Joseph Carens: Between Aliens and Citizens [1st ed.] 9783030444754, 9783030444761

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Münster Lectures in Philosophy

Matthias Hoesch Nadine Mooren  Editors

Joseph Carens: Between Aliens and Citizens

Münster Lectures in Philosophy Volume 6

Series Editor Department of Philosophy, Westfälische Wilhelms-Universität Münster, Münster, Germany

Since 1997 the Department of Philosophy at the University of Münster has hosted the Münster Lectures in Philosophy. This lecture series gives especially young researchers in philosophy and adjacent disciplines the opportunity to enter into an intellectual exchange with internationally and nationally renowned philosophers. Each volume of the series contains an evening lecture by the guest, critical contributions regarding the guest’s work provided by the participating young researchers, and commentaries of the guest relating to these contributions.

More information about this series at http://www.springer.com/series/13531

Matthias Hoesch  •  Nadine Mooren Editors

Joseph Carens: Between Aliens and Citizens

Editors Matthias Hoesch Exzellenzcluster „Religion und Politik“

Westfälische Wilhelms-Universität Münster Münster, Germany

Nadine Mooren Philosophisches Seminar Westfälische Wilhelms-Universität Münster

Münster, Germany

ISSN 2367-0991     ISSN 2367-1009 (electronic) Münster Lectures in Philosophy ISBN 978-3-030-44475-4    ISBN 978-3-030-44476-1 (eBook) https://doi.org/10.1007/978-3-030-44476-1 © Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

The present volume is the result of the 22nd Münster Lectures in Philosophy held with Joseph Carens. In November 2018, Joseph Carens was a guest at the Department of Philosophy and the Cluster of Excellence “Religion and Politics” at the Westfälische Wilhelms-Universität Münster, where he gave an evening talk and joined a two-day colloquium dedicated to his work. The papers presented in the colloquium had been prepared by graduate students from the Department of Philosophy as the result of several months’ engagement with Carens’s philosophy in seminars and discussion groups. This volume comprises an introduction that outlines Joseph Carens’s Political Philosophy, the evening talk that Carens gave, the papers presented at the colloquium, and Carens’s detailed replies to the critical remarks made by students. Joseph Carens is rightly regarded as the “founding father” of the ethics of migration, and is still undoubtedly one of the most influential writers in the field. His preoccupation with the pressing issues of Western democracies today, and with the normative challenges of distant cultures, made him an appropriate choice as guest of the Münster Lectures in Philosophy. It has probably never been more important than today to motivate students to engage in philosophical arguments concerning issues of immigration and cultural pluralism, and to initiate public discussions informed by ethical reasoning. Joseph Carens’s work, as well as his intellectual engagement during his stay in Münster, gave proof to the fact that ethics has plenty to contribute to public discourse and political deliberation. Münster, Germany  Matthias Hoesch December   2019 Nadine Mooren

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Editors’ Acknowledgments

The Münster Lectures in Philosophy depend on the efforts of many people and several institutions. First of all, we would like to thank all the graduate students who participated in the colloquium. It is their enduring zeal and enthusiasm that make the Münster Lectures in Philosophy so worthwhile. We would also like to thank all colleagues and students from the Philosophy Department for attending the colloquium and becoming involved in the philosophical discussions. Since 2014, the Münster Lectures and the accompanying book series documenting the colloquia have been generously supported by Springer International Publishing. Our thanks go to Diana Nijenhuijzen, Alexander James, and their colleagues who have been a great help in answering the questions that arose as the book was being prepared. The Münster Lectures in 2018 were jointly hosted by the Department of Philosophy and the Cluster of Excellence “Religion and Politics.” We are very grateful for all the financial and organizational support that they provided. We were very happy to be able to pool the resources and competences of both institutions, and would like to thank in particular Iris Fleßenkämper, Judith Grubel, Claudia Güstrau, Mareike König, Sibille Mischer, and Tanja Uekötter, who helped us solve all the organizational and administrative problems that arose. During the whole planning process, Johannes Müller-Salo kindly shared his know-how in organizing the Münster Lecture. Corinna Triller and David West gave us indispensable language support, from the preparation of the presentations up to the revision and language correction of the final manuscript. Stefan Klatt translated the abstract issue of the evening talk into a witty and appealing poster. Manon Westphal from the Department of Political Science was involved in preparing the presentations of the colloquium. The student assistants Jeremias Düring, Yvonne Elger, and Anna Kahmen gave us excellent support in planning and running the event, as well as in preparing the manuscript for publication. Besides working on their own papers, they also relieved us of many duties and responsibilities, thereby helping the whole project run smoothly and successfully.

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Editors’ Acknowledgments

Of course, our special thanks go to Joseph Carens himself for his readiness to accept our invitation as the 22nd Münster Lecturer. We could not have wished for a more agreeable guest. His enthusiasm, patience, and desire to discuss the intricacies of his theory and philosophical interests led to a fruitful and inspiring event for all its participants, and to the lively debates documented in the present volume.

Contents

Part I Introduction 1 Between Aliens and Citizens. An Outline of Joseph Carens’s Political Philosophy������������������������������������������������������������������    3 Matthias Hoesch and Nadine Mooren Part II Lecture 2 Immigration, Political Realities, and Philosophy����������������������������������   17 Joseph H. Carens Part III Living Together in Societies Shaped by Migration 3 Preserving Culture? On the Moral Foundations of a Contested Political Aim��������������������������������������������������������������������   33 Leonard Jeggle and Nicolas Vogt-Reimuth 4 Limits of Tolerance. A Theory of Prohibiting Cultural and Religious Practices Illustrated by the Example of Muslim Minorities ������������������������������������������������������������������������������   47 Luca Güttner, Marcel Heying, and Evelyn Irina Kulthida Luangyosluachakul 5 Voting Rights for Residents? Revisiting Carens’s Citizenship Rights������������������������������������������������������������������������������������   69 Fabian Bonberg and Lars Rensing 6 Time, Membership, and Citizenship������������������������������������������������������   87 Johannes Müller-Salo

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Part IV Methodological Interjections 7 Hypotheticals and Real Cases. A Metaphilosophical Investigation of Joseph Carens’s Methodology ������������������������������������  111 Yvonne Elger and Anja Zurwehme 8 Changing Theory or Practice? The Logical Structure of the Contextual Approach��������������������������������������������������������������������  127 Jonas Pöld, Can Ünlü, and Sophie Zemke Part V The Ethics of Immigration Admissions 9 Obligatory Admission in the Light of Post-Colonialism����������������������  143 Bernadette Schwabe and Judith Urselmann 10 Carens’s Cantilever Argument: Global Freedom of Movement, Logical Necessity and the Burden of Proof ������������������  161 Jeremias Düring and Constantin Luft 11 The Open Borders Claim in a Nonideal World ������������������������������������  181 Matthias Hoesch and Nicolas Kleinschmidt 12 Equality, Moral Incentives, and Open Borders: An Attempt to Connect the Strands of Joseph Carens’s Utopian Thinking ������������������������������������������������������������������������������������  199 Tobias Förster, Barbara Gotzes, Hannes Hennemann, Anna Kahmen, and Alexander Westerhorstmann Part VI Replies 13 Replies to My Interlocutors��������������������������������������������������������������������  225 Joseph H. Carens

Abbreviations of Carens’s Works

AAPT AC CA CCC EESM

EMIM EoI IoI IRS M&M

MRS

Carens, Joseph H. 2015. Alternative Approaches to Political Theory. A Response to Miller, Bauböck, and Abizadeh. Political Theory 43 (3): 401–411. Carens, Joseph H. 1987. Aliens and Citizens: The Case for Open Borders. The Review of Politics 49 (2): 251–273. Carens, Joseph H. 2004. A Contextual Approach to Political Theory. Ethical Theory and Moral Practice 7 (2): 117–132. Carens, Joseph H. 2000. Culture, Citizenship, and Community. A Contextual Exploration of Justice as Evenhandedness. Carens, Joseph H. 2015. The Egalitarian Ethos as a Social Mechanism. In Distributive Justice and Access to Advantage. G.  A. Cohen’s Egalitarianism, ed. Alexander H.  Kaufman, 50–78. Cambridge: Cambridge University Press. Carens, Joseph H. 1981. Equality, Moral Incentives, and the Market. An Essay in Utopian Politico-Economic Theory. Chicago: University of Chicago Press. Carens, Joseph H. 2015. The Ethics of Immigration. Oxford: Oxford University Press. Carens, Joseph H. 2005. The Integration of Immigrants. Journal of Moral Philosophy 2 (1): 29–46. Carens, Joseph H. 2010. Immigrants and the Right to Stay. Cambridge: MIT Press. Carens, Joseph H. 1989. Membership and Morality. Admission to Citizenship in Liberal Democratic States. In Immigration and the Politics of Citizenship in Europe and North America, ed. William R. Brubaker, 31–50. Lanham Md.: Univ. Press of America. Carens, Joseph H. 2007. Wer gehört dazu? Migration und die Rekonzeptualisierung der Staatsbürgerschaft. In Bürgerschaft und Migration. Einwanderung und Einbürgerung aus ethisch-politischer Perspektive, ed. Simone Zurbuchen, 25–52. Zürich: Lit.

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QN

Abbreviations of Carens’s Works

Carens, Joseph H (Ed.). 1995. Is Quebec Nationalism Just? Perspectives from Anglophone Canada. Montreal: McGill-Queen’s University Press. RNCER Carens, Joseph H. 2019. On the Relationship between Normative Claims and Empirical Realities in Immigration. In Proceedings of the 2018 ZiF Workshop. Studying Migration Policies at the Interface between Empirical Research and Normative Analysis, ed. Matthias Hoesch und Lena Laube, 13–29. Münster: ULB Münster (miami.uni-muenster.de). doi: 10.17879/15199614880. SPD Carens, Joseph H. 2003. An Interpretation and Defense of the Socialist Principle of Distribution. Social Philosophy and Policy Vol. 20, No. 1: 145–177.

Part I

Introduction

Chapter 1

Between Aliens and Citizens. An Outline of Joseph Carens’s Political Philosophy Matthias Hoesch and Nadine Mooren

Abstract  The text outlines Joseph Carens’s Political Philosophy and is the introduction to the volume Joseph Carens. Between Aliens and Citizens which comprises a critical discussion of Carens’s work as well as his detailed replies. Keywords  Cultural pluralism · Ethics of migration · Joseph Carens · Socialist principle of distribution

Born in 1945, Joseph Carens is widely known today in political theory and philosophy for his contributions to the ethics of migration. He is known particularly for his claim that, in principle, justice requires states to open their borders to everyone who wants to enter. However, even a brief glance at his biography and bibliography shows that the ethics of migration is only one of the fields of academic debate to which Carens has made a significant contribution. In his dissertation, Carens reflected on the cogency of socialism and the possibility of conceiving of an egalitarian state based on the socialist principle “From each according to abilities, to each according to needs”. The dissertation, originally submitted at Yale University, was published in 1981 as Equality, Moral Incentives, and the Market (EMIM). Although Carens has largely written within the framework of liberalism since his dissertation, he has also recently returned in several papers  – such as “An Interpretation and Defense of the Socialist Principle” (SPD, published in 2003), and “The Egalitarian Ethos as a Social Mechanism” (EESM, published in 2015)  – to the socialist idea, thus suggesting that he does

M. Hoesch Exzellenzcluster „Religion und Politik“, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected] N. Mooren (*) Philosophisches Seminar, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_1

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after all cherish the idea that the socialist principle holds a great deal of truth in terms of justice. After his PhD, Carens taught at Princeton University, Lake Forest College, and North Carolina State University. It was only after moving to Canada in 1985 as a Visiting Assistant Professor in the Department of Political Science in Toronto (where he has had a full professorship since 1993) that he began to engage in an issue that would assume a prominent place in his research for many years to come: namely, how can different cultures live together in a modern state? This issue was no doubt suggested to Carens by his experiences in Canada, where there was fierce debate about the rights of native tribes and about making special arrangements for the Francophone area of the country. He edited Is Quebec Nationalism Just? Perspectives from Anglophone Canada in 1995. His book Culture, Citizenship, and Community (CCC), published by Oxford University Press in 2000, also dealt with the issue of cultural pluralism, and was in part a reaction to Will Kymlicka’s approach to the same issue. Carens already began to think about the issue for which he has become most well-known – namely, immigration – in the 1980s. Provoked by Michael Walzer’s strong affirmation of a state’s right to admit immigrants on the basis of its preferences, Carens wrote “Aliens and Citizens. The Case for Open Borders” (AC, published in 1987) as the first philosophical attempt to argue for open borders. Carens has since addressed further questions to do with the relation between aliens and citizens that lie beyond the open borders claim. Not least, and drawing on his personal situation as a permanent resident in Canada, he discussed how people should be treated once admitted as immigrants, how the costs of integration should be shared between aliens and citizens, and how those people who live in a country without official permission to do so should be treated. Immigrants and the Right to Stay (IRS) appeared in 2010. Most important for current debates, however, is The Ethics of Immigration (EoI), which was published by Oxford University Press in 2013, since it condenses many years of intense work on the issue of migration, and provides the most comprehensive discussion to date of the normative issues raised by immigration. The book has since won numerous prizes, and the Journal of Applied Philosophy (2016), Political Theory (2015), Ethical Perspectives (2014), as well as the blog Crooked Timber (2014), have published symposia on the book. In 2015, Carens was made a fellow of the Royal Society of Canada. In what follows, we will briefly introduce the main ideas and central arguments of Carens’s work – those that are also the subject matter of this volume’s investigations. While the various papers in the volume address Carens’s theoretical conceptions in more detail, we will attempt here to provide a more general overview of the areas of study that Carens has reflected upon philosophically. In addition, we indicate in our footnotes where particular chapters in this volume deal with these areas of study in more detail. The first section is dedicated to the socialist principle (1); the second, to cultural pluralism (2); and the third, to migration (3).

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1.1  The Socialist Principle of Distribution Marx coined the phrase: “From each according to his ability, to each according to his needs”. Irrespective of the role that Marx intended the phrase to play in its original context, it is possible to interpret this phrase as a principle of the just distribution of income and burdens: in a just society, the phrase suggests, everybody contributes according to their abilities, and everybody receives resources according to their needs. Thus, justice requires people to contribute within the range of their individual possibilities, and it requires states to assign resources in proportion to particular needs. Understood like that, the phrase can be called the socialist principle of distribution (see SPD, 145). The socialist principle has not attracted much attention in contemporary political philosophy: Rawls, Nozick and the Utilitarian thinkers exclude the socialist principle from the sphere of debatable theories; they do not even mention it as a noteworthy proposal of what justice could require. Carens, however, believes that the socialist principle is at least as promising a candidate (not to say, the best candidate) to explain the concept of distributive justice. But this does not mean that Carens wants liberal states to adopt the principle immediately. On the contrary, given that the world is as it is now, he sympathizes with a Rawlsian conception of justice. According to Carens, though, Rawls’s theory is convincing not because of eternal truths. Rather, it owes its persuasiveness to particular empirical facts from motivational psychology (see SPD, 168–176). If Rawls is right in thinking that most people today work more efficiently if their income depends on the success of their work, then we might have reasons to offer special income for good work. However, it is very important to note that these facts from motivational psychology are not immutable, but vary from time to time and from society to society. People used to be motivated by other reasons, and we can easily imagine societies whose motivational set-up deviates from that of contemporary societies (see EMIM, 103–105). According to Carens, motivational psychology depends at least in part on the “ethos” of people, i.e. on their beliefs about what has value and how they should live. It is crucial to note that every theory of justice presupposes some kind of motivational psychology, and thereby some assumptions about the ethos of a society (see EESM, 62). For example, the theory of democracy presupposes that many people are willing to engage in democratic debates and to accept, to some degree, majority decisions. Thus, claiming that the socialist principle requires a particular ethos of a society does not imply acknowledging any disadvantage of socialism, compared with competing theories of justice. Now, according to Carens, a well-understood version of the socialist principle yields a defensible principle of justice, given that people have a socialist ethos that motivates them to act in ways compatible with the socialist principle. However, is it really conceivable that there can be a socialist ethos that makes socialism work in practice? Critics emphasize that, without a free market, there will always be a central planned economy, mismanagement, and illiberal interference in people’s lives.

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Carens’s aim is to counter that line of reasoning by means of a thought experiment that is meant to show how the “socialist ideal is compatible with a deep commitment to individual freedom” (SPD, 145). In a liberal capitalist society, people are motivated to a certain degree by the attempt to increase their own income. Now, we can imagine a world where exactly that item of motivational psychology is replaced by the attempt to contribute as much as possible to the wealth of society. The same force that leads people these days to act according to their self-interest would then lead people to act for everybody’s benefit. Suppose we had a society with a free market and non-egalitarian pre-tax incomes, as we know it, except that the incomes in that fictive society were taxed in a way to make after-tax incomes egalitarian, with every member of society earning the same. Given that motivational psychology works as described, people in that fictive society would act exactly the same way as they do today, take up the same professions and buy products according to the same preferences, the only difference being that everybody would have an equal income. Since, according to Carens’s EMIM, egalitarian incomes are the best approximation to what everybody needs, such a society would indeed be governed by the socialist principle, without being less efficient or having less individual freedom than today’s capitalist societies. To be sure, the socialist society envisioned is more a utopia than a realistic political aim. The thought experiment, however, is meant to prove that the socialist principle can be combined with the advantages of free markets. Thus, we can rule out the objection to the socialist principle mentioned, and plausibly hold that socialism is what justice requires in principle. This, in turn, implies that we should at least try to change the ethos of people somewhat towards the socialist ethos.

1.2  Cultural Pluralism Conflicts between cultural groups have become an important theme in philosophical debates since Kymlicka’s liberal justification of cultural rights at the latest (see Kymlicka 1989, 1995). Carens’s diagnosis is that normative discourse suffers from simplifications, and this is why he has developed what he calls the “contextual approach”.1 Its main idea is that normative principles have to be seen in relation to real cases. What counts as a political problem, and what is implied by a normative concept, depends in part on the context. Therefore, it is only by considering particular contexts that we can evaluate normative claims – whereas analytical philosophy tends to disregard contexts deliberately in order to reach supposedly clear concepts. To tighten the central claim of Culture, Citizenship, and Community, Carens suggests that “we do not really understand what general principles and theoretical

1  This subject is addressed in this volume by Elger/Zurwehme (Chap. 7) and Pöld/Ünlü/Zemke (Chap. 8). Carens explains his contextual approach as well as his broader methodological aspirations in greater detail in his replies that make up the final part of this volume.

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formulations mean until we see them interpreted and applied in a variety of specific contexts” (CCC, 3). At the same time, the contextual approach tries to avoid a problem that seems to be similar to what Wittgenstein once described as a “one-sided diet” of examples, by which he meant that one of the main problems of philosophy is that it “nourishes” its “thinking with only one kind of example” (Wittgenstein 1995, § 593, 155). Carens can be said to apply Wittgenstein’s general observation to the more specific field of political philosophy, demanding that philosophers work with a set of real examples of political problems, rather than with stipulated thought experiments only. Furthermore, Carens warns us not to fall into the trap of rashly generalizing familiar impressions and claims, as these might make “sense only in relation to a limited set of cases” (CCC, 3). When Carens moved from America to Canada, he came to see how particular political contexts and cultural identities shape moral ideas and philosophical thinking about political practices and institutions. These personal experiences led to a real systematic challenge – namely, one that picked out our (more or less) familiar approach to political theorizing as a problematical issue of its own. His pointed remark that “Rawls could not have been a Canadian” (CCC, 5) expresses his idea that we should quicken our sense of how cultural contexts give priority to certain issues while disregarding others. Most importantly, this attitude is due to the fact that such cultural imprints also bear on our eventual understandings of what justice requires. In Carens’s words: Whatever one’s views about Quebec and French language issues, no Canadian would think it appropriate to ignore the problem of language in a comprehensive discussion of justice, just as no American writing about justice would leave out the issues of race and religion. Similarly, questions about cultural minorities pressed themselves upon me much more forcefully in Canada simply because my daily paper would often contain stories about aboriginal people or about Quebec that brought these issues to the fore (CCC, 5).

Hence, Carens advises political philosophers to reflect on unfamiliar cases, where they are not biased by their own range of experience. Indeed, such unfamiliar cases might serve as a test of familiar conceptions, uncovering their implicit and frequently overlooked presuppositions (see CCC, 5). This is why Carens addresses not only problems that have already attracted a great deal of attention in the literature, such as the debates on cultural politics in Quebec, the rights of native tribes, and a just treatment of Muslims in liberal democracies.2 He also deals with one very unfamiliar case  – namely, the history of Fiji, the small island state in the South Pacific. Carens’s chapter on Fiji explores how the particular history and conflicting moral claims of the aboriginal Fijians and the ‘Indo-Fijians’ (the latter brought to Fiji from India as indentured labourers under the British colonial regime in the nineteenth and twentieth centuries) challenge liberal understandings of citizenship and political legitimacy. Carens dedicates sixty pages to the chapter, which would eventually become his favourite chapter in the book.  Carens’s claims about the fair treatment of Muslims are challenged in this volume by Güttner/ Heying/Luangyosluachakul (Chap. 4). 2

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All of his case studies aim to set out an idea of justice that he calls justice as evenhandedness. Taking sides with feminist theorists, Carens emphasizes the importance of judgements that strive to be “contextually sensitive” by responding to “the claims that arise from different conceptions of the good, including matters of culture and identity” (CCC, 8). Thus, every conflict to be solved needs diligent exploration of the interests of the individuals and cultural groups involved, and argument should always be conducted from an impartial point of view – in other words, from a perspective precisely between aliens and members of a cultural group. Normative answers are to be found more in a comprehensive understanding of the particular interests at stake than by means of general liberal principles or an abstract demand for neutrality. For example, Carens argues that the language policies in Québec aiming at the protection of a culturally distinct Francophone society are defensible as long as they respect basic individual freedoms and go hand in hand with a commitment to equality of opportunities for those who, by origin, do not belong to the Francophone group. In the Fiji case, to give a second example, justice as evenhandedness leads Carens to agree with some (to a certain extent) antiliberal policies to regulate the sale of real property, on condition that these policies are likely to increase the well-being of the natives (see CCC, 227–232).3

1.3  The Ethics of Migration The issue of migration does not have a long history in philosophy. Apart from a few remarks, the great names in the history of philosophy have not addressed normative questions arising from migration. This is why Carens, together with Michael Walzer, counts as the founder of the philosophical discipline going by the name of the ethics of migration. Almost every moral debate concerning the relationship between aliens and citizens draws at some point on Carens’s texts – this applies to debates concerning the moral claims of immigrants and of host societies, as well as to debates on who should be allowed to enter a country.4

1.3.1  Citizenship and Integration What is the nature of citizenship and who should be a citizen? According to Carens, the moral right to be a citizen is based on social membership – the fact that a person either has become a member of society or, in the case of newborns, has the prospect

3  The arguments used to justify these policies are critically discussed in this volume by Jeggle/ Vogt-Reimuth (Chap. 3). 4  For a condensed summary of Carens’s claims about immigration, see also Chap. 2 of this volume.

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of becoming a member, constitutes the right to be a full citizen.5 At first sight, this theory might sound uncontroversial. It does have important implications, however: since the children of resident non-citizens have the same prospect of becoming members of the society as the children of resident citizens, they should, according to Carens, be treated in the same way as citizens – that is to say, the children of resident non-citizens should automatically become citizens at birth. This suggests that Carens rejects ius sanguinis – the widespread arrangement by which children ‘inherit’ their citizenship from their parents. However, even though Carens condemns the view that citizenship is linked to race, or to something that can be transmitted genetically, he does not reject all forms of ius sanguinis. In his view, some aspects of ius sanguinis are defensible because they protect some fundamental interests of children that would otherwise be violated. Suppose a couple has lived in their home country for a long time, but then moves to another country where they have a child. The child has grandparents in her parents’ country of origin, and her parents might want to move back at a later point of time. Ius sanguinis correctly attributes the parents’ citizenship to the child, enabling her to move to her parents’ country of origin whenever she wants to. At the same time, of course, it is likely that the child will become a full member of her present country of residence – at the latest, when she goes to school. That is why Carens opts for dual citizenship.6 Carens’s discussion of citizenship at birth brings to light a principle that he uses several times: namely, differential treatment of citizens and non-citizens requires justification. One of Carens’s most powerful personal experiences as a permanent resident in Canada was that it did not really matter that he was not a citizen, since he enjoyed most of the rights and privileges that citizens have. A significant part of his intellectual work has attempted to bring to light the moral basis of this equal treatment of foreigners, and to call for equal treatment in all those areas where Western states still give unwarranted privileges to their citizens. One such privilege is precisely the birthright to citizenship: if the children of citizens automatically gain citizenship at birth, this should apply to the children of resident non-citizens as well, as long as there are no weightier reasons against. This kind of argument characterizes many passages in Carens’s work (e.g. EoI, 32–34). Just to mention one further example that illustrates Carens’s way of reasoning: if certain standards of health care or worker protection apply to citizens, then why should there be different standards for non-citizens (say, for guest workers)? Some rights are of course membership specific. In order to be entitled to the benefits of a pension scheme, a person has to pay into the scheme for a number of years. Thus, a person who has only recently arrived is not entitled to the same benefits as those who have been part of the system for many years. Other rights are not 5  The temporal element of Carens’s view is discussed in this volume by Müller-Salo (Chap. 6), while Bonberg/Rensing (Chap. 5) argue that Carens should treat voting rights differently from other rights linked to citizenship. 6  See EoI, Chap. 2. Carens already points out at length in CCC (Chaps. 7 and 8) that citizenship should be understood in ways that are compatible with multiple memberships and overlapping identities.

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membership specific, however. The state where a person lives has to protect that person’s life and safety, regardless of how long she has lived there. In the context of irregular migrants (to avoid stigmatization, Carens refuses to speak about ‘illegal’ migrants), this leads Carens to a major political demand: states should install a firewall between those government agencies that stand for the protection of human rights, and those that monitor immigration law. His justification is that immigrants are often unable to claim their rights to protection because they fear sanctions by the immigration agencies – for example, women who have been raped will not go to the police if they fear being deported. Only a strict firewall between these agencies would enable these often extremely vulnerable people to inform the police about a crime to which they have been a victim (see EoI, 132–135).

1.3.2  The Ethics of Admission Within the Conventional View As we have already said, when it comes to the question of who should be admitted to a country, Carens is a defender of open borders. However, he often sets aside the issue of whether immigration restrictions can be justified at all. Most people do not believe that open borders are morally required. Instead, they think that states have the right to restrict immigration in a discretionary way – Carens calls this the Conventional View. Although Carens holds the Conventional View to be deeply misled, he nevertheless addresses questions that arise on condition that the Conventional View were valid. With regard to the politics of admission, what moral demands do advocates of the Conventional View have to acknowledge? When it comes to questions of admission, states are obviously not completely free from moral constraints even within the Conventional View. There are two issues at stake here: First, the rules according to which states pick out those whom they admit must be non-discriminatory. To use an easy case, the respective rules cannot be based on race, religion or sexual orientation; however, they may be based on language skills, family ties, and economic prospects (see EoI, 174–185). Second, there are some groups of people that, even within the Conventional View, cannot be excluded. Saying that states generally have a discretionary right to exclude is not to say that there are no exceptions to this right. Carens addresses two possible exceptions: people who have a claim to enter via family reunification, and refugees.7 Let us just add a few words concerning the latter case. Adopting a broad definition of who counts as a refugee, Carens argues that liberal states have strong obligations towards refugees for several reasons. First, there is a humanitarian duty to assist those in need, and, in the case of refugees, that duty requires states to offer

7  That Carens should add victims of historical injustice to the list of exceptions is the argument made in this volume by Urselmann/Schwabe (Chap. 9).

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them protection and a new home. Second, Western states are in many cases involved in situations that make flight and the seeking of refuge necessary, with this causal connexion giving rise to special responsibilities. Third, Carens believes that the duty to admit refugees also “emerges from the normative presuppositions of the modern state system” (EoI, 196) – if the world is organized in a way that divides all territory between a number of states, then these states are obliged to care for those who cannot find protection in their countries of origin. States meet their obligations towards refugees primarily by complying with the principle of non-refoulement. In order to achieve a just distribution of the burdens involved in admitting refugees, and, even more important, in order to discourage states from interpreting asylum laws too narrowly, Carens argues that, after the asylum claims have been examined by the agencies in charge, resettlement into another country should become the standard case. If the state that makes the decision is not identical with the state that has to admit the asylum seeker in the case of a positive decision, then there is no incentive to reach negative decisions by all conceivable means (see EoI, 216–217).

1.3.3  The Arguments for Open Borders The claim for open borders is probably Carens’s most well-known claim; it is nonetheless also his most contested. Originally introduced in the 1987 paper “Aliens and Citizens. The Case for Open Borders” (AC), it triggered the philosophical debate on migration. Yet, before its publication, the paper had been rejected for the most curious of reasons: some reviewers said that Carens’s claims were obviously too false to be published, while others said that the claims were obviously too right and therefore not interesting enough to be published. Once published, though, the paper soon became the focus of a new philosophical debate, was reprinted at least nine times, and was translated into German, French and Spanish. In his recent book EoI, it is only in the final chapters that Carens took the ideas of the paper up again. While most of the book argues within the Conventional View (the view that states have the right to restrict immigration in a discretionary way), the last chapters aim to challenge the Conventional View by defending the moral necessity of international freedom of movement. Interestingly, the argument for open borders as it is presented in EoI both continues and reworks the original argument from 1987. Common to both versions of the argument for open borders is Carens’s comparison of citizenship in the modern Western world to the privileges of the feudal estate system of the past. Sketching this analogy, Carens wants us to compare the disadvantages produced by contemporary social arrangements and political practices for people born in poor countries in Asia or Africa to the situation of the peasantry in the Middle Ages. Like a feudal birthright privilege, restrictive citizenship in Western liberal democracies is “an inherited status that greatly enhances one’s life chances”,

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which is – again like birthright privileges − “hard to justify when one thinks about it closely” (AC, 252; see also EoI, 226). In his paper from 1987, Carens adds to this a discussion of three contemporary and well-recognized approaches from political theory, showing that each approach supports the claim for (at least relatively) open borders. He shows in detail that his claim is supported by the approaches of Robert Nozick and John Rawls, as well as by Utilitarianism. According to Nozick, all individuals have the same natural rights, and the state has no right to prohibit someone from entering a territory if she happened to be born somewhere else, as long as no private property is violated (see AC, 252–254). Behind Rawls’s “veil of ignorance”, everyone would opt for rules that maximize the position of the most disadvantaged party, and, according to Carens, would therefore press for the right to migrate to be recognized among the basic liberties, because that right significantly improves the situation of the disadvantaged (see AC, 258).8 Utilitarianism, in Carens’s view, cannot provide any arguments for immigration restrictions, either. On the contrary, it can actually provide support for open borders, since economic gains can probably best be increased through free mobility (see AC, 263). The case for open borders that Carens made some 25 years later in chapter 11 of EoI does not repeat that threefold argument from 1987, but adds a new argument to the feudal analogy. The reason seems to be that Carens intends his arguments in EoI to be independent of particular theories of political philosophy. Instead, he bases them on widely accepted assumptions about democratic values – values that are part of an overlapping consensus of different understandings of political issues. In other words, Carens intends in EoI to convince not so much scholars of political theory, but members of Western democratic societies. Thus, the new argument does not immerse itself in concepts from controversial theories, but rather starts from Art. 13 of the Declaration of Human Rights, which states that every person has the right to move freely within the state where she lives. Carens claims that every justification of that right of national freedom of movement is also a justification for global freedom of movement, to the effect that everybody who affirms Art. 13 should also acknowledge global freedom of movement to be a human right. Since the disputed claim of open borders is built on a widely shared normative belief, Carens’s argument has been called the “cantilever argument” or “cantilever strategy” (Miller 2013; EoI, 238). Insofar as Carens’s strategy is convincing, it is up to his opponents to explain why the two possible rights of movement (national and global) should be treated differently.9 In EoI, Carens emphasizes that the argument for open borders is not meant as a policy proposal to be adopted in the near future (see EoI, 296).10 Carens makes an 8  Rawls himself would later reject the attempt to use the veil of ignorance at an international level; see Rawls 1999. 9  The structure and implications of the cantilever argument are scrutinized in this volume by Düring/Luft (Chap. 10). 10  Whether the Open Border Claim can justify claims in nonideal worlds is discussed in this volume by Hoesch/Kleinschmidt (Chap. 11).

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important operative distinction throughout the whole book between “what one thinks is right as a matter of principle” and “what one thinks is the best policy in a particular context” (EoI, 229). While the latter would mean having to take into account questions of feasibility and current political dynamics that constrain the range of options, Carens also argues for the importance of constraints that result from considerations of morality and justice, and that are intended to provide “a critical perspective on the ways in which collective choices are constrained, even if we cannot do much to alter those constraints” (EoI, 229). To him, such a critical perspective is legitimate and appropriate, even if real possibilities to change unjust arrangements seem unattainable at present. Thus, the arguments for open borders establish a political utopia, rather than a political programme. As we have pointed out in Sect. 1.1, the same is true for the socialist ideal that Carens reflected on in his dissertation. Both utopias, open borders and socialist societies, are deeply linked to the arguments for which Carens is most well known.11 Hence, his account is clearly different from those who see utopian political designs as a source merely of misleading orientations and who would prefer restricting themselves to comparative assessments of feasible options. In contrast, Carens views the question of what should be seen as a desirable aspect of a political utopia as fruitful for a number of reasons. It seems that, in his view, the question helps us to • gain a critical perspective on existing practices and institutions; • identify what is valid in principle without restricting our thoughts by what is or seems familiar; • determine the desirable directions of political reforms, even though the ideals themselves cannot be achieved at present; • refine principles of justice in different spheres of social and political life according to the respective utopian ideal (e.g. economy, tax policy and redistribution, labour, international relations, refugee relief, gender politics, etc.). Carens has said in conversations that he is struck by how authors have invested such little time in depicting positive utopias compared with the time that they have spent writing about dystopian futures and shockingly desolate social systems (most famously, the dystopian fictions of Orwell and Huxley). Thus, he seems inclined to believe that political philosophy might profit greatly from having more and better articulated conceptions of desirable political arrangements. As claims to realism and feasibility make up a strong current in contemporary political theory, it is those voices that criticize utopian thinking that are the loudest. We can hope from Carens’s enduring interest and hints at current writing projects that he will return to utopian matters in the near future.

 The question of how both utopias might be combined is treated in this volume by Förster/Gotzes/ Hennemann/Kahmen/Westerhorstmann (Chap. 12).

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References Carens, Joseph H. 1981. Equality, Moral Incentives, and the Market. An Essay in Utopian Politico-­ Economic Theory. Chicago: University of Chicago Press. (= EMIM). ———. 1987. Aliens and Citizens: The Case for Open Borders. The Review of Politics 49 (2): 251–273. (= AC). ———., ed. 1995. Is Quebec Nationalism Just? Perspectives from Anglophone Canada. Montreal: McGill-Queen’s University Press. (= QN). ———. 2000. Culture, Citizenship, and Community. A Contextual Exploration of Justice as Evenhandedness. Oxford: Oxford University Press. (= CCC). ———. 2003. An Interpretation and Defense of the Socialist Principle of Distribution. Social Philosophy and Policy 20 (1): 145–177. (= SPD). ———. 2005. The Integration of Immigrants. Journal of Moral Philosophy 2 (1): 29–46. (= IoI). ———. 2010. Immigrants and the Right to Stay. Cambridge: MIT Press. (= IRS). ———. 2015a. The Ethics of Immigration. Oxford: Oxford University Press. (= EoI). ———. 2015b. The Egalitarian Ethos As a Social Mechanism. In Distributive Justice and Access to Advantage. G. A. Cohen’s Egalitarianism, ed. Alexander H. Kaufman, 50–78. Cambridge: Cambridge University Press. (= EESM). Kymlicka, Will. 1989. Liberalism, Community, and Culture. Oxford: Clarendon. ———. 1995. Multicultural Citizenship. A Liberal Theory of Minority Rights. Oxford: Clarendon. Miller, David. 2013. Is There a Human Right to Immigrate? In Migration in Political Theory: The Ethics of Movement and Membership, ed. Sarah Fine and Lea Ypi, 11–31. New York: Oxford University Press. Rawls, John. 1999. The Law of Peoples. Cambridge: Harvard University Press. Wittgenstein, Ludwig. 1995. Philosophical Investigations. Trans. G.E.M.  Anscombe. Oxford: Blackwell.

Part II

Lecture

Chapter 2

Immigration, Political Realities, and Philosophy Joseph H. Carens

Abstract  This essay is based on the 22nd Münster Lecture in Philosophy, held in November 2018. The essay addresses central ethical issues in the field of immigration: access to citizenship, the rights of irregular migrants, refugees, and open borders. Keywords  Citizenship · Ethics of immigration · Irregular migrants · Open borders · Refugees

Immigration is a hot political topic today in Europe and North America and indeed in other parts of the world as well. People often have strong views about immigration policies, views that are deeply connected to their political identities and indeed to their own sense of their interests. For the moment, however, I want to invite you to set aside any partisan political concerns you may have and indeed even to set aside, for a short time at least, your understanding of your own immediate interests. I want to ask you to reflect upon the ways in which immigration raises questions about our most fundamental moral values, about what we think is right and wrong, just and unjust. You may not agree with my views. In fact I suspect that most people will not. Certainly, no conventional politician, in Germany or North America, would embrace most of my ideas, and they would be kicked out of office if they did. But I hope, nevertheless, that you will experience what I say as challenging in a good sense – something that may provoke you but that also assists you to think about immigration at a deeper level than the one at which it is normally discussed in political debates. After all, that is what universities and scholarly research are for – to help us to think and reflect more deeply. I hope that this lecture will do that, whatever your own final views on the issue. In particular, I hope that it will lead you to discuss these topics with your friends and neighbours in the sort of open, candid way that can happen when democracies work well and people respect one another J. H. Carens (*) Department of Political Science, University of Toronto, Toronto, ON, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_2

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even when they disagree. And for the philosophers among my audience, I hope that the essay will offer a provocative model of one way to think about the relationship between theory and practice and will reveal why immigration is something worth thinking about from a philosophical perspective.

2.1  Four Presuppositions While I propose to set aside some of the constraints characteristic of public policy debates about immigration, I will not proceed in an entirely unconstrained manner. I develop my discussion in the context of four presuppositions. First, I am concerned primarily with immigration into the rich democratic states of Europe and North America. I leave open the question of the extent to which what I say about them applies to other states. I am not saying that it does not apply. In fact, I think much of it does. I also think, however, that showing that my arguments apply more broadly requires additional arguments that I do not have space to develop here. It is controversial enough to claim that I have principles that apply not only to North America but also to Europe. Second, I presuppose a commitment to democratic principles. What that entails depends on how the term “democratic principles” is interpreted, of course, and my interpretation can be contested, but I do not pretend that my arguments will have any purchase for those who reject democratic principles altogether. I should say, however, that I do not adopt this constraint because I am unwilling to engage intellectually with people who reject democratic values. After all, I teach Plato and Nietzsche and they are not liberal democrats. But one cannot talk about everything at once. To probe deeply into the relationship between immigration and democracy, one has to set aside for the moment questions that come from an anti-democratic perspective. I use the term ‘democratic principles’ in a very general, commonsensical way to refer to the broad moral commitments that undergird and justify contemporary political institutions and policies throughout North America and Europe – things like the ideas that all human beings are of equal moral worth, that disagreements should normally be resolved through the principle of majority rule, that we have a duty to respect the rights and freedoms of individuals, that legitimate government depends upon the consent of the governed, that all citizens should be equal under the law, that coercion should only be exercised in accordance with the rule of law, that people should not be subject to discrimination on the basis of characteristics like race, religion, or gender, that we should respect norms like fairness and reciprocity in our policies, and so on. These ideas can be interpreted in many different ways, and they can even conflict with one another. Nevertheless, on a wide range of topics, like the question of whether it is morally acceptable to force someone to convert from one religion to another, there is no serious disagreement among those who think of themselves as democrats. Many of the questions raised by immigration

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are interconnected, and I think that a commitment to democratic principles greatly constrains the kinds of answers we can offer to these questions. Third, for most of my discussion, I am simply going to assume that states normally have a moral right to exercise considerable discretionary control over immigration. I will call this the conventional view because it is the view that most people hold. Indeed, most people probably regard the truth of this view as more or less self-evident. Most of the normative claims that I advance in my essay qualify the conventional view but do not challenge it in a fundamental way. At the end of the essay, however, I will step back and offer just such a fundamental challenge to the conventional view. The fourth presupposition – perhaps it should be the first one – is that it makes sense to talk about immigration from a normative and philosophical perspective. Some people think that is an intellectual error. They think it is a mistake to talk about right and wrong, just and unjust when it comes to immigration. Immigration and citizenship should be seen as political issues, not moral ones, they say. Respect for state sovereignty and democratic self-determination preclude any moral assessments of a state’s immigration and citizenship policies. I have just said that I will simply presuppose that it does make sense to talk about the normative questions raised by immigration, but let me say a few words about why I think such an enterprise does make sense. To attempt to shield immigration and citizenship policies from moral scrutiny would be misguided in part because these are in fact topics about which we often have moral views. Consider some examples of past policies that almost everyone today would regard as unjust: the Chinese Exclusion Act of the late nineteenth century that barred people of Chinese descent from naturalization in the United States; the denaturalization policies adopted in the 1930s by many European states (including Germany’s Nuremberg Laws); Canadian and Australian policies of excluding potential immigrants on the basis of race. To criticize such policies as morally wrong does not entail a rejection of state sovereignty or democratic self-determination as some people seem to assume. We should distinguish the question of who ought to have the authority to determine a policy from the question of whether a given policy is morally acceptable. We can think that some individual or community has the moral right to make a decision and still think that the decision itself is morally wrong. Moral criticism of the Chinese Exclusion Act or the Nuremberg Laws or the White Australia Policy does not imply that some other state should have intervened to change those policies or that there should be an overarching authority to compel states to act morally. The claim that something is a human right or a moral obligation says nothing about how that right or obligation is to be enforced. In fact, in the world today where human rights have come to play an important role, most human rights claims are enforced by states against themselves. That is, states themselves are expected to (and often do) limit their own actions and policies in accordance with human rights norms that they recognize and respect. Indeed, the very idea of constitutional democracy is built upon the notion of self-limiting government, i.e., that states have the capacity to restrict the exercise of their power in accordance with their norms and values. That

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is the framework within which I pursue my discussion of immigration. I am trying to talk with other people about what we ought to do given the basic moral commitments that I assume we share. I am not trying to dictate anything to anyone. Given this background framework, I think it is helpful to divide the discussion of immigration into two broad issues: Who belongs? (i.e., questions about how to treat immigrants who are already present in a democratic society) and Who should get in? (i.e., questions about who should be admitted to a democratic political community).

