University ofAlbeNi

Making Room

Legitimate and Illegitimate Immigration Controls

Aaron C. Maltais O

A thesis submitted to the Fadty of Graduate Shidies and Research in partial

fulfillment of the nqukments for the degree of Master of Arts

Department of Political Science

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ABSTRACT

The country we are bom into has a signifiaint affect on the wealth, opportunity, and

security we experience. As a resuit, political theorists engage in a debate on the mord

legitimacy of our state system where access to the resources of any partidar state is a

birthright. Most theoretical arguments on this topic suppose that societies either have a

right or have no right to control immigration. The argument of this work is that the

problcm of immigration cannot be dealt with in a rights discourse. Ideal circumstances

would be those where immigration controls either became mecessary or did not

affect people's access to wealth, s d t y , and opportunity. However, it is ody when

global dispanty is not signincant that one can make such arguments, while it is oniy

within a context of disparity that immigration presents us with difficult theoretical

problems. As a result, we must ask when it is legihate or illegitimate to k t

immigration, This thesis shows that states do not have a general right to tirnit

immigration, but must have legitimate reasons for immigration controls. Lepitirnate

immigration limits must be motivated by a desire to defaid valuable societal aims

while king o p enough that the interests of disadvantaged outsiders are incorporateci

into the state's immigration policies.

TABLE OF CONTENTS

............................................................................... Introduction 1

.................................................................... Introduction Notes -17

Chapter 1 : Introduchg the Theoretical Tension in the Immigration Debate .. -18

Chapter 1 Notes ........................................................................ 33

........................................... Chapter 2: Taking the Tension Seriously 35

Chapter 3 : What Kind of a Mord Problem is Immigration Control ........... -52

Chapter 4: Legitimate and IUegitimate Tmmigration Control .................... 64

....................................................................... Chapter 4 Notes -82

............................................................................. Conclusion -83

LIST OF TABLES

Table 1 : Population size. 1996 and components of growth, 19904995 .......... 3

Table 2: The 199 1- 1995 hmîgration Plan ........................................... 7

Table 3 : British Mmigration control legislation, 1948- 1 992 ...................... 9

Table 4: Number of Refugees Distrtcbuted by Region of AsyIum ............... 11

Table 5: The Points System for Independent Immigrants ....................... -12

Introduction

In this thesis 1 wiii examine moral questions associated with the imniigration policies

of wealthy states. This work wiU focus on the legitimacy of Iimiting immigration in a

wodd where the disparity between rich and poor couutries is a centrai feature of our

global circumstances- Where we are bom has a profound effect on the wealth,

security, and opportunity provideci to us in our societies. Consequentîy, theorists

examine the moral legitimacy of ou. state system where citizenship, and thus access to

the resources of any particula. state, is a buthright- The immigration debate is

dorninated by a central moral tension between the interests of people bom into poor

countries who wish to irnprove their lives through migration to a weaithy state, and the

interests of people born into wedthy states who want to protect the wedth, security,

and opportunity that defhe their society and make it an attractive place to iive. Most

theorists who examine the immigration problem acknowledge the importance of this

temion. However, much of the literature on this topic attempts to establish that a

society or state has an inherent right to mntroi immigration, or that there is no such

right and individuals ought to have the nght to live in any state they choose. These

approaches do not address the moral tension between disadvantaged outsidas and

advantaged insiders, but attempt to resolve the tension. 1 argue that both the interests

of disadvantaged outsiders and advmtaged insiders have signincaat mord weight in

determinhg the legitimacy of a state's immigration policies- The tension between the

interes& of outsiders and msiders cannot be resolved by argiIing that a society has an

inhaent nght to limit immigration despite circmnstances of global disparity, or by

arguing that thexe is no basis on which a society caa IegitmirateIy exclude outsiders.

Mordy legitimate immigration controls must incorporate both the interests of

disadvantaged outsiders and advmtaged insiders.

In this inhoductory chapter, I present empincal information that describes the basis for

viewing immigration as an important topic for political theory. in particular, I will

descnbe the way wdthy states limit immigration, and the motivations behind these

Currently, a great ded of political and academic attention is focused on refùgee,

immigration, and borda issues. unmigration has received significant attention due to

the increasing numbm of migrants. The United Nations report World Population

Monitoring, 1997: International Migration and Development states, "the number of

international in the world rose h m 75 million in 1965 to 120 million in

1990, thus pwing at art average annuai rate of 1.9 pacent during the period 1965-

1990."' As global disparity is the motivation for examining the immigration problem,

this work will be concerneci with the immigration policies of wdthy states that limit

access to outsiders £km poor countries. It shouid be noted, that the majority of

migration that occurs in the world today is between less developed corntries. The

World Population Report states,

the number of international migrants in dmloping countnes has consistendy surpassed that in developed comtrk drrring 1965-1 990, the number o f migrants m developing countries as a proportion of the world total of stock deched h m 59.6 percent in 1965 to 54.7 percent m 1975 and has remained almost michanged since thea2

S a , migration pressure fiom poor to Bch nations is signifiant, The relatively closed

border policies of wedthy states account to a large degree for the migration patterns

noted above. In Europe for example,

the recognition rate for asyIum-seekers stood at 42 per cent in 1984. By 1993, it had dropped to under 10 per cent . . . . ui 1993, for exampie, of the 685,000 asylum applications considered in Western Europe, only 45,000 were granteci refugee stahis; but an additional 178,000 were allowed to stay on humaRitarian gmunds. Thus while the refugee recognition rate may have been under 10 per cent, more than 30 p a cent were acknowledged to have legitimate reasons for remaining in the country where they had sought asr~um.n3

This information shows that there is bo t . significant pressure h m outside wealthy

states for access, and a strong resîstance fiom within wealthy states to this pressure.

From an empirical standpoint there are good rasons to focus on migration 6om

developing countries to developed countries. This is clear when we compare

population p w t h between these regioas. A cornparison between more and less

developed states shows that net migration moves h m less developed regions to more

developed regions.

Table 1.

Popdation &e, 1996 and components of growth, 1990-1995, major areas and regions mo-w

Natural Net Total Births Deaths ïnctc8se Migration Growth

Major area and region Population (d a=WF)

Worid Total 5,767,T74 132,09 L 5 1,129 8036 1 - 80,961 More devttoped regionsa t ,175,039 14,341 1 1,760 5580 2,703 4,653 Lcssdevclapcd

As weil, the overail population growth in less developed regions is staggeringiy higher

than in developed regions. This suggests that migration pressure k m l e s developed

to more developed countries wilI increasingly be a problan. There are also good

theoreticai reasom for examining the immigration poücies of wedthy -tes.

Mord philosophem often investigate the obligations we have to each other as human

beings. The immigration debate is important for mord philosophers because it

addresses issues of equality of morai worth and equality of opportunity. For

individuals, borden represent a central factor in their iife chances. The disparity in

wealth, security, and opportunity that is created and perpetuated by borders forces us

to ask how committed we reaily are to the morai equality of al1 people, and to the

notion that werybody should have an equal opportunity to a good life. The

immigration debate presses issues of priority. 0ii what bais can those bom into

wedthy states Iay c l a h to the advantages associateci with th& birth to the exclusion

of disadvantaged outsiders? Whm WU the interests of others in need force us to

abandon our own interests? and when can we Iegitimately view our own interests as

prior? We can see the specific kinds of immigration policies that provoke these sorts

of mord issues by looking at Canadian immigration controis.

The Ca~dim example is helpful because Canada is a wealthy nation that dows

extensive immigration. Frrrther? Canada has a strong professeci international

cornmitment to human nghts. Canada has abandoneci overtiy racist immigration

policies, and has distindy envisioned a muiticulltaral soci- Ifin Canada there are

concenis with the legitimacy of its immigration policies, these concems ceaainly hold

hue for many other developed countries where immigration is not as extensive,

The effects of immigration in Canada are for the most part positive, and immigration

is necessary for Canada to maintain an economidy healthy population. Michael J.

Trebilcock in his essay "The case for a liLberal immigration policy," sununarizes the

fincihg of three works by George J. Bojas, Julian L. Simon, and the Economic

Council of Canada on the anpirical effects of immigration in Canada and the United

States. Speaking to Canada's experience with its patterns of immigration Trebilcock

ment evidence now appears to establish that immigrants as a whoie raise the average income of natives, principdly in two ways: by a sale effect and by a dependency e f f i The scale effect simpiy means that countnes with a larger and more rapidiy growing population will be able to sustain some industries and some social inEastnicture activities that would not be economidy viable at smdler population &es:

The Economic Council ofCanada estimates that,

for evexy additional 1 million persons. . . GDP per capita would be increased by somewhere between 0.1 and 0.3 percent (about $7 1 per present resident). The council estimates that . . .a population of approximately 100 million people in Canada (compareci with the present 26 million) would maximue income pa person mea~u~ed by GDP capid

The dependency effecî refers to immigration patterns that involve people largely in the

wage-eaming age pup, "the dependency ratio for immigrants wili typidy be lower

than that for native& The Economic Corncil of Canada fomd that a doubling of

immigration levels h m 0.4 percent of the population to 0.8 wodd &t in a GDP

increase of $78 capita7 In generaI, Trebilcock found that the studies on the effects

of immigration showed that,

First, taking immigrants as a p u p , including refbgees, labor force participation rates, unemployment rates and participation in welfire assistance programs, both in the United States and in Canada, seem comparable, and in some cases superior, to the performance of the native population. . .Second the buik of the evidmce, both for the United States and inteniationally, suggests that while immigrants, fonowing entry, start off eaming Iess on average than th& native countaparts, this gap closes in 10 to 15 years. . .Third the evidence suggests that immigrants exert no or minimal job displacement effects on natives' jobs. . .Fi& resident's discriminatory attitudes toward immigrants ofdifferent racial, ethnic or culhaal backgrounds seem to deche markedly with increased contact.

For Canada immigration is both necessary in maintaining an economically viable

population and desirable in pursuing economic growth. From the perspective of this

work, it is most important to note that despite high Ievels of immigration, Canada does

not incin signifiaint costs to its economy or social welfare h m immigration. This is

largely due to the makeup of the immigrant population in Canada, as a direct result of

our immigration goals. Table 2 shows the various classes of immigrants and the

amounts each group account for in the total immigrant population.

Table 2.

The 199 1 - 1995 Immigration Plan

Refugees G o v ~ ~ ~ m e n t - aSSiSted and mabers of dtsiglatcdcIasses PrivateIy sponsortd retiigees and membtrs of designatcd classts Refilgew h d e d in Canada (aft# Jan. t, 1989) Inde pendent -ts Principal appticaats Spouses and other a c c o m p ~ g dcpcndents Assbted Reiatives Principal appticants Spopses and other accompanying dtpendcnts Business Immimants Principd app1icmB Spouses and oîhcr accornpanying dependcnts Retirees

TOTAL 220,000 205,694 250,000 250,000 2!30,000 250,000

Somce: Garcia y Griego, Manuci "Canadac Flexi'bility and Control m rmmigratioxi 9nd RdÙgce Pohcy" m ConmIIing I i m r m ~ b n = A GIobaf Penpectiw Wayne A. Cornelius, Phi@ L Martin and James F, HoIlincId (eds.) S d o d University Press SÉanford, 1994. p. 130

Out of the 205,694 migrants who arrîved in Canada in 199 1, ody 7,666 (Government

assisfed refiigees) entered unda an immigration policy that aimed at accepting those

outsiders in the worst of positions. This is ody 3.7% of the total for 199 1. The rest

were eithex privately spomored, admitted for their ability to contriie to the economy

through their personal w d t h or marketable skilis, or by way of direct family ties. AU

of these immigrants have a much higher likeiihood of being able to contriiute rather

than depend on the social services provideci in Canada, It is for this reason that Canada

gains at least rnodestly h m its current immigration policies.

In the context of a moral assessrnent of Canada's immigration policies, tlie fact that it

admits signifiant numbers of outsiders to thek and o u benefit is certainiy a positive

reality. However, I will present an argument that requUes that Canada incorporate

immigration policies open enough that Canada actuaiiy incurs costs fiom immigration.

1 will argue that Canada, iïke other weaithy States, must move towards accepting more

immigrants, and diversifjhg the aims of immigration h m predominately economic

aims to include policies that address the interests ofdisadvantaged outsiders.

Maintahhg the nirrent levels of economic immigration seems highly desirable

economidy and politically, as it has helped in fostering a culture of immigration in

Canada Continued economic irrvnigration increases also seem dcsirable given the

evidence presented Howeva, a signincant increase in immigration, in particular for

those outsiders most in need, is reqaired on moral gromds.

Those nations that benefit h m high levels of wdth, s d t y , and opportunity mut

&are the responsiiility for dealhg with mfiigee and immigrant pressures. In this thesis

1 will attempt to establish a theoreticai basis on which corntries Iüce Britain, wtgch

have increasingIy trieci to establish a zero immigration policy, must be viewed as

failing to meet their moral obligations to incur costs associateci with immigration. In

her book Fences and Neighbors, Jeannette Money descri i how the Britain's

immigration controls have become signifiwtiy &cta since World War II.

Table 3. British immigration cootrol legislation, 1948- 1992

Legishion Year Provisions British Nationality Act 1948 DistMguishes bctwccn citizcns of U X and colonies

Commonweaith immigrants Act 1962

Commonwtalth immigrants Act 1968

tmmigmtîon Appcais Act 1969

Immigraîion Act 197 1

Trtaty o f Accession to 1972 Empean Communities British Nationality Act 198 1

Immigration (Carriers) Act 1987

immigration Act 1988 British NationaIity (rrong 199 1 Kong) Act Asyhnn and Tmmigmîion t 992

(CUK&) and Commonwealth citiztns., both categories have unrestrictcd nghts of entry and rtsidence in the U K Subordmates entry of ali Conunonwealth citizens and CUKCs whose passports were issued outside U.K. to immigration contrais and labour market controls; defines conditions for deportaiion of immigrants in this catcgory Dehcs within classification of CUKG the catcgory or patrial, consisting of individuais comectcd to U.K. by paren- or 5 ytars of stttlemen& who are exempt fimm mimigration controls; 0th- art now subject to such conuols, with an initiai quota set at 1 JO0 heads of household Sets up appcals process for immigration contcoi and dtportation dccisions Consolidates Commonwcaith immigration control into the mort restrictive dien immigration controI P d & W o m of movement of labor market participants h m EC mtmberstatts Defines patrials as U K citizcns, distinct h m British dependent territory c i b @DTCs) and British ovcrseas citizcns (BOCs), who are sabject to immigration controk; mtrïcts jus soli deSigmion of citizenship to chiidrm of British parentage and those of setcicd immigrants Pcnaîizes d e s for transport of aiiens who iack proper papers Dismautles n'ais of M y rexmïfication Gran& 50,000 Hong Kong a d th& families access to British c i h h i p Spccds asylum dctcrnmation process; introcfuces measurcs

Comeii Univetsity Press= New York, 1999. p.72

Britain in 1996 admitted in total 61,730 immigrants, hcluding refirgees, whüe Canada

accepted 224,050. Canada catainly has a signiscantly grrater capacity to receive

immigrants, and this ought to be reflected in an quitable distriiution of immigration

CO&. Britain in its legislation has been sending a clear message that it wants to

significantly r h c e immigration, This desire to limit immigration aiso legitimately

accounts for a difference in immigration levels between Canada and Britain. However,

how much immigration is desirable h m the perspective on a wealthy state is not the

ody issue in developing legitunate immigration policies.

