Bader The Ethics of Immigration

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Constellations Volume 12, No 3, 2005. Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA.

The Ethics of Immigration

Veit Bader

Migration, Immigration, and Practical Philosophy

Migration, the geographical movement of people in order to settle in other placesfor longer periods of time, has extensively been analyzed by historians and socialscientists, but philosophers have thought little and said even less about it. Thisgap is quite astonishing if one considers the fact that migration policies involvehighly contested normative judgments in all phases. Yet historically, moral andpolitical philosophers and political theorists have rarely discussed migration;none developed a coherent ethics of migration. Only in the past thirty years havetheorists begun to think about the issue, but still we do not have any comprehen-sive and systematic treatment.

Two main reasons may help explain this astonishing gap. First, predominantpolitical thought after World War II has been preoccupied with finding generalprinciples of justice under ideal conditions. Hence it has almost completelyneglected the separateness of (nation-) states, the normative relevance of statemembership, and broader issues of international justice.1Second, any ethics ofmigration is particularly broad and complex. Migration involves many phases:

emigration (root and intermediate causes), immigration or actual first admis-sion, and the different stages of incorporation. Seen from the perspective ofaffluent state-societies with liberal-democratic constitutions, the normativeissues can be grouped accordingly: Do their governments and (organizationsof) citizens have duties to fight the root causes of migration in order to make itpossible for people to stay where they have been born and raised? Do peoplenot only have a right to emigrate but do governments also have an obligation tolet the different categories of migrants refugees, asylum seekers, family mem-bers of current residents, economic and cultural migrants in? Do the broadlyrecognized principles of state-sovereignty and non-interference imply that statesare free to exclude all or to select freely to admit some and exclude others?What, if any, would be morally legitimate and what are morally impermissible

criteria of selection in first-admission policies? If people have passed this firstgate of entry,2ought the rights and duties of permanent residents (denizenship,the second gate of entry) resemble, or might they legitimately differ from, thoseof citizens? Do states have an obligation to naturalize all permanent residents(third gate of entry into full citizenship), or may they refuse some? If so, whatare morally legitimate criteria of exclusion? Finally, what are minimal moral


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requirements with regard not only to legal incorporation of permanent residents

and naturalized citizens but to a broad range of economic, social, and culturalpolicies of incorporation? All these interrelated questions are hotly contested.3

Even a short overview of all these debates is, obviously, beyond the scope ofan article. For two reasons, I focus on immigration, i.e., migration across stateborders and corresponding first-admission policies. First, immigration and firstadmission are, in my view, even more contested in politics and in practical philo-sophy than incorporation. Incorporation policies compatible with minimal moralrequirements of liberal-democratic constitutions include a common core increas-ingly recognized by competing traditions in practical philosophy but stronglycontested recently in practical politics:permanent residentsincreasingly have thesame civil and social rights as citizens and, in the EU, they even have some polit-ical rights;4 long-term residents, particularly second-generation immigrants, are

increasingly being naturalized even in states like Germany, and naturalizationrequirements are becoming more moderate;5 even dual or multiple nationalityseems less objectionable. Defensible incorporation policies require not only legaland political equality, but also some minimal economic and social equality, andcultural minorities are less likely to be expected to assimilate or to be segregated.These sea-changes in the moral landscape are at least partly also affirmed bydefenders of moderate particularism in practical philosophy. The hard core ofmore exclusivist policies is therefore first admission, and it is here that opinionsof universalists and particularists in politics and practical philosophy mostobviously clash. Second, first-admission policies are not only the most contestedissue of migration policy, they are also the least developed aspect of an ethics ofmigration.

The aim of the article is thus to present and critically discuss the relevantarguments favoring opening or closing of borders. I will employ a problem-driven rather than a theory-driven approach for two reasons. First, most theoret-ical paradigms are neither systematic nor consistent. This results, especiallygiven the general problem of indeterminacy of general principles, in quite diver-gent views on whether borders should be (more) open or (more) closed. Second,arguments in favor of open or closed borders are often shared by, and developedwithin the same, e.g., egalitarian liberal, theoretical approach. Consequently,I have chosen to contrast universalist arguments in favor of (more) open borders(II) with particularist arguments in favor of (more) closed borders (III).6In myconclusion, I discuss the main reasons why it is so difficult to balance thesearguments, why practical philosophy is in so much trouble, and what should bedone to overcome this. And I present my own view of what a contextualizedpractical philosophy requires, why I think we should reject the conventionalrestrictive view, based on principles of fairly unlimited state sovereignty, self-determination, and non-intervention, and why we should opt for fairly openborders.7


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I. First Admission and Traditions of Practical Philosophy

Practical philosophy has always been deeply embedded in contexts. Membershipregimes in the city-states of classical Greecewere severely restrictive and thiswas declared legitimate by Aristotle in his Politics, initiating a long tradition ofrepublican exclusionism. The subsequent decline of the city-states and the rise ofthe Roman Empiresaw unprecedented freedom of movement and multiple citi-zenship.8The first waves of cosmopolitanism in the western world were advo-cated by a diverse group of thinkers, including Democritus, Antiphon, Diogenes,the Cyrenaics, Epicureans, and Stoics like Cicero, Seneca, and Marcus Aurelius,which started a long tradition of moral inclusiveness.Modern state-formationandmodern capitalism have been facilitated by the new notions of absolute sover-eignty and property, and principles of sovereignty and non-intervention were

firmly established in international law after the Treaty of Westphalia (1648).Modern political philosophy has focused on the constitutional limitation anddemocratization of government. Matters of state membership, of exit and entry,were merely taken for granted. But not completely so. Liberal consent theoriesseem to require not only that government be based on consent, but also member-ship in the polity. John Locke best exemplifies the transition from ascriptivesubjectship to consensual citizenship: every adult man is at liberty whatGovernment he will put himself under; what Body Politick he will unite himselfto. This seems to base the right to leave and even the right to enter a polity com-pletely on express and ongoing consent. Locke, however, severely restricts theimplications of voluntary membership by mixing choice with ascriptive criteria,allowing for tacit consent, restricting the right to leave, and neglecting issues of

entry.9

The same unresolved tensions are also characteristic of the great inter-national legal theorists of the seventeenth and eighteenth centuries (Grotius,Pufendorf, Wolff, and particularly Burlamaqui and Vattel), who allowed ascriptivebirthright citizenship alongside consensual citizenship and restricted the naturalright to leave, though Emmerich de Vattel defended an absolute right torenounce his country in cases in which it is impossible to attain subsistencethere, in which a country fails to discharge its obligations towards its citizens, orif a majority changes the terms of the national contract without his consent.10

Even Vattel held that no other nation had an absolute duty to admit those whohad left their homelands due to exile, banishment, or some other pressingcause.11The imperfect natural right to seek residence elsewhere is counter-vened by the sovereignty of each nation to judge, whether it is, or is not in a

proper situation to receive this stranger. This sovereign right of nations to decideon admission has been defended explicitly and with less reluctance by all modernrepublican democratic consent theorists, from Rousseau onwards.

The unresolved tension between individual and collective rights,12 betweena universalist, inclusionary, liberal tradition stressing the natural rights of allhuman beings irrespective of ascriptive criteria, including nationality, and a more


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particularist, exclusionary, republican tradition, also lies at the bottom of the

American Revolution and American law.13The right which nature has given toall men of departing from the country in which chance, not choice has placedthem14has only rarely and inconsistently been accompanied by the recognitionthat openness of borders to aliens and ease of immigration and naturalization arethe logical corollaries of a fundamental right to leave ones country and settleelsewhere.15 Immanuel Kants essays with a cosmopolitan intent restrictWeltbrgerrecht (ius cosmopoliticum) to the conditions of general hospital-ity.16His Recht der Wirtbarkeit should not be misconceived as a Gastrecht,let alone as a right to stay; it is a right to visit that can be refused when itcan occur without his demise (wenn es ohne seinen [des Fremden, V.B.] Unter-gang geschehen kann).

Despite the rise of nationalism, the nineteenth century(18151914) has been

characterized as the century of free movement and fairly unlimited migration.Classical political economists had criticized mercantilist restrictions andcelebrated free competition and free movement of commodities, capital, andlabor; only a minority criticized the inherent power asymmetries of British FreeTrade Imperialism (List) and of exit of capital compared to exit of labor (Marx).Apart from utilitarianism, practical philosophy did not reflect upon issues ofmembership and migration. Henry Sidgwick published the first systematictreatment of issues of membership, exit, and entry.17 The right to leave is,compared with earlier consent theories, more restricted by arguments of expediency(225, 213, 247) and emigration is governed by the military and population pol-icies of empires (213ff, 247). Sidgwick rejects an individual right to entry and allattempts to impose upon states as an absolute international duty, the free admis-sion of immigrants (309f, 248): a state must obviously have the right to admitaliens on its own terms, imposing any conditions on entrance or any tolls ontransit, and subjecting them to any legal restrictions or disabilities that it maydeem expedient . . . it may legitimately exclude them altogether (248). However,the right to exclude them altogether confronts us with the general conflictbetween the cosmopolitan and the national ideals (309). The rigor of exclusionmight be limited by distributive justice (255) and be mitigated by the practicalallowance of free immigration (255): the free admission of aliens will generallybe advantageous to the country admitting them (310, 306f).

