Saturday, March 11, 2006

Citizenship's Exclusions

Last week's reading for our honours class was Kristen Maher's 'Who Has a Right to Rights? Citizenship's Exclusions in an Age of Migration'. It was pretty interesting, actually, looking at U.S. attitudes towards illegal immigrants, and suggesting that their sub-citizen treatment violates their human rights. Interesting. But rather sloppy as a work of philosophy, I thought.

The biggest problem is that Maher never squarely addresses the question of the legitimacy of immigration restrictions. She appears to simply assume that illegal immigrants should be accepted and treated just like citizens. And perhaps they should, but this is a controversial enough position that you really need to provide some argument for it, and not merely assume it to be the case! What's worse is that she doesn't even acknowledge the assumption. That struck me as an incredible oversight.

After all, if such restrictions may be legitimate, then so presumably is their enforcement. That may include disincentives, i.e. the poor treatment of law-breakers, in hopes of deterring others from breaking the law in the first place. Maher never properly considers any of this. She does lament a Border Patrol policy which "prioritizes successful border control over the lives of migrants" (by channelling crossing attempts into more dangerous terrain where apprehensions are easier). While I'm sympathetic to her conclusions, an argument here would have been nice. It is not enough to make a simplistic appeal to "human rights", because we are not typically obliged to ensure that people can carry out criminal activities safely. (An electric fence prioritizes security over the comfort of would-be trespassers -- but that's the whole point!)

So: is it legitimate for a state to restrict immigration? Most left-wingers frown upon the Zionist "invasion" of Palestine. If we respect Arabian sovereignty, how can we not do the same for the United States when they're faced with an influx of unwelcome Mexican colonists? Surely the Mexicans have no greater claim to need or asylum than did early 20th century Jews!

Now, while I don't have any firm views on the subject, I'm actually more inclined to favour open immigration. I think it would be better if the U.S. opened its borders, and I wish the Palestinians had been more welcoming too. Nevertheless, I hold that a nation may legitimately make bad decisions of this type. (This is a perfectly consistent position, as I explained in comments to this uncharitable Right Reason post. The right-wingers ignored my explanation, prefering to tar all liberals as racist anti-semites. All this despite the fact that the author concluded his post by asking, "What is the hidden consistency that underlies this apparently inconsistent but fashionable view? Can someone help me out here?" I guess they were merely rhetorical questions.)

Back to the Maher piece: I also think she was sloppy in characterizing all poor treatment of migrants as violating their human rights. Consider the right to shelter. Suppose that a homeless man and I are both walking down a street where we lack shelter. Are our rights equally violated? Surely not. For I have a home where I can shelter; I simply chose to go elsewhere. The right to shelter is not the right to shelter wherever you want; it is merely the right to have access to some shelter or other. If I have such access, and then freely choose to go somewhere else where I no longer have access to shelter, I cannot very well claim that my rights have been violated. It would be unreasonable for me to turn up at your doorstep, exhausted, and demand that you let me in. (It would be a nice thing for you to do, no doubt; depending on my circumstances, perhaps you even ought to help. But still, I can't reasonably demand it of you. It isn't a "rights" issue.)

The analogy to migrants is obvious. Some of them may come from places where their rights are fulfilled. If so, they do not need their new country to accommodate them in order to fulfill their human rights. You can have a right to shelter, without having a right to shelter in the United States. Again, Maher never considers this crucial point.

The trickier cases involve genuine refugees and asylum-seekers, who have nowhere else to go. For them, being welcome in the new country plausibly is a human rights issue. (It isn't clear who has the obligation to ensure that this right is fulfilled, but let's ignore such complications for now.) At least, their rights have previously been violated, so we need to find some way or other to remedy this situation -- whether it be by inviting them into a new country, or working to improve the situation in their old one.

Another problem with Maher's piece is that she seems to assume that there is only one class of rights: "human rights". But we should distinguish the minimal level of universal and unalienable human rights, from the more expansive set of political rights assigned to citizens in a polity. The former include protections against torture and the like, and have truly universal application: even to criminals and non-citizens. The respecting of such human rights is perfectly consistent with granting citizens further rights. So there's nothing about "citizenship's exclusions" which is necessarily inimical to human rights. Insofar as Maher implies the contrary, she is simply confused.

One interesting point, which our lecturer heavily emphasized, was Maher's identification of 'racist' or 'neo-colonial' aspects to the citizen/alien dualism. There are particular job types which come to be associated with particular groups, and seen as their "rightful place". This is morally deplorable. It is an interesting psychological, sociological, or political point. But I don't see the philosophical interest. Everyone agrees that such racism is abhorrent; there aren't any philosophical issues which need debating here. To focus on this issue is to set up a straw man; it simply isn't where the real disagreement lies. And by failing to address the strongest arguments for the opposing position, Maher fails to provide an adequate defence of her own.

The genuinely contentious issue here is the one (discussed above) that Maher ignores: whether sovereign nations may justly restrict entry/immigration. She does briefly mention the "liberal/contractarian" position, but I cannot discern in her paper anything resembling an argument against it. She instead appeals to anecdotes which associate this position with the racist one, and apparently dismisses it on that basis. Needless to say, that's not good philosophy.


  1. Is there any chance Kristen would permit the rest of us to read the paper (perhaps via your blog, or hers if she has one)?

  2. Google turns up her contact details here, if you want to ask her for a copy of the paper. (Turns out she's a political scientist, not a philosopher, which might explain my dissatisfaction.)