BritaHi, like other wealthy mites, has an obligation to engage in immigration policies

designed to give poor outsiden access to the wealth, securîty, and opportunity enjoyed

by British citizens. The lack of motivation to incur costs h m immigration is evident

in Britains ment challenges to the 195 1 U.N Convention on Reftigees, to which it is a

signatory. In Jme of 2000 Jack Straw, Britain's Home Secretary, addressed the

European Conference on Asylum in Lisbon and argueci for changes to the UN

Convention on Refugees. Straw argued that the UN convention is no longer applicable

and said, "the world has changed unrecognizably. There was no expectation in 195 1 of

intercontinental migratory movement. The 8ssumption was that most refigees would

be protected in neighboining countries in the same region+"' Brïtainrs proposais would

see the estabiishing ofcategories of risk for a h country, d e s enabhg rapid r e W

of refigee clairns, and a system that would require asyIum seekers to apply for refbgee

status h m b i d e the country applicants wish to leave? Britainrs aim is to elimmate

the impact of immigration, and the costs of dealing with refbgee claimantS.

Straw argues thaf "It is unacceptable to expect taxpayers to bear for a prolongeci

period the cost ofsupporthg asyIum applicants who do no qy.Li@ for refbgee

statu^."'^ As was noted in the UMICR publication refirgees Da@ on Jme 16,2000,

"The west takes oniy a hction of the world's refirgees, with the majorïty staying in

their own region."" The UMfCRk statisticd hdings in Table 4 confirm this

Table 4. Number of Refugees Distnhted by Region of Asylum, 1981-1996

(Percentage Region of EarIy W~Y ~ I Y Earl~ Early

Ask..,.,. .......... 27.7 47.7 45.6 34.6 33.8 Europe, ............. 7.2 6.5 5.4 13.0 15.9 Latin America and 2.4 3.7 8.1 0.7 1 .O

.. the Caribbean.. North Amm"ca. ... 14.5 13.1 9.4 4.7 6.0 Occanisi.~c .......... 3.6 0.9 .7 0.4 0.3 Total (millions).,., 8.2 105 14.9 145 13.2 Sources: United Nations High Commissioner for Refugees, The Sfute of the World's Re f igee~ In S e d of Solutions (New York, Oxford University P m , 1995); "Population of concm to UNHCR: a statistical overviewn, 3 1 Deccmbcr 1995, mimtagraph (Gcncva, 1996).

Britain insultingiy argues that the UN Convention on Refugees shouid now become a

tool for closing borders to rekgees, particuiarly for those who have oniy "imfoundedw

clamis to asylum based on economic circumstances. Bricain wants to han what is an

expression of moral reasons for incarring the cos& assoàated with accepting refugees

into an instrument for avoiding these same costs! Bntain's direction in immigration

controIs is difficult to defend on moral grounds.

As we have seen, Canada's immigration con~rols are de- by a systenr of targeted

numbers for specific kinds of immigration. For those who do not have some form of

establish support h m within Canada, access is based on a points system*

Independent migrants must apply for enety based on their score in the point scaie

outlined in Table S.

Table 5.

The Points System for Independent Immigrants

Factor Units of Assesment Notes Education 12 maximum Spbcific vocational 15 maximum prepmtion Experience 8 maximum O uni& is an automatic processing

bar unless (1) applicant has amiaged employment and (2) employer accepts lack of experience O units is an automatic processing bar unless applicant has arranged empio ment

Occupation 10 maximum

Arranged ernployment 10 Age 10 maximum 10 units if aged 21 to 44; 2 units

deducted for each year under 2 1 or over 44

Knowledge of official 15 maximum m P g e ( s ) Personai suitability 10 maximum Levek control 10 maximum Total 100 Pass Mark 70

Source: Garcia y Griego, Manuci Tanida: Flcxi'biiity aad ContmI m hmigmion and mdfitgcc Poliq" in C~nnol l ing i~granon . A Global Perspective Wayne A. Cornelius, Phüip L. Martin aad James F. HoUifidd (eds.) Stanford UaiverSity Reas: Stadord, 1994. p. L26

It is cfear that the aim of this points system is to consider ody those mimigrants who

wül contnbne to Canada economically. Just the education, vocation, and occupation

categories eIiminated h o s t al i outsiders in circumstances of need. Om selection of

independent outsiders cannot only be about our own benefit. Canada% points system is

designed to be completely self-senring, and it needs to be acu>mpamed by a system of

selection Uiat addresses the needs ofpoor outsiders who wish to migrate to Canada. It

is tme bat M y remification r d t s in many disadvantaged outsiders migmting to

Canada, but those without famiiy ties should dso have the opportunity to become

Canadians. Thae is no concern in Canada's immigration poücies for those in the worst

off positions economica11y7 and only some concem for those in the worst off positions

politically. Peter and Renata Singer effectively describe the general argument against

the immigration policies of wealthy states today. in theV article "The Ethics of

Refugee Policy," they Say, "we regard the stam quo as the outcome of a system of

national selfishness and politicai expediency7 not as a result of a considered attexnpt to

work out the moral obligations of developed nations in a world with 10 million

refugees? ' 2

The nrst chapta of this work will introduce a basic tension that undexlies any

theoretical investigation on the Iegitirnacy of immigration controls. This tension is

largely defined by two competing views. One view is that borders and origin of birth

are both random in ternis of morality. The wedth, secirrity, and opportuaity we have

access to because of the country we are bom into, is the product of chance. In a world

of gmt dispanty between corntries, or@ ofbiah wiU have dramatic effects on

people's M e chances. Theorists who view immigration coatrols as illegitimate argue,

that any cornmitment to hpmans as desaving equal moral worth wiii conflict direaly

with a system of immigration controls that distniutes wealth, s&ty, and

opportunity as a birthright, The opposhg view is that organizing ouseIves into

denned political societies is essential to dI people's weIlbeing. Societd grogs provide

the opportunity to mjoy the economic, political, social, and cultural bmefits ofgmup

association. The argument from this perspective is that despite global disparity, ail

societies must have the ability to control membership ia order to protect the existence

of worthwhile political associations. An analysis ofthese competing arguments shows

that both perspectives are in the end extreme and deeply problematic. Both

perspectives, it will be argued, are one sided. By attempting to show, either an

inherent right or Iack of a right to Wt immigration these theorists fd to address the

teasion that permeates the immigration debate.

In chapter two, 1 present theorists who address the tension in the immigration debate

more effectively. Examining the work of Joseph Carens and James Woodward we see

two competing arguments on the Iegitirnacy of limiting immigration h m liberal

egaiitarian perspectives. Both theorists show how the interests of insidas and outsider

are moraüy sipnincant and minant serious consideration in any theory on immigration

controls. Still, criticisms of these theorists develop firom what is viewed to be a generaI

m*stmderstanding of what kind ofa theoretical probtan arises when investigathg the

legitimacy of Iimiting immigration. Carens attempts to establish a general principle

that views immigration controis as ikgitimate except for some limiteci cin=amstances.

Woodward, on the other hand, attempts t3 establish a general right to limit

immigration despite the legitimate claims of disadvantaged outsiders. Both theorists

find the costs associated with open and closed border poIicies to be morally signinmt

in important ways. It does not seem to foIlow that a state either has an inherent right to

Iimit immigration, or that there is an absolute prohibition on immigration controls.

This problem leads to an investigation of the kind of theoretical challenge the

immigration debate repments.

in chapter three, 1 atternpt to define more precisely the theoretical problan of

immigration controls. The immigration problem is not a problem of justice as it is

nomally understood. Extreme disparity in weaith, secusity, and oppIhinity is the

justification for both closing and opening borders. Unlike other inherently problematic

theoretical debates, the immigration debate is only problematic given circumstances of

global disparity. The entire problem cornes out of agreement that it is d a i r that origin

of birth has such significant implications on individualsr Me chances. If the tension in

the border debate is problematic because of the environment of global disparity and a

judganent that this dispanty has signifiant moral implications, then the question of

the legitimacy of immigration controls canaot be solved. The disadvantaged born into

poverty do not have an inherent daim in justice against those born into weaIth. At the

same time, those born into wealth do not have an inherent right to this wealth to the

exclusion of others. Arpents that either suppose the elimination of global disparity

or argue thet disparïty does not have any implication on a society's right to control

membership, do not address the tension that motivates the immigration debate. In

addressing the immigration problem, the goal is not to solve the problems ofglobal

distnïutivejustice. lnstead, I present an argument that attempts to morally assess om

reactions to these problems. This mord assessment has a great deal to do with what

are and are not morally legitimate costs to expect h m insiders and outsiders.

Chapter four uses the criticisms and arguments presented in the previous three

chaptm as a basis for developing an argument requiring that wealthy states'

immigration controls incorporate both the interests of disadvmtaged outsiders and

advantaged insiders. 1 argue that a wealthy state must have immigration policies that

result in the society i n d g some costs fiom immigration. Wealthy states cm

legithately limit immigration for some but not alI soàetal aims. In ckcumstances of

dispmity, societies do not have an inherent right to close bordas. If the interests of

outsiders are m o d y signifiant in important ways, legitimate immigration controls

will have to make some room for these interests despite a wealth of good reasons for

limiting immigration. 1 argue that wdthy *tes cannot Iay daim, in the absolute

tams of nghts discourse, to the advantages of their society. People in disadvantaged

positions do not automatically have a c lah in justice that weaithy societies provide

them with the benefits chance did not. However, if a state prohicbits these outsida

h m gaîning access to soaeial advantages, outsiders can Iegitimately ask on what

basis they are Iaying c1ai.m to these advantages. Here, disadvantaged outsiders do have

a daim injustice that we not exclude theni, as we do not have an inherent Bght to

arbitrarily reaLized advantages. In this chapter, 1 present principles that both justi@

immigration limits, yet require immigration poIicies designeci to provide access to

outsiders in the worst off positions. This approach speaks dirrctly to the moral tension

that permeates the immigration debate.

' World Populoion Monito* 1997: Intentattonal Mgration and Deyelopment, United Nation Nor York, 1998: United Nations PubIication, p. 19 &id, p. 19 ' ibici, p. 109

4 TrebiIcock, Michael J, "The case for a Ir'beral mimigration policy," m Jwtice ùr Immigrarion, Warren F. Schwartz (cd.) Cambridge UnivefSity Press: Cambridge, 1995. p. 233 ' Trcbiicock, p233 ~rebiicock, p. 234 ' Trebiicock p. 234 ' The M y TeIegraph, Issues 1849, Saturday Jnnc 17,2000. "Straw utges Law change to block the rcfigce nm" By Philip Johnston, Home A&irs Editofc

Refugees Daiiy, "Britain wants Convention changedm Iune 16,2000 and "Britain proposais criticized* Iune 19,2000 , United Nations High Commission on RetUgees. www.unhcr.cWrefiivoc1d/cgi- bidnewssearcbpl, " Daily TeIegraph, Iune 17,2000. '[ Refigtes Daiiy, h e 16,2ûûû

Peta and Remta Singer "The Ethics of Rehgee Policy" in ûpen Borders Clmd Societies. p, 128

Introduchg the TReoretical Tension in the Immigration Debate

There is a basic tension at the heart of the normative debate regardhg the legitimacy

of limiting immigration. This tension arises first h m the fact that people are bom into

corntries with substantidy different levels of weaith, security, and oppommity. As a

result, whae we happen to be bom has a significant effect on our life chances.. The

circum~fances, good or bad, dictateci by one's country of birth are a product of chance.

There lacks a sense of fairness in the distriiution of these benefits. For this m o n ,

many theorists argue that those bom into poor comtnes ought to have the opporhinity

to access the weaith, security, and opportunity of wdthy States. At the same the,

people need to iive within a society. Societies facilitate both economic and cultural

prosperity. Humm association is defineci by a need to have a d e of law to facilitate

securïty, to have rules of commerce to facilitate economic organization and prosperity,

and to have a common langnrrge to facilitate a cornmm culture- The sape of a

political association is determifled h u g h mernbership, and socides distinguish

between members and non-members- If soQeties are to be sesdnecting in any

meanin@ way they must have the abÏiity to determine and dorce these distinctions-

Societies understood in this way must be able tu give priority to thQr own interests in

order to exercise autonomy.

A description of the tension between the interests of disadvantaged outsiders vasus

the interests of advantaged insiders brings to the fore the hdamental importance of

this topic for politicai and moral thmry. Joseph H. Carais in his article 'Immigration,

welfm, and justice" says,

to address the topic of immigration we must UltimateIy reflect upon some of the most fundamentai questions of moral and political theory. To what extent and in what way is it moraliy legitimate for us to pursue our own interests, and to what extent and it what ways ought we to be concaneci with the ùiterests of others?'

If wealth, security, and opportunity are to a large degree determineci by arbitrary

circumstances when viewed fiom a global perspective, can we lay c l ah in moral

tenns to these benefits? How and at what level can we defend the priority of our own

interests in a world dekeâ by disparity?

1 this chapter 1 survey the work of theorists who see the issue prllnarily in terms of

rights. These theorists argue either for the human right to immigrate, or for the right of

societies to K t immigration. This chapter intmduces common approaches in the

theoreticai debate on immigration, and the basic temion that motivates the

immigration debate. The two common approaches to the immigration issue presented

here are also rritigued. 1 argue that neither an argument for an absolute nght to ümit

immigration or an argument for no right to control immigration can adequately

incorporate the tension between the interests ofdisadvatltaged outsiders and

advantaged insidem. The approaches sweyed in this chapter o d e the elements that

mate a tension in the immigration debate, but they fi3 to incorporate this tension into

their arguments. These arguments are deeply one sided, and for this reason they are

deeply prob1ematic.

The moral irn~lications of the chance of bitth.

In their artic1e "The Ethics of Refbgee Policy," Peter and Renata Singer d e s d e the

underlying predse of many w d t h y states' immigration policies. They quote the U.S.

Coordinator for Refiigee Affairs as saying, "the underlying principle is that refugee

admissions is an exgratia act provided by the United States in fiirthering foreign and

humanitanan policies.'s The ex grutia argument, as the Singers desmie it, is that

whenever a refiigee is accepted into a state this act is not based on a moral obligation.