After World War I, most states clearly judged that free movement wasdisadvantageous and consequently severely restricted the admission of immi-grants, political refugees, and asylum seekers. After the experiences of genocideand World War II, the legal duty and procedure for determining refugee statusand the legal duty of non-refoulment have been generally accepted (Geneva Con-vention 1951, 1967 Protocol) and continuous efforts have been made to guaranteea legal right to leave.18 A more general discussion of membership and legaland illegal migration only emerged with the usual time lag after the changesin American immigration law in 1965 and after western European states grudgingly


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came to realize that postcolonial and guest-worker immigration had turned them

into immigration countries.Michael Walzer was the first to break the deafening silence in contemporary

practical philosophy,19and from then on we find an increasing stream of publica-tions on an emerging ethics of immigration. Many attempts have been made todistinguish different theoretical traditions or paradigms.20 I think it is helpfulto distinguish roughly between universalist (or moral cosmopolitan, globalist,impartialist) and particularist approaches.21 Universalist approaches can bedivided into (i) utilitarianism focusing on happiness, utility, or, more recently andpromisingly, welfare or basic needs.22In the attempt to derive moral rights andduties from prudential obligations, its consequentialism differs from realistapproaches23and from rational choice or mutual advantage contractarianism. (ii)More deontological approaches, stressing different varieties of equal rights of all

human beings, like libertarian property or natural rights or the different varietiesof egalitarian liberalism or basic rights.24 (iii) More duty- and virtue-orientedapproaches like ONeills.25

Particularist approaches are also highly diversified and range from liberal-democratic or moderate patriotism (Nathanson, Fletcher) and liberal nationalism(Whelan, Miller, Tamir, Kymlicka) to defenders of social-democratic welfare-states (Walzer, Fllesdal, Offe, Streeck) to tougher communitarianism and moreexclusive patriotism (MacIntyre), neo-Hegelianism (Frost), and extreme ornasty nationalism.26

These theoretical approaches are also internally divided: the indeterminacy ofprinciples and practical judgment explains why practical philosophers in the sametradition have argued for or against fairly open borders or international redistri-bution.27 This is the reason I have chosen a problem- or argument-drivenpresentation instead of a theory-driven presentation. On the other hand, however,it is obvious that universalist approaches favor freedom of movement and inter-national redistribution while more particularist approaches clearly oppose thesepolicies.

Even for my limited aims, difficult questions have to be answered, and noimpartial, consensual answers are available: (i) Do universalist and particularistapproaches have to be combined and, if so as most practical philosophers think how? Where to start, and what does this imply for the contested issue of priorityof competing obligations? (ii) Practical judgment is complex and practical reasoninvolves moral, ethico-political, prudential, and realist arguments.28The moralought requires to treat all human beings as free and equal irrespective of allascriptive criteria. The ethico-political ought requires to further our particularnotions of the good life, in our case the specific ethos, ways of life, or culture ofthe ethno-political community of the nation-state. The prudential ought requiresus to do what is in our well-informed, rational, long-term interest. Realist argu-ments do not, of themselves, point in any specific direction: whatever one oughtto do for moral or ethico-political reasons, one should always take into account


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II. Arguments in Favor of Open Borders

Moral theories compatible with the constitutions of liberal democratic welfarestates and international treaties on human rights share a common core of univer-salist egalitarianism.34The egalitarian principle of equal liberties criticizes allascriptive privileges. It is incompatible with the strong exclusionary effects ofcitizenship in a world of several (nation-)states. Citizenship laws combine criteriaof descent (jus sanguinis) and territory (jus solis), which areprima faciemorallyno more defensible than sex, age, language, religion, or social class. Theuniversalismof the moral point of view, even in its considered and weak versions,does not allowprima faciemoral privileges for the members of particular (nation-)states and criticizes restrictive membership approaches of equality.35Broadly,two different, analytically distinct universalist arguments in favor of open borders

can be distinguished. First, free mobility is an important moral principle in itselfand should be recognized not only as a basic moral, but also as a legal humanright independent from issues of poverty or distributive justice (II.1). The secondargument tries to show that states have a moral and legal obligation to let peoplein as long as and to the degree that they do not live up to their minimal moral obli-gations to guarantee basic human rights to safety and subsistence for all humanbeings irrespective of nationality (II.2). The two approaches are often not clearlydistinguished,36and they can be seen as mutually reinforcing: free movement canbe seen as a reduction of political, social, and economic inequalities and openborders are morally required to the degree that severe international inequalitiespersist.37Yet others object that they are bound to conflict as soon as one askswhether affluent countries should give . . . priority to those who are poorest and

most in need, if all who wish to enter cannot be admitted.38

II.1. Free Movement

Free movement has played an important role in economic utopias of completelyfree markets (free exit and entry of all commodities, capital, and labor) and corres-ponding free trade policies by many classical political economists and in standardneo-classical theory of free trade. They are said to guarantee the optimal alloca-tion of all factors of production and, consequently, to benefit all, at least in thelong run.39 Chang provides excellent prudential arguments for liberalizedimmigration based on an equilibrium theory from three different perspectives:particularist national economic welfare, the welfare of immigrants, and global

economic welfare.40In addition, recent demographic developments and projecteddifficulties to finance pension-schemes contribute to a remarkable shift in theprudential balance sheet. On the basis of such arguments a strong case can bemade against the remarkable and persisting inconsistency in neoliberal regimesand policies which stimulate free exit and entry of capital but restrict free entry ofworkers.41Two inherent flaws of standard theories, however, have been pointed


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out by institutionalist critics. First, capital, particularly financial capital, is more

flexible, mobile, and footloose than labor: workers are relationally and cultur-ally more rooted and less mobile.42Second, free exit of capital, combined withfree entry of workers, structurally weakens the organizations and power-positionsof labor and tends to undermine the thicker legal regulations and institutions ofwelfare states (see below III.4). Defenders of free movement of labor againstexclusionary politics of Big Labor like Roberto Unger have to address these prob-lems in order to avoid the double counterproductive effects of weakening laborwithin affluent states without strengthening it globally (thus making all workersworse off).43 If institutionalist critics are right regarding this highly contestedprudential and realist issues, if defending the weak would require particularistclosure, then the need for a moraldefense of free movement of people would bemore obvious.

Freedom of movement is presented as a basic moral right of natural persons,unlike commodities or capital, mainly for two reasons. First, from Hobbes on, itis seen as an important liberty in itself, sometimes even as the first and most fun-damental of mans liberties.44Second, it is (more instrumentally) seen as (i) avital prerequisite for other freedoms, like autonomy, personal self-determination from which it gains its fundamental importance in comprehensive liberal theoriesof morality or human rights to marriage and family life; (ii) as a condition ofmeaningful equality of opportunity; and (iii) as a condition of more substantive ormaterial equality or an instrument of distributive justice.45

Freedom of movement across state borders implies both a right to leave a statetemporarily or permanently (right to exit) and a right to enter another state (rightto entry). The exit rightis based in liberal and democratic theories of consent (seeabove). As a right to escape from oppressive or otherwise unresponsive states, itis an important mechanism for making governments more democratic and res-ponsive: exit, voice, and loyalty.46Increasingly, it is legally recognized that theright to emigration and voluntary expatriation includes the right to stay(proscription of expulsion and involuntary expatriation) and the right to return(distinguishing emigration from banishment).47 The freedom to leave imposesthree correlative, demanding duties on states: not to hinder emigration (byrefusing papers, unfair impositions etc.), to make return possible, and to furtheradmission elsewhere, because a right to leave without being able to entersomewhere is actually ineffective.48A general legalright to entry, however, does notexist and even in the case of the right to refuge, asylum, and family re-unification,the corresponding duties of states are imperfectly and badly allocated. Beforediscussing and evaluating the arguments for such a general moral right to entry,however, we should take into account the limitations of a moral right to freedomof movement recognized by its defenders.

