Rawlsianism and Open Borders

Introduction

John Rawls’ A Theory of Justice (1971) conceives a just society. The crux of this societal justice concerns the distribution of socio‑economic goods; the original position allows rational moral agents to develop distributive principles regulating within a society. Crucially, foreign policy issues such as immigration ethics are addressed after the question of distributive justice has been answered. Rawls therefore endorses the prioritarian thesis – states ensure just treatment for their own citizens prior to non-citizens. This prioritarian thesis, in tension with cosmopolitanism, will be rejected in this essay.

In section 1, I will argue that it is more appropriate to partner the original position with cosmopolitanism. Developing this claim in section 2, I will explore the implications of cosmopolitan Rawlsianism on immigration restrictions. Since the liberty principle takes lexical priority over other principles (regarding equality of opportunity and maximin), implications relating to rights and liberties will be central to my analysis. My overall observation is that a cosmopolitan original position produces relatively non-stringent immigration restrictions.

Section 1 – The Original Position: Prioritarianism or Cosmopolitanism?

I begin with an exposition of these two contrasting approaches to justice and immigration. Coleman and Harding clarify the distinction aptly (1995, p.18-32). Qua prioritarianism, individual states regulate the distribution of justice; therefore, the scope of state regulation extends only to current citizens. Nationalism, a closely related notion, further clarifies the prioritarian approach. Nationalism is not necessarily committed to hostility towards non‑citizens, but it certainly treats foreigners differently (Beitz, 1983, p.593), prioritising its own citizens through self-determination. In short, “compatriots take priority” (Shue, 1980, p.132). The dominance of this nationalist conception has been reinforced by the fact that global philanthropy is firmly confined to the supererogatory: as an optional practice, it falls outside the sphere of moral obligation. Rawlsian justice is strongly prioritarian (Beitz, 1983, pp.594-595) – for simplicity, membership of the original position is limited to compatriots within self-sufficient nations, with foreign policy a later ‘extension’ of the core theory (Rawls, 1971, p.377-78).

In contrast, next consider the cosmopolitan approach. Instead of individual states overseeing distributive justice, the entire world represents a single distributive unit. Gans clarifies Coleman and Harding’s definition: within this cosmopolitan/globalist approach, states become “intermediary and administrative in supervising the production and distribution of [socio-economic] goods” (Gans, 1998, p.161). Beitz claims that discrimination based on citizenship (i.e. prioritarianism) is analogous to blatantly unwarranted discrimination based on sex/race; it seems unjust to allow extreme welfare inequalities caused by these morally arbitrary, non-voluntary factors. The cosmopolitan approach therefore captures luck egalitarian intuitions: since ‘country of birth’ is a matter of brute luck, the globalist approach produces justice indiscriminately by neutralising these natural lottery inequalities. Crucially, state sovereignty would not override, but be restricted by principles of global distributive justice (Carens, 1987, p.258).

The move from a prioritarian to a cosmopolitan understanding of Rawls produces significant implications for immigration restrictions. However, it is, for various reasons, appropriate. In the prioritarian approach, political science defines the state as something with limited jurisdiction over distributive justice. Since political theory must be applied morality, not vice‑versa (Williams, 2009, pp.2-3), disregarding compelling moral counter‑claims (e.g. luck egalitarianism) is erroneous. This point is particularly pertinent when considering Rawls – the original position’s commitment to fairness through non‑discrimination is akin to luck egalitarianism (Carens, 1987, pp.255-56). Indeed, the veil of ignorance, to use Rawls’ own words, seeks to “nullify the effects of specific contingencies that put men at odds” (Rawls, 1971, p.136). For the same reasons that race and sex are veiled to members of the original position (Rawls, 1971, p.136), there is also clear reason for birthplace to be veiled. Additionally, there is no good reason for birthplace to not be veiled. Membership of the original position only requires that agents possess two essential characteristics of moral personality: a sense of justice and a conception of societal good. There is no reason to think that agents cannot possess these characteristics across societies rather than merely within societies (Beitz, 1983, p.595); further, this avoids insinuating a potentially bigoted xenophobic narrative.