2.2  Who Belongs? The question “who belongs?” raises a number of further questions. Under what terms should immigrants (and their descendants) have access to citizenship? What should the receiving society do to promote the social, economic and political inclusion of immigrants and their descendants beyond granting them legal citizenship and what should immigrants and their descendants do to be included? What legal rights should be enjoyed by people who are present but not yet citizens – permanent residents, temporary workers, even irregular migrants who have settled without the authorization of the state? I think that there is one principle – a principle often reflected in our practices – that ought to guide our answers to these questions. People who live in a society become members of that society over time, regardless of anything else, and their membership gives them a moral claim to certain sorts of legal rights and social recognition. A liberal democratic society must find ways to include all of those living within the society on an ongoing basis as full members of that society. If we turn to access to citizenship, this implies that children born to settled immigrants should get citizenship at birth as the children of citizens do. This is somewhat more controversial in Europe than it is in North America, but in fact a significant number of European states have changed their traditional policies about citizenship acquisition, largely in response to the sense that there was something problematic about limiting birthright citizenship to the children of citizens. Germany, or course, is one of the most important examples of such a change (even if some think it has not gone far enough). What the German experience with the descendants of Turkish guest workers shows is that there is simply no way for a modern democracy to justify excluding a significant portion of its permanent population from citizenship without violating fundamental democratic norms. In my view, access to citizenship for immigrants themselves (as distinct from their descendants) should be mainly a function of time lived within the society and should not depend – or at least not much – on passing tests or on evidence of acculturation. Thus, I regard making naturalization tests more demanding – policies that we now find in several democratic states – as moves in the wrong direction. Having legal status as citizens is not enough. Immigrants and their descendants are also entitled to expect that they will have equal access to social, economic, and

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political opportunities and that they will not be required to abandon their previous identities and commitments – the way they dress, the way they eat, the way they pray – to be accepted as full and equal members of the community. In public discussions of immigration, it is a recurring theme that immigrants and their descendants should accept democratic values and practice democratic virtues. Suitably qualified, that is a reasonable expectation. But an equally reasonable and perhaps more important expectation is that citizens who are not immigrants or the descendants of immigrants also accept democratic values and practice democratic virtues. All too often, the assumption seems to be that these citizens, who are always the majority of the population, already possess the values and virtues that are needed for a democracy to function properly. But that is often not the case. Democratic principles require the inclusion of immigrants, and the inclusion of immigrants requires all citizens to embrace the implications of the principles and values that they profess. This will often entail developing attitudes and dispositions that many citizens do not yet exhibit, at least in the requisite degree. People sometimes speak of the need for democratic states to engage in a more “muscular” assertion of their values and to demand adherence to those values from people living in their societies. If muscular assertion of democratic values is indeed what is called for, a lot more of the muscle should be directed at the non-immigrant majority of citizens than is commonly acknowledged. Turn now to the rights of legal residents. In most liberal democratic states, there used to be sharp differences between the legal rights of permanent residents and the legal rights of citizens, but in most cases those differences have been radically reduced over the past several decades so that now residents normally enjoy most of the legal rights that citizens enjoy, except for the right to vote, the right not to be deported, and, in some places and to some extent, the right to work in the public service. Still, there are some ongoing distinctions, and even some backsliding in the direction of increasing the distinctions. I think the general trend of reducing distinctions between the rights of residents and the rights of citizens has been a good one, indeed something required as a matter of justice, and I think that backsliding in this area should be resisted. Indeed, in my view, the few remaining distinctions, except for the right to vote, should be eliminated. Similarly, temporary workers should enjoy most of the rights of residents and citizens while they are present and being present on a temporary basis is something that should be of strictly limited duration. People who have lived in a society for a number of years should gain permanent resident status. This principle is acknowledged in European Union policies which, in this respect, are much closer to what justice requires than the policies of most liberal democratic states outside the EU. Finally, consider irregular migrants – my term for people who have settled without the state’s authorization, sometimes after arriving without authorization and sometimes overstaying or otherwise violating the terms under which they were legally admitted. What legal rights, if any, should irregular migrants have? Given my initial assumption of the state’s right to control immigration, it follows that states are morally entitled to deport irregular migrants if they apprehend them. Nevertheless, I want to claim that irregular migrants should enjoy most of the civil,

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economic, and social rights that other workers enjoy, and that states should normally create a firewall between the enforcement of immigration laws on the one had and the protection of the legal rights of irregular migrants on the other so that these rights can be really effective. Furthermore, I think that over time irregular migrants acquire a moral right to remain and to have their status regularized. Some may think it is puzzling to suggest that irregular migrants should have legal rights. Since they are violating the state’s law by settling and working without authorization, why should the state be obliged to grant them any legal rights at all? A moment’s reflection, however, makes us aware that irregular migrants are entitled to at least some legal rights. In the Middle Ages, people who committed crimes – sometimes even minor crimes like stealing a loaf of bread – were put entirely outside the protection of the law. That is where the term “outlaws” comes from. Anyone could do anything to them, even kill them. Modern democratic states do not make criminals into outlaws – people entirely outside the pale of the law’s protection. You cannot shoot someone because she does not have a visa or she crossed the border without permission. Irregular migrants are clearly entitled to the protection of their basic human rights. The right to security of one’s person and property is a good example. The police are supposed to protect even irregular migrants from being robbed and killed. The right to a fair trial and the right to emergency health care are other examples. So, irregular migrants do have legal rights. The problem is that they cannot exercise their legal rights effectively, even when their most basic human rights are at stake, because they are afraid that if they do, they will come to the attention of the immigration authorities and be deported. This is a serious problem. It makes no moral sense to provide people with purely formal legal rights under conditions that make it impossible for people to exercise those rights effectively. What is to be done? There is at least a partial solution to this problem. States can and should build a firewall between immigration law enforcement on the one hand and the protection of basic human rights on the other. We ought to establish as a firm legal principle that no information gathered by those responsible for protecting and realizing basic human rights can be used for immigration enforcement purposes. We ought to guarantee that people will be able to pursue their basic rights without exposing themselves to apprehension and deportation. For example, if irregular migrants are victims of a crime or witnesses to one, they should be able to go to the police, report the crime and serve as witnesses without fear that this will increase the chances of their being apprehended and deported by immigration officials. If they need emergency health care, they should be able to seek help without worrying that the hospital will disclose their identity to those responsible for enforcing immigration laws. Some people will object that this is impossible. You cannot expect or require state officials not to cooperate with one another in matters of law enforcement, they will say. But in fact, we do this all the time outside the area of immigration. For example, in the United States, you are legally required to report your income even if that income was itself obtained illegally. Will the tax officials inform on you to the police? No, they are in fact legally required not to do so, and if the police did get that

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information from the tax officials, they would not be allowed to use it in a legal prosecution. In other words, there is a firewall between enforcement of tax laws and enforcement of criminal laws. And there are many other examples of such firewalls in public and private life. So, the issue is not administrative feasibility but political will. We could and should create a firewall between protection of basic human rights and enforcement of immigration laws. The second claim I want to make about irregular migrants is that as time passes irregular migrants acquire a moral right to stay and to have their status regularized. The basic point is this: The longer one stays in a society, the stronger one’s claim to membership, even in the case of someone who has settled without authorization. When people settle in a country they form connections and attachments that generate strong moral claims over time. After a while, the conditions of admission become irrelevant. I know that some will be skeptical about this, so let me tell you the story of Marguerite Grimmond. This is a true story. Marguerite Grimmond was born in the United States but moved to Scotland with her mother as a young child. In 2007, at the age of 80, she left to go on a family vacation to Australia, her first excursion outside the United Kingdom since her arrival there as a child. On her trip, she used a newly acquired American passport. When she returned, immigration officials told Grimmond that she was not legally entitled to stay and had 4 weeks to leave the country. In effect, the officials saw her as an irregular migrant, because she had never established a legal right to reside in the UK during all her years there. And Grimmond clearly knew that she was not a British citizen because she had acquired an American passport for her trip. Once the story appeared in the newspapers – and it received international attention – Grimmond was allowed to remain. Whatever the legal technicalities of the case, the moral absurdity of forcing Grimmond to leave a place where she had lived so long, was evident to all (apart from a few bureaucrats in the immigration department). Even if she had been an irregular migrant, that clearly no longer mattered. Grimmond had a moral right to stay for at least two reasons: she had arrived at a very young age and she had stayed a very long time. Because Grimmond had arrived as a child, she was not responsible for the decision to settle in the United Kingdom. Being raised there made her a member of UK society, regardless of her legal status. Growing up in a society makes one a member of that society. That is true regardless of one’s immigration status. The years of childhood during which a child is educated and socialized more broadly are the most important ones in terms of one’s development, identity, and connections. It is morally wrong to force someone to leave the place where she was raised, where she has received her social formation, and where she has her most important human connections just because her parents brought her there without official authorization. Yet current legal rules in North America and Europe threaten many young people in just this way. The principle that irregular status becomes irrelevant over time is clearest for those who arrive as young children. But the second element in Grimmond’s case – the sheer length of time she had lived in the UK  – is also powerful. What if Grimmond had arrived in the UK at 20 rather than 2? Would anyone really think that

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this difference would make it acceptable to deport her, 60 years later? Grimmond’s case clearly illustrates that there is some period of time beyond which it is unreasonable to deport people who have settled without authorization. How long is too long? What if Grimmond had been 60 rather than 80? Would that have diminished her claim to stay? I assume not. What if she had been 40? The poignancy of the case certainly diminishes, but the underlying principle remains: there is something deeply wrong in forcing people to leave a place where they have lived for a long time. Most people form their deepest human connections where they live. It becomes home. Even if someone has arrived only as an adult, it seems cruel and inhumane to uproot a person who has spent 15 or 20 years as a contributing member of society in the name of enforcing immigration restrictions. The harm done to her is entirely out of proportion to the wrong of unauthorized entry and settlement. Normally we do not think of moving to America as a terrible prospect. But think about the fear and anxiety Grimmond must have felt, and then about the reality of irregular migrants, who can be and are deported even after very long periods of residence. Grimmond was lucky because her case attracted such public attention, and perhaps also because she was white and a native English speaker. Had her circumstances been different, the immigration bureaucracy might well have sent her “home.” Grimmond poses a particularly difficult challenge for those who would uphold at all costs the state’s right to deport irregular migrants, but her claims are not unique. Reasonable people can disagree about how long one must be present before acquiring a right to stay, but at some point the reality of belonging deserves more moral weight than the absence of official permission to be there.

2.3  Who Should Get In? I have been talking about the questions that arise under the heading “Who Belongs?” Let me turn now to the question of “Who Should Get In?” Even if one accepts the principle that states are normally morally entitled to exercise considerable discretion over admissions, most people committed to democratic values would agree that there are some constraints on what states may do and some obligations that they have with respect to admissions. For example, almost everybody who professes a commitment to democratic values would agree that discriminating in admission decisions on the basis of race or religion is unjust, and that is in part why those who want to discriminate usually try to pretend that is not what they are doing (as in Donald Trump’s Muslim ban which was redescribed as a ban on people from certain terrorist-producing states in an effort to justify it). As the old saying goes, hypocrisy is the tribute that vice pays to virtue. And even Donald Trump does not openly advocate racial discrimination in admissions, although, of course, that was a conscious and explicit policy in North America and in Australia well into the twentieth century. On the positive side, most people recognize that states have an obligation to admit immigrants in order to enable immediate family members (spouses and minor

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children) to live together or at least that states have an obligation to give family unification considerable weight as a reason for admissions.

2.3.1  Refugees The most controversial area of immigration admissions today has to do with refugees. What responsibilities do those of us who live in rich democratic states have to admit people who flee their home states? We have only to mention Syria, Iraq, Afghanistan, Bosnia, Sri Lanka, Rwanda, Congo and Darfur to evoke some of the recent cases that have caused millions of people to flee their homes in a desperate effort to find safety. Germany has admitted more refugees than most other European states. Has Germany done more than it was obliged to do in this area or perhaps not enough, despite its leadership role? Do those of us who live in rich democratic states have a responsibility to admit refugees who want to find a new home in one of our communities? Are we justified in refusing them entry? Even if we accept the conventional view about the state’s right to exercise discretionary control over immigration, everyone (or, again, I should say almost everyone) recognizes that refugees have a special claim. We have come to have this view in large part because of the way Jewish refugees fleeing the Nazis in the 1930s were treated. The Nazis were responsible for the persecution that led so many to try to flee, of course, but other states in Europe and North America kept most of these refugees out. In one famous case the United States and Canada actually turned away a boatload of Jewish refugees who had made it to North America. In many cases states prevented Jews from coming in the first place by denying them visas and putting other obstacles in their paths. And the reasons states gave for refusing to admit Jewish refugees were the same sorts of reasons that you hear today for refusing admittance to refugees – we’ve got our own problems, it’s too expensive, some of them may be subversives, etc. One prominent government official worried explicitly that Nazi saboteurs and spies might pretend to be refugees to gain entrance to the U.S.; others worried about their being communists. After World War II, most people in democratic states recognized that this exclusion of Jewish refugees had been a terrible moral failure and vowed never to let it happen again, and, of course, Germany made a special commitment to accept refugees as a kind of reparation for what the Nazis had done. So, an international refugee regime was created. It guarantees that people cannot be returned to a place where they will be subject to persecution. But now we are failing once again to provide refugees with the protection that they need. Rich democratic states have undermined the refugee regime with visa controls and carrier sanctions that make it difficult for refugees to make it to our shores. Here is an obvious point but one worth making explicitly: you cannot claim to have addressed the refugee problem if you set up a regime to protect refugees that you then prevent refugees from using. But that is precisely what we have done – at least with respect to many refugees.

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In addition to its inaccessibility, the current refugee regime is deeply inadequate in other ways, primarily because of the way it assigns responsibility for taking care of refugees. What do refugees need and who should provide it? At first all they need is a safe haven – some place where their lives will not be in danger and their basic human rights will be respected. For these purposes refugee camps make sense, so long as they are properly organized and supported. But it is not reasonable to expect people to live their entire lives in a refugee camp. Yet that is what we do today. Millions of refugees spend long years of their lives, sometimes their entire lifetimes, in camps with little or no education for the children, limited or no economic opportunities for the adults, and extreme physical danger, especially for women. This is not an acceptable way to treat people in desperate need. Refugees who cannot return home within a reasonable period need a new home, somewhere where they can live a normal life. Who should provide refugees with what they need? Well, it may be reasonable to expect neighboring states to provide the initial safe haven, at least so long as those states do not have to bear the financial costs of doing this in addition to the social dislocation that is inevitably entailed. But there is no reason to expect the neighboring states to provide refugees with a new home if that is what they need. That is a responsibility that ought to be shared by all states. And that is where we are failing today. Turkey has taken in millions of refugees. Lebanon, a country of only a few million people has taken in a million – almost a quarter of its population. Jordan has taken in millions as well. These states are not responsible for the fact that the people became refugees in the first place. It is simply not reasonable to expect them to be the only ones to provide the refugees with the new homes that they need. And we have failed terribly to meet this responsibility. Sometimes people say that taking in large numbers of refugees is just too much to ask of us. But several states, including the United States and Canada, did much better after the war in Vietnam, taking in large numbers of refugees. And Germany took in a million recently. There has been a backlash against those admissions, of course, but it is not plausible to say that the country could not manage such a large number. There are different ways to think about how the responsibility for resettling refugees should be shared. Obviously, the size of the existing population of a state is one important consideration, and there are many others. But whatever would be a fair way of sharing this responsibility, it is simply not plausible to claim that most rich states today are doing their fair share in this regard. And the question that we ought to be asking ourselves – but almost never do – is what do we imagine will happen to these people if we do not take them in? Why do we think it is acceptable to foist the responsibility off on the neighboring states, and to shut our eyes to the limited lives that so many people will face because we refuse to take them in?

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2.3.2  Open Borders Let me turn now to the really controversial part of my lecture. The previous arguments were moderate by comparison. Borders have guards and the guards have guns. This is an obvious fact of political life but one that is easily hidden from view – at least from the view of those of us who are citizens of affluent democracies. If we see the guards at all, we find them reassuring because we think of them as there to protect us rather than to keep us out. To Africans in small, leaky vessels seeking to avoid patrol boats while they cross the water to southern Europe, and to Mexicans willing to risk death from heat and exposure in the Arizona desert to evade the fences and border patrols, it is quite different. To these people, the borders, guards, and guns are all too apparent, their goal of exclusion all too real. What justifies the use of force against such people? Perhaps borders and guards can be justified as a way of keeping out terrorists, armed invaders, or criminals. But most of those trying to get in are not like that. They are ordinary, peaceful people, seeking only the opportunity to build decent, secure lives for themselves and their families. On what moral grounds can we deny entry to these sorts of people? What gives anyone the right to point guns at them? To many people the answer to this question will seem obvious. The power to admit or exclude non-citizens is inherent in sovereignty and essential for any political community that seeks to exercise self-determination. Every state has the legal and moral right to exercise control over admissions in pursuit of its own national interest and of the common good of the members of its community, even if that means denying entry to peaceful, needy foreigners. States may choose to be generous in admitting immigrants, but, in most cases at least, they are under no moral obligation to do so. I want to challenge that view – the conventional view. In principle, I will argue, borders should generally be open and people should normally be free to leave their country of origin and settle wherever they choose. This critique of exclusion has particular force with respect to restrictions on movement from developing states to rich states in Europe and North America, but it applies more generally. In many ways, citizenship in Western democracies is the modern equivalent of feudal class privilege – an inherited status that greatly enhances one’s life chances. To be born a citizen of a rich state in Europe or North America is like being born into the nobility in the Middle Ages (even though many of us belong to the lesser nobility). To be born a citizen of a poor country in Asia or Africa is like being born into the peasantry (even if there are a few rich peasants and some peasants manage to gain entry to the nobility). Like feudal birthright privileges, contemporary social arrangements not only grant great advantages on the basis of birth but also entrench these advantages by legally restricting mobility, making it extremely difficult for those born into a socially disadvantaged position to overcome that disadvantage, no matter how talented they are or how hard they work. Like feudal practices, these contemporary social arrangements are hard to justify when one thinks about them closely.

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Reformers in the late Middle Ages objected to the way feudalism restricted freedom, including the freedom of individuals to move from one place to another in search of a better life – a constraint that was crucial to the maintenance of the feudal system. Modern practices of state control over borders tie people to the land of their birth almost as effectively. Limiting entry to rich democratic states is a crucial mechanism for protecting a birthright privilege. If the feudal practices protecting birthright privileges were wrong, what justifies the modern ones? There are millions of people in poor states today who long for the freedom and economic opportunity they could find in Europe or North America. Many of them take great risks to come. If the borders were open, millions more would move. The exclusion of so many poor and desperate people seems hard to justify from a perspective that takes seriously the claims of all individuals to be regarded as free and equal moral persons. Some will object that open borders would be contrary to our interests – and perhaps they are right. But if we want to act ethically, we have to give reasons for our institutions and practices and those reasons must take a certain form. It is never enough to justify a set of social arrangements governing human beings to say that these arrangements are good for us, without regard for others, whoever the “us” may be. We have to appeal to principles and arguments that take everyone’s interests into account or that explain why the social arrangements are reasonable and fair to everyone who is subject to them. I have no illusions about the likelihood of rich states actually opening their borders. The primary motivation for my open borders argument is my sense that it is of vital importance to gain a critical perspective on the ways in which our collective choices are constrained, even when we cannot do anything to alter those constraints. Social institutions and practices may be deeply unjust and yet so firmly established that, for all practical purposes, they must be taken as background givens in deciding how to act in the world at a particular moment in time. For example, feudalism and slavery were unjust social arrangements that were deeply entrenched in places in the past. In those contexts, there was no real hope of transcending them in a foreseeable future. Yet criticism was still appropriate. Even if we have to take such arrangements as givens for purposes of immediate action in a particular context, we should not forget about our assessment of their fundamental character. Otherwise we wind up legitimating what should only be endured. Of course, most people in democratic states think that the institutions they inhabit have nothing in common with feudalism and slavery from a normative perspective. The social arrangements of democratic states, they suppose, are just – or nearly so. It is precisely that complacency that the open borders argument is intended to undermine. For I imagine (or at least hope) that in a century or two people will look back upon our world with bafflement or shock. Just as we wonder about the moral blindness of feudal aristocrats and Southern slave owners, future generations may ask themselves how democrats today could have possibly failed to see the deep injustice of a world so starkly divided between haves and have nots and why we felt so complacent about this division, so unwilling to do what we could to change it.

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The argument for open borders provides one way of bringing this deep injustice of the modern world into view. It is only a partial perspective, to be sure, because even if borders were open that would not address all of the underlying injustices that make people want to move. But it is a useful perspective because our responsibility for keeping people from immigrating is clear and direct whereas our responsibility for poverty and oppression elsewhere often is not as obvious, at least to many people. We have to use overt force to prevent people from moving. We need borders with barriers and guards with guns to keep out people whose only goal is to work hard to build a decent life for themselves and their children. And that is something we could change. At the least, we could let many more people in. Our refusal to do so is a choice we make, and it is one that keeps many of them from having a chance at a decent life.1

1  The text of this lecture draws heavily from Joseph H. Carens, The Ethics of Immigration (Oxford University Press 2013).

Part III

Living Together in Societies Shaped by Migration

Chapter 3

Preserving Culture? On the Moral Foundations of a Contested Political Aim Leonard Jeggle and Nicolas Vogt-Reimuth

Abstract  Culture and its preservation frequently motivate political action, yet whether this attribution of normative value is actually justified is highly contested. We outline three positions in this debate with regard to the concept of culture at play as well to as the dimension of normative value that is assigned to its preservation: monolithic preservationism, Heraclitean preservationism, and Heraclitean instrumental preservationism. Proceeding from his ‘Heraclitean’ concept of culture, Joseph Carens claims to argue for normative legitimacy of cultural preservation. However, the normative basis for his claim remains unstated: does he attribute intrinsic or instrumental value to cultural preservation? To justify certain policies that protect particular cultural institutions his arguments draw on the values of individual wellbeing and economic egalitarianism. We want to argue that the application of Carens’s view on further constellations requires him to clarify which kind of value cultural preservation is based upon. Keywords  Culture · Fiji · Intrinsic value · Joseph Carens · Legitimacy · Liberalism · Preservation Throughout European and other liberal states, the mutual interference of cultural and political matters is of vital importance and consequently informs the states’ policy design. The political constellations in Catalonia, Israel, Ireland and South Tyrol, to name but a few, are contexts that have attracted particular attention in this respect. Amongst them, the State of Israel can be assigned a special status, since it is, according to its basic law, defined as a “Jewish and democratic state” (Basic Law of Israel 1958), thereby officially promoting a particular culture. At first glance, the content of this legislation might appear self-explanatory, yet upon closer inspection it begs the question regarding its actual meaning and its consequences. Suppose you walk through the streets of Jerusalem and conduct a survey on views of (Jewish) L. Jeggle (*) · N. Vogt-Reimuth Philosophisches Seminar, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_3

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culture asking a variety of people with different familial ties and histories. Chances are that your encounters will yield conflicting demands and interpretations of the term ‘culture’. While some might celebrate the declaration of independence entrenching the Jewish character of the state of Israel, others will see a conflict arising between the institutional preservation of religious practices and democratic values. And yet others wonder whether they feel represented by and actually belong to a state founded on particularistic religious convictions. What can we learn from this hypothetical scenario? First and foremost, it will become apparent that the concept of culture is notoriously contested. Whether entangled with religion, whether outrightly charged politically or simply addressing practices that have been passed on from generation to generation, there is no clear-­ cut definition of ‘culture’ that is universally accepted and recognised. As a consequence, there is a wide range of positions about if, why and by which means states are entitled to protect or to promote certain (elements of) culture. Proceeding from this first approximation to the concept of culture, it does not come as a surprise that likewise (political) philosophers hold irreconcilable views when it comes to the issues at stake. Amidst the ongoing debates between liberals, liberal nationalists and communitarians, Joseph Carens introduces his theory of justice as evenhandedness and applies it to real world cases on the methodological basis of his contextual approach in Culture, Citizenship and Community (CCC, published in 2000). Throughout the book, but most explicitly in the last chapter “Democracy and Respect for Difference: The Case of Fiji”, Carens attempts to accommodate categories such as ‘culture’ and ‘history’ in the liberal framework by engaging thoroughly with moral evaluations of the political processes that have taken place on the pacific island over the past two centuries.1 In his recent book The Ethics of Immigration (EoI, published in 2013), Carens occasionally returns to the normative significance of culture. The fourth chapter “Beyond Legal Citizenship to Inclusion” is devoted to the subject matter and, towards the end of the book, he establishes a cultural caveat to his claim for open borders (EoI, 286). Although culture and its normative claims inform his argumentation, he does not elaborate on his concept of culture and the normative basis of its claims in this text. In a short footnote, Carens refers instead to his earlier book CCC for details and arguments of his view: “In the text I simply assume that democratic states are morally entitled to protect some aspects of public culture, but that is in fact my view. See Carens 2000” (EoI, 339). While this indication casually suggests that Carens regards CCC as a work of reference for his concept of culture, upon closer inspection it does not provide a systematic account of his position. As mentioned above, the case study of Fiji is Carens’s most comprehensive engagement with the role the preservation of culture 1  The paper had initially been published in: University of Michigan Journal of Law Reform Vol. 25, No. 3 & 4 (Spring/Summer 1992): 547–631. According to Carens, it had been prompted by Jeremy Waldron’s paper “Minority Cultures and the Cosmopolitan Alternative”, published in the same volume of the journal, that took a firm stance against communitarian attempts to consider ‘culture’ as a morally relevant category.

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plays in the normative analysis of politics in CCC. Detailed and rich in arguments, however, the case study leaves it to the reader to explicate the systematic basis of Carens’s position. In this paper, we attempt to structure the debate on the moral value of the preservation of culture by outlining three conceivable positions. Based on his Fiji chapter, we will then proceed to identify Carens’s position and discuss possible implications regarding the justification of government action. To elaborate on the topics and issues mentioned, a brief account of selected conceptual distinctions and terms will form the basis of the ensuing analysis. To illustrate our theoretical distinctions and to demonstrate the implications of the different positions in a real world context, we will then apply the concepts and principles in question to the case of Israel, that is, variations of the value attributed to the Jewish character of the Israeli state and its role for government action shall accompany us through the paper. We take Israel as our main example because the culture that is to be preserved in this case is not the culture of a vulnerable minority or an underprivileged class, but the dominant culture of the state. Here, the question of why cultures should receive protection is visible with special lucidity. Eventually, we will draw the discussion to a conclusion by outlining possible conceptual implications.

3.1  Conceptual Prerequisites In the follow-up of John Rawls’s influential theory of justice, the concept of neutrality has become a crucial topic of liberal theory. Many endorse the view that liberal states are supposed to have a neutral attitude towards different and, at times, incommensurable conceptions of a good life, but what does that actually imply? Notwithstanding a variety of takes that have proposed competing understandings of neutrality, there is a recurrent distinction widely regarded as meaningful which will thus serve our analytic purposes in this paper: the distinction between neutrality of effect and neutrality of justification. A government acts consistently with the principle of neutrality of effect if the consequences of its policies equally affect any societal group involved. Applied to the category of culture, any policy that puts different groups on an unequal footing on grounds of their cultural practices infringes upon the principle in question. Take the case of a state’s official language(s). If a state were to implement a language policy motivated by the principle of neutrality of effect, it would have to allow any societal group to have its distinctive language recognized as official language of the state. As a consequence, the state would be required to employ government officials speaking all the relevant languages and legal documents issued multilingually. In contrast, the principle calling for neutrality of justification focusses on a different aspect of policy design. Whether governmental conduct treats certain practices and institutions differentially is not of interest as long as it has been justified in (culturally) neutral terms in the first place. Many proponents of liberal political philosophy regard the enforcement of one or few official languages by states as legitimate for

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reasons of feasibility and stability, because the justification is neutral though the policy effects are not. In accordance with this consensus, from now on we will mainly consider neutrality of justification. Additionally, a second conceptual distinction that provides further insight for the ensuing analysis is the dimension of normative value. People attribute value to all kinds of entities and practices, yet they do so on different grounds. Some may regard x valuable for the sake of y, whereas others consider x as valuable in its own right. On the level of metaethics, these different kinds of value have been labelled ‘instrumental’ and ‘intrinsic’. Returning to the topic of state-backed languages, Israeli officials can argue in favour of Hebrew by referring to its utility in the public domain and school system, by stressing its importance for Jewish religious practices, or simply by valuing the preservation of Hebrew as official language. On a more general note, attributions of value guide individual and collective action. According to Scheffler, “[m]ost human beings have strong conservative impulses, in the sense that they have strong desires to preserve what they value, including what they value about past and present practices, forms of social organization, and ways of life” (Scheffler 2007, 106). Now, which normative and conceptual variables are relevant when states try to meet the expectations of its citizens with regard to their conservative impulses for their culture? Within the framework of this paper, we consider the variables of the concept of culture, dimension of value, significance of time and neutrality of justification. They will be further introduced and developed in the analysis to come. If we allow for the dimensions of value in particular to have a bearing on policy outcomes and therefore to make for a difference (which is in fact our view), they translate into three meaningful positions on the preservation of culture that we propose to label monolithic preservationism, Heraclitean preservationism and Heraclitean instrumental preservationism.

3.2  Positions on the Preservation of Culture The following positions on the preservation of culture are located in a field that emerges along the two axes of concept of culture and dimension of value. Each position includes a claim concerning the question whether preserving has an instrumental or an intrinsic value. Additionally, each position provides its understanding of ‘preserving culture’: is it about conserving culture as it is at a particular moment in time or is it about letting a culture evolve in a way that there is a continuous trajectory? The positions therefore necessarily differ in their underlying assumptions of the normative significance of time. As regards the Heraclitean positions, the normative judgment about cultural preservation is passed and thereby valid at a particular point in time, though it also refers to an imagined future. For the monolithic position, the validity of the normative judgment is more independent of the point in time at which it is passed. Proponents of this view can therefore also argue for efforts of restitution.

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3.2.1  Monolithic Preservationism The position termed monolithic preservationism views cultures as consisting of an essentialist set of traditional institutions and practices. It states that the preservation of culture is intrinsically valuable. Thus, the position can be summed up as: The fact that a culture x exists at time t1 gives reason to wish and take action so that at a later time t2 culture x is conserved unchanged. Therefore, it is a legitimate justification for government action to protect a culture by preserving and re-establishing its practices and institutions at all times.

This position relies on the assumption that there is a societal group that claims to be capable of recognizing and authenticating the essence of a culture. As Waldron puts it, “[t]o preserve a culture is often to take a favored ‘snapshot’ version of it, and insist that this version must persist at all costs, in its defined purity, irrespective of the surrounding social, economic and political circumstances” (Waldron 1995, 788). Most academic discourse regards this position as untenable. Nevertheless, it is an often-used background assumption in current public discourse. Sticking to Waldron’s imagery, current right-wing European populists claim to be the photographers of their nation’s authentic culture, consequently also deciding on the question of who is allowed to get in the picture. If applied to the example of Israel, a defender of monolithic preservationism might assert that there is an essential set of beliefs, traditional institutions and practices that form authentic Jewish culture including a Jewish state of Israel and that its intrinsic value gives reason to preserve and restore this Jewish state. A version of this position informs the political views of the Haredim population in Israel.

3.2.2  Heraclitean Preservationism The position entitled Heraclitean preservationism views cultures as heterogeneous, contested and changing in the course of time.2 The preservation of culture therefore implies letting a culture evolve in a way that allows for a continuous trajectory and for the basic character and values of a culture to be conserved. It states that the preservation of culture is intrinsically valuable, that is: The fact that certain people practice culture x at time t1 gives reason to wish and take action so that at a later time t2 culture x is maintained in its character. The preservation of cultural institutions or practices can therefore be a legitimate justification for government action.

This position can be further differentiated with regard to the reasons for the attribution of intrinsic value to the preservation of a culture and whether a claim for cultural neutrality is made. On a formal level, the scenario looks as follows: culture 2  The term “Heraclitean” in regard to concepts of culture was coined by Samuel Scheffler in reference to the phrase “πάντα ῥεῖ (panta rhei)” by Heraclitus of Ephesus (Scheffler 2007).

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x exists at time t1 and culture y does not. At a later time t2 either culture x’ still exists (i.e. a changed, but in its character unaltered version of x) or a new culture y’ has emerged. The alternative of no culture at t2 is not taken into consideration. One possible path (variant A) is to state that the intrinsic value rests on the content of the culture that is to be preserved. The claim for preservation therefore only applies to certain cultures that qualify as “worth preserving” and is therefore not compatible with cultural neutrality of justification. However, in another variant (B) the intrinsic value of the preserved culture at time t2 rests on the fact that this culture exists at time t1 and is independent of the cultural content. That means even without any knowledge of the content of x, x’ and y’, prima facie we would prefer the existence of x over y at t2, because at t1 there was x but no y. The claim for preservation in variant B is therefore justified in a culturally neutral way, since no analysis of the cultural content is necessary to state the claim. Preferring pre-existing cultures to the ones that may come into existence in a possible future constitutes a form of conservatism. A basic assumption about the world that can inform this position is that the probability of a substantially changed culture to prove less valuable than the pre-existing one may be significantly higher than vice versa. While being formally neutral to cultural content, this assumption must include the concept of a normative hierarchy of cultures as a necessary fundament and information about the superior cultural content of y’ could change the judgement. Another basic anthropological assumption that may lead to variant B states that disruptive change is undesirable and therefore x’ is preferable to y at t2, even though they may be equally worthy on their own. Here no cultural hierarchy must be assumed. David Miller may be an advocate of this particular version. If applied to the context of Israel, a defender of Heraclitean preservationism might assert that Jewish culture is pluralistic and evolving and that the preservation of its character has intrinsic value. The political agenda of promoting and preserving this character of Jewish culture in Israel is what the term ‘Jewish state’ should stand for. A variant of this position might be represented by a majority of non-orthodox Jewish Israeli citizens.

3.2.3  Heraclitean Instrumental Preservationism The position entitled Heraclitean instrumental preservationism views cultures as heterogeneous, contested and changing in the course of time. It states that the preservation of culture is not intrinsically valuable. However, it is possible (and in many cases plausibly true) that the means to preserve culture serve some other moral ends. Thus, the position can be formally put as: The mere fact that culture x is practiced at time t1 does not give reason to hope that it is still practiced at a later time t2. The preservation of cultural institutions or practices can therefore not be a legitimate justification for government action in itself but only as means to promote other intrinsic values.

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Table 3.1  Positions on the preservation of culture Culture/value Monolithic

Heraclitean

Intrinsic Monolithic Preservationism Heraclitean Preservationism Value of preservation  (A) Dependent on or  (B) Independent of Cultural content

Instrumental Position not relevant

Heraclitean instrumental Preservationism

If applied within the context of Israel, a defender of Heraclitean instrumental preservationism might assert that the term Jewish state should only be understood as a description of the status quo, which is characterized by a Jewish majority in the Israeli population and a subsequent predominance of Jewish culture. This mere fact should not give reason to promote or preserve Jewish culture in Israel. Government actions that in effect do preserve Jewish culture can only be justified as means to promote other intrinsic values like democracy or the safety of Jewish people. A version of this position might be represented by parts of the liberal non-religious population of Israel (Table 3.1). Now that we are equipped with the positions of cultural preservationism as well as with the conceptual differentiations of neutrality and value, we will proceed by analysing Joseph Carens’s standpoint in regard to culture and its role for normative aspects of politics.

3.3  Carens’s Concept of Culture As one of the main advocates of the “Canadian school of multiculturalism” (Kymlicka 2014, 19), Carens shares the widely accepted concept of culture which Samuel Scheffler calls “Heraclitean Pluralism” (Scheffler 2007, 105). Carens himself describes cultures as “pluralistic, evolving, open-ended” (CCC, 15). He distinguishes national culture, ethnic culture, moral culture and political culture depending on the unifying attribute of the group the culture is designated to and depending on the context culture is considered in. According to him, culture is constitutive for individual identity and fundamental for individual wellbeing and social functioning. Carens’s position on the role culture can play in the legitimation of political action is less obvious. In Culture, Citizenship and Community, the chapter about Fiji in particular, deals with the role of culture as legitimation for political action, that is, in his own words, “the chapter […] is devoted to a defence of two policies deliberately aimed at preserving Fijian culture” (CCC, 202). The two cultural institutions in Fiji that Carens refers to are the collective ownership of land that is embedded in the constitution as unmodifiable (inalienable and communal land rights) and the establishment of a separate Fijian administration run by local chiefs of the

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community equipped with special political powers (chiefly authority). We will analyse his arguments for these policies in detail later in this paper (see Sect. 3.4). We will first try to locate Carens on the spectrum of positions on the preservation of culture presented earlier in this paper. Given that Carens is not using the terminology of this paper, there is no explicit reference to his position by Carens himself. As explicated above he unambiguously represents a concept of Heraclitean culture, thereby disqualifying as a candidate for monolithic preservationism. Thus, it remains to identify Carens as Heraclitean preservationist or instrumental preservationist, depending on the kind of value he assigns to culture. There are a couple of passages that we think can be marked as first indicators of his position. Amongst others, he is convinced that “culture and history do matter in the sense of legitimating institutions and practices” (CCC, 222). In a similar vein, he not only outlines that “[i]n Fiji, the project has been not merely to recognize Fijian culture but to preserve and protect it against the corrosive effects of liberal values and institutions” (CCC, 222) but also states a few lines later that he “will argue instead that these measures of cultural preservation were compatible with evenhanded justice” (CCC, 223), that is, compatible with his own account. Consequently, while these quotes do not yet establish the argument we propose, we think that a natural understanding of these quotes is that Carens attributes an intrinsic value to the preservation of culture under certain conditions: why else should he speak about preserving culture as the distinctive property of certain policies? That, in turn, leaves a first impression of Carens as Heraclitean preservationist.3

3.4  The Case of Fiji We will now put Carens’s arguments for the legitimacy of inalienable land rights and chiefly authority in Fiji under scrutiny and see if these potentially account for the position of Heraclitean preservationism.

3.4.1  Legitimacy of Inalienable Land Rights in Fiji Carens defends the Fijian land policy which gives the land rights to collective Fijian units and prohibits land sale. While they do have a right to rent land, Indo-Fijians and non-Fijians are thereby denied the opportunity to own land. This policy was 3  In accordance with our identification of Carens as Heraclitean preservationist, Samuel Scheffler as proponent of Heraclitean instrumental preservationism articulates objections to what he perceives as Carens’s theoretical concepts regarding the preservation of culture: “Nor, as Joe Carens has persuaded me, would I wish to reject all of the policies that have been implemented in Canada under the heading of “multiculturalism” or “cultural rights,” even though I am skeptical about the way those policies have been conceptualized and justified” (Scheffler 2007, 118).

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introduced by the first British governor of Fiji Arthur Gordon to secure the inalienability of Fijian land by designating the matagali as authentic land-owning unit during colonial times (CCC, 204). In the 1940s, this policy was expanded by the establishment of a Native Land Trust Board to facilitate collective Fijan control over the land and remained in charge up until the 1990s (CCC, 207). As a consequence, it is not possible for any Fijian to withdraw from her community by claiming individual shares of the common estate. Compared to Western societies where the freedom to own and sell property is regarded as a fundamental individual right, inalienable land rights are a severe intervention in personal freedom that require justification. Carens is aware of this and offers three main arguments in defence of this policy. His first argument considers the historical situation and states that the land policy protected the Fijian people from the threat of colonial exploitation. The argument takes the historical context as given (particularly the unjust colonial practices), limiting alternative options. It gains its normative strength from the value of the individual wellbeing of the historical Fijian people and their descendants. His second argument considers the economic situation in Fiji in the 1990s, the time of the publication of CCC. The Indo-Fijians, whose descendants immigrated to the island between 1879 and 1916 as work force for the British, have gained a dominant position in the trade sector and white-collar jobs. The Fijian population, while still representing the majority, has acted economically less successful but owns all the land. The inalienable land rights protect this distribution of land and Carens defends them on the grounds that they thereby counterbalance the Indo-Fijian dominance in the trade sector and white-collar jobs. His second argument therefore gains its normative power from the ideal of economic equality. The third argument is the most interesting for our case regarding the preservation of culture as possible normative power. It states that “Fijians today are entitled to treat their land as vital interest because of the role it plays in their culture” (CCC, 229) (further referred to as argument 3). It is not unreasonable to understand that claim, at first sight, in the following way: Fijians should have a privilege regarding land in order to have the possibility to preserve a certain aspect of their culture, namely that there is a strong attachment towards land. This reading is at least suggested by the fact that Carens repeatedly mentions preserving culture as the central issue of the chapter. However, a closer look at its context makes a different reading more plausible. A few lines before the statement of argument 3, Carens argues: “What people regard as important is, in some respects at least, contingent and variable. But if they see something as important, we should take it seriously if we wish to take them seriously” (CCC, 228). He continues by outlining that “[f]or the Indo-Fijians, as far as I can tell, the concern with regard to the land is an economic interest rather than a cultural one. I do not mean to suggest that this economic interest is less vital. lt may be more vital in some contexts” (CCC, 229). Thus, what Carens means when he states argument 3 is that the analysis of Fijian culture helps us to understand the exact content of the collective Fijian interests regarding land. But the normative force of this argument rests on the interests of the Fijian people. These are culturally

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founded, but nonetheless it is the interests we give normative weight to and not the preservation of the culture per se. For Carens the land policy is therefore a means to protect the vital interests of the majority of the Fijian people by facilitating collective action and preventing disruptive individual behavior. According to that reading, preserving the attachment is not at all valuable, neither as an intrinsic nor as an instrumental good. The argument merely claims that as long as Fijians have an attachment, they have a special claim to land, and as soon as they lose their attachment, we no longer have reason to give them a privilege. Taken together, none of these three arguments establishes the legitimacy of cultural preservation per se. Instead they argue for certain cultural institutions as means to other ends, i.e. egalitarianism and individual interests. We will now turn to the second cultural institution, the Great Council of Chiefs.

3.4.2  Legitimacy of Chiefly Authority in Fiji The separate administration run by and thereby privileging the chiefs lays claim to being a central part of traditional Fijian culture and according to Carens has justified itself as a means of protection against European colonizers in order to preserve traditional values and the Fijian way of life (CCC, 232). It is important to distinguish between two roles chiefly authority will play in our analysis. On the one hand it is a cultural institution, which may be subject to preservation efforts. On the other hand the chiefs have used their authority to preserve Fijian culture, e.g. by means of their veto power in the Senate they can make sure that only laws sensible to Fijian culture will be implemented and by means of their moral authority they motivate the people to live in accordance to traditional culture. They can therefore be conceived as policymakers that are subject to questions of justification. In a first step, Carens approaches chiefly authority as cultural institution and, engaging with its critics (e.g. Stephanie Lawson), develops a set of necessary criteria a cultural practice has to meet so that its preservation can be a justification for government action. These criteria can be categorised as: authenticity, defined as what the majority of a community regards as traditional; minimal moral standards, including the non-violation of certain human rights; and minimal democratic standards. Carens claims that the cultural institution of chiefly authority in Fiji meets these necessary conditions. Thus far, Carens has argued solely against the accusations of the critics, that is, developed his arguments ex negativo. Yet, what are the conditions of sufficiency for the justification of chiefly authority? Upon providing positive arguments in favour of the institution of chiefly authority aimed towards fulfilling the requirement of sufficiency, he switches emphasis on the role chiefly authority plays as policy. Carens celebrates aspects of the Fijian culture stating that Fijian communalism seems to offer “an admirable alternative to the possessive individualism of liberal capitalism” (CCC, 244). It is the separate administration of the chiefs that guarantees the continuation of Fijian communalism, e.g. by protecting the inalienable land

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rights of Fijian communal units, and therefore justifies the preservation of chiefly authority for Carens. Taken together, Carens discusses chiefly authority as both cultural institution and policy. While he characterises it mainly as authentic cultural institution, his arguments for its preservation aim at its role as policy. They put emphasis on the function of the chiefs rather than the content. Because he does not make this switch explicit, yet again we find the ambiguity of Carens’s wording to sound like a preservationist, while in fact his arguments only account for an instrumental preservationist position. This is because Carens does not differentiate between the intrinsic and instrumental value of the preservation of culture, although this distinction makes a difference for the justification of government action.

3.4.3  The Moral Value of the Preservation of Culture This becomes clear when we take a second look at the example of the Jewish state Israel. If the preservation of a Jewish state of Israel were of intrinsic value, the normative claim could only be met by the preservation of the Jewish character of the state of Israel. Other normative claims that conflict with this preservation, like the claim for equal citizenship for non-Jewish residents in Israel, can only override this normative value by the attribution of greater value to them or vice versa. If the preservation of a Jewish state of Israel were of instrumental value, e.g. as a means to preserve a safe place for Jewish people or to preserve democracy in Israel, it could possibly be replaced by other, less intrusive means, when confronted with conflicting claims without overriding the underlying value. In his book A Cultural Defense of Nation, Liav Orgad articulates the same point in a more general way: “This distinction has implications. If culture is only a means to promote civic or economic ends, states must try to find less intrusive ways to achieve them. Restrictions [on the policy level] can only be justified to the extent they promote these ends. Culture can be a means, or an end in itself (cultural preservation)” (Orgad 2015, 161). In light of this relevance of the distinction of intrinsic and instrumental value, we will now analyse the consequences of Carens’s justification of government action with regard to either dimension of value. Suppose, first, that Carens would opt for the instrumental value of cultural preservation. Now, given we are concerned with moral values, the preservation of an unjust cultural institution to pursue them is inappropriate. If Carens is concerned with economic egalitarianism and respect for the individual interests of the people, the enforcement of inalienable land rights and the institution of chiefly authority can hardly be considered the least intrusive means to realise these moral values, at least in the post-colonial era. Therefore, if Carens still wanted to argue that these means were the least intrusive ones available, then he would have to provide a lot more detailed prognostic information in order to justify this assumption. Consider the impact on the lives of the Indo-Fijians and other parts of the population. From their point of view, they have no choice but to accept the privileged role of the Great

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Council of Chiefs because the socialist ethos of indigenous Fijian communalism does not apply to them. In this respect, chiefly authority and its role in the preservation of Fijian culture clearly falls short of basic democratic standards. Suppose, then, that Carens would opt for the intrinsic value of cultural preservation. The preservation of the fundamental role land plays for the Fijians and the communitarian organisation of the Fijian society would be intrinsically valuable and coercive state policies like the inalienable land rights and chiefly authority would therefore be appropriate means to promote these cultural institutions. If he were to opt for this path, Carens would have to clarify his reasons (e.g. cultural content or conservatism) for the attribution of intrinsic value to the preservation of culture. This adoption of intrinsic value of cultural preservation would also have implications for Carens’s ethics of immigration. Considered in a just world, a commitment to the intrinsic value of cultural preservation would challenge the claim for open borders as the preservation of culture would be a reason to impose constraints on immigration policies. Let us return once again to the example of a Jewish state of Israel to illustrate this point, however this time in a just world, that is, a world without meaningful economic differences and with effective human rights. Even though there would be no need for a safe haven for the Jewish people of the world or for a fortress for democracy in the Middle East in a just world, the preservation of the Jewish culture and its connection to the Holy Land would give reason to exclude non-Jews from entering the country and to justify other policies to protect the Jewish character of the State of Israel. Carens explicitly discusses cultural preservation in a just world in EoI and is willing to put a constraint to his central claim for open borders in the form of a cultural caveat. From his point of view, this caveat is comparable to the public order constraint. Just like a threat to the public order of a state justifies constraints to open borders, so does a threat to national culture. It is important to highlight that both caveats are established independent of each other. If Carens were to assign instrumental value to cultural preservation, the applicability of the cultural caveat would depend on serving different purposes (i.e. protecting democracy, the public order, ect.). If this were the case, the cultural caveat would only apply in contexts where there is much more at stake than merely a threat to national culture. In his conception, Carens assumes low levels of migration in a just world and therefore regards the cultural caveat as rarely relevant, but he is basically willing to accept constraints to the fundamental right of free movement. On the level of principle, the concession of an independent cultural caveat can be regarded as an attempt to declare his ethics of immigration compatible with cultural preservationism.

3.5  Conclusion Putting the normative weight of the preservation of culture at the centre of investigation, in the preceding analysis we have structured and discussed the field of (academic) discourse on the legitimacy of cultural preservation as justification for

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government action. Joseph Carens’s position in this field is equivocal. While his wording seems to locate him in the theoretical framework that we characterized as Heraclitean preservationism, his arguments for the preservation of certain cultural institutions mainly do not back this position. In response to Carens’s indifference about the dimension of value the preservation of culture is attributed, we have further demonstrated the practical implication of the different accounts to this value for the normative judgement of concrete policies. Consequently, the application of Carens’s view on further constellations requires him to clarify which kind of value cultural preservation is based upon.

References Basic Laws of Israel. (1958, February 20). The Knesset § 7A. Sefer Ha-Chukkim No, 244 of the 30th Shevat. 5718. Carens, Joseph H. 2000. Culture, Citizenship, and Community. A Contextual Exploration of Justice as Evenhandedness. (= CCC). ———. 2015. The Ethics of Immigration. Oxford: Oxford University Press. (= EoI). Kymlicka, Will. 2014. The Essentialist Critique of Multiculturalism: Theories, Policies, Ethos. Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2014/59. Orgad, Liav. 2015. The Cultural Defense of Nations. In A Liberal Theory of Majority Rights. Oxford/New York: Oxford University Press. Scheffler, Samuel. 2007. Immigration and the Significance of culture. Philosophy and Public Affairs 35 (2): 93–125. Waldron, Jeremy. 1995. Minority Rights and the Cosmopolitan Alternative. University of Michigan Journal of Law Reform 25 (4).