There are no absolute rights and the presumption of free movement, likeother basic individual rights, can be overridden. The above mentioned rightsshall not be subjected to any restrictions except those which are provided by law,


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are necessary to protect national security, public order, public health or morals or

the rights and freedoms of others, and are consistent with the other rights recog-nized in the present covenant.49Most defenders of the moral and legal right toexitaccept that it can be overriddennot only by other basic rights, but also byother special moral and legal obligations. The right to exit does not legitimizeevading punishment for serious crimes, payment of debts, compulsory universalmilitary or civil service and, as some argue, even paying back public costs forhigher education. Obviously, these limitations can be interpreted very restric-tively or very extensively, and the margins of discretion get even wider when itcomes to national security, public order, public health or morals. Even defend-ers of as liberal as possible a right to exit do not, in principle, deny the morallegitimacy of some of these limitations.50Equally, the right to internal free move-ment and settlement is seen to be legitimately limited by other basic individual

rights, and also by indigenous peoples collective land and autonomy rights, andby prudential and realist arguments avoiding congestion, necessary regulationsof space (traffic, building, city- and regional planning, and so on) and otherimportant values (e.g., protection of wildlife, nature), which can be interpreted insuch an extensive way that little actual freedom is left.

At present, state laws and international law do not guarantee a universal humanright to international free movement and residence. These liberties are explicitlyrestricted to everyone lawfully within the territory of a State, excluding illegalimmigrants, and hold only within that territory, excluding a general right toentry.51 Why should there be such a general moral right to free entry, strongenough to generally outweigh competing moral rights, particularly democraticself-determination?52 To be plausible, such a view should explicitly reject theideas that each right is a trump in itself (unrestricted freedom of movement as themost basic human right), that all rights (the long list of often competing civil,political, social, and cultural human rights) are equally compossible, and thatrights cannot be limited by other normative arguments. The main issue, then, isthe weight of a moral right in balancing all relevant normative arguments.

The weight of freedom of movement alone without referring to other basicrights or to principles of equal opportunity or distributive justice is contested. Inbalancing rights, reference to basic human needs seems particularly convincing,and many practical philosophers agree that security and subsistence are theparamount basic needs. Even among liberal universalist rights theorists, only afew seem to defend the claim that free movement has the same weight or status.Indicative is the ambiguity of John Rawls in this regard. At one point, he lists(presumably internal) free movement as among the basic liberties of citizens, butin his Theory of Justiceit is not explicitly included.53

The argument by analogy that international free movement should be treatedexactly like internal free movement54 is not convincing: it either neglects moralprinciples of democratic self-determination completely, or it neglects the import-ance of democratic states among other units in emerging democratic multi-level


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polities (see below III.1 and III.3). If it is accepted that states still are important

loci of democratic self-determination, it cannot show why limited sovereigntyshould be regularly overruled: the prudential and realist reasons limiting internalfreedom of movement may be much stronger in the case of free entry.55Sociolo-gicaland historicalarguments that try to show that the development of capitalism,the modern state, and modern society require internal free movement and nowa-days referring to globalization global free movement, are empirically highlycontested and lack normative force.56

The argument pointing to the asymmetryof exit and entry opens up a morepromising avenue. The recognition of the right to refuge and asylum presupposesthat state sovereignty and self-determination have to yield in cases of well-founded fear of being persecuted or, in another language, that the basic right orneed to securityis strong enough to outweigh other rights and competing ethico-

political, prudential, and realist arguments. Evidently, the refugee definition inthe Convention is today very inappropriate: it is highly individualistic (focused onactivists and targets rather than on victims,57 it does not cope with theprotection needs of women, children, those fleeing civil war or generalizedviolence58), and it does not recognize ecological catastrophes, famine, and otherreasons for flight and forced migration. Morally motivated proposals for reformof the Refugee Convention start from the insight that threats to security cannot beneatly and easily separated from threats to subsistence, but even then not allreasons for leaving a state count equally and are serious enough to outweigh allarguments to restrict entry (in Zolbergs proposal it is still well founded fear ofviolence and flight, not all other reasons people may have to leave a state59).Most people feel that freedom from want and fear are more basic than manyother rights and freedoms. Freedom from fear, however, is not only recognized inthe set of civil rights protecting basic security but also in corresponding duties,whereas freedom from want or basic rights to subsistence and the declaration ofthe respective economic and social human rights is not accompanied by anadequate allocation of the corresponding duties. This points to a serious gapbetween broadly recognized moral requirements and recent international law.

Prudent defenders of a free right to entry recognize the weakness of argumentsbased on free movement alone. They recur to other arguments either more basicrights to security and subsistence, or more demanding principles of internationalequality of opportunity or distributive justice to add urgency to the moral claimsfor open borders. A considered right to free entry, then, has to be part of a morecomplex normative argument.

II.2. Poverty and/or Global Inequality

Compared with arguments from free movement, arguments in favor of openborders based on moral requirements of basic subsistence or international distri-butive justice seem to have obvious disadvantages. They are not direct and


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straightforward, they do not imply a strong individual right to immigration, and

they do not hold even in an ideally just world. Still, critics of closed borders havelinked the moral permissibility of closure to issues of poverty and distributive

justice.60 The analogy to threats of basic security is striking: a basic right isviolated, challenging the moral standing of the system of states; direct policies toprevent violations are preferable (in this case to fight poverty or gross inter-national inequality), but if they are not feasible or effective, we have an indirectmoral obligation to help the victims.61The nature of the link between poverty orglobal inequality and open borders, though, is rarely clarified: it may be remedial,causal, ormoral.

Free immigration is not an effective remedyfor poverty because the proportionof the worlds poor that might be helped in this way would be very small. Therelief provided by open borders would be imperfectly distributed because those

who can afford to migrate are usually not among the worst-off. Moreover, freemigration could lead to a brain drain, leaving the worst-off even worse off.Finally, such an approach could weaken pressures on governments to addressproblems of poverty where they emerge.62As an anti-poverty strategy, immigra-tion is at best one strategy among several; it may not even be a second-beststopgap.63Poverty is only one of the many motivational causesof migration. Itcannot by itself explain why people migrate, let alone when and where theymove. Nevertheless, poverty is along with and increasingly interrelated withviolence the most important structural causeof forced migration.

The perceived threat of hundreds of millions refugees and migrants serves asthe main argument to close borders. The counterargument, which stresses thestates obligation to maintain open borders, is intended, firstly, to show thatclosure is impermissible as long as poverty or gross inequality exists and,secondly, to undermine standard arguments in political rhetoric and practicalphilosophy favoring closed borders. The link is specifically a negative, indirect,and moralone. The aim is to argue that, if arguments for international distribu-tive justice are valid and if rich countries do not want to give generously of theirmoney to meet the demands that those arguments impose, then they are morallyobliged to pay instead in a currency that they hold even dearer. . . to admit sub-stantial numbers of immigrants from the poorest countries.64

The argument puts the finger on the festering sore of poverty or seriousinequality and urgently asks for effective remedies: Open your wallets or openyour borders! Whatever their inherent value may be, closed borders can only bemorally permissible if, and to the degree to which, states fulfill their minimalmoral obligations following from humanitarianism or distributive justice. Underconditions of rough, complex international equality, normative arguments infavor of closure (be they ethico-political, prudential, or realist) would gain inpractical legitimacy because closure would lose its sting.Ifcitizenship in rich andsafe states ceased to be a privilege, exclusion would be less a prima facie moralwrong. This ifhas two aspects. The first is temporal: as long as measures to fight


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poverty are not taken or as long as they are not really effective, we (individuals,

organizations, states in affluent societies) have no moral right to close borders.The second is gradational: to the degree that affluent states do not live up to theirinternational moral obligations, they have no moral right to close borders. Thisdouble ifmakes all other arguments conditionalupon the prior fulfillment of ourmoral obligations with regard to safety and subsistence. For sake of brevity, I callthis the Global Moral Obligation (GMO) proviso.

Two theoretical strategies should be distinguished. First, moral obligations tofight poverty and the corresponding allocation of duties and policies (II.2.1).These arguments are more minimalist, and are shared by all theorists defendinguniversalism even in its thin, most moderate varieties.65The required moral limi-tations of sovereignty and self-determination thus have to be accepted by alldefenders of moderate patriotism. The required sacrifices and policies (aid)

are also less demanding. Second, moral obligations to fight global inequality andthe corresponding allocation of duties and policies (II.2.2). These arguments aremore demanding, require a stronger universalist though not an extreme univer-salist foundation and may seem less convincing to moderate patriots. Theyrequire stronger limitations on sovereignty and self-determination, more sacri-fices and more demanding policies (redistribution) and are, expectably, morecontested, although they can be grounded in a morally minimalist argumentationshared by all varieties of egalitarian liberal theories of distributive justice.