A second point, more pragmatic in its tactic, further supports the view that a cosmopolitan approach to Rawlsian justice is more appropriate than a prioritarian approach. As earlier mentioned, Rawls, for simplicity, stipulates self-sufficient nation states. However, this stipulation cannot be accepted. For Moellendorf, a cosmopolitan approach to justice is contingent on the extent of economic integration and globalisation (Moellendorf, 2004, p.204). Since globalising forces have created explicit global association, the Rawlsian assumption of self-sufficiency is not compelling.[1] Issues of justice can no longer be addressed within national frameworks.

Section 2: Implications for Rawls on Immigration Restrictions

With a cosmopolitan approach to Rawlsian distributive justice established, we can explore possible implications for immigration restrictions. But first, I make some brief clarifications.

Carens correctly asserts that members of a cosmopolitan original position would formulate the same principles to that of members of a standard original position (Carens, 1987, p.257). As demonstrated in section 1, to veil ‘country of birth’ alongside other brute luck factors is completely fitting. This addition is significant, yet harmonious – the cosmopolitan modification is therefore non-disruptive to members of the original position and the principles they formulate.

Further, pragmatic immigration restrictions must be established through empirically grounded, case-by-case policymaking, rather than unsubstantiated speculation or populist rhetoric. Expectation of potential impacts from immigration must be held to a strong standard of reasonability and accessibility (Rawls, 1971, p.213).

Finally, I note that within this essay, I cannot expound a comprehensive range of implications on immigration restrictions, due to the complexity and breadth of the topic. However, I discuss implications I consider most significant.

Section 2a: Immigration Restrictions and the Liberty Principle

I open this section with the following claim: all people(s) have the right to freedom of movement between nations. Restrictions may later be introduced, outlining exceptions to this core freedom. Carens advocates this claim compellingly: the right to migrate is protected as a basic right for the same reasons that freedom of religion is protected; “it might prove essential to one’s life plan” (Carens, 1987, p.258). This is a cogent argument from consistency. Miller, defending immigration restrictions, challenges this view that upholding moral equality between all humans necessarily implies equal opportunity to pursue life goals (Miller, 2014, p.367). Instead, Miller puts forward the “equally plausible” suggestion that moral equality between humans only implies that we respect and uphold a universal minimum standard of basic rights, but differing standards for citizens/non-citizens. Miller concedes that the legitimacy of his claim depends on the scope of distributive justice (p.368). Since, during section 1, a globalist scope was established (and hence the original position will not discriminate on country of birth), members of the original position would reject Miller’s suggestion of complete freedoms for compatriots and minimal freedoms for non-citizens. Therefore, Miller’s challenge has no plausible consequences for Rawlsian cosmopolitanism.

Building upon Carens’ advocacy of freedom of movement as a basic liberty, I also note, more specifically, that immigration which reunites families would seldom be restricted by Rawlsianism. I ground this assertion on the UDHR, stating that “family is the natural and fundamental group unit of society and is entitled to protection” (UDHR, 1949, §16).

However, analogous to freedom of religion, freedom of movement can only be protected to the extent that immigration does not compromise other liberties. If it could be demonstrated, with a reasonable degree of expectation, that a certain amount of immigration will undermine other liberties (of potential immigrants and/or current citizens), immigration restrictions could be justly imposed. One possible restriction of this type is ‘public order’ restrictions (Carens, 1987, p.259): the severe breakdown of public order and/or economic stability that i) is caused by potential immigration, and ii) undermines liberties, would permit just immigration restrictions. Clearly, in non-extreme cases, it is not in the interest of immigrants to undermine the public order of the country they wish to enter – to consider a pertinent example, the Migrant Advisory Committee’s 2018 UK report evidenced that immigration has decidedly not had the “large negative impacts claimed by some”; indeed, the MAC noted clear means by which less stringent immigration policy would produce socio‑economic benefit (MAC, 2018 pp.1-7).

