illiberal. The second examines the idea that political and economic institutions are sensitive to immigration policy, especially in the long run. Both of these critiques approach the topic from a non-ideal theory perspective, emphasizing the “public choice” dimensions of immigration policy. The entry closes by suggesting that this form of critique is especially important for open-borders libertarians to respond to given their general commitments to non-ideal, non-romantic theorizing in the context of government institutions and policy. (shrink)

This article compares the moral significance of two types of immigration, that which is based on the unification of citizens and non-citizens and that which is based on the skilled labor needs of the receiving society. I assess the interests of both citizens and non-citizens affected by each of these types of inflows and argue that unification admissions should be given priority over skilled workers but states retain a qualified moral permission to incentivize skilled worker migration.

A recent challenge to statist arguments defending the right of states to exclude prospective immigrants maintains that such statist arguments prove too much. Specifically, the challenge argues that statist arguments, insofar as they are correct, entail that states may permissibily exclude current members' newcomers by birth, which seems to violate a widely held intuition that members' newcomers by birth ought automatically to be granted membership rights. The basic claim is that statist arguments cannot account for the differntial treatment between prospective (...) immigrants and newcomers by birth. Call this the newcomer-by-birth objection. This article rejects the newcomer-by-birth rejection. It begins by sketching the precise extent to which the objection applies to statist arguments. It then examines the case of newcomers by birth and argues for a principled basis for treating them differentially from prospective immigrants such that a right to exclude prospective immigrants need not entail a right to exclude newcomers by birth. But this distinction holds only in most cases, not all, and therefore the newcomer-by-birth objection is not entirely defeated. With respect to the cases in which the objection does hold, it is argued that such cases are morally akin to international adoption, and thus morally benign. All considered, statist arguments easily survive the newcomer-by-birth objection. (shrink)

According to the traditional state sovereignty view in the ethics of immigration literature, societies have a great deal of latitude in determining and implementing their immigration policies. This view is typically defended by appealing to the rights of members of societies, for instance to political self-determination. Opponents of the view have often criticized its partiality to members, arguing that nonmembers can also make stringent demands on societies to be admitted and given the same treatment in matters of immigration policy as (...) other nonmembers. In this paper, I take a different approach to responding to the state sovereignty view. I argue that even if we grant the premise that the rights of members generally trump the rights of nonmembers in matters of immigration policy, societies are greatly constrained in setting their immigration policies by considerations of domestic justice. The considerations that I focus on involve relationships between members and nonmembers that hold due to a shared quality or set of qualities on the basis of which members identify with nonmembers. The argument appeals to premises and principles that defenders of the state sovereignty view are committed to but concludes that this view cannot serve as a satisfactory framework for the normative assessment of immigration policies. (shrink)

This article asks whether states have a right to close their borders because of their right to self-determination, as proposed recently by Christopher Wellman, Michael Walzer, and others. It asks the fundamental question whether self-determination can, in even its most unrestricted form, support the exclusion of immigrants. I argue that the answer is no. To show this, I construct three different ways in which one might use the idea of self-determination to justify immigration restrictions and show that each of these (...) arguments fails. My conclusion is that the nature and value of self-determination have to do with the conditions of genuine self-government, not membership of political society. Consequently, the demand for open borders is fully consistent with respect to self-determination. (shrink)

The aim of this paper is to question, from the perspective of a principled theory of criminalization, the legitimacy of making irregular immigration a crime. In order to do this, I identify three main ways in which the political decision to introduce a crime of IM may be defended: according to the first, IM is a malum in se the wrongness of which resides in its being a violation of states’ territorial sovereignty; according to the second, IM is a justified (...) malum prohibitum the wrongness of which resides in its being a violation of a justified immigration regulation; according to the third, IM is a malum in se the wrongness of which resides in its harmful consequences for receiving states’ citizens. My thesis is that none of these arguments succeeds in providing us with sufficiently good reasons to justify the use of criminal punishment to enforce the closure of state borders. As regards the first, I argue that it relies on a misleading conception of what is entailed by states’ territorial sovereignty, and that therefore it is unsound as an argument for the state’s right to control immigration. With regard to the second, I argue that, be they legitimate or not, immigration regulations enacted by states cannot provide those would-be immigrants they aim to exclude with content-independent reasons to comply with them; and this is a necessary pre-condition to conclude that IM is a justified malum prohibitum. As regards harm-based approaches, I argue that the notions they rely on are completely unfit as criteria for criminalization. This leads me to the conclusion that, unless other more convincing arguments are provided for, IM should not be criminalized. (shrink)