II.2.1. Poverty and Aid

The basic argument includes three steps. First, some hardly ever contested rock-bottom facts. About one billion people live under conditions of severe poverty,whichever standards one uses.66 Extreme poverty is all-encompassing: it con-cerns all aspects of life in mutually reinforcing vicious circles. It is permanent,not simply momentous, and the prospects of the poor of changing their predica-ment on their own are utterly bleak. And finally, relative poverty, the huge gapbetween affluence and poverty, is growing globally as well as inside some afflu-ent states, notably the US. Secondly, almost all approaches to moral theory acceptthat those who are able to help, without supererogatory sacrifices (cut-off forheroism), have a moral duty and in some countries also a legal duty to help.67

Help is not an act of charity or generosity but a moral obligation.68Thirdly, thismoral duty is indiscriminately addressed to all those who are able to help: richindividuals, organizations, states. Tackling the problems of this imperfect alloca-tion of duties requires, minimally, adding institutionalist or collectivist policies(Shue, Goodin, Elfstrom, Jones) to an overly individualist approach (Singer,P. Unger).69

Postponing contested answers to urgent questions like: how much aid is minim-ally required? what would be adequate institutions and policies for fightingpoverty effectively?, this strategy has the obvious advantage of not asking too


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much. It does not require maximizing utility or welfare, but focuses on basic

wants, basic needs, or basic rights fighting malfare.70

II.2.2. Global Inequality and Redistribution

Extreme poverty is not an unalterable state of nature or the human condition. Atleast in our times, it can and should be prevented. However, poverty is notdescribed or explained in relational terms and is therefore not seen as a severeinjustice. The second strategy tries to make plausible that the worse-off are worseoff because the better-off are better off. Such a causal connection between pov-erty and affluence constitutes more demanding moral duties to avoid and preventgross inequalities. The second strategy is thus more demanding and more con-tested both in a descriptive and explanatory regard and from a moral perspective.

It starts from a richer interpretation of the egalitarian universalism of the moralpoint of view, connecting equal liberties with issues of distributive justice: (i)Citizenship and exclusion: state membership is, in the present situation of grossinequalities among states, one of the crucial mechanisms that guarantee andsanction these inequalities.71Citizenship in Western liberal democracies is themodern equivalent of feudal privilege an inherited status that greatly enhancesones life chances. Like feudal birthright privileges, restrictive citizenship is hardto justify when one thinks about it closely.72(ii) One of the basic assumptions ofrecent moral theories is that people should not benefit or suffer from morallyarbitrary natural and social contingencieslike natural talents or handicaps or thegood or bad luck to be born of rich or poor parents. A radical membershipapproach to equality73restricts the scope of the argument to contingencies insidestates and neglects natural and social contingencies among states, whereasmoderate patriots, moderate and extreme universalists recognize that (a) nobodydeserves to be born into a rich or poor country, (b) the distribution of naturalresources among states is a natural lottery, and (c) the moral legitimacy of theinheritance of all other advantages of national economies must also be verylimited.74Depending upon the degree of radicality, these arguments should beable to overrule sovereignty, national self-determination, and priority for compa-triots under circumstances of serious global inequality (see below III.1).

Theories of distributive justice are particularly contested if they try to picturemodels of ideally just societies, but the degree of dissent can be considerablydiminished if one starts from the opposite end of severe injustice, gross inequal-ity.75 Three argumentative strategies try to link poverty to gross inequalities.Their descriptive and explanatory claims are fairly minimalist and it is possible tofind much overlapping consensus among rival traditions in order to reinforceand strengthen the resulting moral duties of redistribution.76 (i) The rich andthe poor live in a global economic and political order with one system ofcommon institutionsfor which we are morally responsible. The structure of thissystem reproduces gross inequalities and there are better and practically feasible


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alternatives. (ii) Even if states were completely self-contained entities, as those

rejecting (i) try to show, there is a strong case for GMOs in situations where thedistribution of natural resources among states is radically unequal. The better-off have a moral obligation to compensate the worse-off because the naturalresources should be the joint possession of humankind. (iii) The starting positionsof the better- and the worse-off are a result of massive crime, force, and fraud,and the history of conquest, colonialism, and imperialism implies for all particularly for retrospective theories of justice strong moral claims forrestitution.

Each of these three lines of argument is in itself sufficient to show that grossglobal inequalities constitute severe injustice and each invites us to allocate ourmoral duties. These approaches need not be mutually exclusive. Often, but not inall cases, they reinforce each other. This is not the place to discuss feasible

moderate or more radical alternative policies and institutions better able to fightpoverty and injustice.77Thomas Pogge is correct when he asserts that our firstmoral priority ought to be projects that address poverty and global injusticedirectly, instead of fully opening our borders. However, policies to eradicatepoverty directly and policies of fairly open borders are not mutually exclusivealternatives.78 The problem is that affluent states do not succeed and will notsucceed in the near future in alleviating the terrible conditions that make themwant to come here in the first place.79As long as this is the case, our moral andpolitical projects still have to include moral criticism of policies of closedborders. We cannot, counterfactually, presume that policies to address povertyand global injustice will be successful in the long run and close our eyes in themeantime.

III. Why Closed Borders?

Borders should be closed, so it is said, (i) because moral priority should be givento compatriots, and because states have an important role in the allocation ofduties; (ii) because fundamental civil and (iii) political rights (including demo-cratic political culture and virtues) can only be guaranteed in this way; (iv)because social rights and welfare arrangements have to be defended; and (v)because ethno-national cultures have to be protected. These moral, ethico-political, and realist arguments are often mixed. They are presented in strong or inweak forms.80They need not be thinly veiled welfare chauvinism and should not,in my view, be dismissed per se, but they have to be balanced in practical judg-ment against moral and prudential arguments for open borders.

III.1. Priority for Compatriots and the Moral Standing of States

Two conflicting perspectives, the universalist view and the bounded view, seemto tear any coherent view of moral philosophy apart. The extreme universalist


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view, defended by Godwin and Tolstoy, declares all particular, special relations

morally irrelevant and consequently does not recognize any special obligations,particularly no moral obligations for compatriots. The extreme particularist view,implicit in all forms of extreme nationalism, does not recognize any transnationaland global moral obligations. Both views operate with a flat world of socialrelations and enforce dichotomous choices between either global or particularlistobligations, making extreme universalism not only extremely demanding but alsocounterintuitive and extreme nationalism morally repulsive. Actually, specialrelations are multiple and overlapping: they range from intimate relations amongpartners or spouses, parents and children, or friends to relations among serviceproviders (teachers, physicians, therapists, etc.) and clients to relations amongpractitioners of specific cultures, among members of cities, provinces, or statesto specific transnational relations.81 Most moral philosophers acknowledge that

special moral obligations can arise from these relations apart from those moralobligations we owe to all human beings. Three questions, however, are particu-larly contested.

First, does the character or quality of the relations matter or do special obligationsarise independently from the value of relations, communities, or states, as defend-ers of priority for compatriots often hold?82A critical scrutiny of their argumentsdemonstrates that the value-independent approach is morally indefensible.83

Second, most philosophers agree that intimate relations, compatible with min-imal moral requirements, create special obligations justifiable in universalistterms,84but utilitarians like Singer or Goodin, libertarians, and extreme liberals,feminists, and socialists tend towards abstract cosmopolitanism and are reluctantto accept special national obligations. Is the argument by analogy in the defenseof priority for compatriots sound?85Three objections are valid: (i) the imagery ofa morality of concentric circles suggests a ready-made answer to questions ofpriority of moral obligations: there is just one throw of one pebble, and thestrongest obligations are the closest, getting weaker and weaker the farther awayfrom this centre and unduly discounting trans-national and global obligationsa limine.86(ii) Modern nations are imagined communities and compatriots arestrangers in the sense that we do not directly or personally interact with them. Therelevant moral sentiments could thus not be love and care, like in misleadingblood and family analogies, or at least not the same kinds of love and care. Theadequate public morality is a morality of strangers.87(iii) Defenders of a priorityfor compatriots often use a textbook model of ideally democratic and genuinenation-states.88Actual states, however, are neither ethno-nationally or culturallyhomogeneous communities nor unqualified democratic communities; they arecold, hierarchical organizations based on the threat of physical violence.

These are strong arguments against unqualified communitarian defenses ofpriority for compatriots. Do they also convincingly show that nations and demo-cratic polities are morally irrelevant?89Is a co-national exactly in the same waya stranger as members of foreign states, as Shue claims?90Four arguments refute


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this claim: (i) special relations do not only result from intimacy or direct inter-

actions. (ii) It neglects that not only thick, shared values or cultures may createspecial ties and obligations, but also a common political history, commonpractices of contestation, and even bitter conflicts.91(iii) If and to the degree thatthere exists a common ethno-national culture compatible with minimal moralrequirements, this may create special obligations among those sharing thesepractices. This argument gains in strength if these cultures are intrinsically inter-mingled with the huge and morally legitimate variety of practices of liberaldemocracy.92 (iv) Even if states could and should be strictly neutral and anti-perfectionist, as many liberal political philosophers claim, their civic relationswould generate special political obligations for compatriots neglected by abstractcosmopolitans (and democratic patriotism rightly has pointed out its democraticweakness).93

Third, as a result, many liberal philosophers like Rawls and Dworkin accept evenfairly unqualified versions of a priority for compatriots;94others (like Ackerman,Carens, and Whelan) do so in a much more considered and circumscribed way.There is clearly more room between intimates and complete strangers and in thisspace divergent philosophical positions from moderate cosmopolitanism andmoderate patriotism to liberal and democratic communitarianism and liberalnationalism can meet and find a minimalist common ground: considered priorityfor compatriots can play a legitimate role in a multi-layered model of moralobligations. It has, though, to be constrained by two arguments:

(i) States, whether nation-states or not, have to fulfill their GMOs. This rules outany unconditional priority for compatriots (my country right or wrong). All

reasonable defenders of moderate patriotism, liberal nationalism or commu-nitarianism acknowledge this limitation (Walzer, Miller, Tamir, Nathanson,Scheffler). Under conditions of scarcity of resources, global and special obli-gations do not peacefully coexist but may imply serious conflict.95Thenglobal obligations must be strong enough to overrule national obligations.This poses unresolved questions: how can these conflicting obligations bemeasured and compared? How much is needed to fulfill the GMOs? Howlarge a gap between the standards imposed by national and global obligationscan be considered morally acceptable?