Chapter 4

Limits of Tolerance. A Theory of Prohibiting Cultural and Religious Practices Illustrated by the Example of Muslim Minorities Luca Güttner, Marcel Heying, and Evelyn Irina Kulthida Luangyosluachakul

Abstract  In multicultural societies the question, whether the state should tolerate religious practices that affect others, is difficult to answer. In Culture, Citizenship and Community Joseph Carens scrutinizes the limits of tolerance towards the practice of circumcision and the wearing of certain symbols – two issues of constant attention in public discussions. In this paper we, firstly, want to show that Carens’s conception of tolerance towards the ritual circumcision of boys is based on contestable presuppositions that paint a picture of circumcision as a religious practice comparable to many others. Instead, circumcision should be seen as a form of harm or violence that should not be performed on essentially non-consenting minors. Secondly, we address the issue of wearing religious symbols, using the example of wearing the hijab. Extending Carens’s view leads us to a method that could be used to decide whether a state should allow the wearing of certain symbols or prohibit them to suppress certain radical elements within society. Keywords  Circumcision · Culture · Harm · Hijab · Religion · Tolerance · Violence

Many religious practices directly affect the life of people who do not actively consent to participate in those practices. Sometimes the affected persons are members or future members of a religious group, and sometimes they are just non-members. Certainly, in general religious practices should be tolerated in a liberal democratic state. However, some cases raise the question whether the state should not tolerate

L. Güttner (*) · M. Heying · E. I. K. Luangyosluachakul Philosophisches Seminar, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected]; [email protected]; [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_4

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certain practices, or (in other words) the question about limits of tolerance. Examples for this can be found in cases of circumcision, religiously motivated wife beating, religious fasts, or prohibiting children from going to public schools for religious reasons. The present paper approaches the question of limits of tolerance via an examination of the 6th chapter “The Limitations of Liberal Toleration” in Joseph Carens’s Culture, Citizenship and Community (CCC), a chapter that is focused around Muslim minorities in contemporary democracies. Carens discusses several issues there, most notably polygamy, gender equality in Islam, wife-beating, circumcision and traditional religious clothing. Neither can nor do we want to discuss all of them here. Therefore, we want to focus on the topics of, on the one hand, wife-beating and circumcision, and, on the other hand, traditional religious clothing. It is needless to say that we believe that all religions should be measured by equal standards. When we mainly refer to Islam here, this is due to Carens’s own focus; we aim at principles that are also valid for other contexts. Let us briefly explain what we mean by “limits of tolerance of a liberal-­democratic state”. Our argumentation will rest on assumptions common in a liberal democratic setting, like assumptions concerning the role of autonomy and equality – we do not presuppose any special theory of democracy, but we will refer to an overlapping consensus of what belongs to normative standards of liberal democracies. When we talk about “the limits of tolerance”, these limits could take various forms; e.g. they might be based on a consensus about ethical principles of how to treat one another in society that could then become laws or general guidelines for social interactions. To tolerate a certain practice as a state entails “neutrality, objectivity, or fairness” (Fiala 2019) as well as “the conditional acceptance of or non-interference with beliefs, actions or practices that one considers to be wrong but still ‘tolerable’, such that they should not be prohibited or constrained” (Forst 2017) in general. Liberal-­ democratic states are trying to set their limits of toleration as broad as ethically justifiable to give their citizens as much autonomy as possible and so each state has to decide whether certain practices are to be tolerated or to be prohibited. But the state also needs to restrict individual autonomy in some cases in order to protect its citizens and their rights. We are therefore trying to find general principles for a liberal-­democratic state that would reasonably justify the prohibition of certain harmful practices. Our paper has a twofold structure. The first part deals with circumcision. In order to examine this issue, we draw an analogy between circumcision and wife-beating: While we do essentially agree with Carens that wife-beating is unjustifiable we also believe that evaluating circumcision by means of the same criteria he applied in the wife beating case he should have come to the conclusion that male infant circumcision is unjustifiable as well. However, Carens does not seem to apply the same criteria and thus comes to a different conclusion. We want to show that circumcision and wife-beating are similar enough to be evaluated by means of the same criteria. Since we have further disagreements regarding male circumcision, we will discuss this topic in greater detail first. The second part addresses the topic of traditional religious clothing or, more specifically, the hijab. We aim at extending Carens’s

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arguments to a general method that could be used to justify banning symbols associated with different groups in different contexts and thus provide a mechanism to establish justifiable limits of tolerance.

4.1  Circumcision 4.1.1  Carens’s View on Circumcision In the subchapter “Circumcision” Carens writes mostly about female circumcision and the great harm connected to it. He reaches the conclusion that female circumcision should not be tolerated (see CCC, 147). We agree with this conclusion. When discussing male circumcision (CCC, 148–149), however, Carens holds the position that the minor harm caused by that intervention can be outweighed by the meaning attached to the practice by the parents and the community to which they belong and of which the child will become a member (see CCC, 149). For our discussion, the following quote is crucial: The conventional view seems to be that the minor pain and small risk associated with the practice are outweighed by the meaning attached to it by the child’s parents and the cultural and religious community to which they belong and which the child will therefore join. I think that is a reasonable view. Physical wellbeing is essential but it is not the only human interest. (CCC, 149)

Thus, Carens describes the conventional view as the idea of the harm caused by circumcision outweighed by the meaning attached to it. He judges this idea to be plausible and views physical well-being as an essential human interest, but not as the most valuable one that needs to be protected at all costs. Now let us turn shortly to Carens’s discussion of the wife-beating case. Carens condemns the practices of wife beating, and rightly so. Interestingly, in the course of the discussion he justifies his judgment in the following way: As I noted above, protection of physical security is a core task of any liberal democratic government. Cultural and religious commitments cannot provide a ground for exemptions from the general prohibitions on violence, including domestic violence. (CCC, 154)

Here Carens explicitly mentions religious and cultural commitments and the impossibility for them to function as an acceptable basis for exemptions on the prohibition of violence. Hence, it seems that in the case of circumcision, Carens uses the exact same way of reasoning that he condemns in the case of wife-beating: whilst in the first case, physical harm is weighed against the value of fulfilling religious commitments, in the second case, physical harm must not be charged against the fulfillment of a religious commitment. Thus, though there are many differences between male circumcision and wife-beating, Carens’s statements at first sight seem contradictory and so we have to examine them in more detail. As we see it the different evaluation of circumcision and wife-beating can a) be based on a difference between the religious and cultural commitments attached to

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wife beating and the meaning attached to circumcision or b) be based on a difference between the harm and violence involved. To clarify the limits of tolerance here we want to show two things: First (Sect. 4.1.2) that religious or cultural significance alone is not sufficient to evaluate the two cases differently and second (Sects. 4.1.3, 4.1.4, and 4.1.5) that there are good reasons to view circumcision and wife-beating as cases of violence and not as mere harm, if religious and cultural commitments cannot serve as justifications for violence (as the wife-beating-quote suggests). So, the reasonable conclusion would be to not accept arguments resulting from religious and cultural commitments as valid when arguing against the general prohibition of violence, and view both cases as instances of unjustified violence.

4.1.2  A  Difference Between “the Attached Meaning” Versus “Religious/Cultural Commitment”? The first question we should ask is what exactly “the meaning attached to it” is in the case of circumcision, if not the result of religious and cultural commitments? In fact, if we consider traditional Jewish positions, the act of circumcision symbolizes a covenant with god and is, therefore, a serious religious commitment of the child decided on by the parents. Its meaning is dependent on the commitment itself and one usually does not commit to something, without attaching some sort of meaning to it first. The two terms are therefore codependent. Therefore, if the difference is not between the terms “cultural and religious commitment” and “the meaning attached to it”, maybe there is a difference if we apply the concept behind the two terms to the practices of circumcision and wife-beating. If we return to the wife-beating-quote it seems to be clear that Carens absolutely rejects the idea of religious and cultural commitments as possible justificatory grounds for acts of violence, but why then talk about its connection (or the lack thereof) to Muslim faith? As we understand Carens, both through his texts and through discussions in person, his goal seems to be to show that wife-beating is neither exclusively nor strongly linked with Islam. That is a fair point and one that seems reasonable, but we can still talk about the two quotes on a principle level and discuss the role religious and cultural commitments can play when evaluating the two cases. Carens’s main point when writing about wife beating is to refute (convincingly, as we think) the common misconception of wife-beating as an acceptable practice in Muslim societies, but he cannot dispute the fact that at least some Muslim communities practice wife-beating in some forms, because they hold it as the religious right (or even duty) of a man to physically punish his wife, if she does something that is not in accordance with their lifestyle and values. In fact, Carens himself admits to disagreements among Muslim scholars about what the religious rights and duties of wife and husband actually are (see CCC, 153). From this perspective, it

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seems difficult to argue that wife-beating cannot have at least a similar cultural significance in comparison to circumcision in some Muslim communities. It is of course necessary to read and interpret the respective religious texts or refer to scholars who do so, in order to understand how central certain practices and beliefs are to a religious or cultural group, but it would be one-sided to do so without considering the lifestyle and the values members of this group actually uphold in their everyday lives. So Carens’s approach to this issue is problematic, because he only cites Qur’an scholars to support his argument against viewing wife-beating as a common Muslim practice and takes their analysis of the religious text as a sufficient reason to deny that wife beating is deeply tied to the Islamic faith, although admitting to some controversies. His method here is to solve this issue on a theoretical level, while when it comes to circumcision he does not seem to be interested in whether this practice can be linked to passages in (or interpretations of) the Qur’an and therefore be said to be a deep religious commitment. In the latter case he seems to take the religious significance for granted and thus sufficient to highlight the importance of allowing people to “maintain rituals and practices that have deep importance in a community” (CCC, 149), whereas he casts all of these factors aside when evaluating wife-beating. To make this last point more crucial: if it is enough for Carens to look at the Qur’an to determine if wife-beating is justified by Islamic faith in order to play down the religious significance of the practice, then his stance on the religious significance of circumcision becomes problematic, because there is no passage in the Qur’an proclaiming circumcision to be an important religious practice for Muslims (see Schmid 2017, 36f.). Being circumcised is not a prerequisite to become a fully accepted Muslim. We can therefore not see why the meaning attached to circumcision should be regarded as deeper or as more important than the meaning attached to wife-beating. In other words: both practices can be significant in this way, which is why it would be inconsistent to regard this significance to be a justifying factor in the case of circumcision, but not in the case of wife-beating. Further clarification is necessary to explain why it is justified to treat the two cases differently if problems of coherence are to be avoided.

4.1.3  Violence Versus Harm Since Carens talks about “violence” (CCC, 154) in the wife-beating-quote and about “harm” (CCC, 149) shortly after the circumcision-quote one could suggest that while Carens sees an absolute limit on the legitimizing capabilities of religious and cultural commitments on violence, harm is a different topic and here religious and cultural commitments can indeed be used to justify harmful acts. This reading is reasonable if we take into account that a medical procedure is not a violent, but merely a harmful act that is justified if the patient agrees to it, or one can make a reasonable case that the patient would agree if he/she could – think of coma patients who cannot consent to anything. This coma scenario is helpful in

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understanding our decision making, because if a person cannot consent to a certain procedure at the moment, we may have to make a decision for them. If the patient could consent before he fell into a coma state, this situation is easily resolved, but not helpful for our decision making in connection with the child that could never consent before (because it lacks the ability in general). More helpful is the situation of a patient who fell into a coma unexpectedly, because now decisions have to be made without prior consent of the patient, just as we have to make decisions for children without their consent and under such a setup, we normally take actions that are meant to be in the best interest of the patient/child. One could object that there is an important difference between the adult coma patient and the newborn child, because adults have an established identity formed in large part by the choices they made for themselves in the course of their life. Even if we cannot communicate with this person we can infer from his biography what his position regarding certain things and practices (as for example circumcision) might be, whereas a child has no meaningful biography in comparison. This is true, but although it might be justified to look at someone’s biography to determine what kind of medical treatment would be in his best interest, it seems unreasonable to justify treatments or operations that are entirely optional and not necessary from a medical point of view in this way. Even if the coma patient was a religious Muslim or Jew and this could be seen in past decisions, it still would not be enough to justify circumcising him during his non-consensual state, even if this would be of great religious significance to the patient’s relatives or his community as long as we do not exactly know their stance on circumcision. The mere connection to a cultural or religious community gives us no basis to declare certain procedures as “in their best interest” and if this is true for adults that cannot consent, it should be true for children that cannot consent as well, especially if we cannot possibly know a child’s position on circumcision. The reasonableness of Carens’s position rests on the intuition that no one would want to be a victim of violence but may accept a certain amount of harm if the benefit is big enough. Think again about the analogy with a medical procedure: If we cannot show that a procedure is indeed in the best interest of the patient from a medical perspective, religious and cultural commitments are not able to justify the performance of the procedure in question. So, if religious and cultural commitments cannot give acceptable reasons to act out a harmful procedure and the patient did not consent to the procedure, it is not allowed to be performed – this is true for almost all procedures except circumcision. Preventing religious and cultural commitments from legitimizing acts of violence allows us to deal with wife-beating in an adequate way, but also entails that circumcision is either an act of violence, or an act of justified harm for other reasons than religious and cultural ones. Another possibility is to accept reasons based on religious and cultural commitments when discussing circumcision, which would possibly make the practice tolerable, but might legitimize some other forms of violence as well.

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It may be that Carens sees the degree or quality of harm that circumcision and wife-beating involve as the deciding factor to evaluate them differently. Thus, we want to examine the severity of harm in the next subchapter.

4.1.4  Violence and Harm: A Matter of Severity? Circumcision and wife-beating involve physical harm done to another human being in varying degrees depending on a lot of different factors (e.g.: skill of the circumciser, recklessness of the husband, etc.). When it comes to ritual circumcision of males, Carens holds that the practice is permissible because it only causes “minor pain and small risk” (CCC, 149) to the circumcised boy. We believe that this assumption is unreasonable and not supported by recent medical studies, which is why we want to present an empirical argument to support our stance on this subject. A recent paper published by the AMA Journal of Ethics (Svoboda 2017) seems to indicate that the circumcision, at least of a male child, causes more physical and emotional harm than commonly thought. This paper evaluated a variety of studies investigating the physical and emotional effects a circumcision has on male persons and reached the conclusion that the following effects (can) occur: • • • •

severe physical distress (pain) emotional traumata inferiority complexes diminished sexual sensation

In, admittedly, rare cases serious complications can occur resulting in life-­ threatening conditions for the child. For example, in 2012 a court in Cologne (Germany) had to decide whether a Muslim doctor was guilty of committing battery because he performed a circumcision (as requested by the parents) on a four-year-­ old boy who started bleeding severely after two days because of this operation. There are other known cases in which a boy’s penis was injured badly (see Slobodkin 2009) or was removed either fully or partially by accident (see New Haven Register 2005), further indicating that the practice can be very harmful. Since circumcisions rarely provide an actual medical benefit for a healthy child (see Putzke et al. 2008, 785–787 for more information) and the procedure potentially causes a lot of harm, Svoboda concludes that performing a ritual circumcision constitutes a violation of the Hippocratic Oath, because the purpose of this oath is to prevent doctors from causing unnecessary harm with no medical benefit for their patients. Due to this evidence our conclusion is that Carens underestimates the amount of harm done via circumcision. Relative to this, the descriptions “minor pain” and “small risk” (CCC, 149) are not adequate. Let us examine further what Carens says about circumcision and harm: His main point seems to be that female circumcisions cause an immense amount of pain and suffering and involve the removal of functioning sexual organs of

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women. Because of this and because the practice does not bear as much cultural or religious significance as is commonly associated with male infant circumcision, all forms of female circumcision should be forbidden as they are forms of genital mutilation. We acknowledge the fact that female circumcision is causing much more harm on a global scale but we want to point out that even though female circumcision is plausibly connected to more bodily and psychological harm, it is definitely wrong to believe that male circumcision is not a severe intervention. While we do not disagree with Carens’s conclusion when it comes to female circumcision, we rather want to demonstrate that his method for evaluating male and female circumcision lacks coherence. Let us now return to wife-beating: In the case of wife-beating Carens does not explicitly say anything about (degrees of) physical harm which leads us to think that he regards the practice as impermissible, no matter how much harm is inflicted. But why is that? Since wife-beating is not a one-time event (like a circumcision) but rather a recurring practice in a relationship that puts the victim in a permanent state of emotional distress, one explanation could be that for Carens the degree of harm present in wife-beating is much higher and has an altogether different quality than the harm caused by a circumcision. Although this is a reasonable assumption, it is still a difficult task to compare different kinds of harm with each other, given that even a well-executed circumcision can have long lasting effects ranging from traumata to the loss of parts of the penis, as already mentioned. Accordingly, it is not plausible to assume that being circumcised cannot be very harmful, and thus bad, for the child even if a victim of methodical domestic abuse is even worse off. We discussed degrees of harm and cultural significance as important factors for Carens’s evaluation of wife-beating and circumcision and showed how they do not provide sufficient reasons to categorize wife-beating as clear-cut violence and male circumcision as mere harm. Therefore, Carens should either regard both of them as acts of violence or both as acts of harm that can be justified in some cases. Yet, another question arises: Are there other relevant factors of violence not explicitly mentioned by Carens? Two possible candidates could be harmful intentions and missing consent, which we want to discuss next.

4.1.5  Violence and Harm: A Matter of Intentions? Prima facie it seems clear that a husband who beats his wife has the intention to harm her in the process, whereas parents who have their child circumcised rarely have an intention of this nature. They think the child will obtain a great benefit by becoming a fully accepted member of their community after the circumcision and also by setting the child on the right track to live a life in accordance with their conception of a good life. This is likely to be true in most cases. Still, it is not hard to imagine a husband who thinks he is doing something good for his wife when he punishes her for disregarding the values of their community or faith. Although he is surely misguided

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and, from a perspective external to their community of faith, acts wrongly, judged from his personal/subjective perspective the husband cannot be said to have harmful intentions. But most commonly, wife-beating seems to be motivated by the intention to hurt and punish, whereas parents usually have their children circumcised because they think this is what enables their child to live a good life. Even if Carens reasonably assumes that wife-beatings are intentionally harmful for the most part whereas circumcisions are not (and this is a reason for him to label wife-beating as violent) it is problematic that Carens does not mention cases of wife-beating that lack harmful intentions and which should thus be treated specially.

4.1.6  Violence and Harm: A Matter of Consent? Although Carens does not mention the aspect of consent in any way in the two chapters we analyze here, we assume that Carens’s use of the term “wife-beating” to describe domestic violence is meant to indicate that he is talking about non-­ consensual harm. His position on this subject would raise the follow up question whether he would condemn consensual harm a husband might inflict on his wife (think about BDSM relationships) just as much as non-consensual harm without any further argument. What about circumcision? The obvious difference between wife-beating and circumcision is that the wife chooses not to consent to being beaten whereas the child does not have the ability to consent to being circumcised because it cannot comprehend the concept of circumcision or its long-term effects. Since the child cannot decide whether he wants to be circumcised or not this decision is passed over to the parents who have to evaluate if a circumcision is in the child’s best interest (see Putzke et al. 2008, 785). Carens does not say anything to the effect that the parents have to consider the child’s best interest when it comes to this decision. The reason for the admissibility of infant circumcision Carens gives is a weighing between the values of bodily integrity and freedom of religion where he comes to the conclusion that the harm done is minor compared to the great cultural significance of the practice and the physical well-being of the child is not per se more valuable than other human interests (see CCC, 149). Some interpreters of the German law come to a different conclusion regarding circumcision, because, according to German law, every decision the parents make on behalf of their child has to improve (or at least not harm) the child’s well-being (see Putzke et al. 2008, 787). Acting according to certain rites is not a valid way to improve a child’s well-being if the child is harmed in the process. Putzke’s legal interpretation of male circumcision yields the result that the well-being of the child is not improved by undergoing a harmful medical operation with the risk of possible complications and without any medical benefit and therefore not in the best interest of the child. He concludes that the parents are not authorized to give consent to a circumcision on behalf of their child in such cases.

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Because the majority of Muslim communities perform circumcisions when boys are already a couple of years old they should at least be asked whether they want to be circumcised or not and informed about what will happen to them. This view is supported by a ruling from a court in Hamm (Germany) from 2013 (see Rathgeber 2018). Although a six-year-old boy might not fully understand what a circumcision is or what it means, it seems wrong to give no weight to his opinion in this matter.

4.1.7  Conclusion According to the criteria for violence we have presented here Carens is right in calling wife-beating an act of violence, because most cases of wife-beating not only include physical harm, but also an intention to hurt or punish and a neglect for the wife’s consent on the side of the husband. Thus, wife-beating fulfills all the criteria for violence and should be labeled accordingly. Carens’s claim that religious or cultural commitments cannot provide exemptions in these cases is also plausible. Evaluating circumcision brings a different result, because even if both practices involve various degrees of harm there remain two criteria which are not matched when looking at the standard case of male child circumcision in the Western world. Most parents have no intention to hurt their child when they decide to have it circumcised and it would be inaccurate to say that they do not care about their child’s consent, because an infant does not have the ability to consent to such a procedure. However, the parents are under the obligation to act in their child’s best interest and a ritual circumcision, as far as the parents can judge at the time of the possible circumcision, will do more harm than good to a child. In our opinion, Carens does not give adequate weight to the physical well-being of the circumcised child and he gives no convincing reasons as to why being circumcised is actually in the best interest of the child. Instead, Carens weighs the two values of bodily integrity and cultural/religious significance against each other and recognizes bodily integrity as an important value, but not as one that always trumps the other. It may very well be that a ritual circumcision is of great religious value to the family and community of the circumcised child, but why would this justify that the child has to suffer (sometimes quite severely) to produce this value? The reasoning behind the legal interpretation we have presented here seems more reasonable. When talking about a case of wife-beating it would be absurd to say that being beaten is actually good for the wife, because she contributes to some religious or cultural tradition (remember the case of the beating husband with good intentions acting out of religious commitments). The question arises why it should be considered good for the child if it is circumcised with the aim that the parents can fulfill their religious commitments or be a part of something that is of great religious significance to some people – Carens explicitly writes that it is the meaning the parents attach to circumcision that justifies tolerating physical harm of the child. The parent’s right to religious freedom is important and valuable, but first and foremost they have a duty towards their child and his well-being. This sentiment seems to lie

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behind recent judgements in legal cases here in Germany. We already mentioned Cologne 2012 where a court ruled that performing a ritual circumcision constitutes battery, because the parents are not allowed to consent to their children being harmed without any real benefit for the child. It also ruled that fear of possible social isolation of their child is not a convincing argument (see Putzke 2012). We agree with Putzke, because being circumcised is not a prerequisite to become a Muslim, but rather a matter of custom. It is unlikely for a Muslim family living in a Western democracy to be ostracized by their community just because their boys are not circumcised. Some boys might experience social stigma by their peers, but, firstly, it would be unreasonable to allow a practice that constitutes a necessary source of severe harm to children (i.e. circumcision) to diminish the effect of a possible source of harm (i.e. bullying, social stigma) to children and secondly, over time the social stigma of being an uncircumcised Muslim would vanish entirely if religiously motivated circumcisions of children were made illegal and Muslim boys were not circumcised without consent anymore (Putzke et al. 2008, 788). There are two other objections to Carens’s line of argumentation that we would like to raise. First, the practice of ritual circumcision is the only practice that involves cutting off a healthy piece of tissue from a child’s body without any medical necessity or benefit. So, circumcisions are the only exception to the rule that a child’s bodily integrity is worth protecting and only to be harmed if it is absolutely necessary. Why should we allow an exception based on a reasoning we would reject in all other cases where somebody intends to harm a child without it being necessary to secure the child’s well-being? In our opinion, the reasoning behind the court’s decision in the circumcision cases from 2012 (Cologne) and 2014 (Hamm) to not accept the parent’s fear of social isolation and social stigma if their child was not circumcised as valid reasons is convincing, because some parents may want to have cosmetic surgeries performed on their children to avoid exactly that and we do not accept that as a good reason. Whether these procedures would actually be beneficial to the child’s well-being in the long run is very uncertain. Second, when Carens talks about female circumcision he acknowledges alternative methods of circumcision that are much less harmful and severe than the most common forms of female circumcision. Apparently, he thinks highly of this attempt to make the traditions more compatible with Western values. Rather than subscribing to a conventional view on circumcision we would like Carens to consider alternative methods of male circumcision and advocate these in a similar way to alternative forms of female circumcision. There is a good compromise to be reached here, since “many Israelis are considering this idea” (Ahituv 2012). In this first part of our paper we have argued that Carens gives no ultimately convincing reasons to accept the religious or cultural significance or meaning attached to a harmful practice as a justifying factor. We pointed out issues of coherence concerning the arguments he presents and the criteria he applies and aimed to show how he misjudges the negative effects a circumcision can have on a child. As Carens himself puts it: “it is proper for the state to restrict or prohibit cultural and religious practices that cause serious harm to children” (CCC, 147). Ritual child circumcision is such a practice.

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However, we think that taking violence as the limit of tolerance is fully reasonable. That is why we want to explore this limit further in the second part of our paper, in which we want to look at possible connections between (religious) symbols and violence.

4.2  Hijab and Other Symbols 4.2.1  Carens’s View on Religious Symbols in the Public Carens refers to the controversy over the traditional Islamic headscarf or hijab, called L’Affaire des Foulards, sparked on September 18th, 1989, when three female students were suspended for refusing to remove their hijabs in class at Gabriel Havez Middle School in France. Considering this situation, Carens explains the differences between the French and Anglo-Saxon political tradition and cultural context, regarding the freedom of religious expression. While the American state would never control the norms of society, France has a tradition of a strong state and an expansive public sphere. According to Carens, this kind of controversy is unlikely to take place in Britain, America or Canada, because the Anglo-Saxon community aims at religious freedom and for the recognition of religious communities. In France, however, some politicians claimed that the wearing of the hijab in classes in public establishments such as primary and secondary schools could be a threat to the laïcité or French secularism, which is the foundation of the 1905 law of separation of church and state, in which a state declares itself to be neutral on matters of religious belief. Nevertheless, Carens criticizes this claim as inconsistent, because he regards the hijab as a religious symbol, not different from other religious symbols, like a Christian cross, and then points out to the fact that wearing a Christian cross at public schools in France is still legitimate. If a religious symbol like a Christian cross is legally accepted in French schools, so other religious symbols like a hijab should also be allowed. Carens, however, disregards the challenging position that a secular state should ban all religious symbols from public schools. He states that the laïcité in France could still be maintained under the condition that the state would allow all religious symbols equally. He suggests that the state should sometimes take a hands-off approach to culture and religion, which means that the state must respect individual choice and not interfere with personal religious practices (CCC, 157). In November 1989, the French Conseil d’État ruled that the religious expression of wearing the hijab was compatible with the laïcité of public schools. Carens argues that the hijab cannot be treated in the same way as other symbols like Nazi insignia or gang colours, which should be prohibited due to their symbolic association with violence. In comparison to other non-religious symbols, Carens seems to grant a “special status” to the hijab due to its religious meaning, but at the same time, he also accepts that a religious symbol like the hijab could also have various meanings in different contexts. Considering the anti-colonial positions, the

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hijab is sometimes used as a political means to express a rejection of Western values. Even without any political goals, the hijab has a deep and long-standing religious significance within Islam. Wearing the hijab is also (and probably dominantly) a way for French Muslim girls and women to guard their identity. Anyway, some feminist groups, as well as some human rights advocacy groups consider that the wearing of a hijab symbolizes a woman’s submission to men. According to Carens, the hijab is mainly a religious symbol and should be tolerated in general on the grounds of religious freedom. We agree with his conclusion about tolerating the hijab in the public sphere, but we see no need to limit the scope of the discussion to religious symbols exclusively. We think that religious symbols like the hijab and non-religious symbols should all be considered in a consistent manner. In the following chapter we will propose our method for determining which symbols should be tolerated in the public in general.

4.2.2  T  owards a General Theory of Religious and Non-­Religious Symbols in the Public Sphere We agree with Carens that the state must respect individual choices and expressions of religious beliefs and we agree with the view of Conseil d’État that the wearing of religious symbols should not be prohibited, as long as these symbols do not promote violence or public unrest. However, aiming at avoiding the discrimination of specific symbols, we will try to embed the question of Islamic symbols in a more general theory of limitations of tolerance. Instead of focusing on specific Islamic clothing like the hijab, we will consider all symbols equally. Our method is to generalize religious symbols and other non-religious symbols and consider them all as objects with possible attached meanings. Mari Womack defines symbols as “a means of complex communication that often can have multiple levels of meaning” (Womack 2005, 1). The generalization of religious and non-religious symbols manifests that all symbols carry meaning that depends on the cultural contexts. Thus, the meaning of a symbol is not inherent to the symbol itself, but is later attached by a specific purpose of the user. In this paper we will mainly focus on group symbols, expressing the ideologies of these groups. To illustrate this, we will compare the hijab with other religious symbols, like the Christian cross, Star of David, Kippah, and non-religious symbols, like gang colours and Nazi insignia. As Carens mentions, the hijab can be used to express religious affiliations, political resistance against Western values or might even be interpreted as the subordination of women within Islam. All of these interpretations are possible, depending on the contexts in the society and the aims of the wearers. The hijab as an object is a headscarf. It only obtains meaning when it is used by someone to mean something, i.e. when it is used as a symbol to represent a religious or political idea, for example. The meaning of any symbol must be accepted by a certain group of people or the general population to count as a symbol since a symbol always

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symbolizes something to someone. Because all symbols can be interpreted in many ways by people from different backgrounds, there should be no exclusive or pre-­ established meaning for one symbol. The hijab may normally be accepted as representing Islamic tradition, but if the wearer has other intents, in this case the hijab can also be interpreted according to such intents. If hijabs are worn by religious believers to express their commitment to Islam (which is normally the case), they are a religious symbol. If the hijab is worn by a group of social activists to represent their anti-Western sentiment, then in this case it may not purely be a religious symbol, but likely a political tool as well. If the hijab is used as a tool to promote a certain idea by a group, then it may become a symbol that represents the ideology of that specific group. It is obvious that if the hijab is worn only because of a religious commitment, a liberal democratic state should tolerate this practice on the grounds of religious freedom. The question arises, whether it should also be tolerated when the hijab is worn with other intents. We will not set the limit of tolerance only at religious motivation, because all possible meanings should be tolerated in the liberal democratic state. Forcing one meaning on a specific symbol requires conformity in interpretation, which contradicts liberal democratic principles. Carens writes about the state and moral conformity in the issue about Islam and gender equality: Liberal democratic principles entail a deep commitment to freedom of religion, of conscience, of thought, and of opinion. For that reason, a liberal democratic state cannot require intellectual or moral conformity, not even to its own ideals, although the state may legitimately try to inculcate key elements of the public democratic culture through the educational system and may establish a legal order that reflects its basic principles. (CCC, 145)

From this we can infer that even if the hijabs are not directly tied to religious commitment, the liberal democratic state should tolerate other intents at least in general, like the political use of hijabs by the anti-colonial positions, since otherwise the prohibition would impede the freedom of thought. Should the liberal democratic state tolerate all symbols? Our answer is no, because we believe that it is plausible to set the limits of tolerance at violence. When Carens argues that a liberal democratic state cannot require intellectual or moral conformity, it cannot mean that the state has no right to defend itself against violence-promoting communities, if they are a threat to public peace and the well-being of other citizens. On the grounds that the state has a right to ban symbols, if these symbols are used as a tool to promote acts of violence. After setting the limits of tolerance we can now move back to the main question, arisen from L’Affaire des Foulards: Could the wearing of hijab in public schools lead to violence? According to a statement of the Wissenschaftliche Dienste des Deutschen Bundestages (Department of Science of Germany), schools have a mission to provide for the integration of children into a multicultural society, in which most cultural practices should be tolerated to ensure individual freedom of its citizens (see Wissenschaftliche Dienste 2017, 11). One of the functions of the school system is to introduce schoolchildren to the recognition of diversity at an early age. This includes combating prejudices against others by familiarizing them with different

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perspectives. Children from both majority and minority groups should be encouraged to see themselves as equal in the classroom and later as fully accepted members of the state. Muslim girls in Western societies are an example for a vulnerable minority group in schools. In France, there are some claims that “wearing the hijab in school is a political provocation and a threat or at least a form of undue pressure against Muslim girls who do not wear it” (CCC, 158). We do not agree with such a  claim, because we see that a possible threat and the potential undue pressure against Muslim girls are actually rooted in prejudices and misunderstandings about Islamic doctrines. In school, children should learn to accept different perspectives and various ways of religious practices, for example in this case, according to the Qur’an, it is not obligatory for Muslim girls to wear hijabs. Some Muslimas may choose to wear it, while others may not. We can also conclude that the hijab, as a religious symbol, is not likely to lead to any violent conflicts, because there is no correlation at all between wearing a hijab at school and violence (Landtag NRW 2018, 2). We believe that the correlation between a symbol and violence is a key to justify coercive norms about wearing symbols. Before answering the question of how to determine whether a specific symbol should be prohibited or not, we want to clarify the term “correlation” as a relation between a specific symbol and violent acts or ideologies. Simply wearing or presenting a symbol, which could unfortunately lead to violence, is not what we want to capture with the notion of correlation here. Let us consider an example for this exclusion: If a Jewish man wearing a kippah happens to be attacked by neo-Nazis, his kippah is in a sense connected to violence. And if many Jews are repeatedly attacked that way, there is a statistical correlation between wearing the kippah and the existence of violence, although in this case the actual cause of violence is the anti-Semitic ideology of the attackers. However, when we talk about correlation in this paper, we define it only as a correlation between wearing a certain symbol and the wearer having a bias to act violently, or at least, having a conviction that appraises violence. Therefore, the statistical correlation in the case of the Jew wearing a kippah is not relevant to our definition here. To speak of a correlation it is necessary that a group identifies itself with a specific symbol and makes it represent their violent attitudes or to promote violent actions. To illustrate this point we want to present it in a more formal way: There is a correlation between a specific symbol and violence, which could justify the prohibition of the symbol, if and only if (1) a certain group identifies itself with a specific symbol and (2) this group has a significant bias to violent acts or significantly shows an appraisal of violence. To clarify our understanding of correlation, we discuss two examples. The first example refers to some schools in Los Angeles that have banned the wearing of colors associated with gangs (see CCC, 158). In this case the ban can be justified by correlating violence with the activities of the gangs, because the gangs use specific colors to mark their members and distinguish themselves from other gangs. Gang wars cause tremendous harm to society as a whole (for example, by shootouts on the streets and hitting innocent bystanders). It is in this sense bound to the locality of the

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gang involved and it would be unjustifiable, if the gang was not active in a certain region. The second example is how after the terrorist attack on the evening of July, 14th 2016 in Nice, authorities banned the wearing of burkinis in several French towns. One local mayor described the ban as “necessary, appropriate and proportionate to protect the population” (Quinn 2016) and to prevent public disorder after a succession of jihadi attacks in France. In this case the given grounds are insufficient to morally justify the contested ban, because there is no correlation between the burkini and terrorist attacks besides the superficial association with Islamic communities. Evidently, there is no correlation between the burkini and violence, only a predominant stereotype and the fear that Muslim immigrants bring crime and terror. Comparing these two situations we can see that for the first situation in Los Angeles a correlation between a symbol (gang colors) and violence is obviously traceable, whereas for the second situation in Nice there is no sufficient reason to associate the threat of terrorist attacks (violence) with a specific symbol like the burkini. While the gang colors are intentionally utilized by a specific group of people that commits acts of violence, the burkini is not a symbol connected to a specific violent group and the religious significance attached to the garment also makes it require more considerations. To prevent acts of terror, therefore, it would be more reasonable to ban other symbols associated with the perpetrators of these acts, like the Islamic State flag, photos of IS fighters, or, regarding the pragmatics of this case, to control the rental system of cargo trucks more strictly.

4.2.3  A  Three-Step Conception of Tolerance Towards Religious and Non-Religious Symbols in the Public Sphere In the final part we will determine under which circumstances a specific symbol should be allowed or prohibited. Based on our understanding of symbols and the correlation between specific symbols and violence, we see three possible cases. The first case is “no correlation – no ban”. The legal situation in Nice is our example for this case. The superficial association and negative stereotypes cannot be considered as a correlation between wearing the burkini and terrorist attacks. Thus, if there is no correlation between a specific symbol and violence, there is no reason for the state to advance against the groups by banning their symbols and thereby suppressing them. Other religious clothing like the hijab is similar to this example. According to the statement made by the Landtag NRW (Federal state government of North Rhine-Westphalia), there is no case that involves wearing the hijab in German public schools and violence (Landtag NRW 2018, 2); therefore, there are no sufficient grounds to justify a ban of wearing the hijab at schools. One may argue that minors are not able to make a decision themselves and are “forced” by their parents to wear the hijabs, but in all other contexts, the state does not interfere when parents “force” their children to wear any clothing, hairstyle or other symbols. As we set the limits

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of tolerance at violence, we see no harm and/or violence from wearing the hijab. Instead, it could benefit the children by strengthening their communal identity. Hence, a ban would neither benefit Muslim girls nor the rest of society. This case is therefore different from child circumcision, which harms the circumcised child as mentioned earlier. Hijab and burkini are simply garments, which the wearer can freely choose to wear. The second case is “local correlation  – local ban”. This local correlation is a contingent relation, which exists in a specific place and time. The correlation between a specific symbol and violence can be detected by harmful activities of a specific group. The prohibition of gang colours and symbols in Los Angeles schools is an example for this case. If a schoolchild in Alberta (Canada) happens to wear a headband of the same colors worn by one LA gang, the former does not represent the criminal activities of the American gangs, because the context is different. Even if the headband was given by a relative in Los Angeles, who is actually a member of a gang, the ban in Canadian schools would still be unjustifiable, because as long as there is no active group in Alberta, these gang colours do not potentially cause any violence or public unrest. This headband may still carry its meaning as a representation of criminal activities of the American gang, but this local correlation cannot be extended to other areas, in which there is no active group to cause violence. The attached meanings of most symbols are also contingent, which should not be banned generally. In St. Denis (suburb of Paris) the wearing of hijab is perceived as a symbol of sympathy with Islamic fundamentalism by some French intellectuals: “The fundamentalists see female separation from and subordination to males as an essential element in their project and thus view Muslim girls as a particularly important target for their efforts and public indicator of their success or failure” (CCC, 158). However, we see that the current situation in St. Denis does not call for a ban of the hijab from French public schools, because there is still no obvious evidence, correlating wearing the hijab with violence or terror. To indicate this, let us imagine a fictional scenario, in which a group of Islamic fundamentalists living in a liberal democratic state wants to govern themselves under the Sharia law, and this local para-state evidently enforces the local girls and women to wear the hijab against their will. This fictional group may use the hijab as a symbol to promote violent attitudes and may attack girls and women without the hijab. People generally have the right to wear what they want, but the hijab is then used as a tool to cause violence (by strictly enforcing the Sharia law) and public unrest (due to resistance from those, who do not wish to wear the hijab). In this case local hijab enforcement must be prohibited by the state, because the only way to prevent these fundamentalists from forcing local girls and women to wear the hijabs is to have this practice banned. This, however, raises an important question: Does the banning of hijab in the affected region infringe religious freedom of those who want to wear the hijab for religious reasons? As discussed above we accept that one and the same object is interpreted differently as a symbol by different groups. The hijab in St. Denis could still be religious clothing and at the same time a political challenge to French liberal

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democracy. In the fictional scenario of hijab enforcement some groups of Muslim girls in the local area may voluntarily wear the hijabs from their religious commitment, while others may be forced to wear the hijabs against their will. How to protect the right of those who do not want to wear the hijabs in public establishments, but not to violate the freedom of religious practices? To answer this question we would amend that the local ban should be only in secular public establishments like in schools, banks and district courts. Muslim girls and women can still wear a hijab in the mosques and conventionally exercise their religious practices. One may still argue that some girls and women believe that the wearing of hijab in all public facilities is necessary for their religious practice (not only in religious places, but in all public domains). They will take it off only at home, which is the private sphere. In this scenario we must weigh the importance of individual freedom (of those who are forced to wear the hijab against their will) against the importance of religious freedom (of those who want to express their religious belief by wearing the hijab in all public establishments). Our answer is that it would be more acceptable if one temporarily loses an option of religious practices under specific circumstance than if one is forced to do something against her will. For this case, we see that when one option of religious practices is temporarily not available due to specific reason, it does not mean that there is no religious freedom, because other options of practicing religious belief are still available. When the Turkish migrant workers arrived in Germany after the end of the Second World War, there was no mosque in their arriving country. They could still practice their religious belief by using Christian churches like the Cologne cathedral as a place for performing their salah. Muslim girls and women in the possible affected area of de facto hijab enforcement may not be allowed to wear the hijab in some secular public establishments (on the grounds of protecting individual freedom of all local citizens), but they can practice their religious belief in other available forms, like wearing the hijab in the mosque during the prayer. The decreasing of religious freedom is only in the form of unavailable choice due to critical circumstance, not the complete infringement of religious freedom. The local correlation between wearing the hijab and violence could, therefore, justify the prohibition in the affected region. The ban should be, however, only temporary, until the state could properly deal with the fundamentalist groups and there are efficient security measures. Let us now consider another type of traditional Islamic clothing like burqa and niqab. Burqa and niqab are worn around the world by girls and women in some Islamic traditions to cover the whole body and face. If we regard the hijab as a religious symbol, which should be tolerated in general, we should treat the burqa and niqab equally. The only difference is that burqa and niqab cover the wearer’s entire face except for a small region around the eyes, which as a result conceals the wearer’s identity. In 2015 some African countries like Cameroon and Chad banned face veils including the burqa after suicide bombers used them to conceal their identity and commit terrorist acts (Allison 2015). Boko Haram, a jihadist militant organization, is active in northeastern Nigeria, Chad, Niger and northern Cameroon and a majority of Boko Haram’s suicide bombers are female. In this case there is no significant correlation between the burqa and violence, since almost all of the burqa

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wearers are peaceful, but the burqa is used as a convenient tool to conceal or disguise the wearer’s identity to carry out terrorist acts. It is obvious that the majority of women wearing the burqa are not planning any attacks; nevertheless, we have a reason locally to ban the burqa because of the danger that emanates from granting terrorists an easy way to conceal themselves and carry out terrorist attacks. Terrorism is horrific and many people have to live with fear. Thus, to prevent terrorist acts, security control is necessary for preserving public peace and order. Consequently, the religious and cultural meaning attached to the burqa is overshadowed by the need for security. Even if there is no correlation in this case, the local ban is necessary on the grounds of potential great danger, which could cause tremendous hazard to the local citizens. The last case for prohibition is a strong correlation, which is like a necessary relation between the specific symbol and violence. The best example for the case of “strong correlation – general ban” would be any extreme ideologies like Nazism, which is obviously against human rights and very dangerous to liberal democratic societies. The infamous “Unite the Right rally” in Charlottesville in 2017 used Nazi symbols (such as Nazi flag, Swastika, the Odal rune, Black Sun, and Iron Cross) to promote the idea of white supremacy and neo-Nazism. The marchers chanted racist and anti-Semitic slogans. The correlation between Nazi insignia and anti-­democratic tendencies is so strong that it necessarily requires a general ban, because those gathering under these symbols are anti-democratic and anti-liberal. The symbols are deeply connected with these values and are here used to promote these dangerous ideas, strongly correlated to violence. Another example would be symbols associated with terrorist ideologies like the Islamic State flag or any images linked to radical Islamism, like photos of IS fighters, photos of IS beheadings of victims, photos of Osama bin Laden, which are intentionally used to promote extreme jihadist salafist ideologies. These symbols strongly correlate with certain attitudes like the approval of several terrorist attacks (such as Nice, 9/11 and countless others) as well as anti-liberal ideals; and, therefore, should be generally banned, to not allow their propaganda to spread and promote violence and anti-democratic values. In order to efficiently prevent radical racism and terrorism, the state must have measures to control public security and to estimate whether a general ban of related symbols is required. Schoolchildren and youths are the main targets of such groups, because they can be indoctrinated easier than grownups. Hence, it is necessary to ban such symbols at school and there should be sufficient lessons for schoolchildren to learn and to understand how dangerous extreme racist and terrorist ideologies are and what damage they could cause to our society. In addition to this, the school has a mission to prevent fear caused by prejudices and to eliminate social stereotypes linking Muslim minority with crimes and terrorism, because these prejudices are motives for radical racism. However, to avoid the problem of interpretation, the prohibition of symbols should be only on the grounds that they directly correlate with violence and anti-democratic ideologies like extreme racism or terrorism. Traditional Islamic clothing like the hijab is neither connected to any racist nor terrorist ideologies, and it is not likely to cause any violence or public unrest. Therefore, it cannot be generally banned, neither for adult women, nor for school

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girls. If there are some local areas, in which local authorities require a de facto hijab enforcement, then a local ban is highly required to secure the individual freedom of local citizens. However, in today’s Western society, there is still no evidence of such a correlation. The wearing of hijab should, therefore, not be prohibited at all to ensure the religious freedom of Muslim girls and women.

4.3  Conclusion We showed that Carens is right to set violence as a limit of tolerance, but we also argued that he applies his principles inconsistently. In the course of the first part of the paper, we elaborated on where this tends to happen. We, therefore, compared his evaluations regarding circumcision and wife-beating and argued that they cannot be held simultaneously. With regard to the hijab, we basically agree with Carens’s position. To widen the scope of his approach, in the second part of the paper we proposed a method to analyse similar cases involving religious and cultural commitments. This method assumes a link between violent behavior of groups and certain symbols as crucial to legitimize local or general bans of those symbols.

References Ahituv, Netta. 2012. Even in Israel, More and More Parents Choose Not to Circumcise Their Sons. https://www.haaretz.com/even-in-israel-more-and-more-parents-choose-not-to-circumcise-1.5178506. Accessed 16 Jan 2019. Allison, Simon. 2015. Senegal considers burqa ban to stop terrorists disguising in Islamic dress. https://www.theguardian.com/world/2015/nov/18/senegal-bans-burqa-stop-terrorists-disquising-islamic-dress Accessed 16 Jan 2019. Carens, Joseph. 1999. Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness. Oxford: University Press. (= CCC) Fiala, Andrew. 2019. Toleration. Internet Encyclopedia of Philosophy. https://www.iep.utm.edu/ tolerati/#SH5b. Accessed 16 Jan 2019. Forst, Rainer. 2017. Toleration. Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/ entries/toleration/. Accessed 16 Jan 2019. Landtag NRW. 2018. https://www.landtag.nrw.de/Dokumentenservice/portal/WWW/dokumentenarchiv/Dokument/MMD17-2669.pdf;jsessionid=8B90367F76F8092D6F3B247D34346EC7. ifxworker. Accessed 16 Jan 2019. Oxford couple sues over circumcision mishap. 2005. New Haven Register, March 24. http://www. cirp.org/news/newhavenregister03-24-05/. Accessed 16 Jan 2019. Putzke, Holm. 2012. Religiöse Beschneidungen von Jungen verboten. LTO. https://www.lto.de/ recht/hintergruende/h/wegweisendes-urteil-religioese-beschneidungen-von-jungen-verboten/. Accessed 16 Jan 2019. Putzke, Holm, Maximilian Stehr, and Hans-Georg Dietz. 2008. Strafbarkeit der Zirkumzision von Jungen. Medizinrechtliche Aspekte eines umstrittenen ärztlichen Eingriffs. Monatsschrift Kinderheilkunde 156: 783–788.