  3. Good post.

    I think open boarders is an ideal solution (one I hope eventuates) - but it requires a lot of other "ducks" to be in a row. you cant just demand the country have 100% open boarders to illegal immigrants.
    As to what those ducks are - for example ideally all countries would do it together and various policies would be harmonized etc.

  4. I also think that many people defend their argument with "as long as people I oppose are hypocritical I can be hypocritical" or rather with a
    Bit less analysis the assumption that opposing hypocrisy on all grounds CANNOT BE HYPOCRACY (although in reality it is almost guaranteed to be).

    So they will say something like
    “I oppose keeping Mexicans out because Mexicans are poor Americans are rich we can spare some resources, I oppose Jews coming in because we don’t allow Mexicans into the USA.”

  5. "whether sovereign nations may justly restrict entry/immigration"

    I thought the question was: If a country relies on (and actively supports in many ways) illegal immigrants for its economy, then does it have an ethical responsibility to grant them the same rights as citizens?

    Sounds like a philosophical question to me, but then the distinction has always seemed pretty blurry to me.

  6. Hi Cameron, that's certainly a philosophical question too. But I didn't notice Maher explicitly addressing that one either. (Perhaps it was there as an underlying assumption, but of course making philosophical assumptions is not the same thing as doing philosophy!)

    Indeed, we could plausibly appeal to the liberal/contractarian frame in support of such immigrants. If the broader society is needing and supporting their labour, then that entails a sort of acceptance of these contributors as part of the society, which thus qualifies them as contracting citizens. We no longer have a citizen/alien duality, but rather an arbitrary and illegitimate distinction between privileged and unprivileged (+unrecognized) citizens.

  7. Hi Richard -- great comments, I thought.

    I would point out, though, that while I wholeheartedly agree with your criticisms of Maher, there is an interesting philosophical question she does touch on. The question concerns whether our philosophical conception of human rights is, however much we want it to be universal, bound up with political citizenship, and, if it is, how we could conceive of it in a way which is not.

    One example of what I mean is how in the UN declaration (Article 26) the right _of any person_ to be free from discrimination is put in terms of having the right to "equal protection of the law" (meaning protection from discrimination). Arendt's point about that was that refugees are not so much unequal before the law as presenting the problem of _which_ law they are to be equal before. For a citizen of a country, it is clearly his or her own law that he is equal before, and the UN declaration makes sense. If I go to Israel, I am clearly not equal to an Isreali citizen in the eyes of the law, but since--as I think you would point out--I am equal before _some_ law (Australian law) whose representation I have access to, again, the declaration makes sense: I can be said to have my human rights. But take a refugee who fears being tortured back home. Under the UN declaration, that person's rights forbid his being sent back to his host country, where torture awaits. So assume he is in Australia, and being racially discriminated against. If he were to appeal to the UN declaration, one may point out that being equal before the law surely does not mean being equal before ANY country's law. For all we know, this person may have full rights to protection from discrimination in the workplace in his home country. The torture issue has nothing to do with this; for all we know torture in his country might cross all racial, sexual, religious boundaries. The torture camps might be a veritable multicultural melting pot. Or (and I don't think this is unrealistic) his home might be a place where torture is used and yet anti-discrimination legislation is vigorous and just. If Australia were to send home the refugee, that would be a clear violation of his human rights. But racial discrimination is another issue: presumably, so long as he is equal before _some_ law, his human rights are not being challenged. And yet here he is, unable to escape discrimination. Now the UN declaration sometimes speaks of rights of _citizens_. But in this case it clearly says that the right to be free from discrimination is the right of every person.

    It is cases like this, I think, which challenge the philosophical understanding of who has the right to rights. This example seems to be a fairly clear case of somebody who is clearly being _actually_ deprived of his rights and yet is in the wrong political circumstance to make a claim for them on the basis of the UN declaration, even followed to the letter. We could well suggest that a clause simply be added to the declaration fixing the problem. But, as far as I understand, the material in this course is proposing that the problem isn't just repairing a few clauses here and there--rather situations like this question whether a concept of human rights can even be formulated without giving way to exclusions of some kind.

    Now Maher's examples seem, as you say, to have little to do with this philosophical question. If the US government actively supports using the cheap labour of migrant workers yet denies them the rights of citizens, that is very nasty and unjust. But, like you, I don't see what it has to do with human rights at all. Where migrant workers are discriminated against on the basis of race, this vaguely touches on the problem of equality before which law... but since they _can_ go home, and be treated with equality before _a_ law, the argument that the US is (however unjust it is being) violating their human rights is awfully weak. The UN declaration says they have the right to trade, free passage, work, means of subsistence--all of this they have. It says they have the right to be free from discrimination, to be equal before the law, to go on strike, to educate their children, to be equally paid for equal work--this they have some sort of access to in their home country, and the UN declaration cannot expect to guarantee any more than access to these rights. In fact, as Cesar Chavez shows, migrant workers in the US have many of these rights anyway.

    So even if what is happening is in actuality racial discrimination, on paper it is all within the limited obligations a government has towards non-citizens while still respecting their human rights. If human rights could mean much more than what they do mean, under the UN convention, and start guaranteeing every person the rights of a citizen in every country in the world, that would be really lovely. But one must argue why this should be so and demonstrate how it could be so. And whether we should all hold hands and sing Koombayah when it happens. Oh dear, I've become embittered again.

    Anyway, that was a long-winded 'well done'.


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