(ii) The relevant historical and social ties are not confined to state-members.States would have to recognize special obligations. . . towards specific pop-ulations that may result from active involvement in the affairs of another

country, from geographical proximity, or from historic ties.96The domesticobligationsof states extend beyond their citizens and include all residents.97

Their transnational obligations include family members of citizens, immi-grants, and refugees. Their colonial history has created moral obligationstowards immigrants from former colonies. Their involvement in the affairs ofother states creates special responsibilities with regard to refugees fleeing


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from those countries, etc. Their international obligations towards other

states, resulting from treaties or from historical injustice, create specificobligations like restitutions, special aid programs towards ex-colonies.Supranational and global obligations create specific responsibilities forredistribution (e.g., within the EU) and for refugees and asylum seekers(e.g. minimum quotas, burden sharing, etc.).

The recognition of such transnational obligations sheds new light on thecontested moral standing of states and their role in allocating duties.98Liberalstatist,99 democratic, and particularly communitarian theorists accord intrinsicvalue to liberal democratic states (see III.3). For utilitarians, states can only be

justified in a strictly instrumental (Goodin) and derivative (Elfstrom) way asmeans to maximize utility or basic needs, and for libertarians like Nozick as

means to guarantee absolute rights of individuals.100

But even the latter have toacknowledge that states may help to address the problem of imperfectly allocatedduties, which perpetuates poverty and forced migration.101Declaring universalbasic rights to security and subsistence without adequately allocating the corre-sponding duties is hypocrisy and fraud.102We can clearly identify the rightand its bearers, but not who has to comply with the corresponding obliga-tions.103 States have the duty to resolve this problem within their borders byfighting poverty and preempting the reasons for forced emigration. The clearrecognition and fulfillment of their trans-domestic special obligations could helpalleviate the problem by reducing the number of unallocated duties, particularlyif one could convincingly translate unspecified and unrelational deprivation orpoverty into more specific contexts of international exploitation and oppres-

sion.104

The deserving poor out there would then be seen as people and countrieswhose basic rights have been violated, with known bearers of the correspondingduties to help. Yet this would not resolve the problem because the basic needs ofthose who cannot claim special relations or who are not covered by globalschemes would still not be satisfied.

It is very hard to compel states, particularly weak states and (for differentreasons) the sole remaining superpower, to fulfill their domestic, transnational, andglobal obligations. The existing international institutions are primitive andclumsy.105 Recent humanitarian and peace-keeping or -enforcing interventionshave tragically weakened international law, as in Kosovo, and increased thetension between geopolitical governance and humane governance.106The war ofthe US-UK coalition against Iraq has tragically and decisively weakened already

weak UN institutions. Concerted global efforts to fight poverty are lacking (see thedisasters of the conferences in Monterrey and Cancn). The design of suprana-tional and global mediating institutions, and the crafting of policies to remedy themisallocation of duties and to coordinate the required state activities, remains anurgent task. As long as no considerable progress is achieved, the moral standing ofthe system of several states is seriously defective and moral pressures to override


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national obligations and state sovereignty seem legitimate, especially if one criti-

cizes the false choice between the exclusive alternatives of either a world govern-ment or sovereign states by designing democratic multilevel polities.

Obviously, the moral standing of states also depends upon the degree to whichthey actually fulfill their duties internally: The primary reason which can legiti-mate restrictions on immigration is the maintenance of a comprehensive systemof civil, democratic and social rights of citizenship.107

III.2. Public Security and Civil Rights Need Closure

The state owes the guarantee of civil rights not only to state members, but to allresidents and foreigners on its territory because civil rights are not citizenshiprights strictly speaking, but human rights allowing for a further specification of

rights for tourists, residents, and citizens.108Reasons for exclusion referring tothis dimension of citizenship can only be realist reasons. One of the preferredlegitimations for closing borders is that the overwhelming number of migrantswould pose a threat to public order and social stability. This realist argument, ifcorrect, would have serious moral implications because the maintenance of publicorder belongs to the well-allocated duties of states to guarantee basic civil rightsof citizens and residents recognized even by advocates of more open borders.There are levels of immigration that cannot be exceeded without serious negativeconsequences for the receiving state, but these levels are highly contested andcannot be discussed without intimate knowledge and information of the demo-graphic, economic, and socio-political conditions of each state. The blackscenarios (B. Barry) of defenders of restrictive policies are clearly examples ofirresponsible rhetoric especially when the presumed propensity to crime ofimmigrants are culturalized or racialized but it would be nave to dismiss alldangers in this regard. The potential tension between fair admission and fairincorporation policies grows as more people enter because it is irresponsible toadmit people without minimally adequate employment, education, healthcare,and housing opportunities. Incorporation policies involve costs, and prudentialistshave to balance them with the expected and actual benefits of immigration.109Ifthe threats to public security and the huge costs are not simply alarmist rhetoric,the argument would only add weight to the duty to guarantee minimal safety andsubsistence for the excluded. At present, we see exactly the opposite: in moststates, the overwhelming numbers of immigrants are far below any reasonablethreshold and the same states that apply ever more restrictive policies do notfulfill their GMOs.

III.3. Democracy Needs Closure

Democratic decision-making in all polities (from cities to transnational unions likethe EU) presupposes, first, well-defined and relatively stable rules of membership,


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and, second, democratic culture and trust. The fact that democracy needs

membership and some form of closure, however, does not determine the design ofinstitutions.110 It is compatible with a world of many sovereign democraticstates and with a world of multi-layered and overlapping democratic polities inwhich conceptions and practices of sovereignty and self-determination arelimited, divided, and delegated.111 It also does not determine the character ofmembership rules. The need for closure is compatible with the traditional mix of

jus sanguinis and jus solis rules as well with rules that require short residencyperiods and allow easy naturalization and dual citizenship. The fact thatdemocratic decision-making requires closure cannot, by itself, justify highlyexclusionist first admission policies without appealing to democratic culture andtrust.

The necessity of trust and democratic culture is seen to favor closed borders in

two different, interconnected ways. First, majority decisions are acceptable onlyunder conditions of trust, meaning that citizens are sufficiently benign and rea-sonable as not to exploit minorities. Trust is historically linked to nation-stateforms of political integration.112 This argument is mainly directed againstproposals to delegate powers to supranational or global units, but it is alsomobilized against immigrants who cannot be trusted owing to their lack of acommon history of special relations. Second, the entry of many immigrants whosupposedly lack a tradition of, or are even hostile to, civic and democratic culture like the Catholic Irish in the nineteenth century or the fundamentalist Muslimsnowadays will inevitably threaten the maintenance and flourishing of democracy.The maintenance of democracy or the protection of the ongoing process ofliberal conversation itself113is a value recognized by thin liberal democrats114

and by all stronger democrats (Barber, Unger), democratic communitarians likeWalzer, and republicans like David Hollinger or Michael Lind. Three remarks areminimally in order:

(i) The following arguments are valid: civic/political and ethno-national culturecannot be, and need not be, completely disentangled; democratic practicesare inevitably embedded in ethno-national cultures and traditions; and ittakes time to learn the different morally permissible ways of doingdemocracy. However, ethno-political cultures vary on a scale from a fairlythin (in Canada) to a very thick ethnic core (in the French republican orthe German ethnocentric model). Liberal democracy clearly favors thinnercultures, but even these may necessitate some ceiling to the admission of

culturally unaccustomed newcomers, as the accommodative capacity ofpolitical societies is limited (Ackerman) and it takes time to accommodate.

(ii) The legitimacy and height of these ceilings cannot be evaluated withoutlooking at the predominant model of democracy and the specific culturesof immigrants. Yet it is unfair to confront a textbook model of a sharedand vivid democratic culture among compatriots with a chaotic band of


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anti-democratic foreigners looking to invade the democratic paradise.