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Quinn, Benn. 2016. French Police Make Woman Remove Clothing on Nice Beach Following Burkini Ban. https://www.theguardian.com/world/2016/aug/24/french-police-make-womanremove-burkini-on-nice-. Accessed 16 Jan 2019. Rathgeber, Christian. 2018. OLG Hamm: Die Einwilligung zur Beschneidung setzt die Einwilligung des Knaben voraus. Beck online. https://rsw.beck.de/aktuell/meldung/ UrteilsanmerkungFDStrafR201803. Accessed 16 Jan 2019. Schmid, Yvonne Christina. 2017. Die elterliche Einwirkung in eine Zirkumzision – eine unzulässige Beschneidung kindlicher Rechte? Rechtliche Analyse des § 1631d BGB unter Bezugnahme des deutschen Verfassungsrechts und des internationalen Rechts. Berlin: Duncker & Humblot. Slobodkin, Benjamin. 2009. Jerusalem – Mohel Sentenced to Community Service for Botched Bris. Vos Iz Neias. https://www.vosizneias.com/41634/2009/11/08/jerusalem-mohel-sentenced-tocommunity-service-for-botched-bris/. Accessed 16 Jan 2019. Svoboda, J.  Steven. 2017. Nontherapeutic Circumcision of Minors as an Ethically Problematic Form of Iatrogenic Injury. AMA Journal of Ethics 19 (8): 815–824. https://doi.org/10.1001/jou rnalofethics.2017.19.8.msoc2-1708. Wissenschaftliche Dienste. 2017. Ausarbeitung. Schule und Religionsfreiheit. Wäre ein Kopftuchverbot für Schülerinnen rechtlich zulässig? Bundestag. https://www.bundestag.de/ blob/497902/67aecff4a679020c68f8c0cefaafe132/wd-3-277-16-pdf-data.pdf. Accessed 16 Jan 2019. Womack, Mari. 2005. Symbols and Meaning. A Concise Introduction. Walnut Creek: AltaMira Press.

Chapter 5

Voting Rights for Residents? Revisiting Carens’s Citizenship Rights Fabian Bonberg and Lars Rensing

Abstract  The fact that voting rights are often withheld from non-citizen residents leads the authors to revisit Joseph Carens’s stance on who has a legitimate claim to the rights that are usually associated with citizenship. It is argued that although Carens generally side-lines the idea of detaching the franchise from the bundle of citizen-exclusive rights, two of his main principles (namely the principle of democratic legitimacy and the social membership principle) in fact prompt such a detachment. This is because a coherent interpretation of both principles reveals them to stand in conflict with current naturalisation practices: a conflict which  – as the authors demonstrate – is best resolved by severing the link between voting rights and citizenship. Keywords  All-subjected principle · Franchise · Joseph Carens · Non-citizen voting · Residence · Social membership It seems to be an intuitively compelling assumption that a person who lives in a certain state over an extended period of time and who is in nearly the same situation as that state’s citizenry (in that he or she has a job, pays taxes, pays into the social security system, is a member of the local community, is subject to the same laws, etc.) should also have a say in how he or she is to be governed. But whereas voting rights are an integral part of citizenship, non-citizen residents are usually denied participation in important elections.1 What makes matters worse is that residents do in certain states make up a significant portion of the population. In Luxembourg, for

1  There are a few exceptions: The UK and Ireland grant the right to vote in national elections to each other’s citizens, while only Barbados, Urugay and New Zealand allow the same thing for noncitizens which meet certain requirements (see Shaw 2017, 303).

F. Bonberg (*) · L. Rensing Philosophisches Seminar, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_5

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example, 47.9 percent of the population do not hold the respective citizenship.2 In Switzerland, 25 percent of the inhabitants are non-citizen residents.3 This trend is not limited to such cases of commuter-heavy states as Luxembourg and Switzerland: In many countries, the proportion of the adult population which cannot participate in elections because they lack citizenship ranges between 10 and 50 percent (see Hayduk and de la Garza 2012, 93). So, because of the common link between the franchise and the status of being a citizen, a considerable percentage of people who have virtually the same obligations as citizens and who are subjected to the same governmental authority nevertheless lack the principal means to contribute their fair share to the political decision-making process. Issues related to that problem are discussed in Joseph Carens’s work, especially in his seminal book The Ethics of Immigration (EoI). Interestingly, there is no hint in any of his writings that he would seriously call into question the traditional connection between citizenship and enfranchisement. True, he does both endorse the practice of granting residents most of the same rights as citizens (see EoI, 88 f.) and demand that they can achieve naturalisation in a relatively easy manner (see ibid., 45). But the suffrage is notably absent from the set of rights he ascribes to resident non-citizens. Carens’s whole discussion of one’s claims to the rights usually associated with citizenship rests on two important principles: the principle of democratic legitimacy and the social membership principle. While the former holds that one ought to be able to participate in shaping the government one is subjected to, the latter, according to Carens, grounds a claim to citizenship in the ever-growing social ties that result from living in a certain community over an extended period of time. The thesis that we put forward in this chapter runs as follows: Taken together, the two principles advanced by Carens in fact prompt a separation of the right to vote from the bundle of citizenship rights. Briefly put, neither principle grounds a claim to citizenship per se, but rather to the different rights that are thought of as belonging to citizenship in most democratic states. The franchise is, in our view, solely and independently based on the principle of democratic legitimacy; residents, who are subjected to governmental authority, thus get to vote on the composition of this government. Since further elements of citizenship are plausibly based on the membership principle, the right to vote should be detached from citizenship. We need to clarify two things in advance, the first one being our understanding of citizenship. With respect to the rights of citizens we follow Carens’s approach in The Ethics of Immigration, which is guided by the democratic consensus and which is therefore representative of the practice of most liberal democracies. A major component of the citizen-exclusive legal set is the right to vote (see EoI, 20). Furthermore, 2  Le Portail des Statistiques. 2018. Population by Sex and Nationality on 1st January (x1000) 1981, 1991, 2001–2018. https://statistiques.public.lu/stat/TableViewer/tableView.aspx?ReportId=12853& IF_Language=eng. Accessed November 25th, 2018. 3  Federal Statistical Office. 2018. Ständige Wohnbevölkerung nach Staatsangehörigkeitskategorie, Alter und Kanton, 3. Quartal 2018. https://www.bfs.admin.ch/bfs/en/home/statistics/population/ effectif-change.assetdetail.6866254.html. Accessed January 20th, 2019.

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states usually grant citizens the right to indefinite residence and the right to unconditional re-immigration (see ibid.). An additional element of citizenship is something that we try to capture with the terms ‘identification’ and ‘symbolic meaning’. By this we mean that citizenship is still generally thought of as signaling that someone belongs to or is a member of a certain national community (see ibid., 27). There may be further benefits for citizens that vary from state to state, for example the right to pursue a career in civil employment (see MRS, 42) or diplomatic protection (see EoI, 20), but we take our argument to work irrespectively of such further benefits. Our second caveat concerns the term ‘voting rights’ (or synonyms thereof). We are making two crucial assumptions with regard to it: First, we are always talking about the right to vote in national elections. It may be that there is less controversy over the issue of enfranchising resident non-citizens in lower-level elections, and that arguing for this restrictive variant may thus be easier. The practice of allowing EU citizens to vote on the local level in other EU states is a case in point (see Shaw 2017, 302). However, the national franchise is a far more powerful means of giving direction to a state’s political course; residents are deeply affected by legislation in key sectors such as social and economic policy, so they should have a say in the decision-making process. The national level is also where laws are passed that directly target the group of resident non-citizens. Second, we aim our discussion at the so-called “active” voting right. This term, which is less common in English-­ speaking political theory, describes the right to cast a vote, and it is distinguished from the passive voting right, which allows you to become one of the candidates who are up for election. This is how we will proceed in our consideration of the subject: First, we will review Carens’s reservations about detaching the franchise from citizenship and develop the claim that this detachment is in fact suggested by his principles (Sect. 5.1). After that, we will examine the principle of democratic legitimacy and the social membership principle in depth (Sect. 5.2). Two ensuing arguments (Sect. 5.3) will build up on our discussion of Carens’s principles: The first one identifies the legitimacy principle as an all-subjected principle and shows how this prompts an enfranchisement of non-citizens. The second argument builds up on this by motivating a stronger interpretation of the legitimacy principle, according to which non-­ resident citizens ought not be enfranchised. It will be demonstrated that on this reading, if one wants to safeguard multiple citizenship (as we do), then one has to sever the link between voting rights and citizenship. Finally, a brief conclusion will summarise our results (Sect. 5.4).

5.1  Carens’s View and Our Alternative Claims A first step for the analysis pursued in this chapter should be to glean from Carens’s writing information about his stance on the issue of voting rights and citizenship. While this issue does not figure prominently in his works, there are some passages

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which provide an insight into how Carens thinks about it. As we have hinted at in the introduction above, he does not endorse a detachment of the franchise from the bundle of citizen-exclusive rights. One of the argumentative strategies that Carens deploys when he discusses the possibility of a detachment is the pragmatic side-­ lining of the issue. An instance of him pursuing this strategy can be found in the published script to a recent talk, in which he writes the following lines: [S]ome people have argued that the right to vote should be detached from legal citizenship. There is nothing wrong in principle with pursuing that line of argument, but again no one can talk about everything at once. So, in my own discussion, I simply assumed this fact about the link between voting and citizenship as a background constraint in my normative analysis. (RNCER, 17)

This passage is interesting insofar as Carens clearly states that he finds “nothing wrong in principle” with arguing for a separation of voting rights from citizenship. Yet he assumes the usual link between both as a pragmatic concession because he cannot possibly tackle all relevant issues all at once. But this also means that he does not think that there is anything fundamentally wrong with tying the right to vote to the status of being a citizen either. In some instances, Carens even defends this conventional arrangement against the idea of detachment, voicing some reservations about the latter. Such a move goes beyond the simple side-lining evidenced above. An endnote in The Ethics of Immigration – throughout the main text of which Carens simply accepts the link between franchise and citizenship  – is of special relevance in this regard: Technically, it is true that the arguments about consent and participation can be met by granting immigrants voting rights and other political rights such as the right to run for public office rather than formal citizenship status, but then one has to ask what reason a state would have to withhold citizenship status from people entitled to vote, at least if they want citizenship status, and whether those reasons are compatible with democratic principles. (EoI, 320 en. 6)

This quote may explain why Carens uses the non-committing formulation of saying the detachment idea had no problems “in principle”. It becomes clear that to him, there are certain possible obstacles to a separation of voting rights from citizenship: First, the question whether there are any reasons at all to withhold citizenship from people who qualify for enfranchisement, and if so, the further question whether those reasons comply with democratic principles. So, instead of setting aside the issue of a possible separation, Carens here explicitly holds that such a practice is made questionable by the alternative of extending citizenship. Since Carens’s position has now been laid bare, let us present in detail the claims with which we want to counter him. Our first claim is directed against his strategy of pragmatically side-lining the detachment question. In response to it, we hold that Carens cannot simply sidestep the question of whether voting rights should be detached from citizenship. This is because moral claims to the different elements of citizenship are, as we will show shortly, based on different principles. The principle

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of democratic legitimacy and the social membership principle are core tenets of Carens’s position on the rights of residents and he defends them in a clear and outspoken manner; thus, if we can convincingly argue that his principles would lead to a separation, Carens would have to take a definite stance on this issue. Of course, this does not automatically disperse his reservations about the practice. But here our second claim comes into play: We maintain that there are good reasons not to solve the issue by extending citizenship to everyone who qualifies for voting rights and that these reasons are in accordance with the principles of democratic political theory. To make the main thrust of our argument more accessible, it may help to sketch the correspondence we draw between the principles on the one hand and the rights to which they ground a claim on the other hand, and then explain what this means for the whole bundle of citizenship-related rights. Recall that in our introduction, we identified the following elements of citizenship: voting rights, the right to residence and re-immigration, and the element of symbolic identification. What Carens suggests at some points in his works is that the moral claim to this bundle of citizenship rights is grounded in the principle of social membership: Being a member of a society over time accumulates moral weight, which the state must eventually acknowledge by granting citizenship (see EoI, 50). On this view, the bundle of elements associated with citizenship stays together as an undivided whole, and the claim to this bundle en bloc rests on social membership. Yet this leaves another fundamental concept out of the picture, namely the principle of democratic legitimacy, which Carens also endorses (see ibid.). This principle entitles anybody who is subjected to a certain state’s authority to vote in that state’s elections. As we will show later, the legitimacy principle rests only on prospective time of residence. It becomes apparent that making the whole citizenship bundle dependent on any one principle is inappropriate; the franchise is sufficiently and independently based on the legitimacy principle. Claims to the other rights and benefits may arise from other principles such as the social membership principle (the latter is a likely candidate for the basis of, for example, the right to unconditional re-immigration and the symbolic identificatory element in the citizen status), but we will not be concerned with the exact links since our argument focusses on voting rights only. We hold that on this revised account, a separation of the franchise from citizenship is due. Some might argue that the rights currently reserved for citizens are all grounded in the legitimacy principle (which does not seem likely) or in another principle which also relies solely on prospective residence and is thus fulfilled at the same time (which seems more likely), and that we should therefore immediately grant citizenship to immigrants with a prospective time of residence. This would also meet the demands of the principle of democratic legitimacy, as Carens noted in one of the passages quoted above. We will later present some considerations for why detachment is still the more favorable option; for now, we have to do some argumentative groundwork for our claims in Sect. 5.3 and appropriately define Carens’s core principles.

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5.2  C  arens’s Two Principles: Legitimacy and Social Membership Since most of the argument of this chapter revolves around the question which implications can be drawn from two of Carens’s principles, namely the principle of democratic legitimacy and the social membership principle, a closer analysis of their respective contents is due. We shall begin with democratic legitimacy and then turn to social membership. Both principles set out varying conditions for the claim to certain rights that are usually associated with citizenship; we try to make the requirements of each principle and the rights granted by them as explicit as possible.

5.2.1  The Principle of Democratic Legitimacy The idea that a democratic government derives its legitimacy from the consent of the governed (however this consent may find expression) is a recurring theme in liberal political philosophy. Thus, it should not come as a surprise that Carens – who is an avowed proponent of the tradition of democratic political theory – has deeply embedded this idea into his thinking. He expresses it in the form of the principle of democratic legitimacy, which is invoked in the discussion of the rights that ought to be granted to adult immigrants. This is Carens’s take on democratic legitimacy in its most succinct form: “[E]veryone should be able to participate in shaping the laws by which she is to be governed and in choosing the representatives who actually make the laws, once she has reached an age where she is able to exercise independent agency.” (EoI, 50). When are the requirements of such a principle met? Generally, they are satisfied if one is granted a claim to political participatory rights, especially – in the case of liberal representative democracies – to active voting rights, in the state where one lives and whose government one is subjected to. But in practice, the issue presents itself as more complex. The franchise is still usually linked to the legal status of being a citizen, meaning that if states want to adhere to the legitimacy principle, they must somehow bring its demands into accordance with their respective policies of allocating citizenship. If residents can only seek naturalisation after continuously living in the state for a few years (which is the common practice), then, depending on how the legitimacy principle is interpreted, its demands may be effectively flouted during this period of time. What we take to be the most appropriate reading of the principle of democratic legitimacy (we will elaborate on this in Sect. 5.3.1) runs into precisely this problem: thus understood, the principle is violated by current naturalisation practices because it vindicates the rights to political participation of those residents who are not (yet) naturalised and who do therefore not enjoy the voting rights that are institutionalised in the status of being a citizen. Since Carens takes his legitimacy principle to be “a fundamental democratic” (EoI, 50) one, there is enough reason to think he cannot remain indifferent to its violation.

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5.2.2  The Social Membership Principle As we have seen, Carens refers to the principle of democratic legitimacy when determining a person’s claim to political rights of participation. In contrast, when it comes to what grounds a claim to citizenship and related “legal rights” he invokes the so-called social membership principle (see EoI, 50, 168; IoI, 33; MRS, 40). It can be summarised thus: By living in a society people accumulate social relationships which deepen over time of residence, and their ever-growing affiliation to the community not only affects people’s own identities but also ties them closer to other community members. All the while, their life within this society and the life chances open to them are crucially shaped by the laws and policies of the state in question. The longer people stay, the more justified they are in identifying as social members; this trend continues until a certain threshold is passed, at which the state is morally required to acknowledge people’s social membership by granting them citizenship (see EoI, 50). Carens anticipates an objection according to which time of residence does not stand in a necessary relation to the growth of social attachments. After all, so the argument goes, people differ greatly in the number of acquaintances, friendships, and kinship relations they have. Some might even neglect staying in contact with people they once knew and thus gradually lose their footing in the network of society, or they might choose not to become close to anybody at all. Besides, the temporal aspect is not the only thing in Carens’s conception that could be called into question. In our interconnected and globalised world, the people with whom one regularly communicates, meets, and shares the deepest bonds of affection need not reside in the same state as one does. You could have moved to a neighboring country and regularly drive across the border to be with your family and friends, or you could be a cosmopolitan who is constantly visited by international acquaintances and repays their visits by coming to them, or you could even let your whole social life play out on the internet. Carens, however, defends his choice of place of residence and passage of time as neutral indicators of social membership: “[R]esidence and time are proxies for richer, deeper forms of connection but […] we have both practical and principled reasons not to try to go beyond these proxies, at least under most circumstances” (EoI, 165). He argues that both indices meet the criteria of being “relevant, objective, and easy to measure” (ibid.). While this is a convincing contention, it has a certain implication which will be of importance at a later point of our argument: That someone will have been living for, say, five years in Germany in 2024 is usually predictable, but here time of residence functions as a neutral and non-discriminatory indicator for someone’s accumulation of social ties, and we are thus concerned not with prospective, but with actual time of residence, with the having-lived-somewhere; this means that the question whether someone meets the requirements of the social membership principle can only be decided ex post facto, or retrospectively. The membership principle thus rests on the social ties to a community that are build up over time and for which the duration as well as the place of residence serve as neutral indicators. So, we know what the conditions of the principle are and how

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to determine whether they are met. But there is a further question, namely what kind of claims result from it. As noted above, Carens at one point holds that states can comply with the principle by granting citizenship to someone as soon as he or she has become a member (see EoI, 50). For some of the elements of the citizen-­ exclusive bundle that were listed in Sect. 5.1, the connection to social membership seems intuitively plausible: That someone can unconditionally re-immigrate to a state whose citizenship he or she holds, or that he or she can seek support from its consulates, fits with our understanding of what it means to belong to a certain state. Yet, Carens does not single out specific rights or benefits that should be awarded to those who are social members. He talks of citizenship as a whole.4 In Sect. 5.1 we have already illustrated that rather than asking which principle gives rise to a claim to citizenship, we should focus more on the separate rights and their respective moral basis. The need for this kind of approach can be demonstrated by our arguments for independently granting voting rights (which are commonly bound to citizenship) in the following part.

5.3  A  rguments for Separating Voting Rights from Citizenship In this section, we want to put forward our arguments for detaching the franchise from the bundle of what are commonly held to be citizen-exclusive rights. First, we argue that the principle of democratic legitimacy is in fact equatable with what is commonly called the ‘all-subjected principle’ in current political philosophy. We refer to a recent publication by Anna Goppel (Goppel 2017) in order to furnish an appropriate definition of the all-subjected principle and demonstrate its superiority over rival concepts (the all-affected and the all-coerced principle). Additionally, it is shown that it relies on prospective residence and that it therefore conflicts with current naturalisation practices. Granting citizenship immediately or making the franchise no longer a citizen-exclusive right emerge as two possible solutions to this conflict. In a second step, we provide some considerations as to why the latter is the better alternative and support them with another major argument. For this, we try to motivate a stronger, more restricted reading of the all-subjected principle, according to which only those who actually reside in a certain state should be able to vote for the respective government. The demands of this principle are revealed to stand in contradiction to current political practice, in which voting rights are linked to 4  This is not always readily apparent in Carens’s discussion. However, it becomes clear in a passage from The Ethics of Immigration where he shows how an individual right, such as the right to protection from deportation, follows from social membership. He only felt the need to demonstrate this link between membership and single rights, Carens says, because some people may not have been convinced by his earlier contention that social membership grounds a claim to the whole citizenship bundle (see EoI, 104).

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citizenship and in which multiple citizenship is possible, allowing for voting by non-resident citizens. On the matter of multiple citizenship, we side with Carens, who offers convincing reasons to defend it; therefore, if one wants to resolve the contradiction, the franchise should no longer be attached to the legal status of being a citizen.

5.3.1  T  he All-Subjected Principle and Its Conflict with the Conventional Practice As we have said, Carens states the principle of democratic legitimacy as follows: “[E]veryone should be able to participate in shaping the laws by which she is to be governed and in choosing the representatives who actually make the laws” (EoI, 50). Thus, it applies to everyone who is subjected to any form of government with legislative powers, and the claim it gives rise to is a claim to appropriate political participatory rights (the active voting right, as we have argued, seems to be the most suitable candidate). Now, we want to propose that this principle of democratic legitimacy can be equated with a concept that is very common in current political philosophy (although not universally accepted), namely the all-subjected principle. It is often invoked in debates about the proper constitution of the demos and, just like the principle of democratic legitimacy, it holds that one should be entitled to vote for the government whose actions and decisions one is subjected to. In our discussion of the all-­ subjected principle, we follow Goppel (Goppel 2017). She defends the all-subjected variant against two other possible contenders for the basis of determining the electorate: the all-affected principle on the one hand and the all-coerced principle on the other. The former holds that one should have a right to vote if one’s basic interests are affected. The latter says that one ought to be entitled to vote on issues the outcome of which will subject one to any form of coercion (see ibid., 28). But, as Goppel argues, both principles are ultimately not satisfactory, since they eventually run into problems or simply cannot be made consistent with the maxim of uniform national elections. Let us start with the all-affected principle: On a narrow understanding, the all-­ affected principle would grant the right to vote only to those who are actually affected by the outcome of a vote. However, the question of who is affected can only be answered as soon as the result of the polls is known, and this result depends on who is allowed to vote in the first place (see ibid., 29). What about the broader interpretation, then? Thus understood, the all-affected principle would permit everyone to vote who is possibly affected by the outcome. Depending on how we understand ‘being possibly affected’, this would have one of two unwanted consequences: Either the electorate then significantly transcends national boundaries (up to everyone in the world being entitled to vote) or we would have to split up the electorate into separate demoi that vote on different issues (see ibid., 29 f.).

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The possible interpretations of the all-coerced principle do not fare any better. According to them, we would be forced to a similar fragmentation of the national demos or we would have to allow anyone to participate in the national election who is coerced by at least one of the state’s regulations – but he or she would help bring into office a representative who decides on a host of other issues (see ibid., 30). The all-subjected principle avoids these kinds of problems and thus stands out as the most appropriate basis for determining the electorate. Since it is the most suitable interpretation of the principle of democratic legitimacy, the latter is also made more plausible. We can now look at the role of the factor of time in the allocation of voting rights. As concluded above, the membership principle’s recourse to actual time of residence makes it heavily dependent on a retrospective outlook. The same does not apply to the all-subjected principle. Goppel demonstrates this by using the principle’s most restrictive formulation, according to which comprehensive and permanent subjection is a prerequisite to being enfranchised, because what applies to this version will apply to less restrictive versions as well (see ibid., 34). She shows that one is comprehensively subjected from the moment of immigration and that a permanent subjection does indeed rest on a factor of time, but on a prospective rather than on a retrospective one (see ibid.). Therefore, the all-subjected principle does not depend on retrospective time of residence. Neither does it depend on being a member of society in Carens’s sense of having social ties. One major consequence is that Carens’s principle of democratic legitimacy, interpreted as an all-subjected principle, is violated by the practices of naturalisation that are nearly universal in the current political order. Voting rights are still reserved for citizens, but citizenship can only be acquired after residing in the country for a certain period of time (which is usually seen as an indicator for a form of social membership or ‘assimilation’). This obviously conflicts with the all-subjected principle’s demand for enfranchising every resident who has a prospect of staying in the country, but who does not necessarily have to have previously lived there for some time. Since Carens contends that the legitimacy principle is “a fundamental democratic principle” (EoI, 50), its ongoing violation by a widespread political practice cannot be a matter of indifference to him  – and it should not be, as our introductory sketch of the situation of disenfranchised residents has illustrated. Then how are we to change the practice for it to comply with the principle? As we have already seen in Sect. 5.1, there are two possible solutions: either making citizenship readily available or detaching voting rights from citizenship. Because it would be beyond the scope of our inquiry, we will not try to answer the question whether a claim to the other citizenship-related rights ought to be based on requirements that are fulfilled retrospectively, such as social membership (which would prompt detachment), or on requirements that are fulfilled prospectively (which would definitely make a strong case for immediate naturalisation, against which we do not have a decisive objection until now). But we will nevertheless provide some pragmatic considerations to the effect that granting the right to vote to resident non-­ citizens is the better option. First of all, there are good reasons to assume that in the context of today’s democracies, voting by resident non-citizens can be implemented more easily. After all, there are states which already follow this practice: In more

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than sixty countries, at least some resident non-citizens are permitted to participate in certain elections below the national level, and a handful of states (although fewer than ten in total) even grant them the right to vote in national elections (see Shaw 2017, 302). True, the numbers are far higher for local elections, and, as we have remarked in the introduction, we want to make a case for the right to vote on the national level. But the admission of non-citizens to local elections already evidences that granting voting rights to foreigners is a feasible way of acknowledging their equal subjection, and that it is an approach which states are willing to follow. There is one further reason for thinking that a separation of the franchise from citizenship is more probable to be realised than an immediate availability of citizenship. As stated in Sect. 5.1, being a citizen generally involves an element of identification; it is a status that signals belonging to a certain community. Any proposed measure that is perceived to weaken this communitarian sentiment  – and a very liberal distribution of citizenship surely falls into this category – will likely not be supported by the majority of the electorate. Note that in offering these practical considerations we are not advancing any normative claims about whether, for example, it is morally justifiable to veto the extension of citizenship on the grounds of the latter’s symbolic import. So far, we have only been contending that first, the principle of democratic legitimacy can be equated with an all-subjected principle and is thus geared towards prospective time of residence; second, that it therefore conflicts with the usual system of making access to citizenship dependent on a retrospective criterion; third, that one possible solution to this conflict is to detach voting rights from the bundle of citizen-exclusive rights; and fourth, that there are practical motives to favor detachment over an immediate availability of citizenship. This line of reasoning does not conclusively establish that detachment follows by necessity from the principle of democratic legitimacy. But we can strengthen our claim by a further argument, to which we now turn.

5.3.2  Voting and Multiple Citizenship We have so far focused on the implications of Carens’s principles for the legal status of resident non-citizens. On the account given above, they should be endowed with the right to vote. But does anything change for the people who are already citizens? This depends on a significant difference: whether they are resident or non-resident citizens. Resident citizens maintain the bulk of the rights they already have by virtue of their continuing citizenship-status; and, obviously, they also remain enfranchised because they are still subjected to the actions and laws of their state. However, the same cannot be said for non-resident citizens. If the usual link between citizenship and voting rights is severed, they might become disenfranchised  – depending on whether the all-subjected principle is construed in a strong manner, which would render the subjection to a government’s authority a necessary condition for the right to vote. In what follows, we try to show that such a strong understanding is defensible and that the disenfranchisement of non-resident citizens is actually a

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welcome consequence. Thus our vindication for the separation of the right to vote from citizenship would be strengthened. Let us start by invoking three assumptions to which Carens is committed. The first of them refers back to our equation of Carens’s principle of democratic legitimacy with the all-subjected principle. If what we have shown so far is true, then when it comes to determining the electorate, Carens assents to the following assumption: (A1) Everyone who is subjected to a government ought to be allowed to vote in the respective elections.

To this we add another assumption derived from how current liberal democracies handle the allocation of citizenship and voting rights. It describes a state of affairs that does not seem illegitimate in Carens’s view (see EoI, 109), although we of course argue that it should: (A2) Voting rights are part of citizenship.

Our third and final assumption concerns the status of non-resident citizens. They may keep their original citizenship and, additionally, acquire the citizenship of the state where they reside now; that is, dual or multiple citizenship is possible, allowing some people to participate in the elections of more than one state (assuming that A2 still holds true). Carens openly defends the practice of multiple citizenship (see EoI, 39–44, 53 f.). This leads to the following assumption: (A3) States have to offer the possibility of multiple citizenship.

Now, A2 and A3 describe states of affairs that obtain in the current political order of liberal democracies. But we may yet take another look at the implications of A1. In the way we have phrased it so far, the all-subjected principle (or principle of democratic legitimacy) is interpreted in a broad manner: Being subjected means one gets the right to vote, while at the same time, the inverse is not necessarily true. Voting rights might still be extended to persons who do not meet the requirement of being subjected – and they are, in fact, because the practice of handing out multiple citizenships results in people being able to vote on a government to whose authority they are not continuously exposed. In our discussion of Goppel’s work above, the problem of over-inclusiveness emerged as a central objection against a wider understanding of the all-affected principle and the all-coerced principle. We think that as long as being subjected is understood as a sufficient, but not as a necessary condition for a claim to the franchise, then the all-subjected principle is susceptible to the same charge. It is over-­ inclusive in that it allows non-residents to influence an election whose outcome will have a permanent and comprehensive impact on the lives of only the residents. That is of course not to deny the non-resident citizens any form of participation in the decision-making processes of their former country of residence.5 Yet, the right to 5  For further discussion of the possibilities for allowing non-residents to influence the decisions of a state see López-Guerra 2014, 95f.

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vote in national elections is a powerful tool for giving direction to a state’s course over a period of time. And in the case of representative democracies, non-resident citizens help bring politicians into office who will decide on a multitude of issues that do not affect the non-residents. Thus, we hold that A1 might be better re-stated in more exclusionary terms (note that we are thereby of course diverging from Carens’s point of view and that our argument will be an external one): (A1*) All and only those who are relevantly subjected to a government ought to be allowed to vote in the respective elections.

The issue with an over-inclusive principle for determining the electorate is that the arrangements which follow from it may undermine a group of people’s democratic self-government. If citizens living abroad continue to have the franchise and if multiple citizenship becomes a more widespread institution, then one consequence may be that the votes by non-resident citizens ensure the electoral victory of a party or coalition which only a minority – possibly only a fraction – of the domestic electorate wants as its leaders. This would be an absurd state of affairs. In fact, current arrangements already harbor the possibility that votes from outside decide a contested election and thus have an improper influence on how the daily lives of the actual inhabitants change. Let us illustrate this with a real-world example: In 2014, Hungarian Prime Minister Viktor Orbán won the parliamentary election with a party-alliance between the Fidesz and the KDNP (Christian Democratic People’s Party) and remained in office. This alliance won 43.5% of the vote within Hungary, but reached 95.5% of the abroad votes, allowing it to eventually keep its two-third majority in parliament.6 Their comfortable majority enabled the ruling parties to implement constitutional changes more easily. Since then, laws passed under Orbán’s right-wing government have repeatedly been the subject of debate7; it is not exaggerated to say that only the voting rights of non-residents made it possible for Orbán to pursue his controversial politics. So, Hungary’s parliamentary election of 2014 is one striking instance of non-residents crucially affecting the political arrangements to which residents find themselves subjected. When we had the gratifying opportunity to present a first version of our chapter to Joseph Carens in the context of the Münsterschen Vorlesungen, one of the points of feedback he gave was directed at our reference to the Hungarian election. He was not convinced, since – as he said – one might also come up with actual examples where the votes from abroad have changed the residents’ situation not for the worse, but for the better. This may well be true. But even if it were, it would not quite hit 6  Balázs Majtényi, Alíz Nagy and Péter Kállai. 2018. “Only Fidesz” – Minority Electoral Law in Hungary. Verfassungsblog.de. https://verfassungsblog.de/only-fidesz-electoral-law-in-hungary/. Accessed January 20th, 2019. 7  An example of this would be the concerns over the rule of law in Hungary that were voiced by the European Parliament in 2018, with the latter specifically directing attention to the issues of “[j]udicial independence, freedom of expression, corruption, rights of minorities, and the situation of migrants and refugees” (European parliament. 2018. Rule of law in Hungary: Parliament calls on the EU to act. http://www.europarl.europa.eu/news/en/press-room/20180906IPR12104/rule-oflaw-in-hungary-parliament-calls-on-the-eu-to-act. Accessed January 28th, 2019).

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the mark of what we wanted to show by drawing on the example of Hungary. Let’s assume for a moment that the question of whether the outcome of an election has been positively or negatively influenced by non-resident voters were not beset with practical obstacles and with ideological controversies over what is ‘good’ and what is ‘bad’. Even if under these circumstances it were discovered that the votes of non-­ residents contribute to a more favourable result for residents in every single election, we would still maintain that the all-subjected principle should be construed narrowly. Why? Because our original contention was not that the votes from abroad influence the decision-making processes in a good or in a bad manner, but to an undue degree. Non-resident citizens are given too much sway over those who actually have to live with the consequences of the election on a daily basis. And even if they would always help to ensure the best possible result, it would still be an interference with the residents’ sovereignty. Some political philosophers have reached similar conclusions. Claudio López-­ Guerra, for example, discusses the claim that non-resident citizens should not be allowed to vote even if resident citizens would want them to. While not wholly committed to this line of reasoning, López-Guerra points out the argument that democratic principles ban the extension of voting rights to permanent residents of other states [= non-resident citizens], regardless of any opinion to the contrary by rightfully enfranchised individuals. […] [This conclusion] holds some resemblance to the case against voluntary slavery: voting by people exempted from obeying the law, it could be argued, contravenes in a way the logic of political liberty, no matter how those individuals became enfranchised. (López-Guerra 2005, 225f.)

The article from which this passage is taken sets as its starting point a democratic principle of inclusion and derives from it the conclusion that we should call into doubt the enfranchisement of non-resident citizens. In a more recent work, López-­ Guerra explains that he now finds this kind of approach “unsatisfying” (López-­ Guerra 2014, 12 fn. 15; see also ibid., 99). He opts instead for “a problem-driven inquiry in which the moral issues are confronted as they arise” (ibid., 11) and whose “goal [is], in short, […] to make the best possible case without presupposing that the solution is already canned inside a particular framework, such as a theory of justice or democracy” (ibid., 12). Interestingly though, even on this new approach he still makes an argument for the separation of voting rights from citizenship and for taking away the former from non-resident citizens: My contention is that long-term residents should be enfranchised whether the state recognizes them as ‘citizens’ or not, while nonresidents – both citizens and noncitizens – may be legitimately excluded (and there are good reasons for presuming that they should be excluded). In a nutshell: residency matters, citizenship does not. (Ibid., 6)

That López-Guerra reaches this conclusion on the basis of two differing approaches shows how a stronger interpretation of the all-subjected principle (A1*) is defensible from at least two argumentative directions. We hold that the implications of A1, which can possibly threaten democratic autonomy, are reason enough to doubt the broader construal and to seriously consider the more restrictive A1*. Let us return to the three assumptions laid out in the beginning and substitute A1 by its variant A1*. The list thus looks as follows:

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(A1*) All and only those who are relevantly subjected to a government ought to be allowed to vote in the respective elections. (A2) Voting rights are part of citizenship. (A3) States have to offer the possibility of multiple citizenship. The transition from A1 to A1* has introduced a contradiction into the set of assumptions. If it is assumed that only the relevantly subjected – i. e., the residents – ought to have the right to vote (A1*), that this right goes hand in hand with citizenship (A2), and that there is the possibility of non-resident citizens (which follows from A3), then the argument will simultaneously call for allowing and for forbidding voting by non-residents. A1*, which we hold to be sufficiently motivated by democratic principles, stands in contrast to the combination of assumptions A2 and A3. Now, there are two possible ways of resolving this conflict: either giving up A2 and thus doing away with the common link between the franchise and citizenship, or abandoning A3 and thereby disallowing multiple citizenship. Carens himself has provided good reasons why we should not take the latter route. In his defence of multiple citizenship in The Ethics of Immigration, he convincingly argues that emigrants should be able to keep their original citizenship because they may want to be allowed to return to their country of origin, or because their citizenship may function as a formal safeguard against economic regulations that target non-citizens (inheritance laws, for example), or because they still have a sense of belonging to their former country and value the status of being a citizen as an important part of this identification (see EoI, 54). While emigrants have this whole host of motivations to keep their citizenship, states do not have any appropriate reasons to force them to relinquish all but one citizenship (see ibid.). Thus, it should become clear that giving up A3 and forbidding people to become citizens of more than one state is not a satisfactory solution to the conflict laid out above. What, then, about the second option: dropping A2 from the list of our commitments? While it seems plausible to think that people can build up the social ties which warrant the right to re-immigration in more than one state, it does not appear equally plausible to hold that they should also be enfranchised in multiple national elections. And, as we have already shown, Carens does not have any principled objections against a separation of the right to vote from the bundle of citizen-exclusive rights. Indeed, we have argued, this is even what is required by his principle of democratic legitimacy. The current argument points to the same conclusion: Scrap A2 (the link between franchise and citizenship), and it is possible to keep both A1*, which will safeguard against the risk of heteronomy by non-residents, and A3, multiple citizenship and its benefits.

5.4  Conclusion There is a large number of resident non-citizens who – although possessing most of the rights usually associated with citizenship, which is a desirable state – do not have the right to vote. This of course raises the question: ‘Why is the suffrage not extended to them as well?’ As we have tried to show, not only can Joseph Carens’s

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reservations about detaching voting rights from the bundle of citizenship rights be dispelled, but we hold that two of his main principles, if interpreted consistently, even prompt such a detachment. Specifically, the principles in question are the principle of democratic legitimacy and the social membership principle. The former grants everyone the right to participate in shaping the government he or she is subjected to. The latter grounds a claim to citizenship in the accumulated moral weight of the social ties that result from living in a community. First, we argued for equating Carens’s legitimacy principle with the all-subjected principle. Drawing on a work by Goppel, we showed how the all-subjected principle holds up favorably against other possible contenders for the demos-defining principle. It only relies on prospective residence, meaning that it conflicts with the common practice of making a claim to citizenship (of which voting rights are still a part) dependent on actual time of residence or on membership in Carens’s sense. In order to resolve this conflict, one would have to either make citizenship immediately accessible to residents or to separate voting rights from citizenship. We provided some motivational considerations for the latter option, but we also supported them with a second major argument to the effect that detachment is the preferable alternative. This argument first called for a stronger interpretation of the all-subjected principle, according to which only those who are continuously subjected to the authority of a certain state should be enfranchised in that state’s elections. We then introduced two further assumptions, namely the factual possibility of multiple citizenship in current political practice and the link between citizenship and voting rights. The stricter reading of the all-subjected principle was shown to stand in contradiction to the combination of both additional assumptions: They allow voting by non-resident citizens, while the principle – for reasons of democratic autonomy – explicitly abrogates the right of non-residents to participate in an election. We concluded that either multiple citizenship had to be renounced or the franchise had to be untied from the bundle of rights reserved for citizens. Since Carens offers convincing reasons for allowing people to assume more than one citizenship, it seems reasonable to pursue the latter option instead. The conclusions we draw are of course dependent on our interpretation of the all-subjected principle. Still, even if this is rejected, our argumentation has revealed – as an important side product  – that Carens can no longer side-line the issue of detachment of voting rights from citizenship: The current political arrangements and the conventional view on citizenship infringe his principle of democratic legitimacy.

References Carens, Joseph H. 2005. The Integration of Immigrants. Journal of Moral Philosophy 2 (1): 29–46. (= IoI). ———. 2007. Wer gehört dazu? Migration und die Rekonzeptualisierung der Staatsbürgerschaft. In Bürgerschaft und Migration. Einwanderung und Einbürgerung aus ethisch-politischer Perspektive, ed. Simone Zurbuchen, 25–52. Zürich: Lit. (= MRS). ———. 2015. The Ethics of Immigration. Oxford: Oxford University Press. (= EoI).

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———. 2019. On the Relationship between Normative Claims and Empirical Realities in Immigration. In Proceedings of the 2018 ZiF Workshop. Studying Migration Policies at the Interface between Empirical Research and Normative Analysis, ed. Matthias Hoesch and Lena Laube, 13–29. Münster: ULB Münster (miami.uni-muenster.de). https://doi. org/10.17879/15199614880. (= RNCER). European parliament. 2018. Rule of law in Hungary: Parliament calls on the EU to act. http:// www.europarl.europa.eu/news/en/press-room/20180906IPR12104/rule-of-law-in-hungaryparliament-calls-on-the-eu-to-act. Accessed 28 Jan 2019. Federal Statistical Office. 2018. Ständige Wohnbevölkerung nach Staatsangehörigkeitskategorie, Alter und Kanton, 3. Quartal 2018. https://www.bfs.admin.ch/bfs/en/home/statistics/population/effectif-change.assetdetail.6866254.html. Accessed 20 Jan 2019. Goppel, Anna. 2017. Aufenthaltsdauer und Wahlrecht. Archiv für Rechts- und Sozialphilosophie 103 (1): 23–41. doi: https://www.ingentaconnect.com/contentone/fsv/ arsp/2017/00000103/00000001/art00002?crawler=true. Accessed 20 Nov 2018. Hayduk, Ron, and Rudolfo O. de la Garza. 2012. Immigrant Voting. In Debates on U.S. immigration, ed. Judith Gans, Elaine M.  Replogle, and Daniel J.  Tichenor, 91–111. Thousand Oaks: SAGE. Le Portail des Statistiques. 2018. Population by Sex and Nationality on 1st January (x1000) 1981, 1991, 2001–2018. https://statistiques.public.lu/stat/TableViewer/tableView. aspx?ReportId=12853&IF_Language=eng. Accessed 25 Nov 2018. López-Guerra, Claudio. 2005. Should Expatriates Vote? The Journal of Political Philosophy 13 (2): 216–234. doi: https://onlinelibrary.wiley.com/doi/epdf/https://doi.org/10.1111/ j.1467-9760.2005.00221.x. Accessed 14 Jan 2019. ———. 2014. Democracy and Disenfranchisement. The Morality of Electoral Exclusions. Oxford: Oxford University Press. Balázs Majtényi, Alíz Nagy and Péter Kállai. 2018. “Only Fidesz” – Minority Electoral Law in Hungary. Verfassungsblog.de. https://verfassungsblog.de/only-fidesz-electoral-law-in-hungary/. Accessed 20 Jan 2019. Shaw, Jo. 2017. Citizenship and the franchise. In The Oxford Handbook of Citizenship, ed. Ayelet Shachar, Rainer Bauböck, Irene Bloemraad, and Maarten Peter Vink, 290–313. Oxford: Oxford University Press.

Chapter 6

Time, Membership, and Citizenship Johannes Müller-Salo

Abstract  The paper contains a critical discussion of Joseph Carens’s unificatory theory of social membership according to which it is membership in fact in a society that grounds a person’s claim to legal status, full and legally acknowledged membership, and citizenship. The paper’s first part is devoted to the concept of residence over time. It shows that the notion of residence over time can be interpreted in two ways. It is argued that only one interpretation is in line with Carens’s overall theoretical design, whereas he himself seems to accept both interpretations. The paper’s second part discusses Carens’s claim that, basically, every person who has become a member of a society is entitled to receive the corresponding state’s citizenship. It is argued that this claim is based on a problematic assumption of identity concerning a state’s civil society and a state’s political community which can hardly be defended. The paper goes on to discuss how justified claims to citizenship have to be grounded once the distinction between a civil society and a political community is accepted. Keywords  Citizenship · Duration · Joseph Carens · Participation · Social membership · Value of time

Without doubt, Joseph Carens’s Ethics of Immigration (EoI) is one of the most important theoretical contributions to the ever-growing interdisciplinary debate on problems of migration. Carens, whose interest in questions of migration policy can be traced back to the 1980s, shaped discussions in political theory and philosophy long before this field of study received broad attention within and beyond academic circles in the aftermath of the so-called “refugee crises” in recent years. As a political theorist, Carens is prepared to work with a realistic view on our political world with all its imperfections, while, at the same time, he develops an “ideal theory” of how the world should be if it could be shaped in accordance with theoretically J. Müller-Salo (*) Institute of Philosophy, Leibniz University Hannover, Hannover, Germany © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_6

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defensible principles and values. In The Ethics of Immigration, both aspects are present. In the second part of the book, Carens defends his case for open borders, which is based on the assumption that, “in principle, borders should generally be open and people should normally be free to leave their country of origin and settle in another” (EoI, 225). In the book’s first part, however, Carens accepts the fact that, at present, states exercise control over their territorial borders and that it is broadly assumed they are entitled to do so (see EoI, 10f.). This acceptance does by no means imply that he is giving up his case for open borders. His intention is rather to develop principles that might give orientation for public migration policies in our current political world, i.e., in a world that is structured by national states and their power to control individual movements. This paper is confined to a discussion of some central elements of Carens’s proposal for the regulation of “naturalization” policies under current political conditions.1 The fact that (almost all) states exercise control over their territorial borders is taken for granted – which, needless to say, does not imply any statement on the moral permissibility of such control. Furthermore, the paper focusses only on questions of permanent residence and citizenship: which criteria are important when dealing with the question whether a person has a right to stay at a certain place or to become a citizen of a certain state? According to Carens, what matters is residence over time (e.g. EoI, 164 f.). Living at a place for some time and sharing the activities of daily life with other inhabitants is what generates claims to permanent residence permissions and, ultimately, to citizenship, because this is the (only) way a person becomes a member of a community or society. Carens’s theory of social membership rests on the idea that living in a society over time makes one a member and being a member generates moral claims to legal rights and to legal status. What matters most morally with respect to a person’s legal status and legal rights in a democratic political community is not ancestry or birthplace or culture or identity or values or actions or even the choices that individuals and political communities make but simply the social membership that comes from residence over time (EoI, 159f).

