Arash Abizadeh. “The Rights of Migrants and the Protection of Fundamental Human Interests: On Carens’s The Ethics of Immigration.” Political Theory 43.3 (2015): 380-387.
The text below was published in a symposium in Political Theory also featuring David Miller, Rainer Bauböck, and Joseph Carens. The definitive version is available as a PDF from the publisher here.
The Rights of Migrants and the Protection of Fundamental Human Interests: On Carens’s The Ethics of Immigration
Arash Abizadeh, McGill University, Montreal, Quebec, Canada
In the first part of his magnum opus, Joseph Carens takes for granted the conventional view that states are morally entitled to exercise considerable discretionary control over admissions, but argues that, even so, widely accepted liberal democratic norms set important moral restrictions on such discretion. His primary task is to justify a series of policy prescriptions about the legal status and rights of resident migrants and the criteria for excluding and selecting migrants. In the book’s second part, which comprises a restatement of his well-known “open borders” argument, Carens rejects the conventional view, and argues for a general human right to freedom of interstate movement grounded in the values of autonomy, equality of opportunity, and substantive equality.
I here want to focus on the relation between the book’s two parts.[1] Carens claims that although their arguments are “compatible,” they are “separable,” and indeed are “almost entirely independent” of each other (12). He claims that accepting his policy prescriptions has no implications for whether one should accept his later argument for a general human right to free movement. He is especially keen to deny that “all of the claims of the earlier chapters ultimately rest upon my open borders argument,” such that his arguments there function as some kind of Trojan’s Horse for open borders (10).
Carens is mistaken about this. The first part of the book is a Trojan’s Horse, not exactly because the claims there rely on the open-borders argument, but because they rely on an implicit normative foundation that also grounds the open-borders argument.
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The lion’s share of Carens’s policy prescriptions rests on his social-membership argument. The argument appeals to a conception of what social membership is, a factual claim about how it normally arises, and a normative [page 381] claim about its moral consequences. Being a “social member” consists in having a dense network of social ties—“a dense network of relationships and associations” and “identities”—that are intimately “connected” to the polity and its residents (164). Residence and time serve as a useful proxy for social membership, because what normally causes one to become a social member is residing for an extended period of time in the polity’s territory. Finally, according to the social-membership norm, facts about social membership—the fact that a child can be expected to become a social member or the fact that an adult is a social member—are what primarily ground the moral claim to the legal status and rights of citizenship (160).
Carens proceeds systematically to apply this norm to various questions about the rights of migrants, arguing, for example, that since immigrants residing in the state eventually become social members, they should be almost unconditionally granted citizenship after several years of residence. Carens takes this to apply not just to authorized, but also to unauthorized, migrants; he also takes it to rule out making citizenship conditional on lacking anti-liberal or anti-democratic beliefs, renouncing other citizenships, good character, having sufficient funds, or passing tests of civic competence. The moral claim of long-term residents to citizenship is grounded in what Carens calls a membership-specific human right, which is the kind of moral right that all human beings possess against the state of which they are a member, as opposed to a general human right, which all human beings possess against all states. Carens’s point is that the kind of membership that grounds a membership-specific human right to citizenship in a particular state is social membership (and not, say, some kind of legally recognized form of membership).
It therefore looks as if social membership is a foundational normative concept here. Carens accordingly insists that his appeal to social membership (and to membership-specific human rights) distinguishes his account from “cosmopolitan” views that fail to “distinguish between members and strangers” (109, 160–61).
The question is, however, what grounds the social-membership norm itself (and membership-specific human rights). Why would the fact that one is a social member in Carens’s sense ground a moral claim to citizenship? The answer is implicit to what Carens says. The social ties that constitute social membership compose some of human beings’ most fundamental interests, and they generate a moral claim to membership-specific rights against a particular state because those fundamental interests are, in virtue of what Carens calls the “social location” of those ties, especially vulnerable to the exercise of power by that state. Yet this answer presupposes a more foundational moral norm, a norm to the effect that, for all persons, a state has a moral duty to avoid harming and, indeed, to protect their fundamental interests when these are [page 382] especially vulnerable to its exercise of power. A norm like this general-human-rights norm is presumably what generates membership-specific human rights when the interests at stake are especially vulnerable (in virtue of their social location) only to the state of which a person is a member, and generates general human rights when the interests at stake are especially vulnerable to the state’s exercise of power regardless of social membership.[2] Applying this general-human-rights norm to citizenship, we get Carens’s conclusion: for any persons, if their fundamental interests are, in virtue of their social location, especially vulnerable to a state’s regulation of citizenship and the legal rights associated with it, then that state has a duty to grant those persons citizenship.
What this shows is that talk of social membership and membership-specific human rights potentially obscures the nature of Carens’s argument. The premise behind Carens’s social-membership norm is a general-human-rights norm according to which the vulnerability of any persons’ (not just members’) fundamental interests to a state’s exercise of power grounds a moral claim against that state. Social membership is not a precondition for having the relevant vulnerable interests that trigger the general-human-rights norm: social membership is an instance of (socially located) fundamental interests that give rise to membership-specific moral claims thanks to a general-human-rights norm. You are a social member with moral claims against a state in virtue of being a person with socially located interests that are especially vulnerable to its exercise of power. Carens’s argument in the book’s first part is fundamentally cosmopolitan.