Different groups of immigrants may have practiced different degrees orforms of democracy in their countries of origin. Moreover, outrightfundamentalist opposition to liberal democracy is, to a large extent, areaction by immigrants to illiberal and anti-democratic practices of dis-crimination, exclusion, and marginalization, and especially to miserablestate policies of assimilation. And states that cultivate the myth of ethno-national homogeneity and lack deeply-rooted democratic cultures, such asGermany or Japan, also use these arguments to legitimize illiberal, exclu-sionist admission and incorporation policies.

(iii) Under conditions of rough, complex equality among states, the collectiveright to democratic self-determination prioritized by democratic particular-ists would not guarantee unjust distributions and, consequently, need not be

overruled. Even morally permissible thicker ethno-political models of state-societies defended to protect welfare (III.4) or ethnic culture (III.5) wouldlose their distributive exclusionary sting.

III.4. Welfare, Solidarity, and Closure

Maintaining adequate welfare and social rights inside states is one of the strongestreasons in favor of closure against environments in which no similar systemexists. In general, three lines of arguments support this point of view.

(i) Higher standards may be directly derived from the previously discussedpriority for compatriots.

(ii) Higher standards may derive from self-determination of democraticnation-states. Democratic self-governance may lead to a diversity ofequally just social arrangements and may conflict with trans-borderclaims to equality.115 The claim that different standards and welfareregimes must be accepted as a consequence of the indeterminacy ofprinciples of social justice116and as an expression of democracy can belegitimate if it is qualified in two ways. First, no matter how high theirdomestic standards may be, democratic states would have to fulfill theirGMOs. Second, the flourishing of political democracy requires a min-imum of socio-economic equality, denied only by libertarians. It holds forall democratic states, irrespective of differences in social standards andwelfare regimes. The egalitarian thrust of nationality is laudable but

empirically contested.117One should avoid widespread fallacies in con-clusions from what democratic nation states should do reduce domesticinequalities to what they actually do. At present, domestic and inter-national inequalities are growing simultaneously.118These states cannotlegitimize restrictive immigration policies by referring to their domesticduties.


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(iii) Free mobility of labor under conditions of neoliberal market integration is

seen by neo-institutionalist critics of standard economic theory to under-mine domestic systems of collective agreements, co-determination, neo-corporatist governance, and social services in the receiving countries.119

Supranational and global institutions of governance cannot be made demo-cratically legitimate because there exist no corresponding people, publicsphere, or trust.120If they can develop common policies of social securityand services at all, then this would necessarily mean a race to the bottom.The most fundamental reason for this is a supposedly inevitable trade-offbetween inclusiveness and trust, solidarity, and motivation: the more inclusiveand culturally heterogeneous polities become, the less trust, solidarity, andmotivation can be expected, so we are told.121Democratic welfare statesareonly possible as culturally fairly homogenous nation-states. This claim

is empirically implausible, as demonstrated by the examples of Australia andNew Zealand.122It is theoretically contested.123It may be possible to trans-form the one big trade-off into many smaller ones.124The argument is alsosomewhat unbalanced because the same authors recognize that the mainthreat to viable democratic welfare states comes not from immigration butfrom free exit of capital.125Still, it is evident that under present conditionsof neoliberal globalization and triadic supranational institutions likeNAFTA, ASEAN, and the EU, free migration of labor undermines higherdomestic standards without helping to raise global standards. If this is a validtheoretical and empirical claim (see section II), then it provides strong rea-sons why some ceilings to first admission are required. Completely openborders would make the poor and less resourceful worse off, both domesti-cally and globally.

In sum, double or multiple standards in social security and services can belegitimate. This leaves tricky questions concerning definitions, measurement, andcomparison, in particular: How big a difference between the global minimum andthe domestic standards is legitimate and tolerable?126How can global justice anddifferences in democratically agreed-upon domestic standards be balanced? Onlycontextualized judgment can give plausible answers. As long as states do notfulfill their GMOs and the demands of domestic equality, all three lines of argu-ment are morally pointless. If states actually complied with these requirements,the exclusionary arguments would become more plausible, thus lending statesmore democratic and social legitimacy.

III.5. Ethno-national Culture Demands Closure

Arguments for closure based on security, democracy, and welfare are inextricablyinterwoven with protection and maintenance of thick ethnic or nationalcultures. Civil, political, and social rights constitute the core moral and legal


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principles of modern social-democratic constitutions, and mainstream liberalism

teaches us that they are ethnically blind. Even if political cultures cannot becompletely disentangled from ethno-national ones,127 a liberal-democratic stateshould be as neutral as possible with regard to economic and social opportunitiesand as even-handed as possible with regard to competing majority and minoritycultures.128

Ethnocentric and nationalistic arguments for closure are incompatible withliberal-democratic principles.129The same is true for strong communitarian orperfectionist calls for closed borders, assuming that the central purpose of thestate is to protect and develop a supposedly homogeneous culture. However, notall arguments favoring fairly closed borders for broadly cultural reasons stipu-late some pure, homogeneous, static, uncontested national culture.130Recog-nizing important differences between liberal communitarians, liberal nationalists,

and moderate cosmopolitans, it is still possible to detect a common moral andrealist core in their arguments. The moral argument is based on a distinctionbetween relatively free cultural change (including retention, accommodation,assimilation) on one hand, and enforced cultural change on the other. Insidestates, ethnic and national minorities should be protected against state policies ofenforced assimilation and against the unfair outcomes of the working of strictlyneutral or difference-blind mechanisms, such as markets or elections. Someform of collective autonomy seems required in all cases of longstanding struc-tural inequalities among majorities and minorities.131On the international level,state sovereignty may legitimately protect against policies of cultural assimila-tion by other states. In both cases, ceilings for immigration and settlement maybe morally permissible. The realist argumentexplains why. Cultural continuityis perfectly compatible with cultural pluralism and cultural stability includescultural change. The core issue is not the preservation of an existingculture or anexisting plurality of nomoi, but the rate of cultural change or, more precisely,the avoidance of externally enforced, excessive cultural disruption.132 Therealist proviso reminds us that highly contested ceilings to immigration andsettlement are required in order to avoid enforced disruption and ensuresufficiently gradual change. Again, this is a terribly open-ended formula inurgent need of context-specific delineation.133

If closure to maintain a national culture took place under conditions of roughinternational equality, it would clearly conflict with recent globalization, but itwould cease to be a pressing distributive moral problem. In practice, restrictionson first admission that are intended to preserve cultural stability and continuityare morally legitimate only if states fulfill their minimal global obligations. Themore states close their borders, the higher the moral pressure should be for themto fulfill their GMOs. That they do not recognize such a trade-off between higherdegrees of cultural closure and more pressing GMOs is demonstrated by thefact that Germany devotes a mere 0.3 percent of its GDP to external developmentaid.


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Contextualized Morality and Fairly Open Borders

For all their drawbacks, these five arguments for closure, combined with otherrealist and prudential reasons, explain why completely open borders are neitherfeasible nor desirable. Some degree of closure is morally permissible and ethico-politically required. Do not, however, these same arguments add up to a convincingplea for closed borders? Does not fairly open actually mean exactly the same asfairly closed? The crucial question for practical philosophers and policymakersalike, then, is the degree of openness or closure.

Practical philosophyhas to take into account the complexity of practical judg-ment and, at the same time, to admit that it does not possess a method to exactlycompare, let alone calculate, the diverging moral, ethico-political, prudential, andrealist reasons. Universalist moral reasons prescribe that the right to free move-

ment has to be balanced and that GMOs have to be fulfilled, but practical philo-sophy cannot tell us at exactly what points states fall below the minimallyrequired threshold. Particularist arguments favoring a qualified priority forcompatriots or a limited veto suffer from the same indeterminacy and vaguenessas realist provisos of necessary ceilings not to be surpassed in order to guaranteepublic security, democratic or ethno-national culture, and welfare. These ques-tions can only be productively addressed in specific contexts making use of allrelevant information and practical knowledge. No generally valid answers canbe expected, but this does not mean that contextualized morality would becompletely opportunistic, that all judgments would be purely subjective, thatanything goes, and that we would only be able to repeat that it depends.GMOs and the right to free movement should have the power to overrule other

reasons in particular contexts, and the advantage of strategies of moral minimal-ism consists exactly in mobilizing as much overlapping consensus as possible inthis regard. Contextualized approaches in practical philosophy also have to recog-nize that information, descriptions, and explanations by sober and critical socialscientists which it urgently has to use are contested, but there are clearly betterand worse ones. In both cases, good cognitive and normative judgment andeducated guesses are more than simply the continuation of the battle of interestsor the warfare of political ideologies in practical philosophy. The development ofsuch a gradualist, empirically informed, and institutionally rich practical philoso-phy is, in my view, the most urgent task on the recent research agenda.