Instead, permitting immigration should be considered a charitable act that the society

wishes, but is not requKed to do. The daim is that states only have moral obligations

injustice to their own society. The Singers ask, " . . .is this distinction in the way in

which we treat residents and nonresidents compatiMe with our professed beliefs in the

equaiity of a l l human beings?' The Singers argue that if we tnily believe in the moral

e q d t y of human beings, we must take into consideration the interests of di people,

residents and non-residents, when making immigration policies. They Say, 'Where the

mtefeSfS of differetlt panties mnflict, we wodd attempt to give e q d consideration to

all intapsts, which would mean that more presshg or more fundamentai interests take

precedence over those Iess pressing or fÛnhentdl4

The Singers' argument is strongiy utilitarïao. Regardiess k m which perspective one

debates immigration poIicy? utiIity demands that we take no one person's needs as

more morally relevant than another person's. The Singers make the obvious point that

the needs of many potentiai immigrants, the needs to the basic elements of SurYival,

outweigh the needs of m e n t residents in rich corntries to maintain their standards of

living. They recognize that at some point the utiltarian equation wiU result in a halt of

immigration. They do not reject the legitimacy of protecteci borders outright, but they

do not accept the way wealthy states currentiy limit immigration. They Say,

There would corne a point at which, for instance, the resident cornmunity had eliminated al1 luxmies that impded the enWonmenf and yet the basic needs of the expanding population were putting such pressure on fiagile ecological systems that a fiirther expansion would do heparable h m . Ur there rnight corne a point at which tolarince in muiticuitural society was breaking dom . . .[to] the point at witch it was a sdous danger to the peace and security of all revious1y accepteci refugees and other immigrants h m different cultures. P

What is clear in the Singers' account is that a tnily equal consideration of ail people's

needs requires vimially open border policies. Only when concerns for the wellbehg of

tesidents actuaiIy becornes as acute as the concems for the weiîbeing of outsiders can

immigration limits be imposed by a society.

The Singers' argument takes one side of the tension between the needs of potentid

immigrants and the needs of societies to its exh.eme. For hem, the prînciple of

eqyaüty requires that ail borders remai. o p so long as the needs of outsiders

outweigh the needs of insiders. Their argument requïres a virtudy @ and certainly

eqpitable distrïïution of resomces between states and individuaIs. The Singers k d

that a Society has no right to consider the interes& ofits mernbers as more rnorally

sipifiaint that than the interests of outsiders. Societies do not have an inhe~ent right

to limit immigration as they see fit

We can examine the theoretid basis of the Singers' position by lookuig at the work

of Samuel Scheffler. in his essay "The confIicts between justice and responsiiility,"

Scheffler develops what he d s the ''distributive objection.'' He argues that,

speciai responsibilities confer additional advantages on people who have aiready benefited h m participakg in rewafding groups and relationships and that those additional advantages are unjustified whmever they work to the detriment of people who are needia.

Schefner argues that one m o t defend against claims for global distri ive justice

by appeaiing to the responsiibilities we have to those within our own group. These

"special respo~l~libilities" represent an illegitimate attempt to abandon our "germai

responsiiilities9' that are based on recognition of everybody's eqyai moral worthO7

Scheffler coastnicts a thought experîment in which participation in a group not ody

creates the advantages of group participation, but dso creates a situation in which

group members give pnority to the interests of those in the group to the detriment of

outsiders in disadvantaged positions. He says.

In efféct, such responsibüities provide the weelthy with the moral eqyivalence ofa tax shelter. They provide those who are betta off with a mord justification for channehg their the, energy, and other rrsoproes into rewarding relations and associations and away h m people who are needier. For simply by entering kt0 such relations and dations, one acqmrts special respom'bilities to one's associaîes, end withm Iimits, these responsibilities then take priority over, and thns serve to shie1d one hm, the cIaims of others for assistance?

For Scheffler, special respo~l~~ibilities to those within our own political community do

nothing to legitimize a lack of disûicbutive justice on a global scaie. Givea a situation

of unequal wedth, just or wt, specid respnsiiilities tend to magnm these

inequalities. This magnification is unjust because getting benefits h m special

rdatiomhips m o t also justif$ escaping g e n d respo~l~t'biüties to outsiders.

Although Scheffler does not deny the morai significance of forming p u p s outright,

he does deny a wealthy group's ability defend itseifhm claims of distriihtive global

justice by appding to intemal group responsibilities. As long as disadvaataged

outsiders are in significantly worse situations, wealthy societies rnust view the needs

of these outsiders as equally important as theh own interests. The demands of

distributive justice that bot' Singex and Scheffler places on the world's weaithiest

nations are extremely hi& These authors recogauie that societies will exist, but deny

the legitimacy of societies denning their moral obligations by anything otha than

purely utilitarian equations. Both theonsts argue that wedthy societies have no

inherent right to the wealth, secinity, and opportunity that exists within these states to

the exclusion of disadvantaged outsidem. For them, the principles of equaIity of morai

worth and equality of opportunity prohiiit wealthy states h m limiting access to

outsiders. as a matter of justice.

The moral significance of societal autonomv.

Michael Walzeq in his book Spheres of Jlcstce, argues that a society has a nght to

control its own resources to pursue its own societal aims. He argues that there is no

moral dilemma for a society that wishes to reshict access to its borders, as outsiders do

not have a clalln to participation in the society. He says,

if individuais have a nght to form distinct and stable communities-then closure must be permitteci somewhere. At some level of politicai organkation something üke the sovereign state must take shape and claim authority to make its own admissions policy, to contrul and sornetimes to restrain the flow of immigrants?

For Walzer? the value that communities or societies bring to people is of fundamental

importance. Membership in a societd or cultural group is deemed essential to virtuaIly

aii of the potentid aims of human existence including the ability to be mord agents.''

Walza goes on to say that these politid communities are Iike groups where,

"Individuals may be able to give good rasons why they shouid be selected, but no one

on the outside has a right to be in~ide.'~'' Waiza does say h t , "citizens oftm believe

themselves moraiIy bound to open the doors of their country - not to anyone who

wants to corne in, perhaps, but to a particular group of outsiders, recognized as

national or ethnic 'relati~es'."~~ We are bound by a speciai extension of the politid

community beyond the aaual physical bordas. Outside of this extension, a

community is bound by nothmg other than its own interest in pmsnuig mutual-aid

towards potentid immigrants. Walzds view is that once we allow that commanities

are mordiy defeasrile and necessary forms of hamm association, we must also accept

that membership in these communities wiU be limited. He argues that if we are going

to take the Unportance of societies seriously, then we rnust accept that societies (Le.

states) have autonomy over member~hi~.'~ ûutsiders do not have a right to

participation in a society because states do have an inherent nght to control the

resources withùi th& territories as they see f i t

Walzer's argument is extreme in that it provides no basis on which outsiders can make

any claim to participation in comrnunities other than that which they were bom into.

Waizer completely ignores the lack of fâirness in the distrifiution of goods among

counhies. Jules L. Coleman and Sarah K. Harding in their essay "Citizenship, justice,

and political borders," explain how Walzer's approach does not allow for an

investigation of the legitirnacy of limiting immigration. in descriiing a Waizer type

argument they say,

political borders, even arbitrariiy or conventiondy set, have moral significance because they define the boundaries within which principles of distn'butive justice are to apply. . . . In this view principies of distributive justice apply to members of a political cornm~ty. Those outside the borders have no daim in distriiutive justice to any of the resources of the territory, whiie those within the tenitory do."

However, CoIanan and Harding go on to say,

One apparent consequence of the position that principles of distn'butive justice apply to members of potitical communities is that it seems unlikely that the p~ciples , so conceived, can provide the standard against which a community's immigration policy is to be assessed D i s t n i v e justice assumes that the boundary pestion of which indÎviduals fidi within the relevant commUmty is aIready reso1ved-, they m o t provide an answer to that qnestion. AU theones of distr'butive justice ofthis sort, namely, those that take the domain ofdistniative justice to be set by membership in a

political commUIiity, will fail to illinninate the way we shodd think about immigration policy, for the assume the existence of an answer to precisely the question we are asking. Y5

WaIzer has rernoved the possibility of assessing the legitimacy of a state's

immigration controls h m any perspective other than h m within the state itself.

Walzer has made a positive argument regarding the right of societies to have controt

over their territory, but this positive right entaüs a corresponding right to exclude

0th- fiom this territory. When Walza argues that justice requires that a political

commU13ity, ". . .mu& take shape and daim authonty to make its own admissions

policy," he has eliminated his ability to be critical of any immigration policy

regardless of its content in ternis ofjustice. He literdy has nothing to Say about

immigration policy because he has argued that the idea of having a society entails a

right to control immigration.

CoIeman and Harding do not accept the approach taken by Walzer, yet they aim at

defending many of the immigration policies Walzer's argument is used to defend.

They argue that,

the most important fact h m a political point of view about individuals as we know them is that they form projects, plans, and goals and act on the basis of them. These goals provide than with reasons for acting (as do th& needs). Satisfymg these goals contnaues to th& wen-being. Weil-being is itself a way of assessing a iife taken as a whole. Autonomy is central both to formuiatmg these plans and to acting on the b i s of th- The meaningfid aracise of autonomy itseIfdepmds on the existence of a meauin@ set of options and a kunework within which those options can be reaiized. Weil- being depends on autonomy; autonomy depends on options and ~hoices.'~

Coleman and Harding use the work of Will Kymlicka to defend this argument,

Kymlicka in Multicultural CitUenh@ says,

Whether or not a course of action has any significance for us depends on whetha, and how, our language renders vivid to as the point of that activity. And the way in which language renders vivid these activities is shaped by our history, our 'traditions and conventions'. Undemtanding these cultural narratives is a precondition of making inteIligent judgments about how to lead our lives. In this sense, our culture not only provides options, it ais0 'provides the spectacles through which we identify expexiences as valuable'. l7

The implication regarding the legitimacy of lirniting immigration, is that the value of

d h i r e requires the possibility of closing borders. Speaking about limitations on

individual liberty in the tradition of i i i d theory Kymlicka says,

For example, few people favour a system of open borders, where people could fireely cross borders and setîie, work and vote in whatever community they desireci. Such a system would dramaticaily incnase the domain within which people would be treated as fke and equal citiznis. Yet open borders would also make it more Wcely that people's own national community would be o v m by settlers from other cuitures, and that they would be unable to ensure th& sumival as a distinct national

Kymlicka argues that a national dture is an essential Famework h m which we can

make signifiant choices in our lives and m e s s our lives. For Coleman and Harding,

this suggests that the value associated with being a manber of a political community

is fimiamentai to autonomy of the individual and th& ultimate weflbeing. The

argument presented by Coleman and Harding, and Kymlicka is M e r a t than Walzer's

in that they do not do not argue for an inherent ri& to limit immigration as entaileci in

the idea of a socia)s right to ~ e ~ d e t t a m m a o n , Instead, they argue that the right to

limit immigration arises h m a need to maintain and prote elements of a society that

are crucial to its members' weiibeing- Despite this distinction, Coleman and Harding

stiil defend a society's general right to k t unmigration.

Coleman and Hardllig descnie various degrees of strnigth that refigee and immigrant

c1ai.m have when seeking m e m b d p in a certain political commdty. Those with

the strongest claims are political refirgees because they have beai stripped of support

h m their own politicai community, which is essentiai to their weiibeing. Famiiy

members of those aiready participating in the desired political community also have a

strong claim. They argue that f d y ties serve to strengthen the political c o m m ~ t y .

Those outsiders that have a strong connection to the culture of the desired political

commUIilty are also potentially desirable h m the perspective of insidedg Coleman

and Harding do eventually make the point clear as to the implications of theV

approach and Say,

Even if borders are arbitrarily or conventionally set, it does not follow that they lack moral signincance. . . . We have argued that the very ideas of autonomy and individual well-being that are essential to liberaIism presuppose such cummunities. From this humble, if controversial, starting poict we have argued that dl refû ees have a right to immigrate. . . . Others do not have a right to immigrate. 2%

Coleman and Harding, very much iike Walzer, defend the status quo of most nations'

immigration policies. They do, howwer, create a moral obligation to -st those

threatened by their own political commeties. This obligation stems h m the premise

of their work, nameIy that participation in a political fommunity is essential for an

individnal's autonomy and wellbeing. The d t is that poüticai refbgees have a right

in justice to participation in our political co~~llllunities, white other types of immigrants

have no such right

Cnticisms

The articles examined thus far illuminate the basic philosophic tension in the

immigration debate. On one hand we are confionteci with the fact that people are bom

into coimtnes with substantidy different levels of wealth, secucity, and opportunity.

As a result, whae we happen to be bom has a signifiaint effect on our Life chances.

M o d y , it is diffinilt for us to lay c l a h to our own nation's wealth to the exclusion of

outsiders. The competing argument is that political communities are valuable and

necessary for dl people. The ability to determine who does and does not belong to a

community is the only way that we cm ensure that values provided by participation in

a society can be dispersai in such a way that havîng a political cornmuni@ is

worthwhiie. Further, the tension discussed so far has brought out Unportant underlying

themes for this debate. The moral signinmce of outsiders' weilbeing is fhmed in

relation to our own weiibeing. In addition, we see that societai autonomy and priority

is viewed as fundarnentaily valuable. It is a basic notion in political theory that it is

oniy withia a society, inctuding the restrictions societies entail, that that we can have

meanin@ individual M o m and weilbeing. Weiibeing and autonomy are

connecteci on both sides of the immigration tension.

Despite the benefits we can obtain h m a clear understanding ofthe positions

desmied thus fiir, &the are serious problans with these accomtsC First, they do not

achially address the tension that motivates the immigration debate today. These

approaches make strong arguments about either the interests of those born into poor

states to migrate or the interests of those born into wealthy States to maintain their

society, but they do not, as they ciaim, address the moral tension of the immigration

debate. Coleman and Harding describe their argument as controveisial, and it may be

as it relates to a liberal conception of individualism. But nobody denies that

participating in a political community is hdamentally important to people. There are

few moral theorists who suggest that we need to return to Hobbes' state of nature for

the sake ofdistrr'butive justice? Nor does anybody deny that we are forced to question

the faimess of the world's distriiution of wealth, security' and opportunity. Moral

philosophers do w t see pictures of famine stricken babies in Rwanda and say, 'it

serves the iittle bastards right for being born diiring a civil war'. The wellbeing of

those in acute need is important,

None of the theorists exâmined thus far have addresseci the tension in the immigration

debate effectvely. The Sïngers put enormous demands on weaithy nations. They argue

that limiting immigration is ody legitimate when the wellbeing of irisiders is an

equally pressing concm as the weiIbeing of outsiders. There is an obviow theoretical

problem with this approach. The equatioa suggests a globdy equai level of weubeing

and thus a globdly equal distn'bution of wealth, security, and opportunity. Yet, given

these Circumstances much of the refbgee and immigration issues wodd not exîst, as

they do today. The aw for open borders wodd be at its strongest h m a practical

point of view, as the motivation to migrate wodd be guided by preference and not

n e d Immigration demands would be significantly lower, and both the economic and

culture concems over immigration would be somewhat less pressing.