We see this more clearly in turning to Carens’s treatment of the immigrant “recluse” who apparently fails to satisfy the conditions of social membership, that is, “who really does not establish relationships with other people in the society” over time. Carens asserts that the recluse would still have a moral claim to citizenship because “in the end, simply living in a state over time is sufficient . . . to ground claims to legal rights and ultimately to citizenship” (168). Why? Presumably because even without social ties—even without being a social member—the recluse has other fundamental interests that have become tied to remaining a resident and are vulnerable in a way that morally demands the protections accorded to citizens.[3] It is true that Carens insists that even a recluse is a social member, but this is a stretch and, I take it, merely a symptom of his desire to resist the argument I am making about what grounds the social-membership norm. But he cannot resist that argument: to say that a recluse is a social member is to lose sight of social ties, and to collapse social membership into the fact of having fundamental interests vulnerable to a particular society.[4]
Carens presumably would want to resist my argument because to concede it explicitly is to make clear that the foundational norm that animates the [page 383] book’s first part is the same norm that animates its second. The obvious point is that persons’ dense network of social ties does not constitute their only fundamental interest vulnerable to state power. Why else would anyone migrate and leave behind their network of social ties? People migrate because they have other fundamental interests: economic prosperity, providing a prosperous future to their children, leaving behind the suffocating insularity of their native culture, failing to see their values reflected in the political institutions of their native country, and so on.
So a Trojan Horse does indeed land in the first part of Carens’s book, and there are plenty of unauthorized migrants in it. Consider Carens’s assertion that the children of unauthorized migrants have a moral claim against the state to receive a public education, or that, over time, unauthorized migrants acquire a moral claim to citizenship. To challenge contemporary practice in this respect Carens appeals to persons’ fundamental, socially located interests. One would therefore expect Carens, in order to justify his assertion that unauthorized migrants do not have a moral claim to a legal right to seek employment, to deny that they have any fundamental, socially located interests at stake. He cannot do that, of course: people have a fundamental interest in having access to paid employment, and they can typically find the jobs only where they are. So what is Carens’s stated justification? That granting the right to work is incompatible with his provisional assumption that states have a right of discretionary border control. This is what I would call a smoking gun. A moral claim to seek work follows from the same premises on which Carens has been relying to make his argument throughout the first part of the book. But a moral claim to work is incompatible with a right of discretionary control. Do the modus tollens, and you have Carens’s open-borders argument. So, having already granted discretionary control, he is forced to deny what follows from the logic of his own argument.
Why does Carens deny the relation to which I am pointing between the book’s two parts? Part of the reason is explicitly strategic: to persuade even those who reject his open-borders argument of the validity of his policy prescriptions. But Carens does not take himself to be dissimulating; he is genuinely committed to the truth of denying that his policy prescriptions presuppose a normative foundation from which his open-borders argument also follows. This is because he thinks that some readers may accept the social-membership norm on grounds other than a cosmopolitan, general-human-rights norm. As a matter of sociological fact, he is right about that: moral partialists think that some associational rights and responsibilities are not grounded in cosmopolitan, impartialist moral premises, such that the social-membership norm is some kind of bedrock, reasons-providing norm.[5] Partialists are wrong about that,[6] and Carens presumably agrees. But while [page 384] Carens himself may believe that the social-membership norm is grounded in a general-human-rights norm, he appeals solely to the former norm, and remains provisionally agonistic about its grounds, in order to argue on the basis of an overlapping consensus centred solely on the social-membership norm. Except that he cannot do that. The implications of the social-membership norm for particular cases, and what to say about cases in which the social-membership norm does not itself yield a determinate answer, partly depend on how one grounds that norm. It is not open to Carens to deny that a recluse has no moral claim to citizenship, for example, but it is open to moral partialists. Partialists, moreover, will typically not restrict themselves to a membership norm centred on social ties in general; they will also argue that other ostensibly morally significant relationships, such as those of nationality or of citizenship, compete with and even take precedence over other social ties. It is thus open to partialists to say that other forms of membership may take precedence over social membership, and hence to deny unauthorized workers any moral claim to seek employment. But that denial is not open to Carens either.
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Part of what obscures the relation between the book’s two parts may be Carens’s advertized method, which, he says, consists in doing “political theory from the ground up” (9). Carens sometimes characterizes this method as a logic of discovery. The suggestion is that, to judge well morally, one should not try to first articulate a general theory of valid ground-norms (such as equality or democracy), then derive mid-range norms (such as the social-membership norm), and then try to apply them to particular questions in a given domain (such as migration). One should rather begin by making moral judgements about some particular, central cases in the domain, and then work backwards by inferring the norms that justify those judgements, norms which then one applies to other, less central cases. If people find this procedure fruitful, fantastic.