It may be deplored that practical philosophy is unable to prescribe exactly whatwe have to do, or this fact may be welcomed as a condition of freedom forpublic

deliberation and democratic decision-makinginformed by context-specific moralarguments and by the critical social sciences.134I am convinced that at present theaffluent states, given all important differences of degree among them, by far donot meet their GMOs. As long as and to the degree that they do not, their moralstanding is deplorable. Discussion of special obligations, security, democracy,domestic welfare, and culture then only serve to hide welfare-chauvinism and to


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avoid that ought implies costs. Substantive policy changes are urgently needed

to win the fight against global poverty and insecurity. The prospects for thesechanges are bleak, but they are not precluded by institutional impossibilities.Democratic and humane forms of supranational and global governance, includingpolicies of fairly open borders, may be much harder to achieve than some of theirproponents assume.135But they are feasible and urgently required for the sake ofhumanity. Looking back from a possible future, the philosophical defenders ofstate-sovereignty, non-intervention, and restrictive admission in our day mightlook to those happier people like the philosophical defenders of slavery look to us.

NOTES

1. Charles Beitz, Political Theory and International Relations (Princeton: Princeton Uni-versity Press, 1979); Will Kymlicka,Multicultural Citizenship(Oxford: Clarendon, 1995), ch. 1.2. Tomas Hammar, Democracy and the Nation State: Aliens, Denizens and Citizens in a

World of International Migration(Aldershot: Avebury, 1990).3. Joseph Carens, Migration, Membership, and Morality, unpublished project proposal

(2000).4. Veit Bader, Citizenship of the European Union,Ratio Juris12, no. 2 (1999): 155181.5. Dilek inar, From Aliens to Citizens, in Rainer Baubck, ed., From Aliens to Citizens:

Redefining the Status of Immigrants in Europe(Aldershot: Avebury, 1994).6. See for similar strategies: Frederick Whelan, Citizenship and the Right to Leave,

American Political Science Review75, no. 3 (1981), 63653; Frederick Whelan, Citizenship andFreedom of Movement, in M. Gibney, ed., Open Borders? Closed Societies? (New York: Green-wood, 1988), 339; Carens, Migration and Morality: A Liberal Egalitarian Perspective, in BrianBarry and Robert Goodin, eds., Free Movement: Ethical Issues in the Transnational Migration ofPeople and of Money(University Park: Pennsylvania State University Press, 1992), 2547; Rainer

Baubck, Notwendige ffnung und legitime Schliessung liberaler Demokratien,Arch. Europ. deSociologieXXXVIII (1997): 71103; Gerard Elfstrom, Ethics for a Shrinking World(Houndsmill& London: Macmillan, 1990); John Isbister, Are Immigration Controls Ethical?, Social Justice23, no. 3 (1996): 5467; and Charles Jones, Global Justice: Defending Cosmopolitanism(Oxford:Oxford University Press, 1999).

7. See my earlier articles: Citizenship and Exclusion, Political Theory23, no. 2 (1995):21146; Fairly Open Borders, in Veit Bader, ed., Citizenship and Exclusion (Houndsmill &London: Macmillan, 1997), 2860; and Practical Philosophy and First Admission, SAIS Review20, no. 1 (2000) 3960.

8. Frederick Whelan, Citizenship and the Right to Leave, American Political ScienceReview75, no. 3 (1981): 643f.

9. See sharp criticism by William Godwin,Enquiry Concerning Political Justice and itsInfluence on Modern Morals and Happiness(Harmondsworth: Penguin, 1976).

10. Whelan, Citizenship and the Right to Leave, 649; James Nafziger, The GeneralAdmission of Aliens under International Law, The American Journal of International Law 77, no. 4

(1983): 80747.11. Peter Schuck and Rogers Smith, Citizenship without Consent: The Illegal Alien in

American Polity(New Haven: Yale University Press, 1985), 48.12. Michael Teitelbaum, Right versus Right, Foreign Affairs50, no.1, 2159.13. Schuck and Smith, Citizenship Without Consent.14. Thomas Jefferson, A Summary View of the Rights of British America, in Merrill

Peterson, ed., The Portable Jefferson(Harmondsworth: Penguin, 1974), 321.15. Whelan, Citizenship and the Right to Leave, 650.


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16. Immanuel Kant, ber den Gemeinspruch (1793) and Zum ewigen Frieden, (1795),

Kleine Schriften zur Geschichtsphilosophie, Ethik und Politik(Leipzig: Meiner, 1913), 135.17. Henry Sidgwick, The Elements of Politics, 3e (London: MacMillan, 1908); in the follow-ing cited parenthetically.

18. See Jos Ingls, Study of Discrimination in Respect of the Right of Everyone to LeaveAny Country, United Nations, E/CN. 4/Sub. 2/229/Rev. 1 (New York, 1963); Antonio Cassese,On the Universal Level, in K. Vasak and S. Liskofsky, eds., The Right to Leave and to Return(New York: American Jewish Committee, 1976), 516; Frederick Whelan, Citizenship and theRight to Leave; Hurst Hannum, The Right to Leave and Return in International Law and Practice(Washington, DC: The Procedural Aspects of International Law Institute, 1985); Alan Dowty,Closed Borders: The Contemporary Assault on Freedom of Movement (New Haven: YaleUniversity Press, 1987).

19. Michael Walzer, Spheres of Justice(New York: Basic Books, 1983).20. Brian Barry,Democracy, Power, and Justice(Oxford: Clarendon, 1989); Onora ONeil,

Transnational Justice, in David Held, ed., Political Theory Today(Stanford: Stanford UniversityPress, 1991), 276304; Terry Nardin and David Mapel, Convergence and Divergence in Inter-

national Ethics, in Terry Nardin and David Mapel, eds., Traditions of International Ethics(Cambridge: Cambridge University Press, 1992), 297322; Nardin, Alternative Ethical Perspect-ives on Transnational Migration, in Barry and Goodin, eds., Free Movement, 267278; Barry andGoodin, The Quest for Consistency: A Sceptical View, in Barry and Goodin, eds., FreeMovement, 27987; Stephen Perry, Immigration, Justice, and Culture, in Warren Schwartz, ed.,Justice in Immigration(Cambridge, MA: Cambridge University Press, 1995), 94135; and Jones,Global Justice.

21. See already Sidgwick, The Elements of Politics; see also Alasdair MacIntyre, Is Patriot-ism a Virtue?, Lindley Lecture, University of Kansas, 1994: 5f; Stephen Nathanson, In Defenseof Moderate Patriotism,Ethics99 (1989): 539; Donald Galloway, Liberalism, Globalism, andImmigration, Queens Law Journal18 (1993): 274f; Sissela Bok, From Part to Whole, in MarthaNussbaum and Joshua Cohen, eds., For Love of Country(Boston: Beacon, 1996), 40; David Miller,On Nationality (Oxford: Clarendon, 1995): 49f, 78; Simon Caney, Individuals, Nations, andObligations, in Simon Caney, David George, and Peter Jones, eds., National Rights, InternationalObligations(Boulder: Westview, 1996), 7; Jones, Global Justice, 15f; and M. Freeman, Obliga-

tions, Institutions and International Justice, ECPR paper, Mannheim, 2631 March 1999: 2ff.22. Sidgwick, The Elements of Politics; Peter Singer, Famine, Affluence, and Morality,

Philosophy and Public Affairs1, no. 3 (1972): 229243; Robert Goodin, Protecting the Vulnerable(Chicago: University of Chicago University, 1985); idem., What is so Special about Our FellowCountrymen?,Ethics98 (1988): 663686; idem., If People Were Money, in Barry and Goodin,eds., Free Movement, 621; and Elfstrom,Ethics for a Shrinking World.

23. David Hendrickson, Migration in Law and Ethics: A Realist Perspective, in Barry andGoodin, eds., Free Movement, 213232; and Hans Morgenthau,In Defence of the National Interest(New York: Albert Knopf, 1951).

24. Libertarian property (Hillel Steiner, Libertarianism and the Transnational Migration ofPeople, in Barry and Goodin, eds., Free Movement, 8794; Cecile Fabre, Justice, Fairness andWorld Ownership, unpublished manuscript, 1999) or natural rights (Anne Dummett, The Trans-national Migration of People Seen from within a Natural Law Tradition, in Barry and Goodin, eds.,Free Movement, 169180) or the different varieties of egalitarian liberalism (Rawls, Beitz, Pogge,Barry; Ronald Dworkin,Laws Empire(London: Fontana, 1986); Carens, Aliens and Citizens: TheCase for Open Borders, Review of Politics 49, no. 2 (1987): 251273; idem., Migration andMorality: A Liberal Egalitarian Perspective, 2547; idem., Immigration, Welfare, and Justice, inSchwartz, ed., Justice in Immigration, 117; Dowty, Closed Borders; Rainer Baubck, Transna-tional Citizenship(Aldershot: Edward Elgar, 1994); Simon Caney, Human Rights and the Rightsof States,International Political Science Review18, no. 1 (1997): 2737; idem., Review Article:International Distributive Justice, ECPR paper, Mannheim, 2631 March 1999; M. Freeman,Obligations, Institutions and International Justice) or basic rights (Henry Shue, Basic Rights(Princeton: Princeton University Press, 1980); Jones, Global Justice).