A fiirther criticism is that the approaches taken by the Singers and Scheffler seem to

ignore the chmcter and value of group association, and the nature of the specid

responsiiilities we have towards those within our gmup. John Kane in his essay "Who

1s My Neighbor? A Response to Scheffla," says that Scheffler's thought experiment

does not effectively portray the way we are conhnted with responsiiilities. He says

that Scheffler's argument,

seems to porhay specid respomiilitia as excessively voluntaristic products of chosen, rewarding associations. . . . Such impressions seem in contradiction to most people's perceptions of the matter, namely, that we arr bom into special responsiibilities and that we do not choose many of those we subsequently acquire. We are usually made acutely aware of our special resport~fibi1ities from the start and are only later instnicted (if we eva err) about our more general resportsibilities to others?

For example, we all discharge our special responsiilities to our chikiren accordhg to our means, and those with larger means t y p i d y spend larga - sometimes much Iarger - amounts ofmoney than those with smder means. Not only woufd this principle throw in doubt the lepitimacy of aU such diff it ids, but it might even de-legitfmize spending on children at low levels. How are we to determine the level above which spending on one's own childm becornes iIiegitimate because it reduces the amount that we would otherwise have avdable to discharge om dieged g e n d fesp0~l~~'bilities toward n&er peoplep

The utiIitarian approach seems to say nothing about the way we actnally eXpenence

relationships, and thus does not do weU m convincing us to abandon the ways in

which we give prionty to these relationships. As well, the utilitarian argument does

not address the areas in which we dI have good reasons to want to give priori@ to our

own interestS. They argue that weaithy societies have no right to limit access to the

wealth, s d t y , and opportunity that is currentiy protected by borders. However,

there is no attempt in their accounts to incorporate or even ad* the interests of

societies in generai to self-determination.

Colanan and Harding say, "Even if borders are arbitrady or conventionaiiy set, it

does not foUow that they lack moral sipnificance," but they focus only on the moral

significance of arbitrary borders and never on the arbitrariness itselt Waizer,

Coleman, and Harûing argue that societies have a right to exciude others for the sake

of societal autonomy, or to protect the benefits associated with participation in a

society, By arguing in ternis of rights, they effectively ignore the interests of

disadvantaged outsiders. There is no room in these approaches to incorporate the

interests of those who, through no fadt of their own, are faced with the negative

e f f i of global disparity. These theorists do not provide an adquate defme for this

kind of absolute exchsion,

Those theorists who focus on the arbitrary nature of the world's distn%ution ofwdth

but ignore the values and needs associated with f0-g societies, fkil to investigate

the sipnincance of the benefits gabed fbm socieeal association and socïetai pnority.

Likewise, those theorists who argue that states have the right to exclude others in order

to protect their own way of life but do not weigh the needs of outsiders directly with

the interests of iusiders, fd to address the question of global distrriautive justice at all.

The wellbeing of potential immigrants is morally signifiant. Ifwe consider our own

wellbeing as mordy important we must recognize the wellbeing of those outside our

society as rnorally signifiant as weil. We c d d just as easily be an outsider rather

than an insida. However, it is important that a society has at least some abüity to

determine who is a member and who is not Some level of control or autonomy is

necessary for a society to be able to act as a group and reap the necessary benefits of

group association. Ultimately, societd autonomy aims at maintainhg the weiibeing of

the society, and it is this wellbeing that attracts refùgees and immigrants to wealthy

states in the first place. The approaches presented in this chapta take one side ofthe

tension in the unmigration debate, and advocate those interests. They do not actually

adcires the tension between the interests ofpotential immigrants in didvantaged

positions and the intemts of members of wealthy states. This tension defines the

debate, yet these theorists attempt to eIiminaîe the tension. It is this attempt to

eiiminate the tension that 1 will argue is misguideci.

-

C m , Joseph H. "Immi@on., w e W , andiusticen in Jwtice in Iinmgration Warren F. Schwsmp (d) Cambridge: Cambridge Univtrsity Prtss 1995. p 9 US Dcpartment of State7 Ofnce of the US Coordinator for Renigee ABtiUn. h p e d Refirgee

Adhkioas md AlIocatro~~~ for f icd Yeor 1983 (Washmgton, D.C.: 1983) p. 14, quoted m Pet= and Rcna~a Singers "The Ethics of RcfEgcc Poliq" in qPen Borders Clased Scieries. Mark GiÎiney (d) Westport Cornecticut GreenWood Press, Inc, 1988 p. 1 16

Petcr and Renata Singer The Ethics of Refbgtt Poiicy" m Open Bo& Ciased S'ieti'. Mark Gîbney (ai) Wcstport Cotmccticut GreenWood Pms, hc. 1988. p. 116 4 Singer, P & R p. 121-122 ' Singer, P & R p. t 2% 128

Schefk, S a m d T h e Conflict Benmen MEEC and RGsponsi'biIity" in G~o&d/itice. Ian Sbapiro and tta Bdmqer (eds.) New Ymk : New York University Press, 1999. p. 97-98 ' Scheffier7 p 8û-91 ' Schtffk, p. 9 1

' Waizer, Michaei. Spheres of Justice. New York: Basic Books, 1983. p. 9-10 " Walztr7 Spheres of Jmtl'ce IL walzer. p. 1 1 I2 w* p.12

Wdzer, Spheres of Jwtice [' COIQII(UL I & Harding S nCitizensbip, the demsnds ofjiisbee, and moral rclevana of politicai bordtrsn in Jiutice in Immigrrtion p. 35 " Coleman & Harding, p36 I6 CoIunan & Harding? p. 4 1 " Kymticka, WiIi MultimItu~I Citizmh@: A L i b d Theory of Mnority Rights. Oxford: Clacsdon Prtss, 1995. p. 83 l0 KymIick p. 93 l9 Coleman & Harding p.46-5 1 Coleman & Aardmg p. 52

" Even amrchist theoMts generally do not deny that some fom of a comxnunity is valuable. Kane, J o b "Who is My Neighbor? A Response to Scheffla." in Globd Justice p.L 10

'1 Kane* p. 1 12

Taking the Tension Serrbusl'y

In the previous chapter 1 identifieci the basic underlying tension that must be addressed

in examining the legitimacy of limiting immigration. In being aitical of the works

examineci thus far, 1 have argued that this tension is significantly more complex and

problematic than is ofkm represented in the immigration debate. The tension that

exists in the immigration debate is aot adequately addressed by advocating either the

interests of disadvantaged outsiders or the intemts of advantaged insiders. Instead,

both of these interests have to be incorporated into the debate. in this chapter 1 will

survey some theonst~ speaking to immigration issues who seem to take the teasion

descnbed in the previous chapter more seriously. I wüI present arguments that take

both the wellbeing of outsiders in disadvmtaged positions and the autonomy of

insiders in advantaged positions to be mordy significant. The aim of this exercise will

be to better descriibe how we should argue about the Iegitimacy ofimmiption

controls.

In Free Mmement: Ethicul Issues in the ~arrsnatiomI mmigmn ofpeople and of

money, edited by Brian Bany and Robert E. Goodin, arguments regadhg immigration

policies h m different theoretid paspectives are presented, 1 focus on the h i e d

egaIibribrian perspectives of Joseph Carens and James Woodward. in grnerai, liberal

egalitarians are faced with a tension between two valuess liberty and equality of

opportunity. For this reason, this theoretical approach is sensitive to the tension that

exists in moml questions regarding immigration controIs.

Carens in "Migration and moraiity: A I i i d egalitarian perspective," argues that

liberal egalitarianism should be cornmitteci to open borders. He argues that liberal

egalitarians aim at prornoting people's ability to pursue their own life goals free of

constraints beyond the duty not to interfere with other people's aeedom to pumie their

own life goals. However, he notes that Liberal egaiitarians are also cornmitteci to

creating qua1 opportunity among people. He says, "liberal egalitarians want to keep

actual economic, social and politicai inequaiities as srnail as possiïle, partly as a

means of realiang e q d fieedom and equal opportunity and pady as a desirable end

in itself."'

Based on the underlying p ~ c i p f e s of liberal egditarïanism, Carens argues that the

theory supports a basic right to fke movernent. Speaking to the inequaüty of

opporhmities created by one's orïgin of birth, Carens says. "Citizenship in the modern

world is a lot iike feudd status in the medieval world It is essigneci at birth; for the

most part it is not subject to change by the individuai's wül and efforts; and it has a

major impact upon that person's Life chances.'' These cùcumstances, as Carais

desmbes them, are cleariy contrary to the basic principles of IiberaI egaiitananism.

Car= goes on to note that fkeâorn of movanait is considered a basic right within

liberal danocratic States7 and that attempts to Iimit this M o m within the state wodd

semi to us to be extremely objectionab1e. Carens sees Iittie reason why we should be

any less offended by the limits imposeci by state boundaries. E@ity and liberty are

not values that are dependent on the distinctions m t e d by borders, according to

ciirens?

Carens does however consider circumstances where limiting immigration might be

legitimate. He uses two interesting examples of when liberal egalitarians might want

to allow for c!osed borders. The first example he uses is that of Japan. He argues that

to demand that Japan adopt more open borders and becorne a multicultural state iike

Canada is to argue that our model of a society ought to be adopted by aU sodeties.

Carens says that the Japanese people rightly view th& culture as distinct, He notes

that Sapan is relatively homogeneous, md that the Japanese people experience a strong

sense of cornmon culture. C m suggests it would be reasonable to accept that for the

Japanese, maintenance of their distinct character is fimdamentai to their life goals.

Their dture gives, "meanhg and depth to theh lives."' Carens argues that the

Japanese desire to k t immigration to protect their dture is legitimate h m a liberal

egaiitarian perspective, and he argues that this desire ought to be weighed against the

claims ofpotential immigrants and refigees?

Carens says that there are no remonable arguments for excluding refûgees, as their

needs are of such an acute natme that almost any state wodd have to accept them.

Howeva, immigrants may be denied entry @en cerCain circumstances. Carens

focuses on the misons why iximigrants want to come to Japan, and wdghs these

reasons against Japan's claims to pmtect its cultureture He argues that if immigrants wish

to come to Japm to pursue marginaUy better economic opportunities yet have other

options within their own states or in other more culturally diverse states, Iapan may

legitimately choose to restnct the entry. However, those who pursue entry based on

family ties and those who are already within Japan cannot be excluded for the sake of

cultural protection. Carens acknowledges that the circumstances he describes are

somewhat different fiom those that motivate most immigrants today. The disparity in

wealth, security, and opportunity that exists between states today cannot be desdeci

as marginal. However, his argument is simply to show what a just exclusionary policy

rnight look likeO6 A real world, and one should note intra-state, example is that of

Native Americans who wish to preserve their way of iife within a denned area. Carens

=Ys,

they cannot maintain this culture if any significant aumba of outsiders come to settie on th& land and the reasom the outsiders have for coming (e.g. to use the land for recreationd prrrposes) genaally seems far less compelhg than the re85ons the natives have for keeping thnn out7

Carens identifies dhwl prrsmration in the hce of weak claims on the part of

potentid immigrants as one case in which a closed border poiicy could be acceptable.

The second example C a m looks at is the case of Canada's pubiic healtham system.

Carens notes that Canadians view th& h d t h care system as hdamentally valuable.

In cornparison with the US system, most Canadians prefa a publicly fûnded approach.

C m asks ifit is justinable for Canada to close its borders andlor access to its

hedthcare systern to Americans. He notes that because of the différence in population

between Canada and the US, an influx of Amencan patients would put a signifiant

strain on the Canadian system and might even jeopardize its existence?

Carens argues that Limiting access to needy Amencans is not justified. He looks to

intra-state migration to make his argument. Carens suggests that we do not h d it

mordy defenstible to prevent people h m migrating to a more socially supportive part

of Uieir own state. Speaking to the contrast beîween intra and inter state boundarïes he

If the two cases are different, how and why are they different? 1 find these questions p&g, but in the end 1 cannot se t that sovereignty makes that much difference h m a Liberal egalitarian perspective. Despite my attachments to Canada's social welfare policies, 1 do not think they justify restrictions on m o v e m d

Carens does dlow for some exclusionary policies, but he says, "it is not the state as

such that gives rise to a clairn to exclude, but rather the existence of a comrnmity wîth

a distinctive and valuable way of life that woutd be threatened by ùnmigrati~n.'"~

Carens views defending distinct and vaiuable nilhires as legitimate, while defending

econornic and social advantage as iiiegitimate. In response to Carens it would be valid

to note that it is precisely the ecunomic and social beaefits that wealth, security, and

opportunity provide that make Western societies distinctive, valuable, and attractive to

immigrants. Why does Carens view defènding these kinds ofvaiues by closing borders

as anjustifid?

Carens argues that economic reasons for exclusion are ülegihate while cuitural

reasons maybe Iegitimate because of his commitmmt to quai opportunity. Carens

does not view Canada's wealth as a distinct value, but as a distinctly advantageous

opportunity. However, he says certain restrictions on movement are clearly justifie&

Iike "a right to exclude others h m one's home (assuming everyone has a home or a

reasonable opportunity to obtain one)."" But what if one's home provides

significantiy more oppottunities thaa another home? What is this distinction based on?

Carens' analogy seems to show that at some level we have to be able to distinguish

between insidm and outsiders for the sake of pumùag our own interests. The force of

Carens' argument cornes h m the notion that we are al1 bom into cultures, but we are

not al1 bom into the kind of wealth, security, and opportunity enjoyed in Canada. This

is a reasonable position, but Carens does s e a n to have a problem in that he does not

examine precisely why it is at the state levei that exclusion for economic reasons

becornes illegitunate.

Examining the work of James Woodward in "Comrnentary: Lîbaalism and

migration," we caa better respond to these questions and fiuther explore the moral

tension at work in this debate. Woodward hopes to give us a "persuasive rationale -

within a liera1 egditarian h e w o r k - for limiting fk movanent across b~rders.'"~

He presents three areas m which we couid ceasonably expect to see immigration have

negative e f f i for the host country. The nrSt is in the reah ofwage cornpetition. He

argues that o p border policies wodd IikeIy d t in the lowaing ofwages for those

in muent states, especidy for those who are the least weU OE The second is that

social services would coUapse given open border policies, and lady that the ideais

and politics of an affluent state, liberal egalitanan ideals, wodd be threatened.

Carens' view is, that there are few circumstances w h m the above can be d e d upon

to defend limiting immigration. Woodward uses these examples as a way of directly

challenging C m ' theoretical appmach. Woodward says,

There is a tendency . . . to think of the morai problem concerning immigration as one of dtruism vernis self-interest. . . . As 1 see it, the issue is largely one of confîicbing obligations or moral claims - the claims of nnmigreuits to enter (and of present citizens who may benefit h m their immigration) versus the claims of other citizens to various kinds of social savices, benefits and opporhniities which may be undenninecl by extensive immigration. '

He uses a parent and child relationship to make his point. Woodward says that we are

strongly attacheci to the notion that we cm provide benefits to our own children to the

exclusion of other more needy children, even when the benefits are weU in excess of

those enjoyed by most cMdren. We do not feel obligated to provide a basic level of

support to as many childien as possible Mead of providing a high level of support to

our own childrex~'~ Woodward thinks it would be inappropriate to expect parents to

adopt as many children as was financiaiiy possible for the sake of equal opportunity.