The more extreme form of this concern is national security; potential immigrants that actively threaten citizens’ rights through terrorism would, of course, be restricted by Rawlsian cosmopolitanism. Post-9/11 populism has elevated this concern into mainstream media – the assertion of a direct link between religious immigration and terrorism is promulgated by influential politicians (Farage, 2017). Yet, on the contrary, overly-restrictive immigration policies are often inducive of terrorism rather than preventative. Evidence from UN special rapporteur on counter-terrorism and human rights Ben Emmerson supports this claim: extremist groups thrive in conditions of insecurity and desperation when freedom of movement is severely restricted (Emmerson, 2016, pp.22-23).[2] Therefore, the Rawlsian interest in liberty implies that immigration restrictions concerned with public order and security may be justified; however, prima facie, there is compelling research defending liberties through non-stringent immigration restrictions.

Finally, let us turn our attention to a prevalent form of immigration restriction that is not implied by Rawls’ liberty principle, namely, cultural integrity restrictions. Supporters of cultural integrity restrictions have an interest in controlling “the public culture of a country” (Miller, 2014, pp.369-370). For Miller, the symbiosis between citizens and potential immigrants must be considered, with an increased need for unifying culture to neutralise the diversity caused by immigration. This narrative relates back to the prioritarianism discussed in section 1, wherein identity and self‑determination are central to the nationalist interest of current citizens above potential immigrants (Gans, 1998, p.159). However, even if current citizens have an interest in maintaining cultural integrity, this does not equate to a moral right to impose restrictions (Heath, 2020, §1.1 & Carens, 1987, p.262). Despite holding importance to certain people, an interest in preserving cultural integrity does not appear to be a fundamental/necessary right; hence, this claim does not veto potential immigrants exercising their right to freedom of movement and/or right to family life.

To summarise, the liberty principle guarantees potential immigrants’ right to freedom of movement. This right can be restricted iff there is clear evidence suggesting that guaranteeing this freedom will directly violate other rights, not mere interests. Since such violations are unlikely, Rawlsianism implies non-stringent immigration restrictions.

Section 2b: Immigration Restrictions and the Pluralism/Difference Principles

Rawls’ second principle states that socio-economic inequalities must be arranged such that they: i) ensure equality of opportunity i.e. pluralism, ii) advantage the least well-off i.e. maximin game theory (Rawls, 1971, pp.42-43). Since the liberty principle has lexical priority over these socio-economic principles, potential immigrants’ right to freedom of movement cannot be traded for socio-economic goods. Therefore, the implications outlined in section 2a concerning the rights of potential immigrants represent the forefront of my analysis, with the following in a supportive role.

Rawls’ second principles on pluralism and maximin also imply non‑stringent restrictions for immigration. I believe this consistency with the conclusions of section 2a strengthens the cogency of my analysis. Similarly to our considerations in 2a, specific restrictions will be empirically grounded. In some cases, immigrants will not be victims of socio‑economic exclusion or deprivation. Nevertheless, to consider a particularly pressing example, refugees are disproportionately represented among the global worst-off, both in their limited opportunities, and in their dire socio‑economic standings. I take this distressing truth to be largely self-evident, but I briefly reference Arendt’s powerful summary: “their plight is not that they are not equal before the law, but that no law exists for them” (Arendt, 1958, p.296).