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25. Onora ONeill, Lifeboat Earth, in Charles Beitz, Marshall Cohen, Thomas Scanlon,

and John Simmons, eds.,International Ethics(Princeton: Princeton University Press, 1985); Facesof Hunger: An Essay on Poverty, Justice, andDevelopment (London: Allen and Unwin, 1986);Transnational Justice, in Held (ed.), Political Theory Today; Justice and Boundaries, inChristopher Brown, ed., Political Restructuring in Europe: Ethical Perspectives (London:Routledge, 1994), 6988; and Towards Justice and Virtue (Cambridge: Cambridge UniversityPress, 1996).

26. Moderate patriotism like Nathanson (In Defense of Moderate Patriotism, and Patriot-ism, Morality, and Peace(Lanham: Rowman and Littlefield, 1993) or George Fletcher (Loyalty: AnEssay on the Morality of Relationships(Oxford: Oxford University Press, 1993)), liberal national-ism (Whelan, Citizenship and Freedom of Movement; Miller, On Nationality; Yael Tamir,Liberal Nationalism(Princeton: Princeton University Press, 1993); Will Kymlicka, ContemporaryPolitical Philosophy, 2e (Oxford: Oxford University Press, 2002)) to defenders of social-democratic welfare-states (Michael Walzer, Response to Veit Bader, Political Theory23, no. 2(1995), 24749; Andreas Fllesdal, Do welfare obligations end at the boundaries of the NationState?, in Koslowski and Fllesdal, eds.,Restructuring the Welfare State(Berlin: Springer, 1997),

14563; Claus Offe, Demokratie und Wahlfahrtsstaat and Wolfgang Streeck, Einleitung: Inter-nationale Wirtschaft, nationale Demokratie?, in Streeck, ed.,Internationale Wirtschaft NationaleDemokratie(Frankfurt & New York: Campus, 1998), 99136 and 1158) to tougher communitarian-ism and more exclusive patriotism (MacIntyre, Is Patriotism a Virtue?), neo-Hegelianism(Mervyn Frost,Ethics in International Relations(Cambridge: Cambridge University Press, 1996)).

27. Singer versus Sidgwick (see ONeill, Transnational Justice, 282f, for the indetermi-nacy of utilitarianism) or the Rawlsian Pogge (Thomas Pogge,Realizing Rawls(Ithaca & London:Cornell University Press, 1989); An Egalitarian Law of Peoples, Philosophy and Public Affairs23 (2001), 195224); Global Justice (Oxford: Blackwell, 2001)) versus Rawls (see JamesWoodward, Commentary: Liberalism and Migration, in Barry and Goodin, eds., Free Movement;Nardin, Alternative Ethical Perspectives on Transnational Migration, 268f, 274ff), for egalitarianliberalism.

28. Joseph Raz, Practical Reason and Norms (London: Hutchinson, 1975); Jrgen Haber-mas, Justification and Application(Cambridge, MA: MIT Press, 1993); Veit Bader, Citizenshipand Exclusion, Political Theory23, no. 2 (1995): 215f.

29. Goodin, Commentary: The Political Realism of Free Movement, in Barry and Goodin,eds., Free Movement.

30. Roberto Unger, Politics(Cambridge: Cambridge University Press, 1987); Jules Colemanand Sandra Harding, Citizenship, the Demands of Justice, and the Moral Relevance of PoliticalBorders, in Schwartz, ed.,Justice in Immigration, 38.

31. Mark Tushnet, Immigration Policy in Liberal Political Theory, in Schwartz, ed.,Justice in Immigration, 149.

32. Charles Beitz, Justice and International Relations, in Beitz et al.,International Ethics,306; Joseph Carens, Aliens and Citizens: The Case for Open Borders, 262, and extensivelyRealistic and Idealistic Approaches to the Ethics of Migration, International Migration Review30, no. 1 (Spring 1996): 15670, and Open Borders and Liberal Limits: A Response to Isbister,International Migration Review34 (Summer 2000); Goodin, What is so Special about Our FellowCountrymen?, 686; Barry, Democracy, Power, and Justice, 447; Pogge, Realizing Rawls, 259ff;Baubck, Transnational Citizenship, 327ff; Bader, Fairly Open Borders, 51f. 33. Amy Gut-mann and Dennis Thompson, Democracy and Disagreement(Cambridge, MA: Belknap Harvard,1995), 84f.

34. Will Kymlicka, Contemporary Political Philosophy, 4; Robert Goodin, If People WereMoney, in Barry and Goodin, eds., Free Movement, 7.

35. Donald Galloway, Liberalism, Globalism, and Immigration, 165ff; see below III.1.36. Carens, Migration and Morality: A Liberal Egalitarian Perspective, and Reconsider-

ing Open Borders,International Migration Review33 (Winter 1999).37. Carens, Migration and Morality: A Liberal Egalitarian Perspective; Goodin, If People

Were Money.


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38. Woodward, Commentary: Liberalism and Migration, 61; Thomas Pogge, Poverty and

Migration: Normative Issues, in Veit Bader, ed., Citizenship and Exclusion.39. See Paul Krugman and Maurice Obstfield,International Economics(New York: HarperCollins, 1991).

40. Howard Chang, Liberalized Immigration as Free Trade: Economic Welfare and theOptimal Immigration Policy, University of Pennsylvania Law Review145 (1997): 11471244.

41. Robert Goodin, If People Were Money.42. Barry, The Quest for Consistency: A Sceptical View.43. Roberto Unger,Democracy Realized(London: Verso, 1988), 17587.44. Maurice Cranston, What are Human Rights? (New York: Taplinger, 1973), 31; see also

Dowty, Closed Borders, 12; Carens, Migration and Morality: A Liberal Egalitarian Perspective,26ff; Baubck, Notwendige ffnung und legitime Schliessung liberaler Demokratien.

45. Carens, Aliens and Citizens: The Case for Open Borders, 255ff; Whelan, Citizenshipand Freedom of Movement, 8ff for Rawlsian perspectives

46. Albert Hirschman, Exit, Voice, and the State, World Politics31, no.1 (Winter 1976): 92.47. Universal Declaration of Human Rights(UDHR), 13.2, 14, 15;European Convention of

Human Rights(ECHR), 4th Prot. 1963, 2.2; ICCP 12.2.48. Baubck, Notwendige ffnung und legitime Schliessung liberaler Demokratien, 75;

Aristide Zolberg, Astri Suhrke, and Sergio Aguayo, Escape from Violence (Oxford: OxfordUniversity Press, 1987), 270.

49. International Covenant on Civil and Political Rights(ICCP), 12.3.50. Dowty, Closed Borders; Baubck Notwendige ffnung und legitime Schliessung

liberaler Demokratien.51. ICCP 12.1,ECHR(European Covenant on Human Rights) 4th Prot. 2.152. See James Nafziger, The General Admission of Aliens under International Law, The

American Journal of International Law77, no. 4 (1983).53. John Rawls, Constitutional Liberty and the Concept of Justice, in NOMOS VI (New

York: Atherton, 1963); Whelan, Citizenship and Freedom of Movement, 35.54. Carens, Migration and Morality: A Liberal Egalitarian Perspective, 27, 32; Goodin, If

People Were Money, 12; Dummett, The Transnational Migration of People Seen from Within aNatural Law Tradition, 173.

55. Democratic self-determination may also provide an important moral argument againstfree movement within federal states where federal units have substantial autonomy, though in thiscase it is fairly generally accepted that it cannot provide sufficient justification for restrictingfreedom of movement.As long asdemocratic self-determination even in multi-level polities (likeSwitzerland, Canada, or the EU) is still concentrated on the level of the nation-state, state bordersare, in my view, also morally more important than borders between cantons or provinces and theanalogy-argument is weakened. Hence, my criticism is a contextual, conditional one because thingsmay change (e.g., in the EU). It does, hopefully, not conflict with my criticism of the conventionalview of the moral legitimacy of the existing state system presented below. Critical comments by ananonymous referee induced me to clarify this issue.

56. Baubck, Notwendige ffnung und legitime Schliessung liberaler Demokratien, 93f.57. Zolberg etal.,Escape from Violence, 30ff.58. Guy Goodwin-Gill, Asylum: The Law and Politics of Change, lecture, Amsterdam, 19

October 1994: 7; J.C. Hathaway, Fundamental Justice, International Comity, and the Deflection ofRefugees from Canada, conference paper, Organizing Diversity, Berg en Dal, November 1995;Dowty, Closed Borders, 183; Galloway

Bader The Ethics of Immigration

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