He says, The fact that by adopting yon would fail to mcet obligations which an

already in place to your present children is a good (mord) reason for not a d ~ ~ t i n ~ . ~ ' "

Woodward notes that Carens himselfsupports this notion when he suggests that States

are more strongiy obligated to not expel guest workers and illepai immigrants, than

they are to admit new immigrants. l6 A d reIatîonships sean to make a ciiffierence.

Woodward notes that John Rawls in his influentid book A Theory of Jwtice requires

that principles of justice developed in the original position must be of a sort that one

could reasonably expect people to adopt once they take their place in the world."

Woodward points out that much of what Carens argues for f d s this test Taking the

example Carens -tes regarding the Canadian healthcare system, it is clear that

Canadians would never wiîlingiy endorse immigration policies that could result in the

destruction of public healthcare. C m ' argument expects something of Canadian

society, or any society with public healthcare, that it would never be motivated to do.

These factors help to explain why Carers' example generaüy seems odd.

Carens does try to fhd a way to make this healthcare example more appeaiing, and he

uses intra-state fitedom of movement to provide an intuitively appealing argument for

M o m of movement generaiiy. Woodward comments on this approach and says,

Much of the force of this argument derives, 1 believe, h m the tacit assrrmption that to respond to it we must show that there is some deep positive moral significxmce to facts about nationdity which ground the above asymmetry, and the suspicion that no response of this sort is avdable within a liberal egaiitanan framework. . . . This is not the respoase 1 have attempted to make. Rather, I have tried to show that even ifno such positive argument of the sort mvisioned by the Romantic Nationalism is available, thete none the less rnay be defenstiIe reasons, having to do with obligations incimed against a background of nonnideai institutions and behavior, for a diffaent treatment of interna1 and extemai migration. Restrictions on eatry, in my argument, have the status of non-id* second best solutions to probIems of preserving institutions and policies we care about in an imperfit worid ''

The heaithcare example provided by C m pfoves particuIar1y usefd for Woodward

For Carc~ , rnorality dictates that Canadians must open their healthcare system to

foreigners. Since Canada has a public healthcare systern not enjoyed by much of the

world, it can be expected that many outsiders wiü wish to use CanWs heaithcare

system. Consequently, danand will outstrip resources and the systan will collapse.

The motivation for foreigners to corne will have been destroyed. It does not make

sense to argue that we must permit universal access to out healthcafe systmi because

of a cornmitment to equdity of opportunity, even when we know that opaiing access

in this way wili result in nobody having an opportunity to benefit h m our heaithcare

system. C a m t view is odd because his notion of equd oppominity actually d t s in

dI people having no opportunity to access public healthcare. Woodward maintallis

that this view is not rnorally rquired.

Woodward argues that non-ideal situations may create valid moral obligations that

would not be so in an ideal situation. Woodward's approach attempts to show how a

non-ideal situation aui morally legitimize Iimits on immigration. Woodward argues

that in order for liberai egaiitariaas to maintain the values and institutions that they

find worthwhtle in an otherwise imperfèct world, they must exclude people who may

have legitimate claims to participate in those institutions. Carens' example of the

Canadian healthcare systern fits weiI into this argument, and the example does more to

hurt C m than it does to help.

On mfnI inspection we CM see that much of Woodward's argument is an attempt to

use d s t arguments to define the possiiIe realm of moral action in the "rial world".

He argues haî his approach provides a "second-best" argument> but that it does not

challenge the notion that morality may require somethmg close to an open border

policy given ideal circumstances. Robert E. Goodin in his essay "Commentary: The

political realism of fiee movment, " is critical of Woodward-type arguments. He

daaiaes "second-b& approaches to morality as part ofa realist strategy to show

that thae are valid excuses for certain moral omissions. Goodin shows that in general

realist arguments suggest that opening borders is "politicalty impossible." Goodin

argues that,

to say that something is 'politically impossible' is rnerely to say that it entails unacceptable costs for certain cmcid politicai actors. . . .The key question then becornes not whether it is possible for them to bear the costs, but rather whether it is somehow reasonable to expect them to do so.19

As was noted earlier, Woodward appeals to a parent child analogy that speaks to the

intuitive problem in Carais' argument. The analogy Woodward presents seems to

work, but it ultimately fds to tke us h m questions about the kinds of costs we ought

to incur for the sake of others in need For example, it seems tme that we are moraliy

permittecl and possibly obligated to provide our own chüdren with a university

education to the exclusion of others. A university education is a lumry, as the majority

of people never have the o p p o d t y to attain this levei of education. Yek providing

our childm with new designer clothes and sports cars so that they c m be popular at

university does not s e a n justifiable to the exclusion ofothers' need to eat. Here at the

very least thae is an issue of legitimacy that must be addressed Woodward d o a weli

to pick on Carens' hedthcare example, as it is physically impossible for Canada to

provide health senices to the rest of the world But, this type of ciramistance does not

speak to the main thmst of Woodward's argument. He says,

While 1 M y agree that present arrangements conceming national sovereignty are morally defective and non-ideal, it does not follow that moral recpkments based on such arrangements lack force. . . Non-ideal institutions aui give rise to real, weighty obligationsm

Goodin notes that this argument does little to help us understand what we can and

aumot do. We are stiU forced to ask when these non-ideal obligations are justifiai and

when they are not.

The importance of Goodin's argument for skepticism towards reaIist excuses c m be

seai clearly in some of Woodward's circular arguments for moraily legitimate reasons

for exclusion. In arguing for immigration lirnits Woodward says, "One consequence of

such unmigration may be the rise of political parties that attempt to exploit racial

tensions, a consequence which is very much in evidence in France and Germany." 21

Howeva? h m a Liberai egaiitanan paspective it is ridiculous to defend closed border

policies because they ensure the appeasement of racism. Woodward's argument might

be an example of how we can appease racism in the " r d world", but it cannot be

defended on moral grounds. His argument seems to be that there are racist political

parties, racism is bad, and we should bmit hmÏgration to prevent racism. From a

mord perspective the problem is racism not immigration. One cannot argue that

racism is bad and therefore the state ought to implement immigration policies that treat

people differentidy based on race. Woodward seems to be saying that a racist

immigration policy would be the least bai alternative in societies where there is a

potexitid for racism. However, Woodward never defends how racism because of

racism c m be the lest bad alternative in mord ternis, nor could tbis view be defended

in moral terms.

There is a huge disparity in the wealth, and opportunity &ordeci to people

h m different countries. There is also a strong sense that simply being bom outside of

a political border is not a good reason for a widely duced Ievel of wealth,

opportwiity9 and security. As weil, disparity serves as a great motivator for poor

people to move to rich countries. The motivation is so signifiant that there are good

reasons to believe that rich nations could not expect to maintain anywhere near th&

current levels of wealth if open border policies were adopteci. There is a strong sense

that despite the morally signifiant plight of people who would benefit greatly fiom

open borders, people from wedthy nations cannot be expected to give up the very

things that make their nation attractive for the sake of addressing outsiders' claims to

access. The huge disparity in wealth, secinity, and opportunity is the justification for

both openhg borders and closing borders.

Carms' hedthcare example is easy to pick on because his moral demanâs for m i v d

access destroy evaybody's opportunity to access the heaïthcare system. Howeva,

Woodward's theoretical arguments of physical impossiiiiity used to defend a general

right to exclude is as untenable as Carens' heaithcare example. This approach does not

defend the motivation for exclusion because it does not speak to why the costs at issue

are too high to pay. It seans that the main qnestion in the immigration debate is when

is it mordy legitimate for us to say that the costs associateci with eitha limiting

immigration or opening borders are too hi&.

The survey so far dso helps us to focus on how we can detemiine what costs are most

important in the debate. An honest investigation of this topic will have to see wdth,

security, and opportunity as the most important costs or values in the immigration

debate as it exists in the world toâay. 1t is these values that motivate m a s

immigration7 and causes concern in host countries. Many of the articles examined thus

far cake it to be obvious that we have no legitimate basis for exclucihg poor outsiders7

or conversely that we do have a legitimate basis to protect our way of life despite the

interests of outsiders. 1 do not see that there is anything "obvious" in this debate.

Everyday we exclude the poor from our lives and h m o w resources. As I waik home

h m work each day it would be an exception not to eucounter a street beggar. Of

course 1 m o t , 1 think to myself, give money to everybody who asks me, but of

course 1 cm. It is ody my plans with regards to my own wedth that prevent me fiom

doing this. It seems to me that 1 cm legitimateiy defmd the way I exclude the poor

eom my Life and my assets for some but not aU the plans I have for my own wedth.

At the same the , 1 cannot confuse my respom'bility for the circum~fances of poverty,

which is very smd, with what moralty might dictate to be rny obligations to assist

those in need. As 1 pass a homeles dcoholic on the verge of h s t bite, 1 do not see

rnyseif as dpable for his situation in anyway until I7 like aii the other passers by,

hurriedy step o v a hlln on rny way home to a wami meel. Then 1 am culpable for

something, dthough I am not sure what. At the very Ieast, I am calpable for mentalIy

blocking out the reality of poverty h m my evayday thoughts despite the fact that

extreme poverty is part of my everyday reality.

Another important cost to be discussed in this debate is that of cultural survival. Here

much of the debate is focused on preserving a dture that defïues the iives ofthose

who live within it fiom the changes mass immigration wilI bring. It is important to

note that this is not defending the existence of dnires7 commdties, or institutions,

but a defense h m changes, often unpfedictable changes7 in cultures7 comm~ties ,

and institutions. It does not seem plausible that immigrants who stniggle to gain

access to a state more l i b d than their own wül then want to destroy liberai

institutions. Without this intention it difficult to see how they could be the catalyst for

the destruction of hierai institutions, while it is easy to see how immigration could

destroy social services and change the character of a culture. Here again it is not clear

that there are obvious answers to the problem. Some s e a n to think that defending

culture amounts to an excuse for defending wealth, whüe others see forcing change

upon a culture as a form of moral imperialism. interesfingiy, in the debate outheci

above Joseph Carens took both positions. Carens' views point to the confusion that

exists in arguments that aim at defending culture h m the consequences ofrnass

immigration. Take, for example, a country Wre Sweden with a very srnall population,

an extranely long and rich history, a strong culturai preference for a wide range of

public social supports, and enormous wealth. Any signifiant infiux of immigrants,

lets say four mülion people into a country of nine million, would signîficantly alter the

character of the society. Carens uses a M a r exmp1e of Native A m e r i m who

cannot hope to maintain any sense of collective culture ifthey are saturated with otha

Canadians on their reserves. 1s the hct that Swedes are rich and Natives Americans

are not signincant enough to exclude Swedes fiam the right to pmtect thei. way of

li fe?

Both Carens and Woodward speak to the costs of closed and open border poiicia, and

have led us to a better understanding of the way these conflicting cosîs are at the

center of the moral debate about immigration. Carens and Woodward make arguments

that attempt to incorporate both sides of the tension in the immigration debate. Carens'

example of legitimate immigration Iùaits requires a direct comparison between the

interests of insiders and outsiders. Woodward is even clearer on this point when he

says, "the issue is largely one of conflicting obligations or mord claims - the claims of

immigrants to enter. . . versus the c l a b of other citizens to various kinds of social

services, benefits and opporhmities . . Carens and Woodward move away h m

attempts to show that ody one side of the tension has signifiant mord implications.

OddIy though, both C a m and Woodward are for the most part concemed with a

state's right or Iack of a right to limit immigration. Carens wants to establish that states

have in general no right to E t immigration. For Carens, IiieraI egaiitarianism is

strongiy supportive of open bordas. Carens does d o w for some immigration controls

where disparity is not a strong motivational factor for migration, and the soàety in

pestion is motivated by a desire to protect a distinct d t m e unable to cope with mass

immigration. However, Carens' concessions are exceptions to the general principle of

fke movement, Woodward wants to estabikh a generai right to lirnit immigration

despite global disparity. He argues that the immigration debate should be undersfood

as one of cwipeting claims h m both insiders and outsiders. Mead ofanaiyzing the

maits of these competing claimci, Woodward uses a strategy that focuses on the moral

sipnificance of non-ideal circumstances. Woodward argues that societies in general

have a ri@ to limit immigration because circumstances of disparity force them to

pmtect the interests of insiders to the exclusion of outsiders.

It is strange that theorists who focus a great deai of attention on the costs and benefits

associateci with immigration controls would also argue in t m s of a general right or

lack of it to lirnit immigration. If both the interests of outsiders and insiders are

mordy signincant in important ways it does not follow that a legitimate Unmigration

regime would entail a right to Iimit immigration or no right to l h i t immigration. The

confusion I have described here &ses h m a misunderstanding of the kind of

theoretid pmblems immigration controls present,

h the next chapter 1 attempt to define what kind of a theoretical problem immigration

evokes. Specifically, I wîii argue that it is correct to view the immigration problem as

one of cornpethg costs, but that this approach carmot lead to a discourse about a

general right or lack of a right to limit immigration. The aim of the following chapter

wiU be to establish the basis for an arment about Iegitimate and aegitimate forms of

inmiigration contrd.

' C a m Joseph EL "Migration and morality: A h i egalitaOan paqx&W m Free Eaicczf issues Ur the trmrmotronai migrcition ofpeople and of mon- Brian Bauy and Robert E. Goodm (eds.) London: Harv;wter Whcatshcaf; 1992 p. 26 ' Carens, p26

- - -

' Carens? p.27-28 ' c m , p. 37 c m * p. 37 car en^ p 36-40 ' -, prlo ' cafe~l~, p. 4043 ' Carens, p. 42 'O C m , p. 40 " Carcns, p.27 12 Woodward, l a m . "Commcnrary: L i i and migdon" in Fme Moment. p.68 l3 Woodward, p. 73 "woodwardp.73 * Woodward p.73 l6 Woodward, p.74 " Rawk, Ioha A Thcory of Jttsh'ce. Oxford, Clarendon Rcss, 1972 l8 Woodward. 80 " Goociin, Robert E. "Commentary: The politicai reaiism office movcment" in Free Movement. p. 253 * Woodward, p.74-75 " Woodward, p.70 22 woadwatd, p. 73

What Kind of a Moral Boblem is Immipution Conîrol?

AU of the theorists examine thus far suppose that societies either have a right or have

no right to control immigration, as they see fit. Immigration controis are, they Say,

either just or unjust. 1 do not, however, believe that the problem of immigration that 1

have presented can be dealt with in this way. The legitimacy of Unmigration contmls

is not a pmblern ofjustice as it is nonnaiiy understood.

Much of political theory and moral philosophy asks what would be just or what wodd

be ri@ An example of this kind of a moral problan is abortion. The question of

aborbion is deeply problematic for moral theorists because what is just brings forth so

many cornpethg clamis. 1s the fetus to be considemi a person with fidl rights? Does a

pregnant woman have a right to control what happeas to her body regardiess of others'

claims to that body? SirniIarly, the qpestion of a just society or how we shodd

organize omelves as politid beings is dominateci by competing claims. Some feel

that individu81 mterests are @or in importance to any elexnent of a society, and that

justice danands that we organize in soch a way that individd autonomy andlor

e t y is protected Others argue that the interests of a community are most

miportant, and that society ought to reflect the priority of the cornmunity. The

immigration issue addressed in this work is not this kind of a theoretical probIan.