Social membership is acquired by residence over time – and it grounds claims to legal status and to citizenship. Carens defends the importance of social membership primarily via pointing to serious and sometimes insurmountable difficulties alternative approaches have to face: residence over time is the only convincing criterion for social membership, because other theories that possess some initial plausibility cannot respond adequately to single cases, where we know, by intuition, how to proceed and how to decide. In this paper, I focus on the question how Carens’s conceptualizes the connection between residence over time, social membership, and citizenship. My main aim is to show that his concept of social membership should be limited in two ways. First, a claim to legal status may not necessarily be connected to social membership, as

1  See EoI, 21, for some important remarks on the concept of “naturalization” and the associations it evokes.

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Carens seems to assume. Second, social membership does not in every case ground justified claims to citizenship as Carens asserts. In my view, both questions are interconnected as they both depend on interpretations of the importance of residence over time. I proceed as follows. At first, I analyze the notion of duration: Why is it important for social membership that a person has lived at a certain place for a certain amount of time? I show that Carens presents two different answers to this question: according to the first answer, duration is of indexical value, it is a proxy that indicates that a person became a member of society because of her participation in societal activities and the development of personal ties. According to the second answer, duration is of normative value: a person became a member of society simply because she lived at a certain place for a certain amount of time and irrespectively of whether she participated in societal activities or not. I argue that it would be more in accordance with Carens’s overall conception of social membership to reject the second answer and to treat duration as always possessing an indexical value. Such a rejection would be compatible with the position that, under certain circumstances, claims to legal status do not have to be based on acquiring social membership (Sect. 6.1). Next, I turn to the connection between social membership and citizenship. In my view, Carens conceptualizes this relation as ‘quasi-automatic’: if one is a member of society, sooner or later one should become a citizen of the state in question. I argue that Carens’s position implies the thesis that a state’s civil society and a state’s political community are identical in relevant aspects. I then go on to present some reasons why this assumption of identity is problematic. If these arguments succeed, only a certain form of social membership, membership in a political community, would ground a claim to citizenship. Thus, the assumption of a ‘quasi-automatic’ connection between social membership and citizenship has to be qualified. I discuss several possibilities of how such a modification can be conceptualized (Sect. 6.2). Carens differentiates carefully between various groups of immigrants and explicates with formidable cautiousness how the central concepts of residence over time and social membership should be applied to the specific situation of each group. Due to limited space, I cannot provide a detailed and group-specific discussion. However, since Carens applies the concepts of membership and residence over time in similar fashion to the different groups’ circumstances, I believe that the more general level of the following analysis will do justice to his project.

6.1  The Value of Time: Indexical or Normative? Obviously, the notion of time, respectively temporal duration, is crucial for Carens’s theory: “The deepest puzzle about the theory of social membership may be that it relies on two rather limited criteria of membership: residence and the passage of time. […] Those are the only factors that play a role in the formal arguments about who should count as a member and how strong particular membership claims are”

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(EoI, 164). After living at some place for a certain amount of time, a person gains a right to continue living at that place and to participate in a community’s social, economic, and political activities. Carens hesitates to give an exact account of how long the period in question has to be: Identifying a specific moment after which irregular migrants should have a legal right to remain inevitably involves an element of arbitrariness […], but the principle that time matters sets some limits to the range of reasonable alternatives. If someone says that twenty years is not long enough to establish a claim to stay or that one year is sufficient, that is a person who does not take the claim that time matters very seriously (EoI, 151).

I believe that Carens is right in rejecting any attempt to standardize the needed period of time theoretically (see EoI, 48, 60, 89, 103 f., 113 f., 147, 151). Such questions can only be decided within democratic processes of lawmaking, which might lead to different results that are acceptable and legitimate as long as they do not extend the required duration of stay within a state’s borders beyond a reasonable time span. Several times, Carens mentions a time span of approximately five years as an appropriate length, and this tentative proposal might well serve as an orientation for the following discussion. Why should a person gain a right to remain after five years of living at a certain place? Why has such a time span a certain value – and what kind of value does it have? In my view, it is important to differentiate between two possible answers to these questions: Time and temporal duration can be of indexical or of normative value. To illustrate the differences between those answers, I will begin with an example that is not taken from the philosophy of immigration, but from biomedical ethics. Human organs are scarce resources. Suffering patients who are in urgent need of a liver, heart, lung, or kidney transplantation sometimes have to wait several years before they can receive an organ donation. Frequently, patients have to wait too long and die before receiving a donated organ. Due to this situation, questions of distributive justice are crucial for transplantation ethics. Systems of organ transplantation like Eurotransplant work with a bundle of criteria in order to decide fairly which patient should receive an available organ. Among criteria like high medical urgency and prospect of success, waiting time plays an important role. Why should waiting time be taken into account? There are two possible answers to this question that are under discussion within transplantation ethics.2 Proponents of the first answer typically point to the indexical function of using the waiting time criterion: Normally, the health state of patients who suffer from a serious illness that makes an organ transplantation necessary deteriorates the longer they have to wait for the organ. If this empirical, medical assumption is plausible, waiting time has indexical value, the criterion of waiting time might be used as a surrogate for the criterion of medical urgency, which is relevant for questions of distributive justice within transplantation ethics.

2  See Egan and Kotloff 2005, who use the allocation of donated lungs as an example for a general discussion of the importance of waiting time in comparison to other criteria of organ allocation.

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Put in more general terms, the idea is this: A certain criterion A is important for deciding between possible options. A second criterion B is introduced which is connected to A in a reliable way so that one is, at least under normal circumstances, justified to assume that, if B is the case, A holds as well. In many cases, surrogate criteria are used to simplify processes of decision making. If A and B correlate reliably, and if it is easier to say whether B is the case than to answer the question whether A is the case, it is reasonable to work with B. To get back to the example of organ donation: it is easy to ascertain how long a patient has been waiting for an organ, whereas it is often a complex task to evaluate a patient’s overall state of health. As decisions within transplantation medicine are made under pressure of time, it might be wise to work with the criterion of waiting time as a surrogate if waiting time is a reliable indicator for a patient’s state of health.3 The indexical value of time has to be distinguished from its normative value. Take again the example of organ donation: One could argue that waiting time cannot be used as a reliable proxy for medical urgency and rather point to the importance of time itself: All patients waiting for an organ donation suffer from serious illnesses. For some patients it might be true that they are bypassed every time an organ is available because there are always other patients whose state of health is worse. Taken this for granted, one might hold that waiting time itself is of normative value: it might be simply a question of fairness that a patient who waited for a very long time receives an organ at some point, just because she has waited for so long. At first glance, Carens seems to ascribe an indexical value to temporal duration, to the time a person lives in a certain state. Social membership is what matters morally, and residence over time is an appropriate surrogate to answer the question whether a person has become a society’s member. Carens says: Are [residence and length of stay, JMS] just proxies for a richer set of indicators of social membership? If so, why rely on these proxies? If what really matters are a person’s connections to the society in which she lives, why not try to measure those connections directly? […] My basic answer to the questions is that residence and time are proxies for richer, deeper forms of connection but that we have both practical and principled reasons not to try to go beyond these proxies, at least under most circumstances (EoI, 164f.).4

Beside this explicit ascription of indexical value to length of stay, the compelling stories of individual cases Carens uses throughout the first part of The Ethics of Immigration to illustrate his arguments suggest that the criterion of temporal duration should be seen as a surrogate for social membership (e.g. EoI, 1, 19, 101 f., 147f.). The people he tells us about did not simply live at a certain place for a certain amount of time: They have made friends there, they feel at home, they develop a deep sense of belonging, and  – that is the main point of these stories  – they are absolutely right in doing so.

3  For a closer examination see Dietrich 2018, who comes to the conclusion that waiting time does not serve well the function of a surrogate within discussions on organ allocation. 4  See as well EoI, 152: “It is not the passage of time per se that matters but what that normally signifies about the development of a human life.”

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This, however, is not the whole story. At the very end of the book’s first part, Carens takes up the example of what he calls a recluse: “[…] Some readers will undoubtedly want to know whether residence and time are really sufficient as a matter of principle. I have been asked on more than one occasion to imagine an immigrant who establishes no relationships with others. Does she become a member of society as time passes? Is it really just physical presence over time on the state’s territory that makes one a member of society?” (EoI, 167). In Carens’s view, such a person also has a claim to legal status and citizenship as time goes by: Imagine another recluse who is not an immigrant. Why should she have any legal rights? Why should she be a citizen? No one would suggest that we take away legal rights and legal status from someone just because she does not have many connections to other people in the community in which she lives. Why would a similar pattern of social disconnection provide grounds for denying legal rights and legal status to an immigrant? […] The immigrant recluse has the same claims to social membership (EoI, 168).

Carens confesses that he is likely to resist hypothetical examples like the recluse scenario because they bear “so little relation to the actual experience of most immigrants” (EoI, 167). Nevertheless, he recognizes that “the point of the hypothetical example […] is to clarify the principle at stake” (EoI, 168). And in accepting the recluse’s claim to legal rights and legal status, Carens implicitly accepts the position that time is not of indexical, but of normative value. This answer comes as a surprise. Throughout the first part of the book, the basic concept of social membership is presented in quite a different way. As I mentioned before, the compelling examples Carens uses are not examples of persons who simply lived at a certain place for a certain amount of time. They are examples of people who form deep social relationships. If asked why these people have a claim to legal status and to legal rights, answers like: “Because they are at home at this place.”, “Because they have family and friends here.”, seem to be most fitting. Besides having an important intuitive and emotional appeal: what would be the argumentative point of all these examples, if they were focused on circumstances that, in the end, would not count, if residence over time was the only aspect of normative significance as Carens’s answer to the recluse scenario implies? In my view, the main difficulty is that Carens envisages only two possible strategies to deal with the recluse scenario. The first solution is to deny that the recluse has a claim to legal rights and legal status because of her social behavior, because of her unwillingness to get in touch with other members of society. Carens defends a second solution: the recluse is a member of society and, therefore, has a claim to legal rights and legal status. In this scenario, however, the assumption of tertium non datur might be misleading. It is possible that the recluse has a claim to certain legal rights and a certain form of legal status, although she is not a member of society. Carens does not discuss this option. His answer to the recluse scenario rather leads to the impression that he is ultimately indecisive on the question of how the notion of social membership should be interpreted. Although he claims that normally residence over time is merely a proxy for those elements that constitute social membership (EoI, 164), i.e., that time is of indexical value, in dealing with the recluse he is

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willing to accept the proposition that residence over time is all that counts, i.e., that time is of normative value (EoI, 168). One could answer that this problem is of little practical importance as the recluse scenario is primarily a hypothetical scenario and no matter of concern in immigration politics. However, I believe that such a response is overhasty, because Carens’s solution to the recluse scenario fundamentally alters the understanding of the concept of social membership. By reacting to the recluse scenario in the way he does, the concept of social membership is turned into a concept applicable in a strict and formal sense: A person who lives at a certain place for a certain amount of time necessarily becomes a member of society, irrespectively of what she does or does not do. I believe that such a formal reconceptualization of social membership is a price to pay that is far too high if confronted with the recluse scenario. What is compelling about Carens’s answer to the question Who belongs? is that he avoids formal answers focusing on questions of legality and compliance with positive rules. He rather asks us to look at a society’s daily reality: if people participate in social life, if they work and pay their taxes, they are, in fact, members of society, irrespectively of their formal, legal status. And, as Carens proceeds, because of their being in fact a member of society, this membership should be formally acknowledged by guaranteeing legal rights and legal status. In the recluse’s case this line of thought is given up. If we look at her daily life, the recluse is not a member of society in those senses evoked by the examples Carens presented in previous chapters. Why should she be entitled to be treated as a member? The answer is: because she has been present for a certain amount of time. But this answer is, in a certain sense, on the same level as the following answer to the question of why a well-integrated person should have to leave a country after ten years of living there: “Because she did not enter the state with legal permission.” Both answers are strictly formal, they do not take into account a person’s social reality. It is even questionable whether this formal concept of social membership, as presented in answering the recluse scenario, is in accordance with the normal use of the term membership and its implications. Typically, a member of a certain group is involved in at least some of the group’s shared activities. Take the example of a tennis club. Imagine an old man who sits, with tremendous punctuality, every day on a wooden bench at the tennis court’s edge when the members of the club start their training. This goes on for years. The members are greeting him, he is friendly, but, at the same time, he constantly denies to join any match or other activity. Would we say that he is a member of the club? Certainly not, as he voluntarily decides not to join the club. One could reply that a state and its society cannot be compared to a tennis club. This is certainly true with regard to many questions. However, I believe that the situations of our old man and the person in the recluse scenario are comparable to each other. The recluse voluntarily decides to stay away, to not partake in those shared activities that establish social membership according to Carens’s initial understanding of this concept. Why should we call her a member and why should she have a claim to this status and the rights of membership?

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One can take the example of the tennis club a bit further. Imagine, the man has already been sitting there for years, silently watching the daily games. How would we react if one summer morning one or more members of the club would suddenly ask our old man to leave his seat? I believe that many would consider such a demand to be unjustified unless the man’s behavior gave the club’s members good reasons for asking him to leave. This example points towards another solution to the recluse scenario. As mentioned before, I believe it is possible to give a third answer to the problem: The recluse might have a right to stay, i.e., a claim to legal status, although she is not a member of society since she keeps away from societal activities. Such a right might, for example, be grounded in a no harm principle that is broadly accepted within moral and political philosophy. It has been prominently defended by John Stuart Mill in his seminal work On Liberty: The object of this Essay [On Liberty, JMS] is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others (Mill 2009, 32f.).5

I quoted a longer part from Mill’s essay since it clearly shows that Mill intended this principle to govern all forms of political regulation of individual behavior. A recourse to this principle surely will suffice to defend a recluse’s claim to legal status after some time of residence within a state’s territory. After some years of living at a certain place, it would be unfair to force her to leave. After all, her presence does not harm anyone. For whatever reason she decided to live at this place, forcing her to leave would surely inflict harm upon her – a harm that is unjustified as well as unnecessary. To be sure, the recluse would not be entitled to rights based on social membership. Additionally, the harm principle implies that the state might be justified in forcing the recluse to leave or to sentence her in case she inflicts harm upon others and, for example, becomes a criminal.6 I cannot see why such a limited legal status should be unfair, as long as the recluse voluntarily chooses to stay away from other members of society and as long as she is not excluded and discriminated against in case she wishes to become a full member of society. To sum up the main points of this section: If social membership is ultimately grounded in one’s participating in daily societal activities, residence over time

 See in this context Carens’s own recourse to Mill’s principle in EoI, 75f.  Note that I only claim that a state, in such a situation, might be justified to force the recluse to leave the country. I do neither say that the state in fact has to force her to leave nor that the recluse’s state of origin has any obligation to permit her to re-enter. 5 6

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should be seen as a proxy that has indexical value7: If a person lives at a certain place for a certain amount of time, we are justified to believe that she became a member of the society existing at this place and, therefore, has a claim to the legal rights of membership. If, however, a person voluntarily refuses any participation in societal activities, we should stick to our understanding of social membership and, therefore, should not see her as a member of society. Otherwise, the concept of social membership has to be used in a formal way that is contrary to Carens’s overall concern to take social reality and daily forms of life as the ultimate fundament of claims to legal rights and legal status. His solution to the recluse scenario should, therefore, be rejected. Nevertheless, the recluse might have a claim to a certain form of legal status based on other principles like the no harm principle presented above.

6.2  Social Membership and Citizenship In Carens’s theory, social membership ultimately grounds claims to legal rights and legal status. The fact that one has been a member of society for some time establishes a right to formal acknowledgment of one’s membership and all rights that come with it. To put it in more general terms: If a person in fact has been a member of a group for some time, she has a claim to formal membership, i.e., a claim to all those rights and entitlements that full membership normally includes. What exactly does it mean to become a society’s member? According to Carens’s Ethics of Immigration, the development of different forms of ties is decisive: “Living in a community also makes people members. As adult immigrants settle into their new home, they become involved in a network of relationships that multiply and deepen over time. They acquire interests and identities that are tied up with other members of society.” (EoI, 50). Over time, personal ties can be developed in very different forms  – and are always connected to a certain environment, to certain people and places: In ten years, connections grow: to spouses and partners, sons and daughters, friends and neighbors and fellow-workers, people we love and people we hate. Experiences accumulate: birthdays and braces, tones of voice and senses of humor, public parks and corner stones, the shape of the streets and the ways the sun shines through the leaves, the smell of flowers and the sounds of local accents, the look of the stars and the taste of the air – all that gives life its purpose and texture. We sink deep roots over ten years (EoI, 150; see ibid., 23, 31, 46, 149).

Why exactly is a person justified in her claim to full membership in a certain group after living in this group, amongst members of this group, for a certain amount of time? Because the person developed connections to other people in this group in 7  For a similar interpretation see Sager 2014, 194, who observes that “the passage of time alone does little moral explanatory work” in theories of social membership: “Rather, residence generates more fundamental considerations such as people’s strong interest or stake in retaining ties to the community where they live, work, and raise families.”

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ways and forms and surroundings that are typical for this group and via participating in activities that are typical for this group. The way one makes friends, one works, one spends one’s own free time is shaped by a group’s structure and a group’s style of doing certain things. Carens’s account of social membership is unificatory in the sense that different groups of rights and claims are based on it. Three groups of rights should be distinguished. First, after living on the territory of a certain state for a certain amount of time, a person acquires a claim to legal status, i.e., some form of residence permission. Second, after participating in working and other forms of social activities for a sufficiently extended period of time, a person is entitled to a bundle of socioeconomic rights, including access to pension schemes, health insurance, school education etc. Third, after being a member of society for a certain amount of time, a person should receive those political rights that full citizenship normally includes. According to Carens, these groups of rights normally go hand in hand, eventually nearly all people who live on a state’s territory should have the same full bundle of rights (see EoI, 89, 96, 100ff.). At the beginning of this paper, I described Carens’s unificatory account as working in a ‘quasi-automatic’ way. Just take the example of permanent residents: Democratic justice, properly understood, greatly constrains the legal distinctions that can be drawn between citizens and residents. Once people have been settled for an extended period, they are morally entitled to the same civil, economic and social rights as citizens and they should be subject to most of the same legal duties. […] The longer people stay in a society, the stronger their moral claims become. After a while they pass a threshold that entitles them to virtually the same legal status as citizens, whether they acquire formal citizenship status or not (EoI, 89).

Time levels out differences in rights and legal status. The road to citizenship is open once social membership is acquired.8 The only question that remains is how long it takes to walk down this road.9 This unificatory account of social membership is, in my view, based on an important presupposition: It premises that a civil society and a political community are basically identical – or at least should be. Whoever is a member of a state’s civil society should become a member of a state’s political community as well, since the latter is based on the same form of social membership.

8  One could argue that the metaphor of a “road to citizenship” is slightly misguided and should be replaced, as Marit Hovdal-Moan has proposed, by the image of a “stairway” (2014, 82ff.), as, typically, new bundles of rights are obtained at certain points and not acquired gradually. However, I believe that the image of a road fits well with Carens’s theory, as, once a person gained social membership, no further hurdles are to be taken in order to attain citizenship. Instead, it is simply a question of time to arrive at that goal. 9  See Hammar 1994, who importantly pointed out that one should not only ask how much time the process as a whole might take, but as well focus on the question whether the process’s different steps should be temporally limited. Hammar himself distinguishes an illegal and three legal statuses a person can possess (temporary legal resident, denizen status, citizenship; ibid., 189), and proposes that within a certain time a state has to decide on a person’s legal status or, quasi-automatically, has to “grant an applicant transfer from a lower to a higher immigrant status” (ibid., 196).

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A political community and a civil society can at least be distinguished from a sociological point of view. The difference between both could be described like this: All persons who live in a state’s territory, who are tied to this territory via personal relationships, who participate in social and economic activities, who are members of different forms of clubs, associations and organizations, are members of this state’s civil society. By contrast, all persons who live in a state’s territory and who possess political rights like the right to vote, the right to be elected into public office etc., are members of that state’s political community. Needless to say, in most cases individuals will be both, a member of a state’s civil society and a member of its political community. Carens’s unificatory account includes the premise that the difference between both is merely a question of perspective: The same societal structure can be viewed from a political perspective as a political community and from a broader, e.g. socioeconomic perspective as a civil society. In any case, the differences between both are irrelevant with regard to questions of membership. Otherwise Carens’s claim that membership in a society suffices to ground a claim to citizenship, i.e., to membership in a political community, would not hold. The following arguments intend to show that this claim might be problematic. In the following, I use the term citizenship as referring to membership in a political community. As I am basically interested in political rights, I exclude other parts of citizenship like the right to be supported by diplomatic services and embassies in case of emergency when travelling in foreign countries. Therefore, the main difference between a citizen and a member of a civil society is that the former possesses political rights like the right to vote and to be elected for public office, whereas the latter might not possess these rights, also she possesses a claim to legal status, to a permanent residence permission and to an extensive bundle of socioeconomic rights. Carens generally uses the term citizenship in a broader sense that encompasses all different types of rights that a state’s citizens possess. These differences in terminology should be kept in mind: the difference between Carens’s position and the one I am going to analyze only concerns the question of what kind of membership grounds rights to political participation. Put in a simple way, my main line of thought is this: A state’s civil society and a state’s political community should be seen as two different groups. The theory of social membership can explain how an individual attains a justified claim to full membership in a group: such claims are attained via participating in activities and via forming ties that are typical or central for the group in question. However, for each of these two groups, different forms of activities and ties are typical and central. Therefore, the fact that a person attains a justified claim to full membership in civil society does not have to lead to the conclusion that she is justified in her claims to citizenship as Carens’s unificatory account implies. If this is true, we are in need to explain how justified claims to citizenship should be grounded. Let us begin with the typical daily activities of a member of a western civil society. The alarm clock might ring early in the morning, she eats breakfast, she goes to work, has a lunch break with some colleagues. After work, she might spend time with her children, with family and friends; she might go to the gym or the grocery.

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In the evening, she might stay at home and call her dad or a friend, she might meet some people at a restaurant, a theatre or a cinema. Now, contrast this description with activities that typically come to mind when talking about an individual’s role as a citizen, as a member of a political community: She might read a newspaper in the morning and watch some news broadcast in the evening to keep herself informed about what is going on in national politics. During lunch, she might discuss a reform of the national health insurance system that is currently under debate in parliament. She might attend party meetings in her free time, she might participate in demonstrations and campaigns. She might try to convince people in her surroundings to vote for a certain candidate at the next elections – and, of course, she herself is going to vote on the election’s day. When looking at these two descriptions, it is important to note three things. First, typically both “forms of activities” are linked to each other and amalgamate in a day’s schedule: One sees colleagues and friends and discusses political topics among others, one reads the newspaper to get some information and to have a nice coffee while reading etc. Activities overlap  – and so do social roles. One cannot always say whether a person is acting as a member of civil society or as a member of a political community. However, the distinction is present and can be drawn. It becomes most visible in times of massive political change and conflict: the American legal theorist Bruce Ackerman describes this vividly via contrasting periods of “normal politics” and “constitutional moments”, i.e., periods of fundamental political decision making: Surely it is a great and good thing for us to work productively as citizens, when the times or our consciences require it. But it is no less important to explore very different worlds of meaning – with only a few intimates, or a thousand fellow workers; worlds that invite us to move beyond geographical boundaries to seek religious or cultural association with different and distant people. […] Normal politics is, in short, not only a predictable part of the cycle of American history; we should not want to break free of the cycle even if we could. We would lose much too much of value if we were constantly debating the future of America with one another. […] Only when a substantial movement for revolutionary reform arises in the country will elected politicians begin to signal the advent of a constitutional moment by openly challenging traditional principles. At this point our private citizen will be faced with a hard choice. He is now on notice: if he passively remains on the sidelines, fundamental aspects of his social situation may be revolutionized without his serious participation. The receipt of this signal will not, of course, magically dissolve the dilemma experienced by private citizens who will lose a great deal of value if they begin to invest heavily in political participation (Ackerman 1993, 306f.)

I decided to quote this long passage from Ackerman’s work as it demonstrates that the roles of membership in a civil society and in a political community, as interconnected as they are, can clearly be separated. A person can constantly ask herself how much time she should devote to her role as member of a political community and whether she is prepared to disregard some other goals and activities for a certain time in order to fulfill her role as citizen. Second, take again the description of typical daily activities in modern western societies. Obviously, it is possible to perform all these actions – working, spending free time, meeting other people – without ever getting in touch with political matters

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in a serious way. One does not have to watch the news, attend party meetings or demonstrations – and in most states, one does not have to cast one’s vote. In fact, most people probably know persons in their surrounding who prefer to keep themselves away from any political questions. Third, all mentioned activities – those of daily civil life as well as those of civic engagement – require certain skills and forms of knowledge in a broad sense. In daily life, one needs social and professional skills for working and for interacting with other people. To participate in political affairs, one needs at least basic information on a political system’s functioning, its most important institutions and its relevant actors. Typically, one has as well to be informed about the current state of important political debates. Taken together, these three aspects lead to a first conclusion: It is possible for a person to be a full member of civil society without any active involvement in matters of politics. The terms Carens uses to describe the different aspects of social membership, like, e.g., “the dense network of relationships and associations”, “a person’s ability to maintain and develop a rich and highly particular set of human ties” (EoI, 164), do not include any specific reference to questions of politics. I believe that this short analysis indicates why there might be good reasons to think of a civil society and a political community as different groups. The activities typically connected with each group differ significantly – and might even conflict with each other. Different skills and forms of knowledge are needed if one wants to be a well-functioning group member. Different forms of ties and interpersonal connections are important. The list might be continued: The sociological concepts that are used to analyze each of the two differ significantly. When thinking about a civil society, categories like the organization of daily life, socioeconomic structuring, cultural identities, and lifestyles are of central importance, whereas an analysis of a political community is often focused on problems of legitimacy, self-government, organization of power etc. After having distinguished between a civil society and a political community, it is important to recall the central idea of Carens’s theory of social membership: if a person has in fact become a member of a certain group, she is justified in claiming that her membership is formally acknowledged and that she possesses all those rights that come with formal membership. Applied to political communities, the implication is this: every person that in fact has become a political community’s member, is entitled to formally acknowledged full membership. What does it mean to become in fact a political community’s member? It does mean to participate in those activities that are central to a group’s existence and functioning and that, at the same time, do not presuppose formal membership. If the description of a political community and of a citizen’s role, as it has been presented above, is correct, we can draw the following conclusion: in order to become in fact a political community’s member, one has – at least up to a certain level – to participate in political discussions, ranging from daily talks with one’s acquaintances to political debates in foro publico and in the media, or political campaigning, demonstrations etc. Based on this, I would like to ask you to consider two examples. The first is mentioned by Carens himself: it might be true that some Pakistani who recently

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moved to London will primarily live in the British capital’s Pakistani community. They might continue “to speak the language of their country of origin and continue to eat the same food, wear the same clothes, follow the same patterns of social interaction and maintain the same values as they did in their country of origin” (EoI, 167). How should we deal with such a case? Carens’s answer is explicit: Being a Pakistani in London or a Moroccan in Paris or a Somali in Toronto is not the same as being a Pakistani in Pakistan or a Moroccan in Morocco or a Somali in Somalia. […] Treating relationships with fellow immigrants as irrelevant to social membership denigrates the immigrants and denies that they belong. Relationships with fellow immigrants should be seen as just as important as relationships with nonimmigrants in establishing claims to social membership (EoI, 167).

I believe that Carens is absolutely right: after living in fact some years in London, these Pakistani surely have a claim to legal status and a claim to full social membership in civil society, which includes a permanent residence permission, full socioeconomic rights, access to all public systems of social security, education etc. However, do they have a claim to full membership in the British political community as well? If we accept the idea that being a member in fact is what grounds a justified claim to formally acknowledged full membership, the response to this question has to be a negative one. If these immigrants never read anything about British politics, if they are unaware of even basic structural elements of the British political system and have no interest in participating in any form in central political debates – at the dinner table or in public – they cannot be seen as a political community’s members. Take, as a second example, a girl from northern England. Her parents are both citizens, she grew up in Manchester, went to public school etc. However, she has never shown any interest in political matters. She performed badly at those few social science classes she attended during her years at school. Voluntarily, she would never read anything about politics. Consequently, her knowledge about even fundamental current political debates is deeply limited – and she will not make use of her right to cast her vote. Would we consider her to be a member of the British political community? Once again, I doubt that this would be an accurate description since she is not participating in any kind of activity that is typical for such a community. Very likely most political theorists would try to avoid such a conclusion; Carens, in any case, would reject it. Where is this line of thought taking us? In my view, three reactions seem to be possible. The first reaction consists in presenting an alternative understanding of what it means to be in fact a member of a state’s political community. The second reaction might be to reject the idea that a justified claim to membership in a political community is based on membership in fact in that community. Finally, it is possible to accept the drawn conclusion and to focus on its implications for policy making. Let us begin with the first option. One could claim that the description of what it means to be a political community’s member, as I presented it above, is misguided: all emphasize is put on the side of active participation. However, does membership in fact really need to be based on civic activity? Does politics not, after all, play a decisive part within a civil society’s structuring? Isn’t everyone who becomes a

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member of a civil society bound by laws and other political decisions? Does not any plausible principle of democratic legitimacy require that those who are obliged to obey the laws are at the same time entitled to have a say in the making of such laws?10 In other words: is not everyone who is a subject to a certain political authority simultaneously also a member of the respective political community? An answer to these justified questions should begin with a discussion of perspectives – and two different perspectives on a political community should be distinguished. A political community can be seen as a structured group of people who belong to the same state and who are subject to the same political authorities and legal rules. At the same time, a political community can be seen as a structured group of people who are entitled to participate in democratic processes of policy making and lawgiving. The first perspective emphasizes a person’s passive role as subject to an authority, while the second stresses a person’s active role as a member of a group that governs itself through democratic processes. I believe that the second perspective, a person’s active role as a citizen, is the one to focus on. The reason for this is very simple. Compare a normal member of a state’s civil society, i.e., a person whose justified claims to full membership have been respected, to a normal member of that state’s political community, i.e., a person who is a citizen of that state. The difference between them is that the latter one is entitled to participate in certain political activities like elections, whereas the former is not. The latter can play an active role in politics.11 Of course, it is true that every member of a state’s civil society is subject to a certain political authority and to specific legal rules. However, this holds true for all members of the respective state’s political community as well. Being a citizen does not free you from your legal and political duties, it rather gives you a say in the process of defining such duties.12 What is specific about being a member of a democratic political community is the possibility of active participation. Therefore, the first way to doubt the drawn conclusion does not seem to be very promising at all.

 Carens explicitly claims that the notion of democratic legitimacy, according to which “everyone should be able to participate in shaping the laws by which she is to be governed” requires that every person who lives permanently in the state should become a citizen or should at least have the right to become one (EoI, 50). 11  David Miller makes a similar point when he claims: “Citizenship is not just a formal legal status. […] It is also a social role that encompasses a wide variety of everyday activities, ranging from joining neighborhood associations and conservation groups to protesting against government policies […].” (Miller 2016, 141). I would add: it is a social role a person does possess because she is a member of a certain group, i.e., a political community. 12  If active participation is seen as central to membership in a political community, an important challenge in current democratic theory can be met: based on an all affected interests principle, it is discussed whether people who live beyond a state’s territorial border are in some cases entitled to vote in that state. See, e.g., Song 2009, 616f. The social membership approach as developed here explains why such an expansion is not necessary: a justified claim to full membership is based on membership in fact in a political community. In the case of people who live in other states, this criterion is obviously not fulfilled. 10

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Now, take the second route. Maybe, justified claims to full membership in a state’s political community should not be based on membership in fact, but on something else. One could claim, as indicated before, that all that matters is one’s being a subject to a certain political authority. And of course, those members of civil society who voluntarily choose to abstain from any political engagement are nevertheless subject to the state’s authority. Furthermore, there is a broad consensus among theories of democracy that being subject to a political authority is prima facie sufficient for claiming a right to participate in a political community’s activities. If one wishes to choose this second route, one has, at least partially, to give up the theory of social membership: to gain a justified claim to full membership, one does not have to become in fact a member of a state’s political community before.13 The theory of social membership would be confined to the problem of gaining membership in a civil society. Note that there are further problems with this second solution: in the case of powerful western democracies – think of the influence the U.S. government exercises about the smaller states of Middle America and the Caribbean –, many people who live outside of a state’s borders are nevertheless in an important sense subject to that state’s authority since their community’s political life is dominated by a foreign political power. If one’s being a subject to a political authority suffices to justify claims to membership – why should these people in other states not be entitled to full membership in the powerful state’s political community? This example proves once again why it is reasonable to differentiate between a state’s civil society and its political community: the people who live in the dominated states surely are not members of the powerful state’s civil society. However, they might have a right to participate in the respective political community’s activities. If we wanted to avoid such a conclusion, I believe that the most promising way would be to emphasize the importance of membership in fact. After all, membership in a community is more than being merely subject to the consequences of a community’s political activity. However, this brings us back to the central problem. There remains a third option. Maybe, we should accept the conclusion drawn before. Maybe those Pakistani from London and that girl from Manchester do not possess a justified claim to citizenship as they are not in fact members of the British political community. Before we dismiss this option rashly as being incompatible with basic democratic intuitions, it should be analyzed in more detail. If these people were at the moment not justified in their (possible) claim to citizenship, what would have to happen in order to change this? The obvious answer is this: they must start to get in fact engaged in matters of politics, as being in fact a member of the political community is what grounds justified claims to full membership according to the theory of social membership. How can we know whether a person is in fact a member of a political community? Think of those prerequisites that are needed in order to participate in a  This point could be put even more tentatively: Being in fact a member of a state’s political community might be a sufficient condition for a justified claim to full membership, but should not be seen as a necessary condition.

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community’s activities. It will probably be quite uncontroversial to claim that none of these activities can be undertaken unless one possesses at least basic knowledge of the political system in question and is at least superficially acquainted with the current state of central political debates. If this is admitted, a test can be a reasonable procedure to decide whether a person is justified in her claim to citizenship or not – a test in which this very basic political knowledge and a person’s ability to fulfill the role of membership is examined. In other words, such a test is an adequate proxy for membership in fact in a political community. It is important to see why the test can work as a proxy: the knowledge that is tested is indispensable for every member of a political community, as one simply cannot participate in any activity central to that community without such knowledge.14 Furthermore, recall the various and important interconnections between a state’s civil society and its political community: in many (most?) cases people are members of both groups. As all members of the civil society are subject to the state’s political authority and to legal directives, they all have a strong incentive to be members of the political community. Consequently, every member of a state’s civil society should be entitled to pass such a test as the standard way of acquiring citizenship. It is important to note that this solution would treat all members of civil society, regardless of immigrant origins, equally. Every person who becomes a member of a state’s civil society via residence over time, she might have entered the state’s territory in accordance with immigration laws or not, is entitled to pass the test and to become, in case of success, a member of the state’s political community. All members of civil society are treated equally. If one intends to criticize this proposal as unfair, one has to focus on another aspect: isn’t it unfair to link membership in the political community to any form of testing at all? I do not intend to disregard those problems of discrimination and marginalization of vulnerable groups that might be connected to such a broad use of tests. These problems should be taken very seriously. However, I believe that this option needs a careful analysis. Why so? The main reason is this: Carens is, in my view, absolutely right in emphasizing the role of real life when judging claims to membership. If one has to decide whether a person should be a member of a group or not, one has to look at what is really going on. If we do so in the case of political communities, we have to see that a significant number of people in fact abstain from any political activity and, at the same time, lack the very basic knowledge that is needed to get involved in a political community’s activities.

 Compare this to Miller’s claim that the passing of a test as a precondition for citizenship has the aim “to equip immigrants with the linguistic, political, and social skills that will enable them to take full advantage of the society they are joining” (Miller 2016, 136). The basic idea that underlies my proposal is quite different: because she became in fact a member of a political community, a person is entitled to a full and formally acknowledged membership. How can a state decide whether a person in fact became a community’s member? It can test whether this person really possesses the basic knowledge that, in any case, is needed to be a member in fact, to fulfill the basic roles connected with membership.

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One might recognize this and, nevertheless, conclude that, on the whole, it is better not to test any political knowledge in order to avoid the dangers of discrimination. This might be, after all, the best solution. However, one should not forget that a democratic political community will only work if there is a sufficiently broad number of community members who are prepared to spend some of their time on activities of political participation and who possess those skills and knowledge that are needed. Look at the matter from the perspective of a community member who is very interested in questions of politics and who participates in a political campaign from time to time: is it not reasonable for her to expect that her fellow citizens take their political rights seriously and handle them with care? And surely, a careful handling of these rights is not without presuppositions. Cannot a political community’s member reasonably and rightly expect that a person who applies for membership and participation is at least superficially acquainted with the enterprise she wishes to join? In order to avoid any forms of unfair exclusion, political philosophy does too often ignore the uncomfortable question of a citizen’s duties within the realm of politics. In my view, Carens’s theory is not entirely free of this problem as well: if membership is all that matters, the duties that come along with membership must also be taken into account. Consider two further aspects: first, it needs quite some effort to conceive a case in which a member of civil society has a real interest in becoming a member of the respective political community and is at the same time unable to pass the test as envisioned. If a person wants to become a member of a political community in order to participate in democratic processes like elections, such an interest normally presupposes or goes hand in hand with the acquisition of some basic knowledge about the community in question. In every society there will probably be a significant number of people who would never apply to pass such a test and to become a member of the citizenry, due to reasons of indifference or ignorance or due to a feeling that their voice and vote will not matter in any case. From the viewpoint of democratic theory, such an attitude is deeply regrettable and all possible endeavors to integrate more members of civil society into the state’s political community should be welcomed and supported. However, with regard to these cases it is not the test that excludes someone from the political community. Rather, the test can contribute to make such problems visible, to foster societal debates on why so many people voluntarily abstain from testing. Second, the tradition of modern liberalism includes important and influential theories which insisted on drawing a line between full citizens of a state on the one hand and inhabitants of a state’s territory with a justified claim to a comprehensive bundle of rights on the other hand. Without doubt, John Locke is the most famous representative of such a tradition. For Locke, citizenship is based on an individual’s consent to become a member of what Locke calls a Commonwealth and what could adequately be described as a political community as I use the term her. To quote a central passage of the Second Treatise: But submitting to the Laws of any Country, living quietly, and enjoying Priviledges and Protection under them, makes not a Man a Member of that Society: This is only a local Protection and Homage due to, and from all those, who, not being in a state of War, come

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within the Territories belonging to any Government, to all parts whereof the force of its Law extends. […] And thus we see, that Foreigners, by living all their Lives under another Government, and enjoying the Priviledges and Protection of it, though they are bound, even in Conscience, to submit to its Administration, as far forth as any Denison; yet do not thereby come to be Subjects or Members of that Commonwealth. Nothing can make any Man so, but his actually entering into it by positive Engagement, and express Promise and Compact (§ 122; Locke 1988, 349).

In Locke’s view, it is obviously unproblematic to accept the fact that some people might spend all their lives living on a state’s territory, being subject to the state’s legal and political authority, being a full member of the state’s civil society (“enjoying Priviledges and Protection”) without ever becoming members of that state’s political community.15 If each of them has a fair chance to become a member of the Commonwealth, to give her consent to membership, what should be wrong with this? One could further discuss the question whether such a Lockean perspective might reveal another important normative function of a test as a precondition for attaining membership in a state’s political community: since every member of civil society is free to pass the test or to refuse to pass it, the passing of the test can be of relevance in discussing the legitimacy of a political community’s authority. If many members of a state’s civil society refuse to pass the test and, consequently, to become a member of the political community, the community’s authority to decide on questions of politics and law-making deteriorates. However, these big questions on the foundations of political legitimacy and legitimate authority are far beyond the present paper’s scope. The thoughts and arguments presented here certainly do not suffice to establish a specific answer to the problem what membership in a political community should be grounded on. Even if one thinks that citizenship should be connected to the fulfilment of certain presuppositions, one could argue that it is better to abstain from limiting citizenship. The fulfilment of these presuppositions might rather be seen as a moral duty connected to the role of a citizen, the goal might be reached via forms of political education etc. My conclusion, therefore, is a tentative one: if one takes the idea that active political participation is central to being a member of a political community seriously, one cannot simply ignore the fact that many people are not interested in participation and that others lack the knowledge needed to participate. Democratic states, after all, are in deep need of a citizenry that is sufficiently prepared to engage in questions of politics. If this is true, discussions on immigration politics should not solely pay attention to questions of access to citizenship. They should as well take into account those duties that come along with it and ask how the sufficient fulfilment of these duties might be secured.

15  Note that Carens himself claims that the protection of one’s rights is often secured via the conferring of citizenship, but need not necessarily be organized in this way: “After all, the state has a duty to respect the moral personhood and protect the legal rights of all those within its jurisdiction, even temporary visitors. It does not have to make them citizens to do this.” (EoI, 22).

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6.3  Conclusion In this paper, I have developed two main theses. First, a justified claim to legal status, i.e., to a permanent residence permission, does not necessarily have to be connected to one’s becoming a member of a civil society. If one differentiates between the indexical and the normative value of duration and of time’s passage, and if, based on this distinction, the recluse scenario is analyzed, one reaches the conclusion that justified claims to legal status do not always have to be grounded in social membership. Second, there are good reasons to differentiate between a civil society and a political community. Those activities and ties that make a person in fact a member of each group and, therefore, ground justified claims to membership, differ in both cases. If this is admitted, there is a need to rethink the foundations of claims to citizenship. This might lead to different solutions – and I proposed not to exclude the possibility that some form of testing might be an adequate foundation for justified claims to citizenship too rashly. Is there a connection between both theses? I believe that there is. I agree with Carens on the basic assumption that social reality is what ultimately matters when deciding on questions of legal status, membership, and citizenship (see EoI, 39). However, as social reality is multifaceted and as people’s ties to their fellow human beings and to the society they live in can be very different, the strength of individual claims to legal status, membership, and citizenship might as well differ from person to person. If this is true, the question of how politics should deal with such differences is of crucial importance and might lead to different solutions which, in any case, are in need of further discussion.

References Ackerman, Bruce. 1993. We the People. Vol. 1: Foundations. Cambridge, MA/London: Harvard University Press. Carens, Joseph H. 2015. The Ethics of Immigration. Oxford: Oxford University Press. (= EoI). Dietrich, Frank. 2018. Wartezeit als Kriterium für die Organallokation. In Zeit – eine normative Ressource? ed. Frank Dietrich, Johannes Müller-Salo, and Reinold Schmücker, 170–186. Frankfurt: Klostermann. Egan, Thomas M., and Robert M.  Kotloff. 2005. Pro/Con Debate: Lung Allocation Should Be Based on Medical Urgency and Transplant Survival and Not on Waiting Time. Chest 128: 407–415. Hammar, Tomas. 1994. Legal Time of Residence and the Status of Immigrants. In From Aliens to Citizens. Redefining the Status of Immigrants in Europe, ed. Rainer Bauböck, 187–197. Aldershot: Avebury. Hovdal-Moan, Marit. 2014. Unequal Residence Status and the Ideal of Non-Domination. Critical Review of International Social and Political Philosophy 17 (1): 70–89. Locke, John. 1988. Two Treatises of Government. Ed. P.  Laslett. Cambridge: Cambridge University Press. Mill, John Stuart. 2009. On Liberty. Über die Freiheit. Ed. B. Gräfrath, trans. B. Lemke. Stuttgart: Philipp Reclam jun.

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Miller, David. 2016. Strangers in Our Midst. The Political Philosophy of Immigration. Cambridge, MA: Harvard University Press. Sager, Alex. 2014. Political Rights, Republican Freedom, and Temporary Workers. Critical Review of International Social and Political Philosophy 17 (2): 189–211. Song, Sarah. 2009. Democracy and Noncitizen Voting Rights. Citizenship Studies 13 (6): 607–620.

Part IV

Methodological Interjections

Chapter 7

Hypotheticals and Real Cases. A Metaphilosophical Investigation of Joseph Carens’s Methodology Yvonne Elger and Anja Zurwehme

Abstract  Central to the work of Joseph Carens is the belief that philosophic understanding can be enriched by the investigation of real cases in a way that the use of hypothetical cases cannot. In the following we want to investigate Carens’s use of real cases and will therefore analyse two concrete examples that Carens uses: (i) the case of Fiji from Culture, Citizenship, and Community and (ii) the case of the odyssey of the St. Louis that can be found in The Ethics of Immigration. We will examine the extent to which real cases can perform illustrative or testing functions as attributed to them by Carens. Furthermore, we will take a look at whether a theory or a principle can be sufficiently enriched with the help of real case examples in order to be able to make reliable statements about moral implications in the real world. The investigation will focus on the narrative character of real examples that are used in practical philosophy. Keywords  Contextual approach · Examples · Hypotheticals · Joseph Carens · Methodology · Narrative · Normative theorising · Real cases

Nancy Cartwright once provoked scientists with the claim that the laws of physics lie, since they are only examined in laboratory conditions and nobody has justified knowledge whether they also hold in the real world. It seems to us that Joseph Carens is worried that there could be a similar problem in moral philosophy: one of Carens’s central claims regarding the methodology of moral philosophy is that if the philosopher merely works with principles and hypothetical examples – as it is common in analytic philosophy today –, he might not tell us anything about real life.