Conclusion

This essay has analysed the implications of Rawlsian justice for immigration restrictions. In section 1, I claimed Rawlsian is more appropriately understood through a cosmopolitan approach rather than a prioritarian approach. This implies that membership of the original position is not national, but global. In section 2, I established what immigration restrictions would be formulated by members of this cosmopolitan original position. Crucial to this formulation is the liberty principle – I argued that the right to freedom of movement is a fundamental right. Interests of citizens (e.g. preserving cultural integrity) do not veto this moral right. Immigration restrictions may be imposed if and only if there is reasonable expectation that immigration will compromise other liberties e.g. public order/security restrictions. However, in nearly all cases, immigration will not compromise these liberties; hence, restrictions will be non-stringent. This same conclusion is reached when considering Rawls’ second principles (concerning pluralism and maximin). This bolsters my conclusion: Rawlsian justice produces relatively non‑stringent immigration restrictions.

Footnotes

[1] For similar arguments, see Beitz (1979, pp. 129-136, pp.143-153) and Agartan (2014, p.907). [2] Also see Kukathas (2014, pp.386-387) for further support.

Bibliography

Agartan, K. (2014). Globalization and the Question of Social Justice. Sociology Compass, 8(6), 903–915. https://doi.org/10.1111/soc4.12162

Arendt, H. (1958). The origins of totalitarianism (Second enlarged edition). Cleveland: Meridian Books.

Beitz, C. (1983). Cosmopolitan Ideals and National Sentiment. The Journal of Philosophy, 80(10), 591–600. https://doi.org/10.2307/2026155

Beitz, C. (1979). Political Theory and International Relations (Princeton, N.J.: University Press,)

Carens, J. (1987). Aliens and Citizens: The Case for Open Borders. Review of Politics, 49(2), 251–273. https://doi.org/10.1017/S0034670500033817

Coleman, J.L., Harding, S.K. (1995) “Citizenship, the demands of justice, and the moral relevance of political borders”, in Warren F. Schwartz, (ed.), Justice in Immigration. (Cambridge: Cambridge University Press, 1995, pp. 18–62)

Emmerson, B. (2016). Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Available at: [https://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/285/61/PDF/N1628561.pdf?OpenElement]

Farage, N. (2017). The Nigel Farage Show: What can we do to protect ourselves? Live LBC - 17th August 2017, Available at: [https://www.youtube.com/watch?v=-aeWGLvWqaU]

Frost, M. (2004). Justice and Sovereignty, Theoria, 51(104), 54-68. Retrieved Apr 25, 2020, from https://www.berghahnjournals.com/view/journals/theoria/51/104/th5110404.xml

Gans, C. (1998). Nationalism and Immigration. Ethical Theory & Moral Practice, 1(2), 159–180. https://doi.org/10.1023/A:1009938807877

Kukathas, H. (2014). Immigration: The Case For Open Immigration, in Cohen, A., & Wellman, C., Contemporary debates in applied ethics (Second edition). (Chichester: Wiley Blackwell).

Migrant Advisory Committee. (2018). EEA migration in the UK: Final report Migration Advisory Committee September 2018, Available at: [https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/741926/Final_EEA_report.PDF]

Miller, D. (2014). Immigration: The Case For Limits, in Cohen, A., & Wellman, C., Contemporary debates in applied ethics (Second edition). (Chichester: Wiley Blackwell).

Moellendorf, D. (2004). Cosmopolitan Justice Reconsidered, Theoria, 51(104), 203-225. Retrieved Apr 23, 2020, from https://www.berghahnjournals.com/view/journals/theoria/51/104/th5110411.xml

Rawls, J. (1971). A Theory of Justice (Original edition). (Cambridge, Mass: Belknap Press of Harvard University Press).

Shue, H., (1980), Basic Rights: Subsistence, Affluence, and American Foreign Policy (Princeton, N.J.: University Press)

Universal Declaration of Human Rights. (Final authorized text.). (1949). (New York: United Nations Department of Public Information).

Wellman, C. H. (2020). Immigration, The Stanford Encyclopaedia of Philosophy, Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr2020/entries/immigration/>.

Williams, B. (2009), Realism and Moralism in Political Theory, In In the Beginning Was the Deed: Realism and Moralism in Political Argument. PRINCETON; OXFORD: Princeton University Press.