The problern of immigration does not come out of a question about what would be just

and thus what general rights societies or individuals have. There are cornpethg

arguments, very much like those of justice in general, about individu81 interests versus

the interests of commmities, but the immigration debate does aot come out of a

question about what is just? Mead, the entire problem cornes out of agreement that it

is unfair that origh of birth has such sipnificant implications on individuals' life

chances. None of the theorists examined argued that the circumstances that create

wide divergence in wealth, opportunity, and secinity are fair. The reason there is

interest in the normative problems of immigration is that the global distriiution of

weaith, secitrity, end opportunity is not fair to those who come into existence and are

faced with the negative effeçts of pre-existing distriiutive reaiities. What makes the

tension in the immigration debate problematic is the environment of global dispetrity,

and a judgement that this disparity has signifiaint moral implications. Even those who

defend closed borders tacitly acknowledge this point They do this by arguing for

closing borders based on cultural s d t y or the need for societai self-determination.

None argue that the reasons for the immigration problem, unequai and random

distii'bution, are acnially not moraiiy signincant issues. The theore,ticai problem of

immigration arises within a set ofckmstances that are imfaù, but these

circumstances are not mjast in the way some theorists wish to estabüsh.

Esorneone born into societal poverty, violence, and lack of opportunity has relatively

iimited life chances as the result of the chance of birth, then someone bom into wealth,

security, and opportunity has relatively good Me c h c e s for the same mison. There is

no issue of justice between these two people at this Ievel. The advantaged and

disadvantaged are not responsible for the circumstances they are born into, and thus

neither is rrsponsiile for the circumstances of disparity. The disadvantaged bom into

povaty do not have an inherent c l a h in justice against those bom into wealth. At the

same the, those born into wealth do not have an inhacnt right to this wealth to the

exclusion of others. The open bordas principle holds that this dispanty is itself unjust,

and for this reason societies have no right to controi immigration. However, they have

not established that these unfair circumstances are also unjust. Those who hold the

closed bordas principle argue that we as a society have, on mord groumis, a right to

the social advantages we enjoy to the exclusion of others. But how can such a right

exist when the advantages in question have been attained by chance. It is difncult to

see how we cm have a right to chance, or how chance can be inherently unjust The

immigration debate cornes out of agreement that the disparïty between countries is

unfair, but issues of justice do not aise until we begin to examine the ways in which

immigration controls perpetuate disparity.

It is inappropriate to try and establish whether a society has a right or no right to

control immigration. The immigration problan carmot be treated in the same way as

other problems where there is an inherent qestion ofjustice, iike the abortion

problem. in the case of abornon tht debate cornes out ofa question about what is just

and theorists attempt to solve this qyestion. It is not possible to solve the underlying

source of the politicai problem of immigration. Solving the problem of global disparity

is simply beyond the scope of the question at hand. However, the theorists examineci

in the previous two chapters do attanpt to try and solve the problem of immigration

controls when they attempt to establish either the unconditional rights of a society to

have autonomy o v a its bordas, or the unconditional rights of potential immigrants to

have access to other societies. These approaches do not address the tension between

the interests of outsiders and insiden. Mead, they either suppose the elimination of

global disparity, or argue that global disparity does not have any implications on the

way a society can legitimately control immigration.

The immigration debate is ody significant given cK~umsfmces of acute global

disparity that creates a lack of fainiess in individuais' relative life chances. The

problem of immigration controls, as it exists today, is not addresseci effectively if we

suppose an eIimination of Unfair Circumstances, or ignore the mord significance of

these cirnmistances. imagine the debate without the definhg element of globai

disparity. If there were an equitable distriion of wedth, opportunity, and security,

the motivation for migration would not be based on M e chances. Presumably the

potential for mignition would be greatiy reduced, and not focused on any partidar

region. Those who argue for fke movement would have much stronger daims in this

equitable worid. Kymiicka argues that we are wUhg to E t h i in order to ensure

that our society is not satnrated with newcomers. Yet, ifthe motivations to migrate

were signincaatly &ced the value ofexpmding liberty wodd certabiy outweigh the

viaualiy non-existent risk of being ovemm. Kymlicka wouid have to defend open

bordas. The Singersl utilitarian dculation would no longer place any obligation on

states to consider the iife chances of outsiders in relation to those ofinsiders. Here, the

interest in cultural and societal protection couid certaùily, as they argue, take

precedence over othersl claims to access. Outsiders already have wealth, opportunity,

and security pmvided to them within their own states and cultures. Closing borders

denies them access only to those things to which they already have access. 1 do not

intend here to defaid either of these positions. 1 ody want to show that if we eliminate

the cirnmistances of disparity that motivate the immigration debate today, we end up

with a diffefent kind of moral question. For the theorists mentioned above, the result is

a complete reversal of their arguments. The immigration tension that currently exists

as a deeply problematic question only exists by Wtue of unfair cinxmistances, d i k e

other moral questions that have inherently deep moral tensions. If there were an equai

distri%ution of wealth, opportunity, and security the question of the Iegitirnacy of

immigration controls would be much different, much less problematic, and much less

interesting for moral phiiosophers.

The description 1 offer conceining the source ofthe mord problems m the

immigration debate is important in understanding why the tension in this debate has

not been addressed effectively. Those who argue for o p borders or virtually open

borders derive much of the force of tbeir argument by way of a clear description of the

global distrr'butive pmbIem, particularly by desmiing the plight of individuah bom

into p r Circumstances. Carens presents one of the most powenul images m the

debate when he compares citizenship in the modem world to the feudal system of the

medieval worid AIl the force in the argument that bordm should be open cornes

simply descnaing the Iack of faùness in the distniution of wealth, opportunity, and

secilrity. This approach works weli in showing that th= is a moral problem to address

in examining our reactions to &air circumstances. The Singersr and Carens' envision

the efimination of disparity, but the eiimiaation of global disparity is an elimination of

the source of the tension in the immigration debate. This might be useful in a broder

theoreticai context, but it does not help us with the political problem at h a d If 1 say

that there is a deep teasion between the interests of outsiders to equd opportunity and

the interests of insiders to autonomy, the response to dealuig with the tension cannot

be 'just get rid of the source of the tension'. The tension must be viewed as a persistent

tension that defines the problem.

A description of the problem of global disparity ody goes so fitr in chdenging the

moral Iegitimacy of closed borders. This description shows that thae is a real morai

concem with the Whially u n i v d practice of immigration control. We must st2I ask

how much wealthy States m u t assist the disadvantaged by opening borders. On the

one han& we have those who challenge cumnt immigration conûols, and say that

they go diredy agahst the notion of individuals' equal morai worth. On the other

hand, we have a defaise of immigration controls that says they are legitimate because

of a need to maintain social identity or the ability to act on various s o c i d aims.

UnfortunateIy, those who defend closed bordas fonis a great deai of attention on

arguments for defading cultural and identity and practices. Theorists sach as

Coleman and Harding avoid speaking to the dishibution of wealth, secUnty, and

opportunity, as they h d themsetves forced to look for an area in which they can

defend closed borders without being conbnted with the legitimacy of exemising this

control. The solution is to focus on cuitme. By doing this a theorist can avoid

challenges about the faimess of resource distriiutioa Iiistead, they argue that they are

defendhg a valuable and distinct resource that is largely d e h e d by citizemhip. This

move is not helpful as far as the actual political problcm. The immigration probIem is

momlly signifiant because of the circumstances of acute dispari@ in wealth,

opportun&, and security between coimtnes. if the entire problem of immigration

controls cornes out of a question about the distniution of these values, it folIows that

the moral discourse should focus heavily on these values. The weakness of the societal

argument, is that it does not address the inherently d a i r circumstances that motivate

the debate. 1 do not deny that questions of cuiturai or societal identity are important,

but they are secoadary. They are secondary because they are not the motive for the

debate but corne out of the debate.

The discourse in the immigration debate has not yet focused on the most significant

issues to be addresseci. Arguing for open borders has mounted to a description on the

tmderlying source of the moral problem. By focushg on the lack of f ' e s s in the

global distribution of tesources, they have not been abIe to present clear aad specific

argmmts about wealthy peoples' obligations in justice to assist outsiders by opening

bordas. Arguing for immigration 1Miits has amounted to a resistance against using the

issue of mimigration to aûack the broader problem of global distriLbutivejustice. They

argue that despite this dispsnrity there are Iegitimate rasons for closme. In a world of

distriiutive inequality, open borders do not represent a solution to the problem. More

importantly, the mord signifïcance of prionty is not made irrelevant by the existence

of disparity. Still. a strong argument for societd selfkietermination is not a tnrmp that

eliminates the possibility of a more global moral assessrnent If it is hue that those

who are born into poverty* danger* and diminished opportunity d'fier fiom arbitrary

circUmSf2LI1ces, it is also tme ofthose born into wealth, security, and opportunity.

Those who argue for cbsure must also argue for laying c lah over arbitranly &ed

advantages. The existence of disparity between people of different countries does not

automatically brings forth problems of distriiutive justice. However, once we begin to

talk about immigration controls designeci to keep poor people out of rich nations, there

are significant issues of distributive justice.

In order to better understand the immigration debate one must first acknowledge that

the debate is only problematic given Circumstaiices of giobd disparity* and a

judgement that this disparity has signifiant moral impücations. Doing thk wilI force

theorists to speak more directly to the costs associated with both closed and open

border policies. It is inappropriate to use a rights discourse to establish if immigration

controls are in general just or unjust. This approach cannot address the morally

signincant clamis of both disadvantaged outsiders and advantaged insiders. The

argument to follow will try to show why theorists should be taking about costs,

instecmd of general rights, in order to advance thought about immigration controls.

Looking at a s m d - s d e example that speaks to various aspects in the immigration

debate wil l help in this endeavor.

A Canadian aid worker, Karin, goes to Ethiopia to assist with famine relief, She is a

doctor with a f d y back home, but decides to dedicate one year to the cause of

helping the sick and starving. In an aid camp she lives, eats, and socializes with the

other international and local camp workers, while she works on the starving and sick.

Compared to most in the camp she has significantly more and better food, and a rnuch

higher standard of living. Does Karin deseme to eat, survive, and thnve when a baby,

maybe two, rnaybe ten could be saved with her share of food and her access to medical

attention? Should she &me instead? The answa seems to be no. Here we cm cleariy

see the way r d world political problems will have significant implications on the type

of philosophic problerns immigration controls entail. Karin is ofno greater mord

worth than others in the camp are. She is physically in direct contact with the disparity

in distribution that defines the mord tension of the immigration debate. In this

example the doctor has put herseif in direct contact with these circumstaaces of

disparity for the purpose of assisting. It might be an interesthg philosophic problem to

ask whether she deserves to receive a greater share of resources than others in the

camp do. It cerhhly is an example that fits welf hto the utilitarian or global expaiity

arguments we have examined thus f8t. But how can we punish the dûuistic doctor for

doing something that is higbly praiseworthy? We simply m o t .

In practical tams it would be impossible to motivate anybody to assist in foreign aid

projects if we did not guarantee those aid workers a certain level ofsusf-ce. A

uîilitarian might argue that the reason we cannot d o w the for- doctor to starve

with the local people, is that the benefits associated with her assistance wilI outweigh

the potential benefit h m her share of resources. But what if this doctor tumed out to

be ineffective in her work? Should she then starve? Again the aflswer seems to be no.

She should go home and allow her resources to support a more effective aid worker.

However, the costs of her retum will ceaainly represent the !ives of several camp

mernbers. Why does Karin get to go home given the costs? Why not impose a strict

utilitarian calcdation on the situation?

The doctor does not deserve to SUffer, but nobody in the camp desenes to SUffer. The

issue of who ought to suffer will not take us fornard in understanding this example.

The example is descnbed in such a way that we get the sense that Karin is taking

resources away b m the Ethiopians, but this is not the case. The resources that Karin

and the Ethiopians have had access to over theV iives, . at the societal level, is the d t

of where they were born. Karin was boni into wedth, and she took full advantage of

this opportunity. Should she have to now give up those advantages for the sake of

equaiity? There is fiirther resistance to this argument due to the motal assessment of

Karin. In cunmistances of wide disparity Karin has taken her self out of the weaith,

sectrrity, and opportunity îhat defines her life. She has done this preciseiy for the sake

of assishg those in disadvantaged positiom. Given that she is not bound by any legal

or cuituraI obligations to do this, we have to assess h a actions as vesy praiseworthy. It

might be argued that ICIvin is praiseworthy for her individual actions, but

UIlfortunately for Kann what is just wül require her to incm sipnincant CO&.

Howeva, imposing the weight ofultimate justice on this example wiii not work. Like

the immigration debate, the Ethiopian camp example arises out of Circumstances that

are not fair to those afflicted with famine- Karh is neither the cause nor the cure for

the disparity in the camp, and she cannot bear the weight of responsibility that open

border arguments suggest. In this example, we can see clearly that the distribution of

tesources is ultimately not feû. There is no good reason for Ethiopians to starve given

the weaith in the world. But we cannot simply impose what would be fair in the

broadest sense ont0 the more narrow sense of the camp problem and d it justice. The

camp problem takes us away h m strictiy philosophic consideratioas and binds us

within a politicai problem.

We csnnot impose the full weight of global distributive justice on Karin in arguing for

her to incur costs. Karin is praiseworthy not only k m the perspective of those in

advantaged positions, but also for the perspective of Ethiopians themselves who are in

a disadvantaged position. Karin chooses to ùiM costs in order to assist others, and it

seems d e to assume that Karin will continue ta be motivated to assist to varying

degrees. If Karin is g e n d y praiseworthy for h a actions, it seems wrong to impose

f.urther costs upon h a instead of on those that do nothkg and are thus blarneworthy.

brin is praiseworthy for her actions because she incurs aists beyond what wouId be a

legitimate level to expect for the sake of others welIbeing given the circumstances.

She is motivated by the mord implications dothers dering m relation to her own

wealth, The resistance to expecting M e r high costs h m brin is due to an

assessment that these fiutha costs wouid be too much to ask. Specinc arguments for

why the costs would be too much to ask for will be examined in the following chapter.

What is important to establish here is that the immigration problem, Wce the camp

example, is one where UIifair cifcumstances are presumed in the theoretical problem

itself The goal is not to solve the problern of unfair distribution, but to assess our

reactions to these problems. This moral assesment has a great deal to do with what

are and are not morally legitimate costs to expect in circumstaaces of disparity.

1 was critical of Woodward for arguing that non-ideal situations create moral

obligations that we othawise could not defend. 1 was not, however, critical of the

generaI argument that the immigration debate is defineci by non-ideal circumstances.

The nrcumstances that mate the normative problerns regarding immigration are

clearly non-ideal. Neverthelem, it d o a not follow that we m o t develop strict moral

assessments ofour actions, even though they are limited by non-ideal Cvcumstances.