Y. Elger · A. Zurwehme (*) Philosophisches Seminar, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_7

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Hypothetical cases, as they are used in analytical philosophy, single out very few morally relevant properties of events, quite analogous to laboratory experiments that only work because most influences of daily life are banned. In contrast, according to Carens only by working with real cases is the philosopher enabled to connect his theory with the real world. Starting from this, we would like to shed light on Joseph Carens’s methodological approach to normative theorising, the work with real case examples in general and the so-called “contextual approach” in particular. In his 2004 paper “A Contextual Approach to Political Theory” (CA) Carens reflects on whether and to what extent philosophers can and should leave their ivory tower and apply their theories to real cases. In his reflections he refers to a binary opposition, the opposition of formal reflection on normative aspects of human cohabitation on the one hand and the realisation of actual coexistence on the other. In the history of philosophy this opposition has been the subject of numerous debates. Today, it is conducted with a particular view to the cash value of philosophical concepts. This means that in general, society and politics question whether philosophical concepts are transferable to everyday life and thus of value to it. That is why Carens emphasises in his book Culture, Citizenship, and Community (CCC, published in 2000) that “to render intelligible and test the persuasiveness of theoretical constructs, we need to consider them in the context of specific cases and examples.” (CCC, 3). In the following, we will examine the role real cases play in Carens’s methodology. To do so, in Sect. 7.1 we will make some introductory remarks on Carens’s understanding of the work with real case examples. In doing so we will not only outline his contextual approach, which he applies in CCC and later works out in CA, but also take a look at his general handling of real case examples in those writings that are not explicitly dedicated to the contextual approach. In Sect. 7.2 we will examine his juxtaposition of real case examples and hypotheticals. The ensuing sections are dedicated to a discussion of the Case of Fiji (Sect. 7.3) and the St. Louis case (Sect. 7.4). In Sect. 7.5 we will condense the problems we revealed in the preceding sections, by a more general discussion of the narrative form of a reconstruction of a real case. Our central claim will be that examples based on real cases cannot play the role Carens wants them to play: measured by the complexity of reality the cases used by Carens must be seen as simplified narratives of real events and historical processes. Due to these findings, examples based on real cases face similar problems as hypothetical examples.

7.1  Carens on Working with Real Cases Being a practical philosopher, Joseph Carens’s focus is on elaborating normative theories. On the one hand, he develops principles which, based on a particular theory, demand certain actions in specific situations. On the other hand, he examines the validity of common normative theories. Carens is particularly interested in the relationship between practice and theory, therefore he favours working with real

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cases. He states for example that he “seek[s] at every point to consider theoretical claims about equality, freedom, and difference in relation to particular demands or practices in real cases.” (CCC, 2) Two functions of working with real cases can be observed in Carens’s writings, which we consider to be central and which will therefore be the subject of our ensuing investigation: real cases as the element on which the validity of a theory can be tested, and real cases as an illustration tool on the basis of which an individual position can be demonstrated. In Sects. 7.3 and 7.4 we will analyse two concrete implementations of real examples from Carens, for which these functions play an important role. But first we will take a look at a specific way to work with real cases presented by Carens in the form of the so-called contextual approach. It was first applied in CCC and later characterised in CA. The contextual approach is a methodological approach to the practice of political theory, in which the use and utilisation of examples taken from real cases plays a central role. According to Carens, only real cases have relevant properties and functions that benefit normative theories. For this reason, theorists should focus on the work with real cases instead of working with hypothetical examples. Thus, Carens argues that theoretical constructs should be considered in the context of concrete examples in order to make them understandable and to test their convincing power (see ibid., 3). While Carens admits that the contextual approach is not the only relevant way to work in political theory (see CA, 117), in CCC it is the centre of his methodology dealing with normative principles. Additionally, in CA it is presented as an unintentionally preferred approach used by some philosophers, for example Michael Walzer or Will Kymlicka (see ibid.). He considers five aspects to be central to the contextual approach: First, it involves the use of examples to illustrate theoretical formulations. Second, it entails the normative exploration of actual cases where the fundamental concerns addressed by the theory are in play. Third, it leads theorists to pay attention to the question of whether their theoretical formulations are actually compatible with the normative positions that they themselves take on particular issues. Fourth, it includes a search for cases that are especially challenging to the theorist’s own theoretical position. Fifth, it promotes consideration of a wide range of cases, and especially a search for cases that are unfamiliar and illuminating because of their unfamiliarity. (Ibid., 118)

Two of the functions mentioned here are of particular interest in the context of this paper. One is the function “to illustrate theoretical formulations”: for Carens, normative theories are under-determined in their linguistic realisation and therefore not unambiguous. In order to forestall a possible conflict of interpretation, he suggests working with real case examples, i.e. the practical relevance and implementation of a theory should always be demonstrated using an example. In other words, examples can be used to get an understanding of a theory and an idea of what it actually signifies (see ibid., 119). So “examples perform a crucial clarifying function for theory.” (ibid., 118) The second function of testing is characterised by “the normative investigation of concrete cases”: according to Carens it is about the ability to morally evaluate real cases. He takes up theoretical principles and confronts them with real case examples. This way he can judge whether a case lies within the framework of the basic concern of a theory and how it can be evaluated with its own

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normative principles. In addition, testing is marked by “[…] the question of whether th[e] theoretical formulations [of theories] are actually compatible with the normative positions that they themselves take on particular issues.” (ibid., 123) In contrast to the moral evaluation of a real situation by a given theoretical principle, here the evaluation of a real case is taken as a starting point to check whether its practical evaluation corresponds with the theoretical formulation of an abstract principle. By implementing the contextual approach, Carens focuses on the relationship between abstract theory and practical reality, and the resulting implications for both of them. With this method he tries to investigate the influence of one on the other. There are some works in which Carens uses real case examples without explicitly applying the contextual approach. These, however, seem to have no other basic functions than illustrating or testing.1 While it is necessary to consider all five aspects mentioned above when implementing the contextual approach, any work with real case examples might focus on a single function. This means that Carens does not require the contextual approach to be implemented whenever real case examples are used. In general, Carens considers it an advantage that real case examples are “richer, more complex, and ultimately more illuminating” (ibid., 119). Due to their real background, they have a more diverse ramification and a higher complexity. By referring directly to the real world, the theoretical formulations of a theory can be illustrated by exemplary scenarios of everyday life, while they can also enrich a theory because of the multitude of different factors that are in play and need to be considered. One possible pitfall Carens wants to avoid when working with real case examples is that theories may be misinterpreted. He points out that Theories are always underdetermined to some degree and give rise to interpretive disputes. It is not unusual for people to agree on a principle and disagree about its application to a particular case. But degrees do matter. If people claim to agree about a theory but never or rarely agree about what the theory entails for concrete cases, then we rightly begin to wonder whether they really agree about the theory in any meaningful way or whether the theory itself is not merely underdetermined but altogether empty. (Ibid.)

Here it becomes apparent that Carens assumes that examples can serve the purpose of becoming aware of the application and implications of theories. He points to the potential problem that while two theorists share similar opinions about a theory, they still might disagree about the implications of that theory or how it should be implemented in reality. So, in order to avoid possible misunderstanding, Carens proposes the basic inclusion of real cases in normative theorising. Furthermore, by including real cases and their function of testing, the relevance of a theory can be examined – if, when a theory is applied to a real case, it turns out that it has almost no point of contact in the real world, it can be exposed as superfluous. 1  The distinction between illustrating and testing is very rough at this point and makes no statement about what exactly can be illustrated or tested with the help of real case examples. On a more differentiated level, more possible functions could be found, which we assume at this point to be broadly subsumable under the areas of illustration and testing.

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In a nutshell, in terms of the illustrative function, real cases are used to clarify theories or principles. They provide a tool to illustrate formulations, principles, or the content of a theory. One goal of the illustrative function is to see if different people agree on the same theory in the same way. With regard to the function of examining a theory, real cases can be used to investigate current practices in relation to the principles of a theory. They give theorists the input to confront a political theory with the practice of a real case and to see if it still holds in the real world. The insight into practice can reveal possible shortcomings of a theory. Conversely, shortcomings in practice can also be uncovered, so that normative claims based on the tested theory can be asserted. The aim of the testing function is to improve a theory or to demand the adaptation of a practice.

7.2  The Juxtaposition of Hypotheticals and Real Cases Let us now take a look at Carens’s claims concerning hypothetical cases. In principle Carens does not disapprove of hypotheticals but he uncovers some insufficiencies. Both points mentioned in the following are made in contrast to the use of real cases: Carens claims that hypotheticals are “designed to prove a point” and to “serve the interest of an argument” (ibid.). He thus raises two objections against the work with hypotheticals: first, they are theoretical constructs which do not serve the goal of testing theories, but of making them plausible. Second, they are chosen to be conductive to what is to be shown. As a result, hypotheticals are “narrow, limited and one-dimensional” (ibid., 120). These objections refer to the theoretical nature of hypotheticals and criticise their implicit distortion. In contrast to real case examples, which could provide insights and lead to challenging theoretical considerations, hypotheticals tend only to address already known intuitions and enable corresponding arguments. They seem to be subcomplex and just cover a part of the subject-matter because they are constructed for a specific purpose. Although Carens admits that hypothetical examples can in some way be useful for their clarifying function, he does not consider them sufficient for testing theories. Consequently, he demands intuitive judgements to be compared with theoretical conclusions concerning a real case: [m]oral judgement is complex, yet theory necessarily simplifies. Our intuitive judgements about particular cases may reflect a variety of relevant but only partially articulated moral considerations. So, we need to juxtapose such intuitive judgements against the conclusions that would seem to follow from the application of our theories to the same cases to see whether the theories might be missing something salient. (CCC, 4)

A hypothetical always aims to reconcile intuitions and theories. But if we look at a real case, we can have different intuitions, even if we have the same theoretical background. According to Carens, intuitive judgements are necessary to ensure that

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theories take all important aspects into account. These intuitive judgements, however, do not result from a priori judgements about justice, but from confrontation with the unknown. So, this kind of intuitive judgement cannot be generated from hypothetical examples (see CA, 127). For Carens a hypothetical example is always constructed to serve the interest of the argument. So, we only invest what we already know and the goal we want to reach into a hypothetical. We do not gain any insights we did not consider before. Carens clearly prefers working with real case examples to working with hypotheticals. He presents a variety of advantages of using real cases, as well as numerous shortcomings of working with hypotheticals. The fact that hypotheticals are constructed and have the function to serve an argument rather than to challenge it is a crucial factor in Carens’s argument for the illustration und testing of theories by real case examples.

7.3  Example I: The Case of Fiji The most prominent example in which Carens attempts to present and analyse a case as complex and comprehensive as possible, is “The Case of Fiji” from CCC, where he explains in detail the historical, cultural and political backgrounds of the conflict between Fijians and Indo-Fijians in order to develop normative principles regarding the rights and duties of separated cultural groups. In the following we want to discuss whether the quantity of details impacts the relevance that can be ascribed to this case. The case of Fiji is particularly unfamiliar to us because we have a different cultural background. Moreover, as a Western theorist, one does not often come into contact with the history of this state. Thus, this example corresponds to Carens’s demand later formulated in CA that a case should be unfamiliar in order to pose a particular challenge to a theory. Therefore, we will discuss this case under the function of testing a theory. The case of Fiji allows him to test the principles he develops about cultural plurality on the one hand, and his western point of view upon this on the other hand. In “The Case of Fiji” Carens presents the conflict between the Fijians who settled thousands of years ago in this area and the Indo-Fijians who were brought there by the British colonial regime during the nineteenth century. For Carens their tensions raise important questions about the moral relevance of culture, identity, and history. This case is thought to be especially rich for theoretical reflections because of its moral complexities and ambiguities (see CCC, 200). Because of the unfamiliarity of this case the observer is able to be unbiased and favour neither group. Carens presents the historical background of the conflict between Fijians and Indo-Fijians at some length. During his reconstruction he refers to the colonial regime of the British Empire and efforts by the colonial regime to preserve Fijian culture instead of destroying it like in other colonies. Therefore, workers from the other British colony India were brought to Fiji, where they had to work for the

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British colonists. After Fiji’s independence, the Fijian and Indo-Fijian groups began to come into conflict because of their different lifestyles and the resulting different ideas about the country’s political direction. In particular, they did not agree on the rights and privileges given to the Fijians by the British settlers. Carens focuses on the rights that only apply to one of the groups and on the way in which the impact of these rights on individual cultures has been taken into account by theorists. Moreover, Fijian history is reconstructed using a series of important historical data. In this reconstruction he concentrates on political and cultural aspects of the situation in Fiji. All in all, Carens gives this example a lot of space: it is at the centre of a detailed and complex chapter and is comprehensively reconstructed and analysed. In addition, he repeatedly refers to this example in many other parts of his oeuvre. Nonetheless, the narration of the case does not include all details which might be morally relevant. First of all, the way Carens divides the inhabitants of Fiji into two groups is rather rough. Persons who belong to neither of these two groups are for example not considered. Thus, this division makes a complex situation look quite simple, so that the reader of the chapter might think that every inhabitant of Fiji belongs to and identifies herself with one of these groups. His portrayal of the various political parties seemingly covers all these differences but from the outset all people are divided coarsely into Fijians and Indo-Fijians. Secondly, the presentation of the different historical dates inevitably does not catch all aspects but only those Carens finds most important. Therefore, events which are really complex and need further explanation are only shortly presented. This impacts our understanding of these events. Both practically and epistemically, it would not be possible to reconstruct the Fiji case comprehensively. Therefore, many things must be omitted when reconstructing the events, since there is not enough space to list all the information and some aspects are irrelevant for the normative evaluation of the events. When narrating a case we tend to highlight things we find important and leave out things we find unimportant. These objections show that an example in the form of a reconstruction of a real case encounters serious difficulties, even if the reconstruction is quantitatively rich and highly complex. In “The Case of Fiji” Carens wants to evaluate the ways that explore how to work with a historical clash of two cultures that are in conflict but need to find an adequate way of living together and shaping policies which disadvantage neither group. The confrontation of these two groups is presented as if the reader was able to perceive it as an objective observer, giving her the possibility to look at the case without personal prejudices and individual sympathies. But it is questionable whether the generated principles also hold for similar cases. While the “Case of Fiji” is only an example, it serves as the basis for theorists to question their own intuitions on a subject by comparing them with this real case and thus questioning the validity of their own theory. It is, however, a reconstruction that might refer to the actual conflict but is nonetheless moderated by the framework of the theory it is used as an illustration of. Although Carens gave “The Case of Fiji” more input on a quantitative level, he could only present a limited number of events, motivations, intentions, reflections, assessments, and so on. It is for this reason that Carens’s presentation of

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the Case of Fiji must in principle face similar problems and objections as hypotheticals, despite its complex representation. Just as a hypothetical is an abstract construction of a case, a real case example like the case of Fiji has to rely on the re-construction of actual events. Both realisations of examples, hypotheticals and real cases, are artefacts due to their narrative form and therefore limited. Now that we have presented the case of Fiji and posed some objections against the work with real cases, in the following chapter we turn to another prominent example that has a primarily illustrative function. Using the example of the St. Louis, we will work out what significance Carens’s reconstruction in The Ethics of Immigration (EoI) has and what function this reconstruction can adopt.

7.4  Example II: St. Louis In this section we turn to a second example, which is the odyssey of the St. Louis. It is important to remark that Carens uses this example in EoI as part of his reflections on the refugee issue. In contrast to the Case of Fiji, the case of the St. Louis is not accompanied by an explicit account and methodological explanation of the function ascribed to real case examples. Nonetheless, Carens emphasises a very important and fundamental function within the general thematic context of the persecution of Jews by the Nazi regime, to which this concrete example belongs. Accordingly, we will analyse the function of the St. Louis case in the context of EoI and thereby attempt to shed some more light on Carens’s usage of real case examples. In EoI Carens describes the odyssey of the refugee ship St. Louis, on which Jewish Germans tried to flee from the Nazis in 1939. This example is representative of the persecution of the Jews by the Nazis. Therefore, it has primarily an illustrative function. As already mentioned, the overall context to which this concrete example belongs is particularly interesting, because Carens attaches great importance to it and it has a central function in examining moral principles. Indeed, the overall context is supposed to be a kind of benchmark for moral principles which it allows to assess whether the principle in question should be legitimately demanded or not. Carens maintains that “[w]hatever principles or approaches we propose, we should always ask ourselves at some point, ‘What would this have meant if we had applied it to Jews fleeing Hitler?’” (EoI, 193) In contrast to the overall context of the persecution of Jews by Nazi Germany, which is an example with the function of testing, the concrete example of St. Louis serves to illustrate the non-refoulement principle. But how exactly does Carens reconstruct this example and in what way can or should it be used as a starting point for the reflection of moral principles according to Carens? Carens makes a profound assumption in his example and declares it to be a ‘fundamental truth’: “Jews fleeing Hitler deserved protection, and most of them did not get it.” (ibid.) This is a position that goes hand in hand with academic consensus and remains therefore mostly undiscussed in debates. We all share the same intuition regarding this case and Carens provokes us to follow this intuition until we reach his

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principle. Carens states that his intention for giving this example was his assumption that the recipient shared his intuitions about this example and therefore had to agree with the conclusion he draws from it: he presumes that if someone were to draw the same conclusion from this example as he did, that person would bear the burden of proof hereinafter if she wanted to argue that the same conclusion need not be drawn in other similar cases (see ibid., 220). Carens reconstructs the course of events surrounding the odyssey of the St. Louis on the basis of a few concise aspects as follows: Jewish refugees from Germany reached the shores of North America in a ship named the St. Louis and sought asylum. They were refused permission to land. The boat returned to Europe and many of its passengers perished in the Holocaust. […] If one looks at the responses to Jewish refugees in the late 1930s, it is striking how many echoes one hears of contemporary concerns and attitudes. Remember that, at this time [when the passengers of the St. Louis reached out for help], the death camps had not yet been built, and the Naziregime had not yet committed itself to the Final Solution. Everyone knew that Jews were suffering but there were differing perceptions about the extent of their oppression. (Ibid.,193)

Although his description of the course of events meets the central elements of the occurrences, he ignores a number of aspects that played an important role in the events surrounding the refugee ship St. Louis in 1939. Not mentioned, for example, are the following aspects: the ship was originally supposed to dock in Cuba, for which the passengers could show valid entry documents on departure. Yet, due to a short-term change in Cuban law most passengers were unable to enter the country. The captain then tried to bring the refugees to the United States. However, the political situation there was very tense and there were various weighty objections to admitting the refugees. The Americans were pursuing a quota policy at the time and were unwilling to accept any more Jewish refugees from Germany because the quota had already been filled. There were many people on the waiting list ahead of the St. Louis refugees for the contingent; some of the passengers were not even on the waiting list. If they had been allowed to enter, this would have been unfair to those who were supposed to be the next to get the permission to move to the USA. In addition, imitators, who would also arrive on a ship and thereby try to circumvent the system, were feared. Moreover, a possible endangerment of the presidential office due to the tense domestic political situation biased President Roosevelt against accepting the passengers of the refugee ship (see Ogilvie and Miller 2006). Do any of these facts raise an objection against Carens’s claims? Of course, one could argue that none of these aspects was sufficient for justifying the moral legitimacy of the behaviour of those who did not help these Jewish refugees. But this is not the point we want to make here. Rather, we want to argue that all of these are important facts that are not mentioned in Carens’s reconstruction. If they were explicitly considered they would weaken the explanatory power Carens wants to ascribe to the St. Louis case in EoI, and some of his readers would doubt the implications Carens wants them to have.

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The same holds for the following points: before the St. Louis returned to Europe, the admission of the refugees was also rejected by the Dominican Republic and Canada. Central Europe, however, was still safe at that time and the ship arrived at a secure haven in Antwerp, Belgium. None of the refugees were brought back to perilous Germany, so there was no violation of what we call today the non-­ refoulement principle. Although Carens himself mentions that the Jews had not yet been persecuted and murdered by the Nazis in an organised manner, he does not draw any conclusions from this fact to his handling of the example and its explanatory power with regard to the principle of non-refoulement that is examined by him. Consequently, Carens denounces the rejection of the refugees by the US government as a ‘profound moral failure’. And yet, can one really blame an actor for an action if the consequences could not be foreseen at the time of the action and although no moral principle was violated? The fact that in retrospect we know that just one year after the odyssey circumstances had changed completely, makes this situation particularly tragic for us: but can we really blame the states that rejected the passengers of the St. Louis for not providing asylum to the refugees or for not having correctly assessed and predicted international political developments? This question is posed here merely for provocative reasons and should not be answered in terms of content. However, if it were to be answered, it would be necessary to include what was known at that time, what influenced the individual viewpoints and what alternative possibilities there were. Carens, in contrast, selects only a few aspects to make his point as strong as possible. That is why his presentation of the real case resembles a hypothetical case in terms of it being narrow, limited, and in some way one-dimensional. His intention might have been to present a convincing, real case to show how his principle of non-refoulement can be applied but there are many important points missing. These points play a crucial role in forming our intuition and our evaluation of the case. If all these points were mentioned, the states refusing the refugees might not seem to act as unjust as Carens claims, because the Jews received asylum in other European states that where assumed to be safe. To cut to the chase, it can be said that Carens aims to strengthen his argument in favour of the principle of non-refoulement by the illustrative function of the example of the St. Louis case. Thus, he reconstructs a real case driven by his interest to support his position. However, since these are the very aspects that Carens attributes to hypotheticals, his reconstruction of this real case resembles the construction of a hypothetical example. Furthermore, the example serves as a basis for Carens to criticise the practice of the Western States at that time. He says: Yet despite all of these facts, I take it to be incontestable that the response of democratic states to Jewish refugees during the 1930s was a profound moral failure, something that we should acknowledge as a shameful moment of our histories and resolve never to repeat. We often gain our most important moral insights not from theory but from experience. […] I propose to use this terrible failure to accept Jewish refugees as a constraint upon our inquiry into the ethics of admitting refugees. […] This approach will not settle every question about

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refugees that we have to consider, but it will give us a minimum standard, one fixed point on our moral compass. (EoI, 194)

Later he writes more specifically: I am simply saying that Americans should have made a different decision, that their collective moral judgment was deeply flawed. The mere fact that the members of a potential receiving society think they have already done enough to meet their obligations to refugees is not, in itself, sufficient to establish that they have done enough. (Ibid., 219f.)

These quotes present Carens’s judgement about the behaviour of the North American states with respect to Jewish refugees in the 1930s. He demands people to never repeat this kind of failure. Furthermore, his position towards the relation of real cases and theory is demonstrated by these words: like already shown in the section above, a real case can give insight. In this quote this insight is not bound to theoretical formulations but can be gained through experiences, too, and thereby have an impact on a theory. Through this approach Carens wants to provide a minimum moral standard for our decisions. This moral standard is realised in the principle of non-refoulement. Carens here makes use of the inductive method: he looks at the behaviour of a specific actor (Americans) and at his convictions on how that behaviour should be evaluated. Then he deduces claims that are meant to apply to every actor who is in a structurally similar situation (members of a potential receiving society) and judges the potential action of this actor. The example itself does not challenge the principle and therefore has no test function. It illustrates the significance of the principle and the importance of following it.

7.5  Hypercomplex Reality We have now presented two examples that Carens recourses in various parts of his work and which have different functions for him. With the case of Fiji, we have shown that the implementation of the example, i.e. the representation of events, despite its complexity, is only a reconstruction of reality. This aspect leads, in our opinion, to difficulties similar to those Carens identifies in the form of a complexity objection against hypotheticals. In addition, we have shown that the St. Louis case, which Carens presents as exemplary for the persecution of the Jews by the Nazis and to illustrate the non-refoulement principle, must face the objection that it was chosen to defy and thereby strengthen Carens’s position. Thus, this example is also confronted with the problem Carens identified for hypotheticals. We now turn to the question of why real case examples face these problems. The reason why what is described here as an example is not simply a direct excerpt of reality can be found in the hypercomplexity of real cases. Carens’s presentations of the odyssey of the St. Louis and the case of Fiji use narrative devices to tell the stories of the passengers and of the people living on Fiji. These narrative devices include the selection of specific information, the reconstruction of the connections between the individual pieces of information, and the linguistic

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reformulation of events. The results of these reconstruction processes do not refer to the real cases in their entirety, but only to individual, selected aspects of the cases. This gives rise to difficulties similar to those identified for the natural sciences by Nancy Cartwright, with whom we began this paper: with How the Laws of Physics Lie from 1983 she presented a relevant publication regarding the explanatory power of statements that refer to idealised circumstances on the one hand and statements that refer to the real world on the other. She argued that natural laws lie about complex reality, since they would only be valid with a so-called ceteris paribus clause, which describes the necessary laboratory conditions through which the statement becomes true. However, natural laws with the ceteris paribus clause do not, according to Cartwright, have any validity with respect to the real world, since laboratory conditions never prevail in the real world. Cartwright’s observations can also be applied to normative principles and theories: it is claimed that they are statements about the real world and thus valid with respect to real cases; nevertheless, similar to natural laws, idealised conditions on which the validity of a statement depends are assumed in the linguistic realisation of a normative principle. Consequently, these statements do not have a direct reference point in the real world, so that their validity, similar to that of natural laws with a ceteris paribus clause, is limited with regard to the real world. Based on this problem, Carens works out the approach that abstract principles and theories only have sufficient significance if they are repeatedly tested by examples from real cases and vice versa. However, Carens’s approach tends to overrate the systematic function of real case examples. The events of a real case are too complex to be represented sufficiently in the form of an example, or, to use Hempel’s words: “a concrete event has infinitely different aspects and therefore cannot be described completely, not to mention completely explained”. (Hempel 1977, 137; translated by YE) Examples that would represent all facts from real cases one-to-one, would not only be more complex than hypothetical examples, they would be too complex: it is neither possible to grasp them as a whole, nor to eliminate only the boundary conditions that are irrelevant for one’s point. Furthermore, it is neither epistemically nor practically possible to bring together all existing and thus necessary aspects of a real case. So once again one is left with only a set of specifically chosen aspects that have been selected, reconstructed and presented with a certain intention. Thus, examples are necessarily under-determined. Like hypothetical examples, examples that represent the reconstruction of facts from real cases are fundamentally limited and designed to prove a point. We have shown this with the example of the case of Fiji. When someone asks herself what moral principles she should follow in a certain situation today and then looks at a principle that concludes, in relation to the past, that one should have acted in a certain way, then she still has no principle at hand telling her how to act right now. The reason for this is that the details of different cases are so diverse that there are practically no starting points to which the same principles can be applied. Carens intended to illustrate and strengthen the principle of non-refoulement by the St. Louis example. Due to the complexity reduction, the principle nevertheless

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remains so general that it cannot even be applied to structurally very similar cases. With the example of the case of Fiji, Carens intended to challenge and test his own democratic and liberal principles. But even in this case, the reduction of complexity and the narrative form of the example pose the problem that, despite the detailed nature of the reconstruction, it cannot reconstruct the entire reality of the events. But what does this mean for working with examples? Should Carens leave the contextual approach behind and, like so many other philosophers before him, retreat into the ivory tower? There can be no question of that. Working with real case examples has many advantages within the creation of moral principles, which are named by Carens. However, we do not agree with the function Carens attributes to real case examples, which is that they should give an instant connection between a normative theory or principle and their application to the real world. In a nutshell: the position of considering them to be a ‘minimal compass’ by which normative principles could be tested cannot be upheld because of two reasons: first, the examples are constructed in such a way that they point in the desired direction, and second, real cases are too complex to be transferable to other cases. Therefore, they cannot serve as a point of reference for principles. In the end examples rather provide an impetus, the momentum that makes irritations possible. As a source of inspiration for our moral principles, it is impossible to ignore examples, since we can only find out how people actually behave and what intuitions we have in evaluating an action by looking at everyday practice. Nevertheless, when working with real case examples, problems may arise that Carens may not have fully foreseen.

7.6  Conclusion We began this paper with Nancy Cartwright’s concern that idealised statements about reality, such as laws of nature, can basically say nothing about reality. We then tried to show that Joseph Carens worries in a similar way about the relationship between theoretical normative statements (e.g. principles) and their validity for moral problems in reality. However, Carens meant to provide a methodological approach to avoid this problem. He assumes that this problem can be overcome by constantly striving to establish congruence between abstract theories and practical examples and repeatedly incorporating examples from actual practice into the validation and formulation of theories. With the contextual approach Carens has also developed a concrete method that systematises this approach. In this paper we examined how Joseph Carens works with real case examples and which functions he ascribes to them. We found that the functions Carens names can be reduced to two basic ones: the illustration and the testing of normative theories and principles. We also looked at the objections that Carens raises to hypotheticals as opposed to real case examples. Subsequently, we took a closer look at two concrete examples from Carens oeuvre: the case of Fiji, in which Carens tests his democratic and moral principles, and the case of St. Louis, which he presents as an

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illustration of his non-refoulement principle. In both examples, we examined how Carens reconstructs each case and what function he assigns to it. We then checked whether the examples could take on the intended functions. We concluded that the case of Fiji is very rich on the quantitative level of Caren’s depiction. Nevertheless, it is an artificial construct and not a direct extract from reality. The St. Louis case is in Carens work in so far problematic as it was chosen and presented in such a way as to serve Carens’s argumentative aim. We then pointed out that both problems, the constructiveness objection and the objection against the targeted selection of a case, have been made by Carens against working with hypotheticals. In the end, we got to the bottom of the question of why the problems we identified arise when working with real case examples. The result of our discussion is that the presentation of real cases is problematic in the sense that it entails difficulties attributed to hypotheticals by Joseph Carens. The reason is that reality is too complex to be fully recounted. Examples based on real events can in their narrative form only portray constructed excerpts from reality. However, this is not sufficient if one wants to test a theory or a principle with an example that refers to a complete course of events. If a real case is intended to illustrate a principle or a theory in the form of an example, then it is chosen for this purpose. The narrative reconstruction of this example is further designed to serve the goal of argumentation. Basically, it can be argued that a direct transfer of knowledge about practices in the real world to normative theories and vice versa is problematic because of the hypercomplexity of reality. Normative theories are more like ceteris paribus clauses that apply only under idealised conditions. In both examples – in the case of Fiji and in the case of St Louis – conclusions on structurally similar cases are difficult to draw. This, however, would be necessary in order to make universal statements about the theories and principles in question. Still, we did not come to the conclusion that the use of real cases should be rejected altogether due to the difficulties mentioned: just as we consider laboratory experiments and laws of nature to be an important and insightful part of scientific research, even though they say little about the world outside a laboratory. We agree with Carens that abstract normative theories can claim some kind of validity in terms of the real world, even if they cannot be illustrated and verified instantly with the help of real examples. We just doubt that hypotheticals and real cases and their respective role for normative theorising can be distinguished in the way Carens suggests: neither are real cases substantially distinguishable from hypotheticals, nor do they provide a direct path to evaluate normative theories.

References Carens, Joseph H. 2000. Culture, Citizenship, and Community. A Contextual Exploration of Justice as Evenhandedness. (= CCC).

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———. 2004. A Contextual Approach to Political Theory. Ethical Theory and Moral Practice 7 (2): 117–132. (= CA). ———. 2015. The Ethics of Immigration. Oxford: Oxford University Press. (= EoI). Cartwright, Nancy. 1983. How the Laws of Physics Lie. Oxford: Oxford University Press. Hempel, C.G. 1977. Aspekte wissenschaftlicher Erklärung. Berlin: de Gruyter. Ogilvie, Sarah, and Scott Miller. 2006. Refuge Denied: The St. Louis Passengers and the Holocaust. Madison: University of Wisconsin Press.

Chapter 8

Changing Theory or Practice? The Logical Structure of the Contextual Approach Jonas Pöld, Can Ünlü, and Sophie Zemke

We gain as political theorists by reflecting upon unfamiliar cases – Joseph Carens (CCC, 200)

Abstract  Our paper is concerned with Joseph Carens’s methodological background: his contextual approach to political theory. Within the contextual approach theoretical principles and intuitions about existing practices can collide. To resolve such a conflict, Carens proposes a procedure of “moving back and forth” between the two. This formulation, however, can be interpreted in multiple ways and might even give rise to relativistic readings. The goal of our paper is to try to defend the contextual approach against such readings by developing a framework that can help to clarify the process of “moving back and forth” and thus solve conflicts. In our reconstruction, we mainly rely on Carens’s theoretical explanation of his contextual approach and its application in his practical case studies. Keywords  Contextual approach · Falsificationism · John Rawls · Joseph Carens · Metaethics · Reconstructive framework · Reflective equilibrium

In everyday moral reasoning your intuitions about the soundness of particular practices are mostly in unison with the higher level moral principles you wish to defend. In some cases, however, you could come to realize that a position you hold on some practice contradicts a general moral principle you accept. Let us say, for example,

J. Pöld (*) · C. Ünlü · S. Zemke Philosophisches Seminar, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected]; [email protected]; [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_8

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that you follow Augustine and Kant by adopting the principle that lying is strictly forbidden, but suddenly encounter a situation in which lying seems justified, perhaps even morally required for a particular person. How can we deal with such situations in which generalized theoretical principles and intuitions about existing practices collide? Should we always stick to our principles, fundamentally mistrusting our intuitions, or should we rather be sceptical about our abstract theories and believe in the righteousness of our intuitions? To summarize: Should we preferably change theory or practice, and can we know when to choose which option? An attempt to answer this question has been brought forward by Joseph Carens with his contextual approach to political theory. Carens’s main idea behind the contextual approach is that actually existing societal practices should be integrated into ethical theorizing.1 He proposes a method of constant mutual unsettlement, of “moving back and forth” (CA, 123) between the two. But Carens does not specify what it means to “move back and forth” and how this works in an inquiry. Is it possible to develop a guiding framework for this process to know when we should change theory and when we should rather change our moral practice? By approaching this question with an interest in the philosophy of science, the goal of our paper is to focus on the methodological and epistemological implications of Carens’s contextual approach. In order to do so, we base our discussion on his theoretical account of the contextual approach and investigate how Carens himself implicitly makes use of it. Our main examples in the latter part will be ‘The Case of Fiji’ and the development of his famous argument for open borders. On the basis of these analyses we then try to extract how the aforementioned method of “moving back and forth” can be understood in a more accentuated, logically structured way. In the course of our inquiry we use three illustrating graphics, each of these accompanied by a question that addresses the methodological foundations of Carens’ approach. With the last of these graphics we introduce our framework for practical decision-making. But in order to get an idea of how and why Carens might have developed his approach, we begin by comparing it to John Rawls’s classic conception of the reflective equilibrium that Carens himself uses as a point of reference to demarcate his own methodology.

1  Further details concerning the contextual approach are set forth in the paper by Yvonne Elger and Anja Zurwehme in this edition (111–125).

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8.1  Theoretical Considerations 8.1.1  R  awls’s Reflective Equilibrium and Carens’s Contextual Approach In his contextual approach, Carens references John Rawls’s conception of a “reflective equilibrium”. After being introduced by philosopher of science Nelson Goodman, the term was made famous by Rawls’s influential treatise A Theory of Justice (Rawls 1999, 18). A reflective equilibrium is meant to help us deal with inconsistencies in our belief system. To achieve this, it attempts to make use of abstract theories and intuitions about practices in such a way that they mutually improve each other. Remember our introductory example of a person thinking that it is strictly forbidden to lie. The validity of this general principle is subsequently challenged when she encounters a particular case in which, under the specific circumstances X1 and X2, her intuition strongly suggests that the act of lying was permissible for person Z. According to Rawls, her aim must be to adapt theory and practice to one another and to reach a temporary state of balance between the conflicting convictions  – namely, the reflective equilibrium. It is temporary because future arguments can always lead to changes in the fragile scale (see Hahn, 31). Neither Rawls nor Carens are moral foundationalists or infallibilists. But in contrast to Rawls, Carens highlights the aspect of unsettlement and the principally unfinished nature of moral judgments in his contextual approach. To emphasize this, he significantly alters the Rawlsian term by speaking of a “reflective disequilibrium” (CA, 123). This denotation shows that the process of adapting beliefs in the light of new arguments and practical circumstances never comes to an absolute end. In an approach that resembles Karl Popper’s falsificationism (see Popper 1935), Carens promotes the idea of a constant search for unfamiliar cases that might challenge the balance of one’s current scale of beliefs. This is one of the parts in his contextual approach where Carens moves beyond Rawls. Carens then consistently follows his theoretical considerations in his work by examining practical cases which are unfamiliar to most Western theorists – such as the political situation in the small island country of Fiji that we will get to later. In our first Fig.  8.1 below, we compare Rawls’s and Carens’s ideas about the reflective equilibrium as a synopsis. They both agree on the basic premises: Moral judgments can take place on two levels, the theoretical level of principles and the level of actually existing societal practices. The advantage of having abstract principles is, according to Carens, that in most situations they can provide us with reliable moral guidance. However, due to being general, they also tend to be overly simplistic. That is the reason why we need our intuitions on the practice level as a corrective. Sometimes, Carens explains, wisdom can be embedded in well-­ established societal practices (see CA, 122). So, unlike many other political thinkers that favour ideal theories, Carens maintains that we should seriously consider the advantages of the current practice. Nevertheless, particular practices can certainly also be grounded in prejudicial or oppressive structures that do not deserve

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Fig. 8.1  A Comparison between Rawls’s and Carens’s approaches

continuation. This means we also cannot rely on the moral value of our practices alone. We need general principles as a tool for criticising potential injustices and must therefore constantly aim for a reflective (dis)equilibrium between theory and practice. Let us recapitulate: When Carens uses the term reflective disequilibrium, he draws attention to the fact that new insights can and should always unsettle existing moral judgments. This, however, leads us to a first question: We ask ourselves whether Carens’s act of highlighting the mutual unsettlement between theory and practice indicates merely a difference in emphasis or a more fundamental departure from the account of Rawls who writes that the “equilibrium is not necessarily stable” (Rawls 1999, 18). This question appears to be interesting on two levels, historically and systematically. Historically speaking, the answer could shed light on Carens’s position in the lineage of liberal successors to Rawls. On a systematic level, it leads into our main problem of changing theory or practice. We suspect that Carens, who considers himself to be a theoretical pluralist (see AAPT 408), distrusts general principles much more than Rawls. Carens seems to be more open to changing theory in the light of practice, whereas Rawls rather relies on a structured set of well-arranged principles. This conjuncture makes Rawls less flexible in his judgments, but equips his equilibrium with a modicum of stability. Hence Carens’s delimiting notion of a “reflective disequilibrium” might not be entirely without problems. Could such an unconstrained openness in the moral realm include the danger of relativism? We further investigate this question in the following section.

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8.1.2  The Relativistic Challenge Despite admitting that the scale of beliefs is potentially always open to change, Rawls aims at providing a rational procedure to decide between conflicting interests in ethical situations (see Hahn 2000, 26). Carens also uses his approach to offer applicable solutions for practical problems, such as the conflicting interests of two ethnic groups in the island country of Fiji. These studies in applied ethics eventually include a certainly non-arbitrary decision to either use the theory to challenge the practice or the practice to challenge the theory. But again: How do we decide when to choose which of the two options? Carens himself gives us a first clue: This back and forth movement [between theory and practice] is not a simple oscillation. It involves probing at both ends. One cannot simply rest content with the original intuition. It has been challenged by the theory. So, it is necessary to try to identify, articulate and reflect upon the reasons why the practice seemed morally defensible, and perhaps to reconsider it (CA, 122).

From this excerpt one can learn that the first step is to think more carefully about the intuition. An intuition can sometimes be grounded in irrational gut feelings, so at least one rational argument has to be found in order to support it. We think that a name for this step could be intuition upgrading. If there are no plausible arguments and the intuition fades, the theory wins. But what do we do in case we do indeed find convincing arguments in favour of the intuition? Is that enough to consider the theory falsified and the practice ipso facto justified? Or should we rather move on and try to find new arguments in favour of the theory? Beyond the metaphor of “moving back and forth”, Carens does not specify how this difficult decision-making process should be performed. Concerning this matter, Carens shares a problem already diagnosed in the literature on Rawls (see Hahn 2000, 59): The details of how the process of belief adjustment in the search for a reflective equilibrium works remain notoriously ambiguous.2 This is problematic because it puts the validity of the claims resulting from the process into question. Alternative attempts of moving back and forth, conducted by different persons with either strong theoretical convictions or strong practical intuitions, could potentially produce entirely different outcomes. Contemplating this problem leads to a number of follow-up questions: Does this make all results equally valid? And if so, do we have to move back and forth between them once again on a higher theoretical level? But at which point in our inquiry should we stop reflecting? Does conceding that a reflective equilibrium is substantially a disequilibrium diminish the justificational power of Carens’s solutions?

2  Another problem discussed by Hahn (2000, 41) is the question of who is entitled to produce the reflective equilibrium. Does it only happen in the mind of one single theorist or is it a matter of rational discourse, and if the latter, who is included? We cannot pursue these follow-up questions in this essay.

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We aim to defend the contextual approach against those relativistic concerns by finding out on which grounds Carens can offer solutions for practical problems. In the following we examine some of Carens’s own case studies in which he makes use of his contextual approach. Perhaps we can find more hints about the functionality of moving back and forth there. Afterwards we propose a logically structured model for proceeding that combines Carens’s remarks with our own thoughts on the matter.

8.2  Discussion of Practical Case Studies First of all, we are going to analyze ‘The Case of Fiji’ (CCC, 200f.), in particular the practice of the inalienability of land by the Fijians. The second example we are going to discuss is the idea of open borders. Following this there will be a short comparison between our thoughts and those of Abizadeh, who is writing about birthright citizenship and arrives at a problem similar to ours. Our analysis of the practical examples is guided by the following questions: ‘What are the general principles that form Carens’s theoretical background?’ (theory level), ‘What is his intuition about the practice described?’ (practice level), ‘Which arguments does Carens develop in order to evaluate the strength of his intuitions?’ (potential intuition upgrading), ‘What does he conclude?’ and finally ‘How does he reach this conclusion?’

8.2.1  The Case of Fiji and the Problem of Theory Change In ‘The case of Fiji’ Carens writes about a range of topics concerning the political development in the island state of Fiji throughout recent history. We are going to have a closer look on the part about the inalienability of land by the Fijians. We start with some necessary information regarding the historical background. Due to the cession, Fiji became a part of the British Commonwealth. In connection with this a law was set up according to which it was forbidden for the Fijian natives to sell their land. This later became a steady problem for Indian settlers (the Indo-­ Fijians) who were only allowed to lease the land for a while, mostly for economic farming, but had to fear that the contracts would never be renewed. This is the common practice at the time that Carens describes and that he intuitively (and prima facie somewhat surprisingly) seems to agree with (CCC, 201). So much for the practice. What, on the other hand, could account for Carens’s theoretical background that conflicts with his positive intuition concerning the described practice? We assume it to be codified liberal democratic principles such as that there should be no legal differences between groups of citizens and that the

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state should be neutral towards culture and identity. In addition to this, people should have the freedom to do whatever they want with their private property which they cannot in the Fijian situation. Clearly, in this example the typical conflict between a theoretical conviction and a divergent intuition about a particular practice as described in the first part of this paper and in Carens (CA) occurs. Therefore, the procedure now requires an intuition upgrade, a search for arguments why the practice could be regarded as defendable today. The main arguments put forward by Carens are that due to the law, the dominance of Indo-Fijians in other fields is balanced out and that the Fijians have developed a deep attachment to the land which constitutes a part of their identity (CCC, 224). So, neither of the two sides is significantly harmed by the contemporary practice. On the basis of these arguments, Carens talks of a vital and justified interest of ownership and concludes that the existing practice is morally permissible (though, he adds, not required). At this point we want to address two questions. The first one is concerned with the conclusion. Why should the practice not be changed regardless? Why not come to say that it is not even morally permissible? Though Carens offers arguments for his opinion, it is not obvious why the mentioned arguments should be strong enough to rule out the well-established liberal principles listed above. Wouldn’t we be better off in general if we just stuck to them? Setting aside these kinds of questions, another one concerned with the theory remains: How exactly does Carens subsequently change it when he learns from his experiences and his insights from the Fiji case? His analysis has shown that the liberal principles he supports cannot uphold universal applicability. So does Carens alter them in advance of his next analysis? We think there are at least two options for him; either to formulate a revised liberal principle or to develop a theory which is only applicable for the case of Fiji. Figure 8.2 illustrates this problem. In the beginning there are the mentioned liberal principles (L) which are confronted with supposedly illiberal claims (brought forward in this case by the native Fijians). The left path shows the case in which direct statements about Fiji or any other future case, i.e. exceptions (X1, X2, …) are added to the principles. For example, this could lead to a statement such as: “Citizenship demands the same rights for every citizen. However, in the case of Fiji this has to capture the morally permissible law of inalienability of land by Fijians as a protection of their vital interests as a group.” Understood in this way, the left path leads to a metaethical moral particularism, i.e. the conviction that moral norms are constituted in concrete individual case judgments and are only applicable to these singular cases (see Hübner 2014, 69). In contrast, the right path indicates that these case judgements do not have to be integrated in this form. It could even be possible that new ceteris-paribus-principles (P1, P2, …) emerge. An example would be: “Citizenship demands the same rights for every citizen, but only as long as a vital interest of a group is not threatened.” Every new case (X1, X2, …) can lead to a new principle, which can be a refined modification of the initial principle (L) or of already modified ones. Thus, this path leads to a metaethical generalism, i.e. the idea that moral norms are constituted in a systematized form on a general level.

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Fig. 8.2  How does Carens react when he discovers defects in his theoretical principles like in the case of Fiji? Does he prefer a metaethical particularism or generalism?

So another question we ask ourselves is: Does Carens favour a metaethical particularism or generalism? It is not clear what follows from Carens’s change of theory for his next inquiry. An advantage of the generalist path would be that we can directly learn from the Fiji case for other cases with relevant similarities. This would imply, however, that the liberal principles cannot remain untouched or simply be used again. The particularist path would leave the liberal principles unchanged for future inquiries since no other scenario is identical to the Fiji case. But the cost would be that Carens cannot apply his findings when he studies the next island.