At other times, however, Carens characterizes ground-up political theory differently, in terms of a structure of argumentation. Rather than articulating independently valid norms and using those as the basis for criticizing actual practices and beliefs, Carens proposes to begin by taking for granted the validity of the norms that are the object of an overlapping consensus and/or that would justify actual practices. Hence his task is “to articulate what everybody already thinks” in liberal democracies, to make explicit the underlying norms that justify their existing practices (2, 6, 169), and then to draw out the implications of these norms for particular questions about migration. This may give the false impression that Carens has no prescription other than for people to keep on thinking and doing what they already are thinking and [page 385] doing. As we have seen, to the contrary, Carens argues for a number of important changes to existing beliefs and practices. So what is going on here?
Presumably, inconsistency in our beliefs and practices furnishes an occasion for critique and prescription. Carens suggests that instead of always appealing to consensus or actual practice, working from the ground up also permits “using some parts of our moral traditions to argue against others” (232). Thus, contemporary democracies unconditionally grant birthright citizenship to the children of citizens, and Carens argues that this central practice is justified by the social-membership norm (and the fact that such children are normally expected to become social members). Now apply this social-membership norm—purportedly distilled from a central case of actual practice—to the case of both authorized and unauthorized long-term residents, and you understand Carens’s argument: residents become social members over time; this grounds a moral claim to citizenship; and this claim can be used to criticize contemporary practice.
The question is why the argument should not go the other way around. Why isn’t the fact that unauthorized immigrants are denied citizenship at will a central case providing evidence that actual liberal democratic practice is not grounded in the social-membership norm? Why doesn’t the practice governing unauthorized migrants furnish grounds for criticizing the practice of birthright citizenship? What is needed is some criterion for picking out which commitments are central, and hence serve as the basis for criticizing other commitments. Sometimes Carens again suggests that this criterion itself is dictated by actual features of the tradition—that it is ultimately again a matter of just getting the tradition right. What is needed is not to identify all of our actual commitments—which are full of “conflicts and inconsistencies”—but to identify our most “fundamental democratic principles” and most “basic democratic ideas”—about which, Carens supposes, there is consensus. It is upon these most “basic commitments” (5–6) that we draw to criticize recalcitrant instances of actual beliefs and practice. But this merely postpones the problem: How do we identify which actual norms are the most basic ones? Why shouldn’t we identify as most basic whatever norms help to justify the actual practice of denying citizenship to unauthorized migrants?
Carens seems to suggest an answer when he says that his method is to “articulate the moral logic underlying the general trends of the last several decades toward more inclusive rules” (295). If our tradition is inconsistent at any given point, one might look to secular trends to identify our deepest, most basic commitments. One problem with this somewhat Whiggish account is that the trends themselves are also inconsistent: as Carens himself notes, the treatment of unauthorized migrants has recently moved towards greater exclusion, and against granting legal status (152). The trend runs against the social-membership norm. [page 386]
Where does this leave us? Here: identifying “our deepest principles,” “most basic values,” or “most deeply rooted intuitions” is not a purely descriptive, ground-up, hermeneutical enterprise. It also relies on norms the validity of which is presupposed independently of empirical facts about actual beliefs or practices in the tradition being interpreted. Carens, in deciding how to interpret what counts as most basic, is appealing to norms the validity of which does not depend on them being shared commitments. One of those norms is the social-membership norm. Another one is the general-human-rights norms that grounds both the social-membership norm and Carens’s argument for open borders.
Notes
1. For further reflections, see my book review in Notre Dame Philosophical Reviews. https://ndpr.nd.edu/news/47933-the-ethics-of-immigration.
2. Thus Carens argues, for example, that long-term residents have membership-specific human rights because they, unlike mere visitors, have fundamental interests that are especially vulnerable, in virtue of their social location, to the state’s power (96).
3. Carens asserts (correctly) that the absence of social ties is atypical of the immigrant experience: even those in immigrant ghettoes who live their lives entirely in their native tongue invariably develop socially located social ties. Atypical, yes, but not fantastical: sometimes immigrants do not settle in urban settings. Consider a modern-day admirer of Thoreau, a nature-loving recluse who immigrates to Canada precisely because she wishes to settle in an isolated, northern patch of the country in order to escape the suffocating yoke of social ties imposed by modern society.
4. Precisely because membership-specific human rights are ultimately grounded in something like a general-human-rights norm, they are not unconditionally membership-specific. If one’s own state fails to uphold such rights, one may have a moral claim against other states. Pablo Gilabert, “Humanist and Political Perspectives on Human Rights,” Political Theory 39, no. 4 (2011): 439–67.
5. John Cottingham, “Partiality, Favouritism and Morality,” The Philosophical Quarterly 36 (1986): 357–73; David Miller, On Nationality (Oxford: Clarendon Press, 1995).
6. Arash Abizadeh and Pablo Gilabert, “Is There a Genuine Tension between Cosmopolitan Egalitarianism and Special Responsibilities?,” Philosophical Studies 138, no. 3 (2008): 348–65.
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