Woodward has a sense of this argument but he does not make a clear effort to assess

mordly the kinds of non-ideal obligations he desmies. If he had, he ceaainly could

not have used a mordy blameworthy trait such as tacism to defend closing borders.

By requiring a serious moral assessment ofpeoples' responses to distrributive

problans, we force moral philosophers to have a clear understanding of the political

problem. The en& project forces the moral philosopher to speak àirectIy to the

prob1em of immigration as it exists. Ifmoral philosophas want to speak to nal

political p b l e m s they aumot simpIy dismiss these probIans as tllljust and move on.

LepHiniate and IIIegitimate Immigration ControI,

In this chapter, 1 argue that wealthy states must have immigration policies open

enough that they incurs costs h m immigration. The argument here is largely

concerneci with how much a society can legitunateiy bit immigration. This is a

n m w but important focus with regards to the various issues associated with

immigration controls. In examining how closed a state can legitimately be, I wiil

present an argument that does put significant demands on wealthy states. These

demamis challenge the statzcs quo of most wealthy state's immigration policies, and the

way the topic is most often addressed by political theorists. in the introduction of this

work 1 noted that Canada, Like many otha wealthy states, does not incur significant

costs from its immigration policies. On the whole Canada needs immigration and

benefits h m its immigration policies. Requiring Canada to open its borders to a level

where it incurs costs h m immigration wodd certainly d t in a higher Ievel of

immigration, and a signScantIy higher level of acceptame ofthose potentiai

immigrants in the worst off positions. In theoretid terms, the redt is a reversai of

the standard approach to investigathg the Iegitimacy of immigration controk. 1 argue

that absolute sovereignty over bordas shouid not be assumed to be a state's ri@

Mead, there have to be legitimate reasons f9r limiting access to the m e .

Many of the theorists who argue for open bordas or more open borders atternpt to

chip away at the g e n d y held belief that a state legitimately has sovereignty over its

borders. Closed border theorists attempt to defaid against this attack, end they argue

that States do have a right to control their borders. It is tme that the acceptance of state

sovereignty over bordas is now deeply entrenched in our state systexn. Howeva, it is

not necessary that theoretical investigations mimic the estabLished view of borders. As

1 argued in the previous chapter, when one is motivateci by the sipificance of acute

global disparity the immigration debate cannot be addresseci effectively by arguing for

a state's inherent right to control (Le. close) borders, or for disadvantaged outsiders'

inherent right to access. Ideal circumstances wodd be those whne limiting

immigration was not necessary or it did not affect people's Life chances, but this debate

is not the immigration debate we face today. Therefore, the argument in this chapter

avoids two positions that dominate the normative debate sulfomding immigration

controls. The nrst position I avoid is one that says societies have no nght to control

immigration as a principle of justice. The second position 1 avoid is the view that

societies have an unqdified right to control immigration. 1 also avoid an argument

that says some people have a right to immigrate while others do not It is inappropriate

to attempt to establish generai principles ofjustice that disperse rights based on

immigrant classifications that ultimately leads to those who have an inherent right of

entry and those who have no ri* Like the question of how much immigration shodd

be reqy id, the question of who g& in and who does not should be dominated by

questions of competing costs. It is evident that an immigration policy rnotivated by the

i n t e of disadvantagai outsiders could not, by definition, be biased in favour of

those potential immigrants who are in the best off position, in the way Canadak

immigration policies are biased today. StiU, I do not attempt to present specific

arguments for who does and does not get the opporhuiity to immigrate. In this chapter

1 simply ask for what remions can a weaithy state legihately k t immigration, and

how much can a wealthy state legitimately limit immigration?

Given the circumstances that make the problem of immigration a worthwhile topic for

political theorists, 1 have argued that one cannot, in general, legitimize or de-1egitimize

border controls. Extreme disparity in wealth, security, and oppommity is the

justification for both closing and opening borders. W e cannot disagree about whether a

state does or does not have a right to control immigration. Instead, we must ask when

it is legihate or illegitimate to E t immigration. As a dt, immigration controis

are for some a . lepitirnate. This conclusion does not mean that immigration controls

are uitimately just Ided circurnstances wouid be those where immigration conmls

either became unnecessary or did not affect people's access to wealth, securïty, and

opportunity. However, it is oniy when global disparity is not a signifiant political

issue that we cm make such arguments, whiie it is ody within a context of disparity

that immigration controls present us with dïfficuit theoreticai problems. I thus agree

somewhat with Woodward's daim that the issue is largely one of conflicting

obligations and moral claims. But I differ k m Woodward when 1 argue that the

debate is not best tmdetstood in terms of competmg rights and duties. The nghts that

theorists &e Carens and Woodward want to establish are often of the kind that exist

somewhat independent of Cucumstances. Cmms wants to estabiish a right to fke

movement despite Circumstaaces of limiteci resources. Woodward wants to estabüsh a

right to limit unmigration despite circumstances ofuofiiir disparity. btead of this

discourse on Bghts, it senes us better to describe the problem as one of confiicting

costs*

Mead of trying to prove or disprove that a society has a general right to control

immigration, we ought to estabüsh what costs to a society's autonomy are required for

the sake of outsiders' wellbeing, and what costs to outsiderst wellbeing are acceptable

for the sake of insiders' autonomy. This will require a way to determine what are and

are not legitimate costs to dernand fiom a society, and what are and am not legitimate

forms of societal priority. M a t are and are not worthwhiie, valuable, and legitimate

foms of societal prïonty are of course not seKevident. However, one can show that

there are motivations for which a society is intuitively justified in limiting access to its

borders, and motivations for which a society is intuitively not jusfifiexi in lirniting

access. By showing both cases, 1 argue that both the autonomy of a society and the

wellbeing of outsiders are morally significant enough to warrant inclusion into

weaithy states' immigration policies. From this argument, 1 move forwd in arguing

why some but not ail reasons for limiting immigration are justified, and thus why more

open mimigration policies are required of wealthy states.

Ciosing bordas to protect pubIic1y h d e d healthcme is rnotivated by a society's

desire to redistn'bute resources to ensure access to hedth setvices for ai l people in the

country. Limiting access to hedthnrre by controlling immigration is an attempt to

maintain the society's ability to use its resources for aims it has deemed to be

worthwhile. htuitively, the goal of providing quai access to healthcare in a society is

an aim worth spending resources on, and an aim we can to those outside the

society. Access to public healthcare is a value that seerns in general to be woahwhiie

because it is reasonable to accept any individual's, familyts or society's desire to

guarantee their access to healthcare despite the high costs. It is ciifficuit to see how

outsiders could argue that our society has no right to spend on heaithcare because of

global disparity. Social activists both within and outside wealthy nations do not point

to high levels of spending on social services as examples of illegitirnate excess, evm

though social services such as healthcare account for the majority of many wealthy

States' budgets. At the very least spending on healthcare is intuitively legithate, and

immigration controls to ümit access to healthcare are also intuitively legitimate.

In response to Carens, who argues that borders are not mordy sipificant enough to

limit access to healthcare, 1 argue that the protection of healthcare does not look to the

mord significaace of borders themselves. Instead, the defcnse for limiting access to a

statets pubIic hedthcare system Iooks directly at the moral si@cance of being

dowed to protect the aim of public healthcare where immigration control is one

elexnent in achieving or maintainhg this goal. Carensr argument is not convincing

because he does not challenge the aim of protectirtg hedthcare directly, but ody the

secondary issue of the moral significance of borders. In his essay ZegitBnate

hmigration Controî," Rama Baubock argues that,

individual political rights have to correspond to substantial collective rights of selfdetennination. There is not much point in political participation if the collective cannot even make a decision to redistniute private resources to some extent because this eitha collides directly with propaty rights or indirectiy with a right of âet moveamt,'

Simüarly, it is difficult to imagine arguments that view spending on education as

illegitimate. If spending on education is itself a legitimate and worthwhile aim of a

society, then the only way we can argue that the environment necessary for pursuing

this a h , controlled access to education, is illegi*timate is by showing that the costs to

outsiders associated with spending on education are too hi&. This will be a difficult

task in a society where one can buy five dollar coffees, thousand dollar bonles of

wine, and the 'hi& class' kind of toilet paper. We cm incur costs elsewhere.

[f we close bordas to people with skin colom other than our own, closing borders

does not seem legitimate. This type of policy aims at defending and promothg racist

beliefs. Those with the wrong skin pigment who wish to immigrate could eady argue

that such a spurïous citerion does not just* the costs to them associated with closing

borders. It is difficult to imagine an argument based on the promotion of a society's

autonomy or wellbeing that couid adequately defend an explicitly racist policy.

Similarly, closing borders to poor people whiîe opening than to rich people is

intuitively illepitirnate. Closing borders in this case is an atternpt to deny poor

outsiders access to the opportunities and wealth we enjoy for the sake of maintaining

and perpetuaitmg wide global disparity. It wodd be reasonable for a Haitian to argue

that our standard of living, especidy om level ofconsrmiption, is extravagant.

Denying tbis Haitian access to Catrrrdian society wül have to be based on something

more than a desire to maintain our lwels of con~tl~~lption. An immigration policy of a

rich nation today that is not willing to i n m any costs for the sake ofoutsiders'

wellbeing will be impossible to defend on moral grounds.

Given that there are intuitively compelhg cases where immigration controls seem

iegitimate and illegitimate, 1 argue that control o v a immigration is only legitimate for

the sake of some but not aiI a h of a society. Only some ofa society's aims are

Iegitimate in relation to concems for outsiders' weIlbeing. The diffidt task of this

work will be to show why it is moraily required that wealthy States aàopt more open

immigration policies with the aim of addressing the inter- of disadvantaged

outsiders.

In both cases I posed and answered the question of what outsiders might see as

reasonable in questions of access. Why wouid it be diffinilt to challenge a society's

right to spend on hedthcare, but easy to challenge a societyk desire to keep the

"wrongw coloined people out? If a mite has a nght to selfdetermination to pursue its

own goals what is wrong with a racist immigration policy? A racist immigration

policy certainly would be an expression of autonomy. However, a poücy that is an

enpression of autonomy is not the same as a policy that aims at autonomy. The racist

poiicy is not acceptable because it canot be defended on the basis of its promotion of

autonomy or wellbeing of either insiders or outsiders. The weîîbeing and autonomy of

outsiders clearly is not promoted by an outright Iimitation on kir access to weaIth,

secinity, and opportunity. Nor is the wellbeing of this state's cïtizem promoted by

supporting and perpetuating a belief that is based on an dit rary and morally

insignïiïcant factor such as pigment. The autonorny of insiders is not promoted eitha,

as autonomy is only promoted when we move towards making informeci choices. The

racist policy is based on misinformation, and for this reason is an expression only of

misguideci autonomy.

Limiting immigration for the sake ofprotecting healthcare caa be defended because it

a h at protecting the wellbeing ofthe country's citizens. Adepte healthaire is a

value that is fundamentaüy Unportant to dl people. A common way in which the lives

of people in poor nations is contrastecl and made vividly abhorrent to our sense of

justice, is by descriiing their level of hedthcare. Children die h m a Iack of basic

vaccinations, a simple infection can be H e threatening, and even seeing a doctor or

getting medicine is ofien not an option. In order to view immigration issues as morally

problematic one must also view the Iack of weaIth, opportunity, and secioity in many

people's iives as unfair. Thenfore, wdth, security, and opportunity cannot

themselves be illegitirnate. They are instead worthwhile goals. If Third WorId levels

of heaIthcare are below the acceptable standard that is set by First World countries like

Canada, we cannot be expected to have immigration policies that wül destroy the

healthm standard. Protecting healthcare is defended by the view that the lack of

wealth, security7 and opportunity m many cornbries has moral signifiaince.

If the defmse of pubiiciy fimded hedthcare is a legitimate nason for lirniting

immigration then there are a host ofother societal aims thaî wouId also represent

Iegitimate reasons for limiting immigration. Examples would be a desire to protect the

education system, the w e K i system, wedth itself, a political system, valuable

cuitUral traditions, language, etc. . . . 1 cm imagine elements of ail of the above that

codd be used adequately in defending Wts on unmigration. As a general principle it

is worthwhile for wedthy States to protect the maintenance of a society that is dehed

by security, wealth, and opportunity. Why then won't a combination of worthwhile

societd aims result in a society legitimately having a de facto right to control

immigration as it sees fit? The most important m o n is that we have shown that it is

only some of society's aims that can be used to defend limiting immigration. This is

only the case because the interests of disadvantaged outsides have been deemed to be

morally signincant in relation to advantaged peoples' interests. in circumstances of

disparity societies do not have an inherent right to close bordns, and legitimate

immigration contmls wii1 have to make some room for interests of disadvantaged

outsiders despite a wedth of good reasons for limiting immigration. A de facto right to

close borders is not better at incorporating the ùiterests of disadvantaged outsiders

than an inherent right to ciose borders.

We c m o t Iay claim, in the absolute terms of a rights discourse, to the advantages of

our society. If I am born into a wealthy society, 1 do not automaticaily owe it to

outsiders to fût the negative effects associateci with their birth. Those people in

disadvantaged positions do not have a claim against me injustice that 1 gÎve up my

wedth to provide them with the benefits chance did not But i f1 then prohiiit these

outsiders fbm gainllig access to the societai advantages I mjoy, they am Iegitimately

ask on what basis 1 am layiug claim to these advantages. Here the disadvantaged

outsiders do have a c l a b in justice that we not d u d e hem, as we do not have an

inherent right to ditranty &ed advautaga. There is a p d 1 e I between the notion

that a society m o t limit immigration based on race, and the broader notion that a

society m o t own a country in the way closed border theorists suppose.

The racist immigration policy is not lepitirnate because it a h at exclusion. Those

bom Uito weaith, s d t y , and opportwiity do not have an inherent right to these

advmtages to the exclusion of others. Exclusionary policies wül have to be based on

legitimate reasons. R a h is not a legitimate reason because there are no groimds on

which one can argue that racism is a valuable societal aim. Racism might be an a h of

some societies, but this aim is motivated only by a desire to exclude, not by values

such as autonomy or weilbeing that can be used to defaid limiting immigration,

Correspondingly, immigration policies that result in outright exclusion cannot

incorporate the interests of disadvantaged outsiders in any meaaingful way. The

interests of outsiders have significant moral weight when we judge our mctious to

circumstances of disparity, and immigration policies m u t include these interests if

they are to be considered Iegitimate. We cann~t aim at or amive at outright exclusion.

As with other nghts such as individuai property rights, non-ideai cirmmhnces

prohibit states k m having an absolute right to exclude outsiders as they see f i t

The limits we impose on property rights are similar to the limits 1 miagine on a

society's ability to d c t mimigration legitimately. In most societies, partîcuIarly

liberal dernomtic societies, property rights are firndamentat to the hctioning and

desirability of the society. We tend to think of a society's control over its given

territory as a kind of property right The entire notion of property rights is a significant

one for political theory? and many theorists debate whether we ought to have property

rights or not Two common views advanced in political theory are that a just society

would be one where property rights are not necessary and eüminated, or one where

property rights are not Limited and they do not intediire with eqyaIiV ofoppominity.