Qui peut revendiquer un territoire, sur quelles bases et avec quelles conséquences sont des questions qui font l’objet de débats en philosophie politique contemporaine. En réponse, j’adopte « la théorie de l’État légitime » proposée par Stilz. Selon Wellman, une conséquence des revendications territoriales serait le droit de l’État de refuser la migration sur son territoire. Je juxtapose son propos de l’État légitime avec celui de Stilz et soutiens que, si l’on accepte la fondation de l’État légitime sur la valeur (...) de l’autonomie individuelle, accepter seulement des devoirs négatifs, soit de ne pas violer les droits des non-citoyens, n’est pas plausible. Je justifie les devoirs positifs des États légitimes d’aider à la réalisation de l’autonomie individuelle pour tous ceux dont les États d’origine échouent à la tâche et qui souhaitent se joindre et soutenir les institutions de l’État légitime. Cela implique l’obligation de l’État de permettre leur immigration.Who can claim a territory, on what grounds and what such claims entitle to has recently been the subject of much philosophical debate. In answer to this question, I adopt the ‘legitimate state theory’ proposed by Stilz. One consequence of the claim to territory that has been proposed by Wellman is the right to refuse migration onto a territory. I contrast his and Stilz’ account of the legitimate state and argue that if we accept that legitimate states are grounded on the value of individual autonomy, it is not plausible why states only have the negative duty to not violate human rights in dealings with non-citizens ; instead, I argue that states have positive duties to realize the possibility for individual autonomy for all those whose states fail in providing them with the means to individual autonomy and who wish to join and support the institutions of the legitimate state. This implies a duty to allow their immigration. (shrink)

The debate about justice in immigration seems somehow stagnated given that it seems justice requires both further exclusion and more porous borders. In the face of this, I propose to take a step back and to realize that the general problem of borders—to determine what kind of borders liberal democracies ought to have—gives rise to two particular problems: first, to justify exclusive control over the administration of borders (the problem of legitimacy of borders) and, second, to specify how this control (...) ought to be exercised (the problem of justice of borders). The literature has explored the second but ignored the first. Therefore, I propose a different approach to the ethics of immigration by focusing on concerns of legitimacy in a three-step framework: first, identifying the kind of authority or power that immigration controls exercise; second, redefining borders as international and domestic institutions that issue that kind of power; and finally, considering supranational institutions that redistribute the right to exclude among legitimate borders. (shrink)

Christopher Wellman has argued that legitimate states enjoy a right to freedom of association that necessarily includes a right to exclude immigrants. This paper shows that Wellman’s argument for this conclusion is unsound since it is based on a construction of collective rights that is inapplicable to the rights of a state.

Several philosophers have recently argued that policies aimed at reducing human fertility are a practical and morally justifiable way to mitigate the risk of dangerous climate change. There is a powerful objection to such “population engineering” proposals: even if drastic fertility reductions are needed to prevent dangerous climate change, implementing those reductions would wreak havoc on the global economy, which would seriously undermine international antipoverty efforts. In this article, we articulate this economic objection to population engineering and show how it (...) fails. We argue, first, that the economic objection paints an inaccurate picture of the complicated relationship between demographic change and economic growth, and second, that any untoward economic effects of fertility reduction can be mitigated with additional policies. Specifically, we argue that supplementing fertility reduction with policies that facilitate the emigration of younger people from developing nations to developed nations could allow for both global reductions in GHG emissions and continued economic stability. Further, we show that moral arguments against such unprecedented increases in immigration are unsuccessful. We conclude that population engineering is a practical and morally justifiable tool for addressing the twin evils of climate change and global poverty. (shrink)