8.2.2  The Case for Open Borders and Abizadeh’s Question Let us now turn to our second practical example, ‘The Case for Open Borders’ (EoI, 225 f.). Therein Carens states that the main liberal democratic principles he considers are moral equality and freedom of movement. What is interesting here is that although one is required to reflect upon one’s own intuition (see CA, 122), in this

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case his intuition is already against the practice of closed borders and the conflict with theory occurs only between Carens and the intuition of many others: The conventional view that closed borders are morally justifiable is deeply embedded in many people’s beliefs, though Carens does not support it. Carens’s main arguments against closed borders are their resemblance with the feudal system of the middle age and his Cantilever argument, according to which free global movement has to be seen analogously to free intranational movement as a human right. At first sight, the reader might be puzzled. Would the contextual approach not demand us to take the conventional view more seriously, yet to be ready to change our liberal principles in order to maintain the conventional view? It becomes clear that Carens does not use the contextual approach in this early paper, but develops it later as a result of his experience with the controversially discussed argument for open borders. In his recent work, Carens takes the conventional view more seriously. Although he still believes in his central argument for open borders, he decides to additionally work with less radical premises for pragmatic reasons: My approach to the question of amnesty is not primarily a concession to political realities. It is rather an attempt to engage in a respectful conversation with people who believe deeply in the state’s right to control admissions. I still believe in my open borders argument, but in democratic life, we have an obligation to seek common ground, to look for areas of agreement in the midst of our disagreements. One of the ways of doing that is to accept others’ views as premises in order to limit the range of issues under debate in a given moment. (IRS, 36)

Still, this does not tell us why we should not stick to the established practice. Why can we not say that the practice is morally permissible like it is in the case of Fiji? Could it be that the proponents of closed borders make a logical mistake? In a review of Carens’s possibly most important book, The Ethics of Immigration, Abizadeh asks questions quite similar to our own. His example is ‘Birthright Citizenship’ and he reconstructs Carens’s idea as follows: Children of citizens are granted birthright citizenship (due to the social membership norm and the expectation that they will become social members), whereas this is not granted to authorized or unauthorized long-term residents. The argument against this practice is: “Residents become social members over time; this grounds a moral claim to citizenship; and this claim can be used to criticize contemporary practice” (AAPT, 385). Abizadeh’s question about this argument is why it “should not go the other way around” (ibid.); for him it could also be a possibility that the practice (how governments deal with migrants) may be used to criticize the practice of birthright citizenship. Thus he demands a criterion that can be used “for picking out which commitments are central, and hence serve as the basis for criticizing other commitments” (ibid.). In accordance with Carens we disagree with Abizadeh’s demand for one concrete criterion because we think that in a highly complex world it cannot be appropriate to cover all possible cases at once. Carens states: I suspect that I see the moral world as much messier than Abizadeh does, more contingent, and more filled with complex and competing moral considerations that need to be balanced

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against one another without any overarching principles to determine the right (best?) balance, even if they may exclude some extremes (ibid., 409).

Nevertheless we do think the question of how we can know under which circumstances we have to change theory or practice remains meaningful to overcome the looming relativistic challenge that also seems to bother Abizadeh. In the case of Fiji, Carens prefers practice and in the case of Open Borders he prefers theory. How can we reach a solution if no single criterion can be found?

8.3  A Framework for Moving Back and Forth In this section we will now propose our reconstructive framework that is meant to serve as a tool for addressing this problem: Let us recapitulate what we have worked out so far: The initial situation is a conflict that arises when an abstract moral principle collides with an intuition about a particular practice. According to Carens, the first step to solve this problem is to reflect upon the reasons behind the intuition. In our account, this means that one has to start by finding and analysing an argument in favour of the intuition (intuition upgrading). The examination, we figure, is made up of three components: a logical, an empirical and a normative test. If the argument turns out to be logically inconsistent, it is not necessary to test the other two parts. The normative test should be the last step because it is only appropriate to analyse this component if the argument is logically consistent and matches the empirical reality. Let us illustrate this claim once more by using the example of Fiji. Initially, Carens’s liberal principles came into conflict with the illiberal practice of the inalienability of land by the Fijians. Nevertheless, his intuition is that there is something right about the practice. One argument in favour of the practice is the deep attachment to their land the Fijians have developed. We believe this argument could be unsettled by showing that it either fails to be normatively relevant, empirically adequate or logically sound. The vital interest of the Fijians certainly passes the test for normative relevance. However, Carens also analyses a different argument that is not normatively relevant for him: While the Fijians still appeal to a promise of land ownership made to them by the British rulers in colonial times (see CCC, 216), it is not at all apparent why this argument should still be morally relevant under the completely different circumstances in present-day Fiji. The second test challenges the empirical premises included in the argument. The “vital interest”-argument could for example be shaken by taking a survey proving that many Fijians actually do not have the presumed deep interest. Finally, the logical test could reveal that the conclusion does not follow from the premises or that the premises are intrinsically incoherent. A failure in one of the three categories leads to a negative result: The test has been unsuccessful and the practice is for now unjustified (left path of Fig. 8.3). This, however, does not necessarily mean that the theory has ultimately won. If the

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Fig. 8.3  Our proposed way to proceed that is supposed to clarify what could be meant by “moving back and forth”

opposing intuition appears to be persistent, the theorist can decide to continue searching for another argument that might eventually pass the test. In case that all three challenges have been passed successfully, we can move on to the right track of the diagram. Now we have found a normatively, empirically and logically correct argument in favour of the intuition. Nevertheless, the question remains whether this argument is in itself morally stronger than the opposing theoretical principles. Is it crucial? (A crucial argument, as we define it, leads to a tilting of the scales in favour of the view supported by the argument.) If the argument alone is not crucial, it can still serve as motivation for the theorist to search for an additional argument that, together with the first one, will eventually make it work. If the successful argument(s) turn out to be crucial, the practice is, for the time being, justified. The original theory has been shown to be deficient and needs to be revised. How this revision process might look like is a question we discussed in Sect. 8.2.1. The theory has to be enhanced by a clause covering the exceptional case or otherwise restricted in its scope of application (remember Fig. 8.2). Still no endpoint is reached. The whole procedure can start again with the revised theory as soon as a new conflict arises.

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8.4  Discussion and Conclusion At this point we return to the starting point of our paper, the question of what it means to “move back and forth”. On our way, we have compared Carens’s methodological approach with Rawls’s, analysed how he uses it in practical examples like the case of Fiji, and ended up with a framework meant to reconstruct the process. Proceeding in this manner we derived three question groups. Remember that in the pursuit of developing our framework, we encountered two questions - one of them is concerned with the difference between Rawls and Carens and the other with Carens’s position on theory revision. We would like to address and recapitulate these in the following and then arrive at our main question:

8.4.1  Q  uestion Concerning the Difference Between Rawls and Carens As we have seen, Rawls and Carens place emphasis on different aspects: Carens wants to look for unfamiliar cases while Rawls searches for coherence. But are these really crucial differences between Rawls’s and Carens’s understanding of reflective (dis)equilibria?

8.4.2  Question About Theory Revisions In the Fiji case, Carens never formulates a revised theoretical principle although he classifies the practice as justified. This has logical consequences for the theory. According to our Fig.  8.2, it is unclear what happens to the liberal principles if Carens decides to change the theory as he does in the Fiji case. Does Carens use the example as a singular exception or does he integrate it into his abstract moral principles in advance of approaching the next case? Shortly put, does he favour a particularistic or a generalistic metaethical view? As we see it there are two possible ways to answer. Carens could always favour one view over the other, or say that he decides on a case-by-case basis. Subsequently we ask ourselves how Carens would explain his choice.

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8.4.3  Questions Concerning the Proposed Framework Finally, can our proposed way to proceed fulfill the aim of being a helpful tool? Can it clarify what Carens means with “moving back and forth”? Does it help to avoid relativism? Or does it shift the problem towards the questions concerning the success of the test and unclear properties of crucial arguments? What we hope is that our proposal to proceed at least sheds light on the meaning of “moving back and forth”. Our goal with Fig. 8.3 is to provide a helpful tool. We do not claim that every discussion has to follow our steps precisely. The advantage of our third graphic is that it can help to identify exact points of disagreement. Let us suppose that someone rejects Carens’s conclusion that the special rights of the Fijians are permissible. With the help of our figure, the opponent could show at which point exactly he disagrees. Perhaps he agrees with the complete argumentative test (normative relevance, empirical adequacy and logical soundness) but does not consider the argument brought forward by Carens strong enough to be crucial. Maybe this tool does not rule out relativistic concerns. But it could turn out to be a fruitful clarification for continuing the debate. In this way, we could indeed “gain as political theorists by reflecting upon unfamiliar cases” (CCC, 200).

References Carens, Joseph H. 2000. Culture, Citizenship, and Community. A Contextual Exploration of Justice as Evenhandedness. (= CCC). ———. 2004. A Contextual Approach to Political Theory. Ethical Theory and Moral Practice 7 (2): 117–132. (= CA). ———. 2010. Immigrants and the Right to Stay. Cambridge, MA: MIT Press. (= IRS). ———. 2015a. Alternative Approaches to Political Theory. A Response to Miller, Bauböck, and Abizadeh. Political Theory 43 (3): 401–411. (= AAPT). ———. 2015b. The Ethics of Immigration. Oxford: Oxford University Press. (= EoI). Hahn, Susanne. 2000. Überlegungsgleichgewicht(e). Prüfung einer Rechtfertigungsmetapher. Freiburg/München: Karl Alber. Hübner, Dietmar. 2014. Einführung in die philosophische Ethik. Göttingen: Vandenhoeck & Ruprecht. Popper, Karl. 1935. Logik der Forschung. Wien: Springer. Rawls, John. 1999. A Theory of Justice [1971]. Harvard: Harvard University Press.

Part V

The Ethics of Immigration Admissions

Chapter 9

Obligatory Admission in the Light of Post-Colonialism Bernadette Schwabe and Judith Urselmann

Abstract  According to what Joseph Carens calls the conventional view, states have a right to exercise discretionary control over immigration. However, this right is not without limits. Extending Carens’s own suggestions, we claim that people who are harmed by historical injustices have a strong moral right to immigrate. We draw on the discussion about historical injustices to clarify that there are obligations towards those who suffered historical injustice – our central example is the genocide of the Herero people. One way of responding to these obligations is to admit immigration. Finally, we argue that it should be up to the victims to decide in which way reparation should be paid. Keywords  Colonialism · Empowerment · Ethics of migration · Herero · Historical injustice · Joseph Carens · Reparation

We live in a greatly unjust world facing unjust structures of different origins that lead us to think about how things would be if they were just, or how to deal with them in this non-ideal world. The case of the genocide of the Herero people in particular gave rise to the following reflections. We will discuss a special case of a right to immigrate: We argue that those persons and their descendants who were victims of historical injustice, at least if they are still harmed in the present, should have the right to immigrate into the state which is responsible for this injustice.

B. Schwabe (*) Philosophisches Seminar, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected] J. Urselmann Katholisch-Theologische Fakultät, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_9

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In what follows, we proceed from a number of assumptions Joseph Carens laid out in his chapter “Ordinary Admission” in The Ethics of Immigration (EoI). However, we believe that Carens has thus far left the moral claims of the victims of historic injustice unheeded. Our paper argues that Carens should add the case of historic injustice to his list of exceptions from the supposed discretionary right of states to control their borders. Let us start with some facts about the Herero genocide. Tens of thousands of people were killed by German soldiers in the colony of German South West Africa, today’s Namibia, at the beginning of the twentieth century; up to 60.000 Herero were killed during the whole period of colonialization. Indeed, most historians explicitly speak of genocide. For a better understanding, let us take a look at the background of the German colonial efforts on the African continent. Kaiser Wilhelm II strived for importance and joined other European powers in colonizing territories in 1884 when Chancellor Bismarck placed the possessions of a German merchant in Namibia under German protection. With the arrival of other German settlers, the fight for land began. The Herero and Nama were expelled. The Herero were displaced and resettled in reserves. Since the reserves were located in barren land and a rinderpest decimated the livestock greatly, a very precarious situation arose for the Herero. Therefore, they began to defend themselves against the situation and attacked German farmers (123 Germans died). After Germany rejected the negotiated peace, Kaiser Wilhelm II and the new Chancellor von Bülow sent General Lothar von Trotha with about 4000 German soldiers into the region. Lothar von Trotha was not satisfied with the suppression of the uprising but wanted the extermination of the people. His command was: I the great General of the German troops send this letter to the Herero people. The Herero are no longer German subjects. […] The Herero people must however leave the land. If the populace does not do this, I will force them with the Groot Rohr (cannon). Within the German borders every Herero, with or without a gun, with or without cattle, will be shot. I will no longer accept women or children, I will drive them back to their people or I will let them shoot at. These are my words to the Herero people. The great General of the mighty German Kaiser. (Cited from Gewald 1994, 68)

This order resulted in a mass murder of the Herero. The few survivors were transferred to concentration camps. In total, about 75–80% of the Herero and 35–50% of the Nama were eradicated. When Lothar von Trotha’s practice became known in Germany, the public reacted with outrage and tumult (see Tetzlaff 2018, 98–100). We will continue to refer to this example of historical injustice throughout our argumentation, following what Joseph Carens calls the ‘contextual approach’. Carens describes his project as “[...] profoundly shaped by my sense of how much we learn as theorists by confronting the abstract with the concrete and by inquiring into the relationship between the theoretical views we espouse and actual problems, practices, and debates in political life.” (CCC, 2) This is exactly what we intend by referring to the Herero case. In our argument, we make some assumptions, which are briefly explained below. Firstly, we simply assume that states have the right to control immigration. Thus, we argue within what Carens calls the conventional view, that is a liberal theory where states have the right to self-determination, including the decision of who should get

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in. We argue that, if this is the case, moral obligations follow. Carens mentions two of those obligations: as the case of family reunification (EoI, Chap. 9) and refugees (Chap. 10). In our view, he should add the case of historic injustice as a third class of obligations that trump the right to control borders. However, we do not strive to defend the libertarian view. If at all, we try to make plausible how a rectificatory theory of justice matches liberal principles. Then, secondly, we are not (or not mainly) talking about refugees. Our focus is on people who would like to migrate, but who do not count as refugees. The refugees’ right to immigrate, at least in many cases, is overdetermined: they have claims just because they are in need of a new home; and additionally, they might have claims based on the causal connection of a state to their status quo. In their cases, there is no need to refer to a normative argument that is based on historical injustice. However, there are many persons who do not count as refugees, but who would like to migrate. Clarifying their claims is an urgent task for the ethics of migration. This is how our argument proceeds: Since we try to detach our argument from strong presumptions that will be rejected by many, we establish a narrow conception of moral claims based on historic injustice. Roughly speaking, according to that view, persons have moral claims towards the perpetrators, if they or their ancestors suffered a historical injustice in that sense that people in the past also had to classify the act in question as an injustice, and if said injustice still harms them in the present. Once it is established that the victims have some moral claim, we argue that it is up to the victims to decide in which way the descendants of the perpetrators have to make amends for the injustice, immigration being one of several possibilities. The line of argument determines the following structure of our paper: The first term under scrutiny is historical injustice. While explicating the scope of this term we come to see that it is possible to make moral judgements about the past without walking into the trap of anachronism. In the second section we apply the obtained insights about historical injustices to the real-world case introduced before. By then, we will have made plausible that the genocide on the Herero people is in fact a historical injustice. In the third section, we discuss what it means to be persistently harmed, thus implementing a temporal dimension in the argument. In the fourth section, we explore different forms of reparation and, again, apply the theoretical considerations to the real-world case. We introduce the concept of empowerment. It sheds light on the theoretical background of who has to take action and who has the right to choose adequate forms of reparation. While the genocide of the Herero people is a clear-cut case of historical injustice with persisting harm, the causal connection might be harder to trace in other cases. Therefore, in Sect. 9.5, we argue for a principle to determine the burden of proof: Not those harmed by historical injustice are obliged to prove the causal role the injustice plays in their current disadvantage. Instead, according to our argument, the perpetrator has the burden of proof showing that there is no such causal link. At that point in our argument, it becomes clear that (successor) states are morally responsible for the historical injustices they committed, and that this moral responsibility needs to be acted upon. In the conclusion, the most important points of our argumentation are summarised. We show how these seemingly separate ideas are connected and lead to our hypothesis: People

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who are harmed by historical injustices have justified moral claims against (successor) states. One way to realize these claims is to grant these people admission whenever they seek it.

9.1  Historical Injustice: A Source of Moral Responsibility The central claim we want to defend is that historical injustice gives rise to moral claims. This calls for a closer look at the term historical injustice. Michael Schefczyk suggests the following definition: “A historical injustice is a (complex of) natural crime(s), which is (i) legalised and (ii) being perpetrated by morally competent agents.” (Schefczyk 2009, 5) A natural crime is a special case of a crime that violates natural rights. These include, according to Schefczyk, “the right not to be mutilated, murdered, displaced, exploited, raped, captured, robbed or enslaved.” (ibid., 4) Accordingly, natural crimes roughly translate into the violation of human rights. With ‘legalized’ he characterizes the crime as tolerated or explicitly permitted by the government, the executive or judges (see ibid., 5). Note here that the legalization of a natural crime is a natural crime itself. The legalization adds yet another dimension to acts of historical injustice because it bestows a collective nature on these acts. The second part of the definition helps to distinguish cases of historical injustice from such of historical ill. Only morally competent agents can commit historical injustices. Their status as morally competent also entails their moral responsibility whereas, as Schefczyk argues, in cases of historical ills there is no one to be held responsible (see Schefczyk 2011, 32). For a person to be a morally competent agent that person must be in adequate physical and mental shape,1 i.e. not suffer from severe brain damage etc. (see ibid., 33). This person will be called a capable person in the following. If agents do not fulfil this condition, we cannot speak of their action as a historical injustice, but only as a historical ill. For those cases with a capable agent, Schefczyk offers a more intricate distinction to avoid anachronistic judgements: If the perpetrator did not know or could not have known the moral wrongness of their action because they were part of a morally incompetent culture, we cannot hold that person responsible. They were (justifiably) morally ignorant. We would consider the act of this person an ill, but not an injustice (see ibid., 30). This implies that, if the perpetrators had known that they violated the natural rights of another person, because they live in a culture that acknowledges these natural rights, and went on with it anyway, they would have been overall morally competent persons, and therefore to be held responsible. In this case we would speak of a historical injustice. Again, this claim is worth a closer look.

1  The enumeration of both mental and physical shape is not intended to suggest any metaphysical distinction.

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Questions that help to evaluate moral competency are: Were those natural rights that were violated, acknowledged and widely respected in that culture? What kind of actions were dominant in that culture? Did the person know better than their mainstream culture? Was this kind of action prevalent, but needed justifying and was under serious attack? In a nutshell, the socio-cultural background of the perpetrator needs to be considered. Only if the perpetrator deliberately and knowingly violated a natural right of another person, one can speak of historical injustice (see ibid., 50). This analysis will be brought up in detail in the next section, during the evaluation of the status of the German colonialism and the genocide of the Herero people. Schefczyk’s thesis about moral competency fits well with Carens’s position about moral judgements of past actions. Carens argues that one must be wary when evaluating past cultural practices (or current practices of distant cultures for that matter): […] social practices are not faithful to the shared understandings of the time. In other words, it is appropriate to criticize people for failing to live up to their own principles, but not for failing to live up to ours. [...] There is always the danger of anachronism in making critical judgements about past societies. It would seem to violate the maxim that 'ought implies can' to criticize people for failing to meet moral standards that were entirely unknown and unarticulated in their own time. Yet that need not entail an uncritical acceptance of the conventional view of an era. (CCC, 37)

Natural crimes committed by a capable person within a morally incompetent society must be evaluated differently than the same action of a person who is immersed in a morally competent environment. Carens also points out how, even if a person did not knowingly violate natural rights, they can still be to blame, if said person is a member of a morally competent culture (see ibid., 38). Though Carens does not open up the dichotomy of historical injustice and historical ill, he also agrees with Schefzcyk’s view on responsibility for natural crimes: It seems to me both possible and sensible to conclude that a particular set of social practices was unjust, even if the people engaged in those practices could not be held responsible for the injustice. At the very least, we can make assessments about better and worse ways to organize human affairs even apart from consideration of what cultural possibilities are open in a given context. (ibid.)

Schefczyk emphasizes that in cases in which a person cannot be held responsible for lack of moral competence the action must be classified as historical ill and not historical injustice. In our argumentation we follow Schefczyk’s concept of historical injustice. Apart from the necessary conditions for historical injustice in the definition, Schefczyk further characterizes historical injustices as grave crimes with significance in the overall context of history (see Schefczyk 2011, 19).

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9.2  Colonialism: A Historical Injustice Today a clear majority agrees that colonialism is wrong. But does it also qualify as a historical injustice in the just established meaning? Though we may consider colonialism as generally wrong, classifying a historical era as historically unjust calls for case by case scrutiny. In this section we will juxtapose Schefczyk’s definition of historical injustice with the tangible historical facts of the former colony German South West Africa in the context of colonization in general. We will primarily focus on the crimes of the German colonizers on the Herero people. Only if these crimes are in fact cases of historical injustice will we be able to follow our line of argument any further, at least as far as the Herero are concerned. Firstly, the crimes on the Herero people would need to be natural crimes. As such they need to have violated the natural rights of the Herero people. Clearly several natural rights were violated: by beatings, rape (see Gewald 1999, 184–204), executions, and shootings of unarmed civilians (see Krüger 2016, 144) that took place by the thousands. It is out of question that a complex of natural crimes was committed. Generally speaking, to violate natural rights in the course of colonization is typical: “Burning native settlements, torturing innocents, slaughtering children, enslaving entire populations, exploiting the soil and natural resources available to them, and discriminating on grounds of ethnicity and race are only some of the most familiar horrors associated with it.” (Ypi 2013, 162). Secondly, these crimes must have been legalized. The extermination order as cited above illustrates this point. It becomes clear that not only were the atrocities performed by German soldiers tolerated; they were also commanded by the General who was instated by the German Kaiser. The same is true of a large number of crimes committed in colonies (see Klose 2009, 2015). Even if those in political power did not command any crimes on the colonized people, they tolerated them. Thus, the second presupposition is also fulfilled. Thirdly, the crimes must have been committed by morally competent agents. First of all, the perpetrators, which include the individual soldier but also the Kaiser himself, need to be physically and mentally capable of making moral judgements. Lacking information to the contrary we assume that this is the case. If it is plausible that the agents were part of a morally incompetent culture, it would not be appropriate to speak of their actions as historical injustice. So, as a next step we have to determine whether the culture within which the supposed injustice took place is morally competent. At first, we have to determine with regard to which practices the culture needs to be morally competent. Here the actions in question are the aforementioned natural crimes of German settlers and soldiers. Secondly, it must be clear what the culture of reference is. To limit the cultural scope to Germany in the late nineteenth and early twentieth century appears to be too restrictive. It is plausible to regard the (Western) European mainstream culture as the most suitable point of reference. The agent’s culture is morally competent if it is able to value moral facts adequately (see Schefczyk 2011, 33). Since this requirement is too abstract to be

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applied to concrete cases, Schefczyk offers a number of options to analyse the moral competence of a culture. These include, firstly, the interrelated thresholds customary nature (custom, dominance of the respective action) and, secondly, awareness (need for justification or familiarity with ideas of the wrongness of the practice). The different concepts are demanding in varying degrees and thus make for a weaker or stronger thesis about cultural moral competence. For our purpose we would like to use a combination of the aforementioned thresholds, because not relying on just one but on as many specifications as possible we aim to make our claim more plausible. In accordance with the first category (customary nature) colonialism was the common practice. This entails that it was also the dominant practice to enslave or kill indigenous people and take their land. It is plausible to claim that colonizing was the common and dominant practice in Europe at that time. The colony German South West Africa was established in 1884, within this European era of imperialism. The German colony in modern day Namibia is nonetheless a somewhat special case of colonization. Although the rather systematic killing of indigenous people in colonies happened under other regimes as well, few reached this extent. As we already said, historians have claimed for years that the killing and displacement of the Herero people into the desert must be classified as genocide (see Jones 2004, 59). This is definitely not something that can be considered a dominant cultural practice. To our knowledge there is no mainstream culture in Western Europe at that time that did not consider genocide morally wrong or even endorsed it. The genocide of the Herero people is nowadays conceived as the first genocide of the twentieth century. The phenomenon being so alien to the reference culture, indicates that we can consider the German genocide of the Herero people as historical injustice. The second category, familiarity with the idea of the wrongness of the practice, can be interpreted in two ways. The strong thesis claims that the crime is a historical injustice if the common (morally wrong) social practice is under pressure of justification. This is the case when the criticism of that practice has gained power and defenders of the status quo are more and more under intellectual and political pressure (see Schefczyk 2011, 38). The weak thesis states that the moral reasons to act correctly need to be known at the time of action. This entails that the respective moral truths need to be discovered by then and that enough people knew of them. Otherwise the crime cannot rightly be called a historical injustice (see ibid., 39). The ‘need of justification’ thesis is the stronger version, because, unlike in the other version, the moral truths not only need to be known but must also be, more or less, successfully represented in public. The stronger thesis so to speak adds a political dimension to the epistemic foundation that is presupposed by the weaker thesis.2

 We will concentrate on the assessment of the German genocide. It would also be possible to look at the broader picture (colonialism as such), but this would lead us too far from our focus. Kant, Maine, and Diderot on the one side and Mill and Tocqueville on the other side would be worth reading in this regard. 2

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The social practice of colonizing the area that is now Namibia and systematically killing the Herero people would have needed justification, if the criticism of that (kind of) practice had gained power and defenders of the status quo had been put under increasing intellectual and political pressure. Among philosophers and other thinkers, even those who supported colonialism (mainly out of a civilization mission), there would have been no debate over the moral evaluation of genocide. In fact, there also were strong reactions from within the German Empire (see Winkler 2013, 1043). The German Kaiser and his army were in such need of justification that the extermination command was taken back some weeks after it had been issued.3 The genocide was seriously contested and comprehensively criticized and consequently in need of justification. Overall, the responsible persons were morally competent agents. Let us conclude: The first two conditions of Schefczyk’s definition of a historical injustice proved easily fulfilled by the genocide of the Herero people. As stated above, the question of moral competency leaves more room for discussion. But, in the end, those responsible are rightfully to blame since they were morally competent agents. They did wrong although they knew or should have known better. It is conclusive to classify these events as cases of historical injustice.

9.3  Persisting Harm: Taking Time into Account In the section above, we have shown that the German genocide on the Herero people must be considered a historical injustice. The claim we try to prove is that people who are still harmed today by this injustice have justified moral claims to reparation. The aim of the following section is to introduce a concept of harm and to depict the causal connection between the historical injustice and the perpetuating harm.4 Simultaneously, these theoretical findings will be applied to our real-world case. Consulting the literature on intergenerational and historical justice one comes across different concepts of harm. To our understanding, the definitions fall into two categories: harm as an absolute and as a relative concept. At first, we will look at harm as an absolute concept. James Souter, referring to Joel Feinberg (see Feinberg 1987) and Amartya Sen (see Sen 1993), puts it as follows: As Joel Feinberg (1987, ch. 1) has argued, ‘harm’ can be profitably understood as entailing a setback to one’s basic interests. This process can be characterised either objectively or subjectively, as the impairment of basic human capabilities (Sen 1993), or in terms of suffering. (Souter 2014, 333)

3  Historically one could also mention ‘The Report On The Natives Of South West Africa And Their Treatment By Germany’, the so called Blue Book, which was commissioned by the English Empire. But since it was also used as propaganda in the First World War we will not take it into consideration, only mention its existence. 4  The qualifier ‘still’ has therefore two dimensions. Firstly, it expresses the causal connection and secondly, it emphasizes the continuity of the experienced harm.

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Daniel Butt’s definition also emphasizes the violation of people’s interests but adds a good measure of intentions on the side of the perpetrator: “This understanding of harm is straightforward, and defined in terms of active, usually deliberate, and typically violent wrongful damage to others’ interests.” (Butt 2009, 16) Lukas Meyer presents three different definitions of harm in his discussion. One of them is an absolute concept. It is not entirely different from the definition above, but makes use of a threshold-condition: An action (or inaction) at time t1 harms a person only if the agent thereby causes (allows) either the coming into existence of this person in a sub-threshold state or the already existing person to be in a sub-threshold state; further, only if this person would not be in the harmed state had the agent not interacted with (or acted with respect to) this person at all; and furthermore, only if the agent, if he cannot avoid causing harm in this sense, does not minimize the harm. (Meyer 2016)

The definition is open to the normative question of where the threshold lies. It could be taken to be equal minimal rights for every person or the average of well-being of the person’s contemporaries. Applied to the German colonization and genocide of the Herero people it unfolds as follows: The remaining Herero people in today’s Namibia live in a poor state. In Namibia, we find the world’s biggest income disparity with the top 1% earning more than the bottom 50%, while the top 1% are almost exclusively white. More specific, “German speakers earn ten times more per year than Otjiherero speakers” (Sarkin-Hughes 2009, 28). Most of the Herero live in a state of poverty with little hope for improvement. Their basic interests, like meeting their existential needs and not having half their relatives killed, are violated. Not only in respect to Western standards, but also to Namibian standards, they are in what Meyer calls the sub-threshold state. Those Herero people who survived most certainly still suffer from the existential experience the genocide meant to their families and friends. The genocide reduced their number so drastically that, for example, their political influence in the now democratic state Namibia is massively impaired. To sum it up, the surviving Herero are certainly harmed in the threshold-­ notion of harm and this harm has been caused by German crimes during colonization. The relative definitions of harm differ regarding their relatum. One candidate, according to Meyer, is the state before the harming act: “An action (or inaction) […] at time t1 harms someone only if the agent causes (allows) this person to be worse off at some later time t2 […] than the person was before t1.” (Meyer 2016) Following a different approach, the correlation is not a historical fact but rather counterfactual. According to Meyer the counterfactual is the (imaginary) state in which the perpetrator had not interacted with the person (see ibid.). In consequence, people who are worse off compared to the case where the violent interaction did not take place, but still have their basic needs and interests met, would also qualify as harmed people. In this case, it seems to be true that the Herero had been better off without colonization. It is open for debate which concept of harm is the most adequate. However, it is plausible to say that both approaches apply to our example. Although one wanders on the safe side when not dealing with counterfactuals. On the one side, of course,

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because the actual historical facts can be considered. On the other side, because the discussion about the most adequate counterfactual is avoided. Hence, we can assume that the Herero people are still severely harmed by the colonization of Germany and the subsequent genocide.

9.4  Reparation: Acting on Moral Responsibilities By now, we have come to the conclusion that people who are harmed by a historical injustice have justified moral claims. The aim of this section is to systematically present what these claims entail. We follow Souter (see Souter 2014) and Elazar Barkan in their discussion of reparation and understand them to cover “the entire spectrum of attempts to rectify historical injustices” (Barkan 2001, xix) involving three components: restitution, compensation and satisfaction. Restitution and compensation are material in nature. The aim of restitution is to go back to the way things were before the injustice occurred. It should be noted, that this is often very hard or even impossible to achieve. It is debatable whether it is just to take land from people who have justly inherited it, although it was unjustly acquired in the first place, maybe generations before, a point that becomes apparent in the ongoing conflict between Herero descendants and white farmers in Namibia. And, in the case of genocide, it is not possible to raise the dead. This leaves the Herero with compensation, which involves the flow of money or other goods. If, for whatever reason, one cannot give back what was unjustly taken, financial amends are in order. But how much? How can the loss of, sometimes sacred, land or the death of family members be compensated for? A loss, in this case, is the difference between how things turned out and how things would have turned out in a counterfactual state of affairs. This poses the problem of the adequate counterfactual: How should this counterfactual be calculated, given the countless number of ways in which history might have unfolded? The standard response appeals to the most likely outcome— what would most probably have occurred had the injustice not taken place. We measure the difference between someone’s current state and the state she would probably be in had injustice never occurred and hold the perpetrator responsible for making up the difference between the real world and this possible world. (Butt 2015, 178)

Again, this seems to leave us with open questions. What exactly does it mean that the “injustice [had] never occurred?” On the one hand, it could mean that there was never any contact between the two agents. On the other hand, it could mean that the contact had not been characterized by unjust actions, like exploitation, murder and so on, but by nonviolent and respectful interaction (see ibid., 181–182). Satisfaction can be understood as symbolic compensation by apologizing or promising to not repeat the injustice. According to Meyer, satisfaction or symbolic compensation is the more important form of reparation as it lays the foundation for (later) material reparation (see Meyer 2016). However, Meyer emphasizes that apologies need to be sincere and must not be brought about as political means to achieve other goals (see ibid.).

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There is an additional type of symbolic compensation. Means of that type are, for example, the establishment of a memorial culture (by memorials and museums, and policies) and special treatment in education (see ibid., 168–169). As stated in the beginning, we would like to add the right to obligatory admission to this list: People who have a right to reparation can make use of that right by choosing to settle in the (successor) state that caused their harm by a historical injustice. It is an effective form of reparation since it is not only symbolic but also contributes to real material improvements in the living conditions of those who were and still are harmed. Many people of the so-called global south seek admission to rich states of the global north hoping to improve their economic situation. Our argument will help certain groups of these migrants to justify their claim to admission. Our proposal, the victims’ right to choose between admission to the perpetrator state and other forms of compensation, is also meant to involve a form of empowerment. Simply put, “empowerment” means to enable people to help themselves. Supporting empowerment is, regardless of questions of historical injustice, a responsibility of democratic states. A democratic state represents a democratic ethos. According to Carens, this democratic ethos demands more than just equal rights: It requires that citizens should feel free to live their lives as they choose to a considerable extent, that they should enjoy at least rough equality of opportunity in education and economic life, that they should be able to help shape the rules to which they are subject, and that they should interact with their fellow citizens on a basis of mutual respect and fairness. (EoI, 63)

Namibia, as a democratic state, has the responsibility to empower its citizens. Empowerment, however, does not only refer to the relationship between state and citizen. Germany can also promote empowerment as part of its reparations. This dimension is included in our claim. In general empowerment means “the process of becoming stronger and more confident, especially in controlling one’s life and claiming one’s rights” (Oxford Dictionary). The Organisation for Economic Co-operation and Development (OECD) states four dimensions of empowerment: economic, political, social, and cultural empowerment. (see Hackmann 2012, 22–46) “Empowerment theories are built from the perspectives of the victims who are the marginalized and oppressed and excluded from decision-making, whether in a democratic or a non-democratic system.” (Dassah 2018, 96) The aim of empowerment theories is “to construct a society that offers hope to people by giving them the opportunity to live in a just society and to be able to be involved in issues relating to their lives.” (ibid.) How does our goal, namely to argue for the right to immigration whenever victims of historical injustice seek it, fit into the concept of empowerment? Our argument is a contribution to how victims of historical injustice can be enabled to take greater control of their own lives and thus strengthen their autonomy. This is achieved by strengthening their rights, here: the right to immigration whenever they seek it. So, this is a contribution to break up power structures still structurally present, due to historical injustice. In Namibia, the consequences of the colonial era are still negatively impacting on the lives of the Herero. Descendants of

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the German colonial rulers have more power through land ownership and wealth, for example. Additionally, Germany, as a rich former colonial state, exercises power over the Herero. This is shown, e.g. in that Germany denies certain reparations and the recognition of the committed crimes as genocide. Reversing the power gap here means that the weaker ones have a right over the more powerful ones. The more powerful party, however, cannot influence this right. When victims make their choice, the state must not refuse it. This right, as it builds on promoting autonomy and breaking up power structures, can be ascribed to various dimensions of empowerment. It could be seen as an instrument of the economic dimension: with an expanded right to immigration, they are granted access to (labor-) markets and therefore increase their opportunities. The recognition of additional autonomy and the recognition of the perpetrator’s society lead to becoming aware of one’s own possibilities and self-determination, which in turn promotes social empowerment. Our claim is thus a form of empowerment, which has to be regarded as the task of the perpetrator state and at the same time a form of reparation. It is important to mention here that different actors might be addressed. In the case of the Herero, the state of Namibia is responsible for the realization of the democratic ideal. But as a former perpetrator, Germany is required to provide adequate reparations. However, we do not claim that the right to immigration should be the only way to satisfy their right to reparation. Rather it is an addition to the set of reparative means available to rectify past injustice. It is appropriate because it is apt to reduce harm still suffered by descendants. They get access to benefits, like rights and opportunities, in the state that historically benefited from exploiting their ancestors. They receive this access because of the historical link between them and the admitting state. This argumentation runs analogues to Carens’s claim about reasons to admit refugees (see EoI, 195). It grants access to another group, namely migrants who are harmed by historical injustice and do not qualify as refugees, a group that would not have been admitted in the world the way it is ordered today. We do not want to propose that emigrating to a rich European democratic state (which the former colonizers nowadays normally are) is a dream come true for all people who are still harmed by that state’s past actions. It would in fact be completely understandable if they chose to not make use of this option. However, as a matter of course, we think that whoever falls under the category of eligible people and has the wish to immigrate should be admitted.5

 It might be added: if they do fulfil any criteria of exclusion.

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9.5  T  he Burden of Proof: The States’ Obligation to Reparation As our discussion has revealed, it is not enough to show that the victims today are bad off. There needs to be a solid causal link between the historical injustice and the current harm. In the case of the Herero the causal link is striking. Today the descendants of German, and later Dutch, settlers are in economic control, while black Namibians suffer from unemployment, poverty and deprivation. In this case the causal link is strong, but it is not always that strong. Sometimes, the complex nature of politics and societies makes us hesitate and not attribute today’s bad conditions to a main or even single cause, for example colonialism, because this is how we understand Carens’s comments on this issue: [...] one might consider the extent to which contemporary refugee flows in Africa and Asia are attributable to the legacy of colonialism and the extent to which they are due to independent, intervening causes. How one assesses that issue would affect one’s sense of the moral responsibility of the former colonial powers for these refugees. (EoI, 330)

And even more clearly: I do try to avoid tying my own discussion of the responsibility of rich democratic states for refugees too tightly to it [colonialism] because the empirical claim [of causal connection] is both contestable and limited in its reach. (RNCER, 24)

Carens concludes that for the case of refugees he does not need to rely on arguments based on post-colonialism. In his eyes the moral reasons to admit refugees are overdetermined. There is no need to make use of post-colonial arguments. However, we think that while this might be the case for refugees this line of argument does not hold for all those who would like to migrate, but do not count as refugees. There is no moral overdetermination in this context. So, in the case of regular migrants we have to make use of post-colonial arguments. In cases where the causal link is not established, the burden of proof is crucial. These cases encompass a spectrum of very weak causality to almost certain causal connections. Our argument aims to cover those cases in the middle that are hard to decide and where it is disputable if the link is strong enough to establish duties of reparation. Given the way Carens approaches the issue, the burden of proof in effect seems to be with anyone who argues for the responsibility of colonizers: To him the empirical facts are too unreliable to serve as proof, and this is the reason for him not to raise any argument at all. As a consequence, there is no moral reason to change the current situation. When in doubt, so it seems, the colonizer can reject the claims of the accusers. To our mind, this is not fair because it reinforces and reproduces the asymmetrical distribution of power. Thus, we will put forward an argument that shifts the burden of proof from those who are harmed to the states that are being accused.6

 We owe this argument by and large to Matthias Hoesch.

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(P1) In many cases it is not clear whether there is a causal link between current harm of people and actions of states in the past that is strong enough to establish duties of reparation. Our point of departure is exactly the scenario described above. The ‘empirical claim is contestable’, as Carens puts it, and it is not clear whether actions of states in the past caused the current harm of the accusers. But claims of both the accusers and the accused must be plausible enough. So there has to be an empirical basis, even if the causal strength of that basis is contestable.7 (P2) Policies have to either acknowledge or reject claims of an accuser. There is no neutral position. This point is very important. At first sight, it seems that to leaved the question undecided would be a kind of neutral position: neither can the accuser raise a justified claim, nor can the accused maintain that he is innocent. However, adopting that supposedly neutral position, in practice, would be the same as rejecting the claim of the accuser, since the status quo remains unchanged and the accused is in the same position as he would be if he had proven his innocence. Therefore, it cannot be considered neutral. (P3) It comes down to who has the burden of proof when deciding such cases. In cases of unclear causality, it is crucial to whom the burden of proof is attributed. This follows from P1 and P2. (P4) We need an ethical rule for such decisions. Since there is no way to decide the empirical question, but the question of possible claims has to be decided in some way (as follows from P2), we have to rely on ethical principles in order to decide. No matter which moral theory one holds, there is need for a basic principle to decide these cases. (P5) Candidates are: A: In asymmetrical cases the party that is better off has the burden of proof. B: Whoever argues for a diversion from the utilitarian principle has the burden of proof. C: Whoever demands a diversion from the status quo has the burden of proof. Candidate A aims at a realization of the egalitarian principle since it promotes more equal distribution of rights in the world. Candidate B seems to be genuinely utilitarian. The utilitarian principle entails the preference of actions that increase the amount of happiness in the world. However, this candidate is not only attractive for someone who generally holds a utilitarian view. In this scenario there are no competing moral rights or duties. Additionally, according to most deontological ethics,

7  The question of how the plausibility of accusations can be validated is more of an empirical question and not our concern for the time being.

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the increase of happiness is a value worth promoting. Candidate C does not promote a moral good but prefers the state of the world as it is. (P6) C is not plausible. In contrast to A and B, C does not defend any moral good. This is in line with Carens’s view on that matter: “Even if we must take deeply rooted social arrangements as givens for purposes of immediate action in a particular context, we should never forget about our assessment of their fundamental character. Otherwise we wind up legitimating what should only be endured.” (EoI, 229). Current social practices are not unchangeable and universally right. Especially in the case considered in this paper, a transformation of the status quo is possible and should be strived for. Therefore, we do not deem the adherence to the status quo an appropriate ethical rule to decide questions as important as the distribution of rights and duties. (P7) A and B both see an acknowledgement of the claims of the possibly harmed descendants of colonialized people as rights. As shown before, A and B promote moral goods, namely equality and happiness. They both qualify as ethical rules. They also both lead to an acknowledgement of claims of possibly harmed descendants of colonialized people as rights. For A the better off party is the possible perpetrator and as such has the burden of proof. Following the argument to this point, the state cannot prove that there is no causal link. Therefore, the state has to acknowledge the claims of the accusers. In the case of B, the utilitarian principle would lead to an acknowledgement of the claims of the accusers, since it would increase the amount of happiness in the world. The state’s position is the one that would divert from this principle. According to B, the state then bears the burden of proof. Again, this would result in the acknowledgement of the claims of the accusers. (C) States are obliged to reparation. In conclusion, states have to acknowledge the rights of the accusers and have to make amends. The argument above is a tool to attribute the burden of proof in unclear cases according to ethical principles. It is attractive because it refrains from putting more obstacles in the way of disadvantaged people and makes shifting the burden of proof to the more powerful party plausible.

9.6  Conclusion and Outlook Our aim in this paper was to show that people who are harmed by historical injustices have justified moral claims against (successor) states. One way to meet these claims is to grant these people admission whenever they seek it. After introducing the case of the genocide on the Herero People we explored the scope of the theoretical terms used in our hypothesis. It became clear that the crimes committed against

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the Herero by German colonialists qualify as historical injustice. Following Schefczyk, we established criteria for an action to be a historical injustice. Particular emphasis was put on the moral competency of the culture within which the actions were committed. It is not about judging the past by today’s standards but rather finding out which standards were constitutive for the culture in the context of the crimes in question. Thereby we avoided a relativist point of view towards diachronic cultures and were able to discuss the past in normative terms without being overly demanding. However, not every historical injustice calls for reparative actions. Reparation in a stricter sense is limited to cases in which people are presently harmed because of the historical injustice. As shown in this paper today’s Herero are still harmed by the actions of the former German Empire. The descendants of the original victims are entitled to reparation, and, in our opinion, to a greater extent than is acknowledged by the German government. The contextual approach as it is characterized by Carens is designed to deal with actual problems and political debates. The claims of today’s Herero are put forward in a current and stimulated debate. Therefore, our argumentation is closely tied to this case. The abstract is enriched by the concrete. However, the theoretical upshot of this is not exclusively bound to the Herero debate. It is applicable to a wider range of people and cases, e.g. other instances of colonization or forms of historical injustice besides colonialism. Further application of the theory to practical cases will bring new feedback into the theory and will help to develop it. Drawing a direct causal link between some action in the past and a present situation may prove impossible in practice. History is not monocausal development over time, many factors have to be considered when establishing relations. However, this must not allow states to hide behind the complexity of historical events. Rather, they have to acknowledge that they abused their power and take responsibility for crimes committed. Since in present times, descendent states of the possible perpetrators are much better off than the possible victims and compensation would contribute to the overall happiness of the human race, the burden of proof lies with these states when they deny causal links between these crimes and current suffering. Our argument developed mostly against the backdrop of the genocide on the Herero people. This is what makes our approach contextual. But it is certainly just a starting point. To apply it universally it needs to prove its value in the context of other real-world cases. The insights gained in this process will feed back into the theory itself and, hopefully, the theory can be useful when put to practice. To meet the requirements of the contextual approach a theory has to go through a process of exchange between this theory and practice. It can be foreseen that our theory might find its limits in this process, e.g. when thinking of relatively small successor states like Belgium and big harmed communities like (today’s) Congo. To put it in a nutshell, history matters. Push and pull factors of migration are not pulled out of thin air but develop within a historical context. Therefore, whenever we discuss migration, we need to do it in a historical context.

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References Barkan, Elazar. 2001. The Guilt of Nations. Restitution and Negotiating Historical Injustices. Baltimore: John Hopkins University Press. Butt, Daniel. 2009. Rectifying International Injustice. Principles of Compensation and Restitution Between nations. Oxford: Oxford University Press. ———. 2015. Historical Justice in Postcolonial Contexts. Repairing Historical Wrongs and the End of Empire. In Historical Justice and Memory, ed. Klaus Neumann/Janna Thompson, 166–184. Madison: The University of Wisconsin Press. Carens, Joseph H. 2000. Culture, Citizenship, and Community. A Contextual Exploration of justice as Evenhandedness. (= CCC). ———. 2015. The Ethics of Immigration. Oxford: Oxford University Press. (= EoI). ———. 2019. On the Relationship Between Normative Claims and empirical Realities in Immigration. In Proceedings of the 2018 ZiF Workshop. Studying Migration Policies at the Interface Between Empirical Research and Normative Analysis, ed. Matthias Hoesch und Lena Laube, 13–29. Münster: ULB Münster (miami.uni-muenster.de). https://doi. org/10.17879/15199614880. (= RNCER). Dassah, Emmanuel Zumabakuro. 2018. The Church, Transnational Land Deals and Empowering Local Communities in Northern Ghana. A Christian Socio-ethical Perspective. Paderborn: Ferdinand Schöningh. Feinberg, Joel. 1987. The Moral Limits of the Criminal Law. New York: Oxford University Press. Gewald, Jan-Bart. 1994. The Great General of the Kaiser. Botswana Notes and Records 26: 67–76. ———. 1999. Herero Heroes. A Socio-Political History of the Herero of Namibia, 1890–1923. Oxford: Ohio University Press. Hackmann, Christina. 2012. Poverty Reduction and Pro-Poor Growth. The Role of Empowerment. Paris: OECD Publishing. Jones, Adam. 2004. Genocide, War Crimes and the West. History and Complicity. London: Zed Books. Klose, Fabian. 2009. Menschenrechte im Schatten kolonialer Gewalt. Die Dekolonisierungskriege in Kenia und Algerien 1945–1962. München: R. Oldenbourg Verlag. Krüger, Gesine. 2016. Bestien und Opfer: Frauen im Kolonialkrieg. In Völkermord in Deutsch-­ Südwestafrika. Der Kolonialkrieg (1904–1908) in Namibia und seine Folgen, ed. Jürgen Zimmerer/Joachim Zeller, 142–159. Berlin: Ch. Links Verlag. Meyer, Lukas. 2016. Intergenerational Justice. SEP https://plato.stanford.edu/archives/sum2016/ entries/justice-intergenerational/. Accessed 13 Dec 2018. Sarkin-Hughes, Jeremy. 2009. Colonial Genocide and Reparations Claims in the 21st Century. The Socio-Legal Context of Claims Under International Law by the HERERO Against Germany for Genocide in Namibia, 1904–1908. Westport: Praeger Security International. Schefczyk, Michael. 2009. Untangling Historical Injustice and Historical Ill. Intergenerational Justice Review 9: 4–8. ———. 2011. Verantwortung für historisches Unrecht. Eine philosophische Untersuchung. Berlin: de Gruyter. Sen, Amartya. 1993. Capability and Well-Being. In The Quality of Life, ed. Martha Nussbaum, 30–53. Oxford: Oxford University Press. Souter, James. 2014. Towards a Theory of Asylum as Reparation for Past Injustice. Political Studies 62: 326–342. https://doi.org/10.1111/1467-9248.12019. Tetzlaff, Rainer. 2018. Afrika. In Eine Einführung in Geschichte, Politik und Gesellschaft. Wiesbaden: Springer. Winkler, Heinrich August. 2013. Geschichte des Westens. Von den Anfängen in der Antike bis zum 20. Jahrhundert. München: Beck. Ypi, Lea. 2013. What’s Wrong with Colonialism. Philosophy & Public Affairs 41: 158–191. https://doi.org/10.1111/papa.12014.