These ideal circumstances with regards to pmperty right are simiIar to the ideai

circumsbnces with regards to immigration. However, as the immigration debate is

defineci by non-ideal circumstances, 1 am most interested in the way aH states,

particuiarly liberai dernomtic states, limit individuai authority over property because

of non-ideal circumstances.

States take a portion of people's wedth through various forms of taxation and put

those resources towards societal airns. Some of these a i . are Iargely for economic

structure or service oriented hctions, such as most of the infbtructure spending.

mers are redistniutive such as welfhre and social savice spending, like hedthcare

and education. Given ideal circuniStaxi,ces we might not have to limit property rights

for the sake of redistri'butive programs, or there might be no need for property rights,

But, in a society where disparity is a structural nality we have to limit property rights.

If sorneone is born into a poor family in a society were there are no redi~bnibutive

prognmis to provide education, heaithcare, afFordab1e housing, and public

transportation, that person wouid be fiiced with the conseqnences of acute disparity

despite the existence of enormous wealth within th& country. The reason that

redistriautive policies are demandeci is not because there is unequal opportunity in a

society like the one descn'bed above, but because for those bom into poverty thae is

no opportunity. The poor newbom's birthright would be to a life without education,

healthcare, or a chance to expaience any of the weaith that exists in her society. The

idea that a baby can be bom into a commmity of great wedth and, beatuse of the lack

of wealth passed on by the parents of one generation to the next, have no oppomuiity

to enjoy the benefits of a wealthy society is not just This is a feuda1 society. Absolute

property rights carmot be justifiai, because such rights resuit in the absolute exclusion

of those bom into poverty h m wealth, security, and oppommity. These

circumstances of Wtually no opportunity for poor individuais can only be acceptai if

we completely abandon a belief in equaiity of opportunity. In liberal dernomtic states

abandoning the principle of quai oppommity to this degree will be in such

contradiction to the concepts of democracy and liberalism that it wouid become

pointiess to talk about these states in a moral way. Modem liberal dernomcies have

th& foundation in a desire to abandon the feudd system, and it is the theoreticai basis

of what we cal1 liberal democracies today that reqmi.es them to have redistniutive

property policies.

To attempt to weaken the mequitable effects of disparity we limit the choices people

can make with regards to thei. own wealth. We have s e a i that in order io be concerneci

with the question of immigration, one must view much of the povaty in the worId as

below an acceptable IeveI. We have estaôlished the need for more open immigration

policies as fm as estabiïshing that th- are those who would benefit a great deai h m

access to the wealth, security, and opportunity that exïsts in couutries Iike Canada We

have also estabfished that ongin of birth conceptualized at a global level d t s in an

acutely inquitable distribution of opporhmity. The undedying principle is that in

making modiy defendable decisions about mimigration conmls, wealthy states must

aiiow some of th& resources to be available in assisting those bom into circumStances

of poverty, similar to the way in which they do this within their own countnes. niere

is a moral limit on a society's ability to exclude disadvantaged outsiders because we

cannot Iay cIaim to the advantages of our birth as an inherent ri@

It is true that within a state redistncbutive prograrns do not solve the problem of

disparity, and this will prove to be even more true ofimmigration policies and global

disparity. However, opening borders to people bom into poverty is one of the only

meaus by which we can significantiy improve the wealth, senrrity, and opportunity

they have access to within their üfetimes. Lant Prîtchett in his article Torget

Convergence" examines the likelihood of change in the disparîty between rich and

poor nations. He notes thak ". . . the dispersion in incornes arnong countries . . . between 1960 and 1990 increased by 28 percent (hm -86 to 1.1), and the ratio of the

richest to the poorest countrîes rose by 45 percent just since 1960" (Ritchett p. 162).

Pritchett, Wre O-, does acknowledge that some nations are gaining p m d on the

wedthiest nations, but this observation ainnot sati* our concems over poverty.

Ritchett, in ref-g to couritries that are mathematicaily converging with wealthy

cornitries says,

India, for exampIe, registered an annual average gn,wth rate of 3 percent between 1980-1993. If India could sustain this pace for another 100 years, its incorne would reach the level of hi&-incorne countries today. And, if India can sustain this growth differential for 377 years, my great-great-great-pt- great-great-great-great-great-great-great grandchiîdren wilt be aüve to see India's iucome level ccconverge?

W e d y cannot solve the probIem ofdisparity with open border policies, but we

can do something to improve the lives of many by pemiitting more immigration. Peter

and Remta Singer argue that the fact that we cannot solve the problern ofpoverty and

disparity has littie bearing on the question of how open our bordas should be.

Speakuig to those who apply what they caiî "the all-or-nothing fd1acyt' the Singers

What they forget is that, wondemil as it wotdd be to save al1 the victims of famine, famine is not an ailsr-nothing thing. The victims of famine are individual human beings, and it is better to help one t h none, better to help 1 O,OO 1 than 10,000, and 1,000,000 1 than 1,000,000?

Further, the Singers point out the basic moral problern with developed nations'

approaches to immigration conbol. They say, "the immigration laws of developed

countries effectively confer on th& residents the benefits of membership in the better-

off group, without giving the worst-off group any opportunity at all-never mind equai

opportunity-to be among the betteri)ff'id A c o d t m e n t to equality of opporttmity at

even the most basic levels wül require the limitation of both personal propgty rights

and sovereignty over borders.

I have argued that we must abandon the comrnonly held idea that a state has an

inherent right to limit immigration, and the critical philosophic argmnent that people

have an ùihefent right to k e movement Instead, 1 argue that states mPst have

legitimate reasons for immigration controls. These reasons mut arise fiom some

valuable societal aim that can neither aim at exclusion for uccIusion's d e , or result in

a de facto exclusion of outsiders' interests. Legitimate immigration Limits must be

motivated by a desire to defend v h b l e societal aims while being open enough that

the interests of disadvantaged outsiders are incorporateci into the state's immigration

poücies 1 have attempted to justify these arguments in two basic ways. The nrSt is by

arguing that immigration policies must incorporate the interests of both insiders and

outsiders. In particular, legitimate immigration limits must be something that cm be

justifieci to disadvantaged outsiders. Thomas Scadon in his book Whut We Yee to

Euch Other presents a contractualkt analysis of what moral obligations we have to

other human beings. His basic argument is that

the abject matter ofjudgements of right and wrong. . . are judgements about what wodd be permitteci by principla that could not reasonably be rejected, by people who were moved to find p ~ c i p l e s for the generai regdation of behavior that others, similady motivated, could not reasonably reject.'

It is beyond the scope of this paper to examine Scaalonrs g e n d views, and I do not

examination of how we decide in circumstances of cornpethg interests what is

mordy legitimate. The Singers argue that the interests of outsiders in the worst off

positions are more mordy signifiant than the intaests ofwedthy insiders. For this

reason, the Singers argue that the intaests of disadvantaged outsiders are always prior.

Scanloa says,

The idea that the cornplaints of the worse off have particultu force has geater plarisibility when we tnm h m principles whose aim is to mate some specific fomi of protection or assumuce to principles which tell as how we should distniute some transfefabIe good, in cases in which the d u e of this good to potentid beneficiaries is the dominant consideratiod

However, in speaking to the utilitariim view that the interests of the worst off wilI

always have prionty Scanlon says,

From an agent's standpoint such principle would be intolerably intrusive. This illustrates the fact that in deciding whether a principle could reasonably be rejected we do not just compare costs, to individuals in various positions, of abiding by if or not doing so, on a specinc occasio~~ We have to consida aiso the generai costs (and benefits) of its acceptance. In this case the general costs of acceptaoce are d c i e n t to support reasonable *&on. Rejecting a priociple on this ground does not involve giving special weight to one's own interests. What is appealed to is not the weight of my interests or yours but rather the generic reasons that everyone in the position of the agent has for not wanting to be bound, in general, by such a strict requirernent. Quite impartial reasoning about rejectability of principles leads to the conclusion that we are not required to be impartial in each actual decision we make?

This argument desmies why it is difncult for outsiders to be critical of spending on

healthcare or education. Canada's spendimg on healthcare could certainly be used to

benefit outsiders more than these resources are used to benefit ourselves. Canadians on

average can fiord to pay for pnvate hedth covmge. However, a cornmitment to the

priority of the worst off rdting in an inabiiity to spend lcgitimately on healthcare is

intolerably intrusive for any society. If we cannot legitimately spend on healthcare,

what can we spend on? Correspondingiy, more open immigration policies are

justifiable to wdthy societies when the costs of these policies are not so intrusive that

they eliminate the possibüity ofenjoying the benefits of political association. Stephen

R. Perry in his essay "Immigration, justice, and culturen says, "any liberal,

nonutiIitarian themy ofjustice must acknowledge the value of autonomy by granting

to individds a certain measrire of mord space in which to live th& Iives and p m e

their own intere~fs."~ This p ~ c i p l e holâs true for societies as weU. However, outright

excIushn i t s e I f d never meet the test ofjustifiabfity to disadmtaged outsiders.

There is no basis on which a wdthy society ain argw that an absolute right to

exclude nonmembcrs h m arbitrarily realized advantages is a principle that d people

have good msom to accept. For this reason, immigration policies that aim at

opening bordas to disadvantaged outsiders are morally required ofwealthy states.

The second way in which I have addressed the issue o f j d a b i l i t y is by appealuig to

reasons entaileci in the principles presented in this work. The argument that the

immigration debate as it exists today cannot be properly addressed in a rights

discourse bas important implications for the issue of justifiability. Most imp~rtantly~

my arpent supports a view that outright exclusion is ülegitimate. 1 have argued that

there is no inherent right to the advantages people attain through the chance of birth,

but that disparity itself does not automaticdy b ~ g forth issues of justice with regards

to the immigration debate. It is our reactions to circumstances of disparity that are

significant in the immigration debate. Policies that aim at excluding poor outsiders

h m access to the wealth, securîty, and opportunity of wealthy states perpetuate

disparity. When we abandon a rights discourse exclusion has to be based on some

reason beyond the desire to exclude. In cicnmistances of disparity, aiming at

perpetuating di circumstances is unjust. Therefore, disadvantaged outsiders'

inteteSI are moraIly significant in a way thaî nquires weaithy states to incorporate

these interests into their enmigration policies.

At the same tirne, some level of e x c l ~ o n is supported in a signincant way by

reqUiring immigration poücies that incorpontte the interest ofdisadmtaged outsiders.

It is only when we view the disparïty between weaithy states and poor states to have

moral significance that we can argue for more open immigration poIicies. When we

view dispmity as morally si@cant we have made a judgement that societies defmed

by weaith, security, and opportunity are worthwhile. If we did not thùik they wae

worthwhiie and the kind of society a l l people should have the opportunity to live in,

there would be little reason to be concemed about global disparity. Therefore,

legitimate immigration controls do not requin us to eliminate the possibility of

maintainhg many of the advantages associateci with developed states.

1 also appeaied to principles entailed in liberaI democnicy itselfin requiring more open

immigration policies. Many argue that a right to limit immigration arises in wealthy

liberal democratic states as a means to protect liberai institutions. Howeva, the way

we can act in protecting hierai demoaatic institution is iimited by obügations that are

actually entailed in liberal democracy. In coimhies B e Canada or the United

Kingdom, liberal democracy is a dominant feature of the society that provides strong

reasons for recognizing the mord significance of outsiders interests. In liberal

democratic states equaiity of opportunity, fiierty, and individual rights are viewed as

important political ideaIs that make the society valuable. For these societies there is a

bdt-in sensitivity to the interests of anybody who suffias h m a lack of wealth,

securïty, and opportunity even whai they are outside of the state. We do not think that

Canadians should be mted as fixe and equal because they are Canadians These

principles ought to apply to individds, not jost to citiens of some but not aü

mmtries. The de& to promote or defend h i a d ideals is satisned with immigration

' BaubWc, Rainer. "Legitima<e ImmiImmigration Conid" m Legithaîe MdIZIegirimote l%criminution.- N m &mes In Mgration Howard Adelman (ed) York Lane Ress b.: North York ON, 1995. p. 19-20

E'ritchctt, Lant UF~rget Convagence" in Dcvelopmnt mid underdeyefopment : the political econoniy of global inequdity. Mitchell A. Seligsoq John T. Pass&Smith (eds.) Boulder, CO : Lynae R*MQ hbfishers, 1998. p. 163

Peter and Renata Singer "The Elhcs of Refbgec Poiicf' in Opm Borders CIosed Societies. p. 12û- t21 4 Singer, Peter & Renata. p. 1 17 ' Scanlon, Thomas. Whar we owe tu each other. Cambridge, Masi. : BeOmap Ress of Hamard University Press, 1998. p. 4

Sdo l l , pz4 ' S d o n , p22S ~ m y , Stqhen R Immigration, jhstice, and cul& m Jwtice in imigration, p. IO5

Conclusion

The arguments presented in this thesis challenges Bghts based approaches to

investigating the legitimacy of immigration controls. The country we are bom into

has a significant affect on the wealth, opportunity, and security we experience. As a

resuit, political theorists engage in a debate on the mord legitimacy of our state

system where citizenship, and thus access to the resources of any particular state, is a

birthright Most theoretical arguments on this topic suppose that societies either have a

right or have no nght to control immigration. Immigration controls are, they Say,

either just or unjust The argument of this work is that the problem of immigration

cannot be deait with in this way. Immigration is not a problem ofjustice as it is

normaüy understood. The themists critiqueci in this thesis attempt to try and solve the

problem of immigration when they attempt to establish either the unconditional nghts

of a society to have autonomy over its borders, or the unconditional nghts of potential

immigrants to have access to other societies. These approaches do not addrrss the

tension between the interests of outsiders and insiders Instead, they either suppose the

eiimination of global disparity, or argue that global disparity does not have any

implications on the way a society can Iegitimately conml immigration.

Ideal cnmnnstances wodd be those where immigration contds either became

miaaessary or did not affect people's access to wealth, security, and oppommity.

However, t is oniy when global disparity is not signifiant thaî one can make such

arguments, while it is only within a context of dispanty that mimigration presmts us

with difficuit theoretid problans. Extrane disparity in wealtti, security, and

opportunity is the justification for both ctosing and opening borders. As a resuit, we

cannot disagree about whether a state has an inherent right to control immigration, but

must ask when it is legitimate or illegitimate to limit immigration.

1 have argued that disadvantaged outsiders do have claims in justice to immigrate to

wealthy states. States do not have a gmeraI right to Iîmit immigration, but must have

legitimate reasons for immigration controls. Legitimate immigration Iimits rnust be

motivated by a desire to d e f d valuable societal aims while being open enough that

the interests of disadvmtaged outsiders are incorporatecl into the state's immigration

policies. Wealthy states do have moral obligations to admit disadvantaged outsiders,

while a11 societies have legitimate reasons to limit immigration.

The argument of this thesis is bmad, and 1 do not address how much more open

wealthy states must be in developing legitirnate immigration controls. Stili, this work

challenges the way wdthy states Iimit immigration today, and the common

approaches political theonsts use to address this topic.

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