Immigration is often associated with a situation in which would-be migrants and their countries of origin are put at the mercy of others’ decisions. The main objective of this article is to theorize this ‘being at the mercy’ in light of a republican definition of what freedom is about: the absence of domination. Immigration policy represents instances of domination on a wide spectrum of individuals and political communities. This article focuses on the procedural discretion claimed by states of destination in (...) their relations with would-be migrants. On the basis of a definition of the concept of ‘jurisdiction’, the article distinguishes 4 paradigmatic situations of immigration, which all display situations of domination. In each situation, the state of destination arbitrarily interferes with important interests of individuals and political communities. In light of this argument, existing mechanisms in national, transnational and international settings can be identified and justified as anti-domination measures. The argument offers a blueprint on how to further develop them in preventing domination in immigration. (shrink)

European Journal of Philosophy, Volume 30, Issue 2, Page 515-529, June 2022.

Consider the migrant who illegally crosses an international border, and suppose that agents of the state she has entered apprehend and detain her, and then forcibly return her to her country of origin. Some opponents of aggressive deportation policies believe that, barring unusual circumstances, this process of using coercion and force to expel the migrant is an infringement of the migrant’s rights. Many of those who disagree contend that, because a state has a right to enact and enforce immigration restrictions, (...) most deportations do not infringe rights. This paper takes the position that, absent an adequate argument to the contrary, one can conclude presumptively that the typical deportation is an infringement of the migrant’s rights. Its primary aim is to show that certain serious arguments to the contrary are inadequate. (shrink)

This paper brings together the discussions on international resource trade and immigration. Following Wenar’s analysis of the resource curse, the aim is to challenge the conventional view on immigration that asserts the right of states to have discretionary control over these policies. The paper shows that more liberal immigration is required as an additional remedial policy to persons harmed in unjust trade. The right to self-determination and territorial rights, which are used as the basis for the exclusion of immigrants, are (...) in the context of this analysis constrained by both attentiveness to harm and the charge of inconsistency. Both rights, which are protected domestically, are violated by the unjust ‘might makes right’ trade rule in the international context, causing harm to people in resource exporting countries. This inconsistency presents a challenge to the moral plausibility of the conventional view in the context of the resource trade. (shrink)

Using the events in Sweden in the autumn of 2015 as a practical example, this paper examines the question of whether there are circumstances when it is morally permissible for rich, democratic states to close their borders to asylum-seekers. To lay a common ground, the author starts by looking at the right of asylum-seekers, who a refugee is, and what obligations a host country have towards them. Thus, after looking at general human rights, and how they apply to the right (...) to seek asylum, the author turns to the question of who a refugee is, and the difference between refugees according to the 1951 Geneva Convention, and people who are in need of subsidiary protection, before choosing to use UNHCR’s wider definition of a refugee. While acknowledging that refugees have specific rights that other persons in need of protection do not, all asylum-seekers are entitled to not be sent back to a place of danger. Though both groups are entitled to stay on in the country, the temporary status for those in need of subsidiary protection raises some questions about integration and their standing in society and therefore the question of membership rights is discussed before the author returns to the events in Sweden in 2015 and argues that there are circumstances when it is morally acceptable for a country to close its borders to refugees, but that there are limitations when this can be done and for how long. Finally, it is argued that a system that prevents countries from having to – or choosing to – close their borders to refugees is needed. The author discusses whether the grounds for such a system could be found in the work that UNHCR does, and if the DAC agreement can be used as a model for fair distribution. (shrink)

Most challenges to immigration restrictions have not shown that states lack a claim-right to exclude, or a moral right against outside interference to make membership decisions. And an important, unexamined aspect of the claim-right is that states have the right against interference to wrongfully exclude, or the right to do wrong when making admission decisions. A major implication of this right is that even political or economic measures to affect states’ immigration policies are off the table – significantly compromising the (...) prospect of meaningfully addressing the world’s growing refugee crisis. In the form of a reductio argument, I provide reason to reject this position. Specifically, I try to demonstrate that, in the relevant cases, a plausible moral defense for the right to wrongfully exclude can only be given for states with objectionable character – protecting the very states whose immigration policies we should be most concerned with, which is surely morally counterintuitive. (shrink)

In Europe and other regions of the world public debate concerning how many immigrants should be admitted, which rights those admitted should have, and which conditions can be required for access to citizenship is intense and enduring, and these have increasingly become central electoral issues. On the one hand, the harsh treatment of migrants is often a matter of public criticism; on the other hand, states are concerned about problems of welfare, security and social unrest that they have come to (...) associate with large-scale migration. At its most fundamental level, this debate concerns the question of how best to balance particularist principles of democratic self-determination and state sovereignty and universalist principles of individual freedom and human rights. The articles in this special issue examine whether the concept of domination can cast a distinctive light on the normative issues arising in this tension between state sovereignty and universal principles with respect to migration and the position of non-citizens in contemporary liberal democratic states. These issues arise both externally insofar as foreigners are subject to migration controls, and internally insofar as migrants live in states of which they are not full members. The issue thus examines the potential of domination as a concept to bring to bear on issues of migration controls, differential residence statuses and access to membership. (shrink)

Journal of Social Philosophy, Volume 52, Issue 3, Page 344-361, Fall 2021.

Brock argues that states’ rights of border control should be understood to be conditional on states’ protecting human rights internally as well as on states’ appropriately contributing to the human rights conditions of migrants internationally. I discuss these requirements in turn. I first argue that Brock needs further to specify how internal human rights failures affect the legitimacy of states’ border control rights. I then outline some considerations that I believe would strengthen Brock’s proposal for better international cooperation on migrants’ (...) human rights. (shrink)

Thought: A Journal of Philosophy, EarlyView.

The current European ‘migration crisis’ encompasses increasing rates of migration and the accompanying failure of migrants, including both economic migrants and refugees, to integrate. In this paper, I focus on a normative analysis of the entry fee immigration system, providing both an internal and external critique. In the internal critique, I take for granted that states are best understood as clubs. However, states seem to share greater similarities with clubs that are too exclusive to allow membership to be purchased. In (...) the external critique, I argue that imposing a substantial entry fee on club membership is impermissible if exclusion from membership deprives non-members of basic rights and interests, even if measures are taken to equalise their ability to pay. The upshot of the internal and external critique, I believe, is that membership ought not to be contingent on the payment of a fee, or more generally, the acceptance of current members. (shrink)

Liberals conceive of territorial rights as dependent on the legitimacy of the state, which is in turn understood in terms of the state’s protection of individual rights and freedoms. Such justifications of territorial rights have difficulties in addressing the right to control immigration, which is therefore in need of additional justification. The paper considers Christopher Heath Wellman’s liberal proposal for justifying the right to control immigration, which understands the right as derivative of a general right to freedom of association held (...) collectively by the people of the state. The paper argues that state legitimacy and freedom of political association fail to connect in the way required to justify a right to control immigration. Wellman’s argument conflates the state as an institution and the people as a political collective and elides the difference between territorial jurisdiction and associational freedom. (shrink)

Existen numerosos argumentos presuntamente liberales contra la inmigración, pero la mayoría terminan apelando a otros valores como la nación, la democracia, la justicia social y la seguridad. El presente trabajo considera dos argumentos que apelan a valores genuinamente liberales (la libertad de asociación y el derecho a rechazar obligaciones no consentidas), y sostiene que ninguno de ellos es capaz de justificar las restricciones a la inmigración. El primero confunde al Estado con una asociación voluntaria, mientras que el segundo depende de (...) una premisa implícita que contiene un razonamiento circular. En conclusión, siguiendo a Freiman e Hidalgo (2016), podemos tener “liberalismo o restricciones a la inmigración, pero no las dos”. (shrink)

The aim of this paper is to offer a broad characterization of the kind of account that I believe cannot plausibly face conclusively the problem of the ethics of immigration restrictions in a non-ideal world at the level of the constitutional essentials. I argue that justice-based accounts of immigration controls fail to normatively evaluate what immigration controls do to outsiders subjected to them in non-ideal conditions, so judgments of justice by themselves tend to be overall bad for the interest of (...) immigrants. I explain this by insisting that a prior question about the legitimacy of immigration controls have been overlooked by familiar accounts. A full account of the ethics of immigration suitable for guiding constitutional essentials should be able to connect distinct kinds of justice-based evaluations in order to ask both, what legitimacy requires from territorial institutional control as well as what justice requires from immigration policy. (shrink)