Chapter 10

Carens’s Cantilever Argument: Global Freedom of Movement, Logical Necessity and the Burden of Proof Jeremias Düring and Constantin Luft

Abstract  In this article we discuss the so-called cantilever argument, used by Joseph Carens to establish a human right to global freedom of movement. First of all, we criticise Carens’s classification of the argument as both an “analogy” and a “logical extension”. Comparing the cantilever argument with Carens’s popular feudalism analogy suggests understanding it solely as an extension, but certainly not as a “logical” one. Finally, we sketch out whether, by means of the cantilever, he succeeds in shifting the burden of proof to the opponents of such a human right. Keywords  Analogical arguments · Burden of proof · Cantilever argument · Global freedom of movement · Human rights · Joseph Carens · Logical necessity · Migration ethics

If you say A, you have to say B. This familiar truism of the German lawyer’s appraisal technique (“Gutachtenstil”) also enjoys great popularity in philosophical discussions. Robert Nozick, Milton Friedman or Murray Rothbard, for example, claim that anyone who considers it morally legitimate to gift things to somebody must also allow testators to formulate a will (for an overview see Halliday 2013). Those who give away may also bequeath. Under the charming headline DOWNLOAD THIS ESSAY: A DEFENCE OF STEALING EBOOKS Andrew Forcehimes recently argued that all reasons in favour of public libraries are also applicable to stealing eBooks, and that all arguments against this digital theft can also be put forward against such unrestricted hotbeds of knowledge (see Forcehimes 2013). J. Düring (*) Philosophisches Seminar, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected] C. Luft Rechtswissenschaftliche Fakultät (Law Faculty), Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_10

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In this respect, the ethics of migration is no exception. Joseph Carens, who in his 1987 essay “Aliens and Citizens: The Case for Open Borders” first articulated the demand for a human right to global freedom of movement, in his most recent book, The Ethics of Immigration (EoI), relies particularly on the assumed analogy between domestic and global freedom of movement. He argues that according to the so-­ called cantilever argument, which got its name from an article by David Miller (Miller 2013b; see also EoI, 334, footnote 18), anyone who believes in the actual human right to national freedom of movement, must also recognise the right to global freedom of movement, since it is what Carens calls the “logical extension” (EoI, 238) of its domestic counterpart. Opponents of such a far-reaching right of movement could therefore be answered in the spirit of Carens: “Read the normative leaflet on national freedom of movement. Those who want to remain consistent need to buy either both human rights or none of them”. This is a wise move in terms of forming a sophisticated argument. Why? The trump card of such semantics of legitimacy is that they are not grounded on normative theories that are themselves controversial and therefore need to be justified. All it assumes as common ground is the idea of human rights as they are stated in the Universal Declaration of Human Rights (UDHR) from 1948 and other important law documents. Carens’s cantilever argument rests on this strong and well justified foundation and then, for reasons of logical consistency, concludes that the original right to national freedom of movement has to be extended to the global level. What looks very persuasive and elegant at first sight is prone to several doubts under closer investigation. In the first chapter of this paper, it will therefore be argued that there is an obvious internal tension, namely that the cantilever argument is considered as both an analogical argument and a logical extension. After following these two readings of the cantilever argument, we put forward that one has to choose one of the two readings, since the internal tension cannot be overcome otherwise. By comparing the cantilever argument with the feudalism analogy (see AC, 252; EoI, 226) – the second prominent analogy Carens uses to make his case for open borders – in the second chapter we argue that the cantilever argument should be seen as an extension, rather than an analogical argument. In the third chapter, we will focus on what in our opinion is the core benefit of the cantilever argument: the mechanism of shifting the burden of proof to the contestants of global freedom of movement.

10.1  Two Ways of Reading the Cantilever Argument To grasp its internal tension, it is fruitful to begin with Carens’s own characterisation of the cantilever argument: One way to make a normative argument in favour of recognizing a new human right is to show that the proposed right is closely analogous to something that we already recognize as a human right. David Miller has called this the cantilever strategy […]. There is a powerful cantilever argument in favor of seeing the right to move freely across borders as a human

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right, namely that this is a logical extension of the right of free movement within states. Freedom of movement within a state is widely recognized as a human right. (EoI, 238, emphasis: JD/CL)

As highlighted in the original quote, Carens sees his argument as both an analogical argument and a logical extension. We will reconstruct the cantilever argument in light of these two very different focal points in order to illustrate that it can be read as either an analogical argument or an extension, but not as both. Putting this into other, more metaphorical words: Like in Wittgenstein’s rabbit-duck illusion, in which you can either see a duck or a rabbit (there is no perspective from which you can see both at the same time), you can only interpret the cantilever argument as either an analogical argument or an extension (but not both at once). Firstly, when reading the argument as an extension, it is helpful to begin with a brief logical reconstruction of Carens’s argument1: (P1) Domestic freedom of movement is generally recognised as a human right. (P2) “Whatever the rationale is [for treating free movement within a state as a human right], the same rationale will apply to movement across borders.” (EoI, 239) _____________________________________________________________ (C) Therefore, global freedom of movement should also be recognised as a human right. (P1) is obviously true. Of course, human rights – and the right to domestic freedom of movement is no exception – are being broken every day. This, however, does not diminish the fact that domestic freedom of movement is listed as a human right in several important law documents, most prominently in the first part of Article 13 of the 1948 Universal Declaration of Human Rights (UDHR) and in Article 12 of the 1966 International Covenant on Civil and Political Rights (ICCPR). “General recognition” must therefore be understood as the implementation in positive law, given that there is no prominent moral discourse criticising its legitimacy. The second premise is more problematic. It has in fact caused some controversy between scholars in the field of the ethics of migration.2 In The Ethics of Immigration Carens himself detects two lines of argument against his cantilever strategy: “The first is to challenge the analogy itself. The second is to argue that the proposed new right has harmful consequences that the original right does not entail or violates entitlements that the original right respects” (EoI, 239). Consequently, he expends

1  This reconstruction is intended to be as close as possible to the way Carens presents his argument in The Ethics of Immigration. In order to be a complete argument, a third premise needs to be added: “(P3) There are good reasons that justify treating national freedom of movement as a human right”. Furthermore, it has to be considered more intensely, if the argument in this form might still be facing the is-ought-problem (see Cohon 2018, chapter 5). 2  See for example Oberman 2016; Cassee 2016, 181–183, 216–230; Brezger 2014, 32–36, who share Carens’s position, and Miller 2013a, Hoesch 2017 or Hosein 2013, who criticised this position in several ways.

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considerable effort refuting both challenges. This paper, however, is not the place to fully evaluate the success of these two types of challenges.3 What is interesting for the purpose of this paper, is a special form of the first type of challenge against the cantilever argument. The way it is normally challenged is to show that there are cases in which the “rationale” for national freedom of movement differs from the “rationale” for global freedom of movement. In other words, the aim is to show that not every reason for national freedom of movement is also a reason for global freedom of movement. Even though the cantilever argument might withstand the many challenges raised against it (and even though Carens might bring forward convincing reasons to believe that the right to global freedom of movement will not have any seriously harmful consequences), attention can be brought to a deeper structural problem. This problem goes back to the second premise of the argument. For (P2) to be true, it needs to be shown that every single reason (or set of reasons) for national freedom of movement really matches with the same reasons (or set of reasons) for the global case. To do this, one needs to have a complete list of all possible justifications for the human right to national freedom of movement at hand and then one needs to show that every single one of them also applies to global freedom of movement. It is highly doubtful that one could successfully compile such a list, especially in the case of complex justifications for human rights, and in view of the further difficulty that the way a human right is fixed in positive law is never fully congruent with the moral idea behind this law (for complex justifications see Hoesch 2017; we will say more to this point in chapter 3). Thus, (P2) can only be justified under inductive considerations. Since inductive arguments are not compelling, all that can be said is that it is likely for the same reasons to apply to national freedom of movement to also apply to global freedom of movement. It is, however, doubtful whether Carens can be satisfied with this conclusion. He claims the right to global freedom of movement to be the logical extension of the right to internal freedom of movement. If we use the word “logical” in the strict sense of a technical term, Carens’s claim must be understood in the way that the conclusion of his argument has to follow with the logical necessity of a deductive argument, which means that, if the premises are true, the conclusion cannot be false (see Shapiro/Kouri Kissel 2018). Though the argument P1-P2-C, as we presented it, is a deductive one, it is not true that the inference from national to global freedom of movement can be done by merely taking deductive steps. Thus, we claim that the cantilever argument lacks exactly that logical necessity required to rightfully speak of a “logical extension”. Of course, we do not wish to claim that the cantilever argument is an invalid argument. Formally, this means that if the premises are really true, the conclusion that global freedom of movement is the extension of national 3  For more detailed insight, the reader may refer to Carens’s reply to the challenges (EoI, 240–245 and 255–287) and also to Andreas Cassee’s seminal Globale Bewegungsfreiheit, which offers a short characterisation and comment on the different attempts to justify what Cassee calls the “standard view” (Cassee 2016, part I, 21–167).

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freedom of movement has to follow with logical necessity. We also do not want to say that the argument is unsound. Our point is rather to state that it is not possible to decide whether or not the cantilever argument is a sound argument. It would, however, be one step too far to say that it “logically” follows that global freedom of movement is the extension of national freedom of movement. We therefore suggest calling this type of argument just an “extension” and not a “logical” extension. This would mean for the argument to lose the impression of certainty that comes with the term “logical”. Nevertheless, looking at the mechanism of “shifting the burden of proof”, the whole argument has more to do with likeliness than it has with certainty. Let us now concentrate on the second way of reading the cantilever argument, which is to say that it is to be understood as an analogical argument. What is normally meant by the term “analogy” is that two different entities are compared regarding their similarities and sometimes also their differences (see Bartha 2016). Speaking of an extension means that internal freedom of movement has to be a subset or a part of global freedom of movement. Thus – at least regarding to the standard definition of an analogy – the right of national freedom of movement cannot be closely analogous to global freedom of movement, if the relation between them is understood as an extension. Still the question remains, whether it would be legitimate to speak of an “analogy” – or to be more precise, of an “analogical argument” – if one drops the idea of an extension. To answer this question more needs to be said about analogical arguments. According to the Stanford Encyclopedia of Philosophy, an “analogical argument is an explicit representation of a form of analogical reasoning that cites accepted similarities between two systems to support the conclusion that some further similarity exists” (ibid.). Typically, analogical arguments fit the following “quasi-formal characterization” (ibid., chapter 2.2): ( 1) S is similar to T in certain (known) respects. (2) S has some further feature Q. (3) Therefore, T also has the feature Q, or some feature Q∗ similar to Q. (1) and (2) are premises. (3) is the conclusion of the argument. The argument form is inductive; the conclusion is not guaranteed to follow from the premises. S and T are referred to as the source domain and target domain, respectively. A domain is a set of objects, properties relations and functions, together with a set of accepted statements about those objects, properties and functions.

Speaking of freedom of movement, the national case (S) is similar to the global case (T) in certain (known) respects, namely the justifications for freedom of movement and the reasons a person might have to move. National freedom of movement (S) has the further feature of being recognised as a human right (Q). Therefore, global freedom of movement should also have this feature or a feature similar to it. This preliminary characterisation is further described as “a one-to-one mapping between objects, properties, relations and functions in S and those in T” (Bartha 2016, chapter 2.2). Of course, “not all of the items in S and T need to be placed in correspondence. Commonly the analogy only identifies correspondences between a

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select set of items. In practice, we specify an analogy simply by indicating the most significant similarities (and sometimes differences)” (ibid.). Bartha then refers to a tabular representation found in Hesse (1966) and illustratively fills this model with Thomas Reid’s argument for the existence of life on other planets (Reid 1785), using “⇒” for the analogical inference (see ibid.): ← Earth (S) ↑ Vertical ↓

→ Mars (T)

Horizontal Known similarities:

Orbits the sun Has a moon Revolves on axis Is subject to gravity Supports life

Orbits the sun Has a moon Revolves on axis Is subject to gravity Inferred similarity: ⇒

May support life

By referring to several similarities between Earth and Mars, the further similarity that Mars may also support life is analogically inferred. On the horizontal axis we can follow the individual similarities between the source domain “Earth” and the target domain “Mars”. The vertical axis represents the relations “between the objects, relations and properties within each domain” (ibid.), e.g. “the causal relation between having a moon and supporting life […] within the source domain” (ibid.). The cantilever argument also fits into Hesse’s model. However, we first need to generate some more content by stating general reasons for why a person might want to move and more particular reasons that justify the recognition of freedom of movement as a human right. Seeking work opportunities, visiting relatives or being able to find a partner are examples of general reasons for the desire to move. The justificatory reasons that are most frequently cited in the literature on (global) freedom of movement, are its intrinsic value for individual autonomy and its instrumental value, namely serving as a necessary condition to make use of other basic rights, e.g. freedom of assembly, freedom of association, etc. (see EoI, 245–252; Cassee 2016, 216–221; Brezger 2014, 33–36). With this content at hand, we can once again follow the one-to-one-mappingprocess between the source domain (national freedom of movement) and the target domain (global freedom of movement): ← National freedom of movement (S) ↑

Horizontal

→ Global freedom of movement (T)

Known similarities: Reasons to move:  Work, family, etc.

Reasons to move:  Work, family, etc.

10  Carens’s Cantilever Argument Vertical Justificatory reasons:  Instrumental value  Intrinsic value (autonomy) ↓ Is recognised as a human right

167 Justificatory reasons:  Instrumental value  Intrinsic value (autonomy) Inferred similarity: ⇒

Should be recognised as a human right

As we can see in the model, we have the reasons for why a person wants to move on the vertical axis. These reasons are interrelated with the justificatory reasons for freedom of movement. Following the horizontal axis, we can see that the reasons of the source domain match with the reasons of the target domain. Based on the correspondence between these known similarities of national freedom of movement and global freedom of movement, a further similarity is inferred by analogy: national freedom of movement is recognised as a human right. Due to these known similarities, we have good reasons to believe that global freedom of movement should also be recognised as a human right. Although the cantilever argument fits into Hesse’s tabular representation of analogical arguments, there are still some serious difficulties with Carens’s interpretation of his cantilever argument. The first one is quite obvious. By definition, analogical arguments are inductive arguments (see Bartha 2016; Tetens 2014, 174). Therefore, the conclusion here does also not follow with logical necessity. Secondly, although the cantilever argument fits into the tabular representation, it turns out to be a rather untypical analogical argument. In the example of Reid’s analogical argument, we compared two different planets or two different entities. In the case of freedom of movement, we could probably say that we are talking about two different entities, but in some way, they are far more closely related than Earth and Mars.4 This problem will be addressed in the next chapter. Finally, we need to ask how to deal with the inductive uncertainty of analogical arguments. There are in fact two possible responses to this third problem (see Tetens 2014, 180). Option a) is that the conclusion can be drawn independently from the analogical argument. In this case the analogy underlines that the conclusion fits into a structural framework that can be found in different domains of reality. In option b) the conclusion cannot be drawn independently. The uncertainty of the conclusion remains but is mitigated by putting the conclusion into a framework we are already familiar with. Both options could be applied to the case of the cantilever argument. Still, especially when we look at practical philosophy, it is one of the main benefits of analogical arguments to make an unfamiliar, probably highly contested claim more familiar by drawing parallels to a more familiar and less contested case (see

4  A branch obviously is a part of a tree. Nevertheless “branches” and “trees” can be regarded as different entities.

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Tetens 2014, 175, 181). Therefore, option b) would be attractive in the case of the cantilever argument.5

10.2  Comparison with the “Feudalism Analogy” At this point we have reached two results: By following the two ways of reading the cantilever argument, we have seen that the internal tension between reconstructing it as an extension and also reconstructing it as an analogical argument could not be solved. This means that one has to choose one of these two paths. Either way, it is impossible to argue that the conclusion follows with logical necessity. We now want to add more weight to our assumption that there is good reason to see it as an extension rather than an analogical argument. We will unfold our claim by comparing the cantilever argument to another analogy Carens uses to make his claim for open borders: the feudalism analogy. Carens first picks up the idea that “[c]itizenship in Western liberal democracies is the modern equivalent of feudal privilege  – an inherited status that greatly enhances one’s life chances” (AC, 252, emphasis: JD/CL) in his article “Aliens and Citizens”, but he does not explain how exactly this analogy works until The Ethics of Immigration. Here he writes: To be born a citizen of a rich state in Europe or North America is like being born into the nobility […]. To be born a citizen of a poor country in Asia or Africa is like being born into the peasantry in the Middle Ages […]. Like feudal birth right privileges, contemporary social arrangements not only grant advantages on the basis of birth but also entrench these advantages by legally restricting mobility, making it extremely difficult for those born into a socially disadvantaged position to overcome that disadvantage, no matter how talented they are or how hard they work. (EoI, 226, emphasis: JD/CL)

Fortunately, feudalism and the restrictions for people who were not lucky enough to be born into the nobility have long been abandoned. Due to the overwhelming structural similarities between feudalism and the “contemporary social arrangements” (ibid.), it is inferred by analogy that the current system of citizenship and the resulting restrictions of mobility for most of the world’s population should also be abandoned. This analogical argument can easily be brought into the tabular representation model:

5  Given that Carens understands his various arguments for global freedom of movement as not being in a hierarchical order to (and dependent of) each other, it may also be possible to choose option (a).

10  Carens’s Cantilever Argument ← Feudal privileges (S) ↑

169 Horizontal

→ Modern citizenship in a Western country (T)

Known similarities:

Inherited status Vertical Greatly enhances life chances Protected by resctricting freedom of non-members ↓ Hard to justify

Was rightfully abandoned

Inherited status Greatly enhances life chances Protected by restricting freedom of non-members Hard to justify Inferred similarity: ⇒

Should also be abandoned

Upon closer inspection, the feudalism analogy fits much better into Hesse’s model than the cantilever argument. Why is this? The answer to this question lies in the very close proximity of the two domains compared in the cantilever argument. In the standard case of an analogical argument, certain objects, properties and relations of two entities from two different domains of reality overlap.6 Because of these similarities, it is inferred that the two entities will also overlap regarding another property known to be part of the first of the two entities compared to each other (see also Tetens 2014, 175–177). It is indeed essential for an analogical argument that the two entities come from two different domains of reality. By using an analogical argument, we focus on a case that is very familiar and well-known to us. By comparing this familiar case to a case that appears to be very similar in structure, we hope to explain the unfamiliar and opaque with the familiar and clear (see Tetens 2014, 181). In the case of global and national freedom of movement, the two domains of reality are much more closely related than in the case of the feudalism analogy. This makes it at best difficult to see how the cantilever argument can play its “justificatory role” (Bartha 2016, chapter 1) in the same way it does in the feudalism analogy. Looking at the way Carens understands his cantilever argument, we would even go one step further: calling global freedom of movement an “extension” of national freedom of movement means that the original right of national freedom of movement somehow needs to be subsumed under the extended right of global freedom of movement. Being a part of the extended right not only means that the two compared entities have to come from the same domain of reality, it also contradicts the idea that we are talking about two distinct entities. Thus, it would be better and more precise to call the cantilever argument an untypical analogical argument. It might be very similar to a typical analogical argument, but somehow it has its own mechanism. One very important question remains to be answered: Should we read “analogy” or “analogical argument” in the strict sense of a technical term? Could we not say  Of course, in the case of the Earth and Mars it is possible to say that both come from the same domain of reality (“planets of our solar system”). However, different domains of reality only do not occur if the supposedly same domain is identical with either the source domain (S) or the target domain (T). Thus, Thomas Reid’s argument can be interpreted as a typical analogy because neither Earth nor Mars are identical with the domain “planets of our solar system”. 6

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that “analogy” should in this context rather be understood as a rhetorical figure? The answer must definitively be: “no”. The way we use certain words in our everyday language often differs greatly from the way we use these terms in different academic disciplines. Of course, in everyday language these words often fulfil a mostly rhetorical or metaphorical job to help express certain things. For example, we often use the word “heart attack” very different from its defined meaning as a technical term. By saying: “you gave me a heart attack”, we do not actually mean that we have suffered a heart seizure, we rather want to emphasise our surprise about something. While this particular way of using certain words can often be very helpful in everyday language, we should not forget that in an academic context, they also serve a very important role as technical terms. They come with their defined meaning and rules of how to use them. Having agreed on these fixed rules, we are able to discuss certain things with minimal risk of misunderstanding. In the context of medicine, for example, it is very important that the proposition “he is having a heart attack” is to be understood as a life-threatening medical condition and not as an emphasis of surprise. Of course, using the term “analogy” in a more colloquial way is far from being life-threatening, but it still comes with a great risk of misunderstanding. Especially in analytic philosophy, it makes the discussion of certain problems needlessly complicated if formal inconsistencies distract from the content of an argument. The same applies to the use of the term “logical”. One possible answer to the problem of this term with regard to the inductive uncertainty of the cantilever argument, would be to say: “Well, let’s not see ‘logical’ in such a strict sense. Let’s see it more colloquially, like in the case of a football player who was transferred from an average team to Real Madrid. Here, in everyday language we would say that this has been the next ‘logical’ step of his career”. This usage of the world would differ greatly from the technical usage of “logical”. Like the term “analogy” the term “logical” comes with certain associations. In philosophical logics, the term “logical” suggests a very strong argument if someone claims that the conclusion follows logically from its premises. To claim that “logical” was only used in a colloquial sense not only causes much confusion, it also weakens the argument substantially. In the discussion of matters within certain academic disciplines (such as philosophy or political theory), we should therefore stick to the standard use of the technical terms we use in our discussion or, if it is unavoidable, we should at least define how and why we understand and use certain technical terms different from their standard use. While rhetoric is a very important instrument of persuasion in this case avoidable misunderstandings are a hefty price to pay for persuasiveness.

10.3  Shifting (Carens’s) Burden of Proof All this does not mean, however, that Carens’s cantilever cannot unfold any persuasive power for a human right to global freedom of movement. Even if the cantilever argument should not be understood as a typical analogy, it works in a similar way.

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Both analogy and extension are, as proven by our analysis, inductive inferences. They do not (unlike their deductive counterparts) aim directly at truth, but at plausibility or probability. Of course, nobody tells us anything particularly surprising when claiming that tomorrow the sun will rise again. So far, this has always been the case all our lives. And with each additional day on which the sunrise drives away the night, it becomes more plausible that the same will happen 24 h later. With this argument, however, the ironclad truth of the statement “tomorrow the sun will rise” is by no means confirmed. It is also possible and imaginable in principle that our universe will collapse tomorrow with one last monumental groaning and, incidentally, destroy all life (cosmologists call this the big whimper, see Strobach 2018, 26) or that the consumed sun inflates and burns the entire earth (see Rees 1998, 191). Nevertheless, we can all sleep peacefully, because in many cases (if not in most cases) plausibility is enough for us (and we usually cannot hope for more). At the same time, we are able to put a discourse partner who denies that the sun will rise tomorrow under pressure to justify his assumption. We can say: “Look, it is sufficiently plausible that tomorrow the sun will in fact rise. So, the future sunrise is our argumentative default position. If you want to challenge this, we may first ask you for good reasons for your assumption. If you do not meet our legitimate demand, we can still confidently assume that the sun will rise tomorrow.” This is nothing more than a distribution of the argumentative burden of proof: The sceptic who opposes the plausible default position must bear the burden of proof. Now, in the context of migration ethics, the standard view assumes that states open and close their borders at their own discretion. Anyone who argues against this, for example by propagating a human right to global freedom of movement, is under pressure to justify his actions and bears the burden of proof. If Carens succeeded with his cantilever strategy in establishing a sufficiently plausible extension of national freedom of movement, he could satisfy his own initial burden of proof and shift it to the critics of global freedom of movement. The sceptics would then be forced to put forward good reasons against the (new) default position of a human right to global freedom of movement. If one takes a look at The Ethics of Immigration, Carens identifies this reversal of the burden of proof as the potential of the cantilever: Sometimes the analogy itself seems intuitively obvious [...]. In effect one can say to the critic ’You claim to accept this original right, but not the extension. I will show you either that your alleged justification of the original right is not really a justification of the right at all, or, if it is, that it also applies to the proposed extension.’ In other words, the task of excavating the foundation of the original right shifts to the person who wants to resist the extension. […] if one can establish a plausible analogy between the original right and the proposed extension, the burden of proof shifts to critics of the proposed extension to show why the analogy does not […]. (EoI, 334, footnote 19, emphasis: JD/CL)

Elsewhere he says: There might be a variety of ways to defend the idea that freedom of movement within the state should be a human right. I leave that open. Instead, my goal in this argument is to shift the task of explaining why freedom of movement within the state deserves to be a human

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right to those who want to resist the idea of treating freedom of movement across as a human right. (EoI, 239, emphasis: JD/CL)

And finally: Given the plausibility of my analogy between the two kinds of movement, the opponents have to offer a rationale for the human right they do accept and then explain why that rationale does not apply to movement across borders. (EoI, 239, emphasis: JD/CL)

Such a reversal of the burden of proof is very attractive. If the sceptic is under pressure to justify his opposition, Carens’s cantilever is a strong argument for global freedom of movement. However, Carens may only shift his burden of proof if his cantilever extension (in his words) is really “plausible” (EoI, 334). When exactly this is the case seems difficult to operationalise. After all, plausibility is usually a classic threshold concept. With each reason for national freedom of movement, which is also a reason for global freedom of movement, the cantilever becomes more plausible (as long as we have not found a counterexample). So, how ambitious has the threshold for “plausibility” to be? In our case, it is only a question of shifting the burden of proof which means that there should be no unrealistically excessive demands on the plausibility threshold. Prima-facie-­ plausibility should be sufficient. For orientation, one can refer to the original idea behind the cantilever: it should – to put it rather roughly – familiarise the unfamiliar. Now, the strength and persuasiveness of Carens’s cantilever lies precisely in the fact that its foundation (national freedom of movement) is deeply rooted in our practices and intuitions. It is a widely recognised human right that has been prominently posited on various occasions. To a certain extent, it is part of our “ethical lingua franca” (Tasioulas 2007, 75). We are familiar with it. Our familiarity derives, among other things, from the fact that we consider the human right to national freedom of movement to be well founded (or at least to be well justifiable). Providing such justifications is the job of philosophers, but (in practice) also of lawyers and especially of courts. Now, we can assume that we are at least familiar with the “classical” canon of justifications developed by these experts. Otherwise, it would make little to no sense to continue valuing national freedom of movement in this way. That implies: The cantilever extension is plausible (a) if some of the “classical reasons” for national free movement prima facie are also reasons for global free movement and (b) if it turns out that those “classical justifications” not transferable to global free movement are themselves no convincing justifications for national free movement either. By “classical justifications” we mean the culmination points of philosophical arguments and justifications within the positive human rights discourse (international lawyers, courts, etc.). So, our thesis is the following: Reversing the burden of proof is to be assumed at least as soon as Carens redeems the transmissibility premise7 (a) with regard to

 See (P2) in 1.

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some of the “classical justifications” of national freedom of movement and (b) shows that the “classical justifications”, which are not transferable, are on closer examination also no good justifications for national free movement. This test concerning the reversal of the burden of proof is certainly not intended to replace or render superfluous Carens’s own arguments for the transmissibility premise in The Ethics of Immigration. We only want to introduce a supplementary perspective to support a shift of the burden of proof to the opponents of global freedom of movement by means of the cantilever. The focus on legal texts on national freedom of movement seems particularly instructive to us because freedom of movement is guaranteed as a fundamental human right in a vast network of national, European and international legal bases. It is difficult to find uniform foundations and standards of justification (whose transfer to the global level could then be examined) in this colourful panopticon. However, one can benefit from a specific feature of German jurisprudence that is increasingly mutating into an export hit (e.g. Jansen/ Zimmermann 2018): the literary type of legal commentary. Thus, a unique variety of widely ramified, detailed and self-referential media is available in the form of commentaries, which, among other things, comprehensively and systematically process judgments and treatises on the various legal bases of national freedom of movement.8

10.3.1  Classical Philosophical Justifications Let us first turn to the classical justifications in philosophical discourse. What reasons do political philosophers regularly invoke when they argue that freedom of movement is a human right? In a tiny nutshell, one will probably find three different reasons: individual autonomy (e.g. Cassee 2016, 171–173), equality of opportunity (e.g. EoI, 226) and democracy (e.g. Hosein 2013, 32). First, individuals who, according to the liberal ideal, are co-authors of their own lives have an interest in going where they want to go (intrinsic dimension). Moreover, national freedom of movement is often a necessary precondition for making effective use of other fundamental or human rights (instrumental dimension). In Germany, for example, in the aftermath of the Augsburg Religious Peace (“Augsburger Religionsfrieden”) of 1555, the respective sovereigns of the federal territories had the discretion to decide which religion had to be practised within their controlled borders (Cuius regio eius religio). In this scenario, freedom of movement (then ius emigrandi) was a necessary precondition to exercise individual freedom of religion. For an autonomous person, freedom of movement is thus a kind of “meta” interest (Hoesch 2017, 62). This autonomy-justification is obviously transferable to global freedom of movement. I can have an interest in moving freely to Munich, but also

 On the significance of the commentary literature see Kästle-Lamparter 2016.

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to Madrid or Machu Picchu. Personal autonomy does not care about national borders. Secondly, it is possible to establish freedom of movement as a human right by exposing far-reaching restrictions of such a right as violations of the principle of equal opportunities. In North Rhine-Westphalia, for example, I may have other opportunities (educational, professional or leisure) than in Bavaria (e.g. I cannot ski or climb in the Alps). So, I should be allowed to move freely throughout the German territory (and thus be able to go to Bavaria). However, this strand of justification can also be applied globally: From an international bird’s-eye perspective, the allocation of citizenships can be seen as a kind of ‘birthright lottery’, in which opportunities for mobility and, above all, income and self-realisation are randomly raffled and thus unfairly allocated. With a German passport, I can travel to far more countries than, for example, with an Afghan passport (see Cassee 2016, 183). And in Switzerland I have completely different educational, professional and income opportunities than in Sierra Leone. Carens’s feudalism analogy is aimed at this intricate problem. The argument of equal opportunities can therefore also be applied prima facie to global freedom of movement. Thirdly, one can also argue that freedom of movement can be justified from a democratic point of view. National freedom of movement is then a guarantor or a precondition for solidarity among citizens, political debate culture and democratic participation (see Hosein 2013, 32–33). This seems to be a serious problem for Carens’s cantilever. After all, arguments aimed at democratic legitimacy are classically only applicable to specific states (or distinct political communities) and are therefore not transferable to global freedom of movement (at least as long as there is no such thing as world democracy). If one does not want to go so far that it is even democratically imperative to allow foreigners to participate in decisions on immigration restrictions (as done by Abizadeh in his revisionary argument 2008), Carens must argue that democracy is already no suitable justification for national freedom of movement. And we think he succeeds in doing so. He rightly points out that even people who are not allowed to vote (e.g. tourists) can invoke national freedom of movement. Even people who do not participate directly in the democratic process are provided with legal standing. There is no such thing as a ‘class’ protection for citizens (or voters). National freedom of movement is a general human right protecting “all human beings within the jurisdiction of a state, regardless of their legal status” (EoI, 241). Thus, it is clear (at least prima facie) that democracy is not a convincing justification on a national level (and therefore does not have to be transferable to the global level). Consequently, we are able to state as an intermediate result: With regard to classical philosophical justifications, Carens can satisfy his burden of proof.

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10.3.2  Classical Legal Justifications But what about the legal foundations of national free movement? Prominent legal bases can be found in abundance: nationally (from the German perspective) in Article 11 GG (Basic Law), at European level in Article 2 4th additional protocol of the ECHR (European Convention on Human Rights), Article 45 FRCh (Charter of Fundamental Rights of the European Union), Article 21 TFEU (Treaty on the Functioning of the European Union) and finally internationally in Article 13 UDHR (Universal Declaration of Human Rights) and Article 12 I ICCPR (International Covenant on Civil and Political Rights). However, if you analyse legal materials, judgments and other legal treatises, it becomes clear that lawyers have surprisingly little to say about why national freedom of movement is guaranteed as a fundamental or human right. However, we believe that a glance at the commentary literature can help to identify three recurring patterns of justification. First and foremost, national freedom of movement should protect what legal authors call self-determined free development of personality or self-realization (e.g. Pernice 2004, 1059). This is formulated with the particular brand of old-fashioned pathos lawyers enjoy expressing themselves with. Essentially, it means the same as the autonomy-justification provided by (some) philosophers. This foundation can thus be transferred to global freedom of movement as well (see above). Secondly, national freedom of movement is also valuable with regard to the extent it contributes to strengthening the economic order and thereby fulfils a function of securing prosperity (see e.g. Hailbronner 2009, 326). Whether this justification also applies to global freedom of movement is probably controversial and should be empirically investigated. However, Carens plausibly argues that economic considerations alone can never be isolated reasons for defending national freedom of movement as a human right. At most, they may result in limits or possibilities for restricting such rights. “There is no need to make a prudent policy into a human right. Human rights require a different sort of rationale” (EoI, 240). For example, someone might come up with the idea that the marketplace of ideas initiated by the right to free speech stimulates innovation and thus indirectly strengthens the economy. That may (or may not be) the case. It is, however, not a reason why freedom of expression should be recognised as a human right. Such a contribution to economic prosperity provides reasons to protect speech, but the contribution of speech to economic prosperity is not used to justify the establishment of a right to free speech [...] A distinction should therefore be drawn between reasons which are intrinsic with respect to a right, namely reasons by virtue of which a certain demand is classified as a right, and reasons which are extrinsic with respect to a right – reasons which may justify protection of the object protected by a right, for example, speech, but not its inclusion within the scope of the right to free speech. (Harel 2005, 201)

Economic considerations are therefore not even a convincing justification for the foundation of the cantilever (national freedom of movement).

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Finally, it is occasionally pointed out that freedom of movement must be recognised as a human right on the grounds that it promotes pluralism and cultural exchange, secures an open structure of society and thus assumes a peacekeeping function (see e.g. Griegerich 2006, 1741–1742). This is actually (even to a great extent) transferable to global freedom of movement. The world is certainly a more tolerant and enriched place if not only Westphalians and Bavarians, but also Germans and Hungarians can culturally exchange ideas, values and traditions. In our opinion, Carens satisfies his burden of proof with regard to the classical legal justifications. All in all, he can redeem the transmissibility premise with respect to the classical justifications of national free movement. He succeeds in reversing the burden of proof. For his part, an opponent of the human right to global freedom of movement now has the burden of proof to present a viable justification for national free movement that is not transferable to global free movement.

10.3.3  The Possibility of Complex Justifications However, it is at least conceivable that a sceptic will satisfy this burden of proof. Of course, plausible justifications for national freedom of movement do not have to be limited to the classical justifications we identified. As a variant of the classical autonomy-justification, David Miller, for example, claimed that national freedom of movement could already be justified with the idea of an adequate range of options (see Miller 2013a, 366). To this it has repeatedly been replied that liberty rights actually require the greatest possible range of options: For example, one can imagine as a thought experiment a state that forbids all Jewish rites (see Oberman 2016, 39) and argues that there are still sufficient (other) options available (Christianity, Islam, Church of the Flying Spaghetti Monster, etc.); or one that orders all people whose last name begins with a letter between “A” and “N” to only marry people whose last name begins with a letter between “O” and “Z” (there are still enough partners to choose from (see Cassee 2016, 222). Nevertheless, we would not speak of genuine freedom to practise one’s religion or to choose one’s partner. But this objection might be avoided by combining different classical justifications (or variants of these), i.e. designing a complex justification for national freedom of movement. This way an arbitrarily branched and incalculable number of combinations of reasons suitable as potential candidates for the justification of national freedom of movement is conceivable. And it is well imaginable that a complex justification is found (or at least might be found) that convincingly defends national freedom of movement as a human right but at the same time cannot be transferred to global freedom of movement. Matthias Hoesch, for example, argues that the combination of an adequate range of options with the ban on discrimination is a sufficient justification for national

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freedom of movement (see Hoesch 2017, 63–65).9 Based on the above thought experiments (which of course do not concern the right to freedom of movement), both the ban on the practice of Jewish rites and the alphabetical marriage clauses would be revealed as violations of rights, since they discriminate by arbitrarily introducing irrelevant criteria. According to Hoesch, the trick with regard to the cantilever is that this combination does not necessarily lead to global freedom of movement within the framework of any rationally defensible theory of global justice. This is because in the debates about global justice many are of the opinion that a higher level of equality is required within a state than at a global level, which means that national discrimination does not necessarily imply discrimination at the global level (see Hoesch 2017, 66): Imagine that some tourists are selected to visit Berlin and others to visit Hamburg  - for example, travellers from the USA are only allowed to visit Berlin and travellers from Canada are only allowed to visit Hamburg. Here, criteria are used that are obviously irrelevant: The country of origin is not relevant for the question which city you are allowed to visit. (Ibid., 65, translation: JD/CL)

Here, arbitrary reference is made to criteria that are not relevant to the actual decision, which is why discrimination exists. However, this does not automatically have to be the case at the global level as well: Restrictions on entry for tourists can be justified, inter alia, by the argument that the host country must pay for maintenance and health costs in the event of an emergency. It is therefore non-discriminatory to admit precisely those who can provide evidence of the coverage of such costs. Such an argument does not apply within states, because it is always the same state that must answer for emergencies. (Ibid., 66–67, translation: JD/CL)

Irrespective of whether the combination (only sketchily) presented and the selected example are themselves convincing: the possibility of complex justifications of this type illustrates once again how misleading it is to suggest with the (informal) use of the attribute “logical” that, by means of the cantilever, an unshakable and discursively unassailable extension of national freedom of movement has been introduced into the debate.

10.4  Conclusion Creators of (new) arguments have other interests than their recipients. Above all, arguments need to be noticed and understood. For them, the (philosophical) litmus test consists primarily in the extent to which people can simply be convinced by them (see Nagel 1979, ix–xii). Or, more to the point: as many people as possible (evaluating in a reasonably balanced way). So, it is hardly surprising that Joseph

9  Hoesch concedes that there is a global right of free movement in the sense that every restriction on immigration has to be justified; but he tries to show that the special force that comes with attributing a right to be a human right only applies to national freedom of movement.

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Carens wants to make his cantilever argument appealing to as many target groups as he can. This is even truer when the human right to global freedom of movement, which tends to be unfamiliar to us, has to be justified. With this in mind, it is also understandable that Carens presents his cantilever both as an “analogy” and as a “logical extension”; some addressees may sympathise with the former, while others will feel more addressed by the latter. Nevertheless, the first chapter has shown that the cantilever argument can be read as an analogical argument or an extension, but not as both at the same time. In either case one should refrain from calling the argument “logical” (even when meant in an informal sense). Although there are reasons to reconstruct it as an analogical argument, we put forward in the second chapter that reading it as an extension would be the more viable option. Finally, it is prima-facie plausible that the main achievement of the cantilever lies in the fact that critics of the human right to global freedom of movement bear the burden to come up with non-transferable reasons between the national and the global case. Looking at the commentary literature regarding various classical legal bases of national freedom of movement supports this claim. We are optimistic that even a (mere) “cantilever-extension” will meet its purpose. Every proponent of the standard view is confronted with the obstacle of responding to the challenge posed by the cantilever argument. Carens has thus succeeded in producing an intellectual provocation: “If you say A, you have to say B.” Although this might be countered with Bertold Brecht: “Who says A does not have to say B. One can also recognize that A was wrong.” (Brecht 1997, 317, translation: JD/CL), one thing is for sure: followers of the standard view have to counter something.10

References Abizadeh, Arash. 2008. Democratic Theory and Border Coercion. No Right To Unilaterally Control Your Own Borders. Political Theory 6 (1): 37–65. Bartha, Paul. 2016. Analogy and Analogical Reasoning. In The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/win2016/entries/reasoning-analogy/. Accessed 5 Apr 2019. Brecht, Bertold. 1997. Ausgewählte Werke in sechs Bänden. Jubiläumsausgabe zum 100. Geburtstag. Erster Band: Stücke 1. Frankfurt a.M: Suhrkamp. Brezger, Jan. 2014. Zur Verteidigung des Menschenrechts auf internationale Bewegungsfreiheit. Eine Antwort auf Michael Blake. Zeitschrift für Menschenrechte 2: 30–49. Carens, Joseph H. 1987. Aliens and Citizens: The Case for Open Borders. The Review of Politics 49 (2): 251–273 (= AC). ———. 2013. The Ethics of Immigration. New York: Oxford University Press (= EoI).

 We thank Nadine Mooren, James Banwell, Joseph Carens, Andreas Cassee, Matthias Hoesch, Nicolas Kleinschmidt, and Reinold Schmücker for their very helpful comments on several versions of this paper.

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Cassee, Andreas. 2016. Globale Bewegungsfreiheit. Ein philosophisches Plädoyer für offene Grenzen. Berlin: Suhrkamp. Cohon, Rachel. 2018. Humes’s Moral Philosophy. In The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/fall2018/entries/hume-moral/. Accessed 5 Apr 2019. Forcehimes, Andrew T. 2013. Download this Article: A Defence of Stealing Ebooks. Think 12: 109–115. Griegerich, Thomas. 2006. Kapitel 26: Freizügigkeit. In EMRK/GG: Konkordanzkommentar zum europäischen und deutschen Grundrechtsschutz, ed. Oliver Dörr, Rainer Grote, and Thilo Marauhn, 1723–1798. Tübingen: Mohr Siebeck. Hailbronner, Kay. 2009. § 152 Freizügigkeit. In Handbuch des Staatsrechts der Bundesrepublik Deutschland. 7. Freiheitsrechte, ed. Josef Isensee and Paul Kirchhoff, 309–368. Heidelberg: Müller. 3. Auflage. Halliday, Daniel. 2013. Is Inheritance Morally Distinctive? Law and Philosophy 32: 619–644. Harel, Alon. 2005. Theories of Rights. In The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Martin P. Golding and William A. Edmundson, 191–206. Oxford: Blackwell. Hesse, Mary B. 1966. Models and Analogies in Science. Notre Dame: University of Notre Dame Press. Hoesch, Matthias. 2017. In welchem Sinn kann es ein Recht auf offene Grenzen geben? Jahrbuch für Recht und Ethik 25: 49–74. Hosein, Adam. 2013. Immigration and Freedom of Movement. Ethics & Global Politics 6 (1): 25–37. Jansen, Nils, and Reinhard Zimmermann, eds. 2018. Commentaries on European Contract Laws. Oxford: University Press. Kästle-Lamparter, David. 2016. Welt der Kommentare. Struktur, Funktion und Stellenwert juristischer Kommentare in Geschichte und Gegenwart. Tübingen: Mohr Siebeck. Miller, David. 2013a. Immigration: The Case for Limits. In Contemporary Debates in Applied Ethics, ed. Andrew I. Cohen and Christoph Heath Wellman, 363–375. Malden: Wiley-Blackwell. ———. 2013b. Is There a Human Right to Immigrate? In Migration in Political Theory: The Ethics of Movement and Membership, ed. Sarah Fine and Lea Ypi, 11–31. New York: Oxford University Press. Nagel, Thomas. 1979. Mortal Questions. Cambridge: University Press. Oberman, Kieran. 2016. Immigration as a Human Right. In Migration in Political Theory. The Ethics of Movement and Membership, ed. Sarah Fine and Lea Ypi, 32–56. New York: Oxford University Press. Pernice, Ingolf. 2004. Art. 11 Freizügigkeit. In Grundgesetz Kommentar. Präämbel. Artikel 1–19, ed. Horst Dreier, 1053–1072. Tübingen: Mohr Siebeck. 2. Auflage. Rees, Martin. 1998. Before the Beginning. Our Universe and Others. New York: Basic Books. Reid, Thomas. 1785/1895. Essays on the Intellectual Powers of Man. The Works of Thomas Reid. ed. Sir William Hamilton. Edinburgh: James Thin. 3. Edition. Shapiro, Stewart, and Teresa Kouri Kissel. 2018. Classical Logic. In The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/spr2018/entries/logic-classical/. Accessed 5 Apr 2019. Strobach, Niko. 2018. Welche Zeit braucht die Ethik? In Zeit – eine normative Ressource? ed. Frank Dietrich, Johannes Müller-Salo, and Reinold Schmücker, 15–30. Frankfurt a.M.: Klostermann. Tasioulas, John. 2007. The Moral Reality of Human Rights. In Freedom from Poverty as a Human Right. Who Owes What to the Very Poor? ed. Thomas Pogge, 75–102. Oxford: University Press. Tetens, Holm. 2014. Philosophisches Argumentieren. Eine Einführung. München: C.H. Beck.

Chapter 11

The Open Borders Claim in a Nonideal World Matthias Hoesch and Nicolas Kleinschmidt

Abstract  Although many writers in political philosophy argue for open borders, the question of what this entails for nonideal worlds has not yet been adequately addressed. Two diverging positions can be discerned in the literature. On the one hand, writers such as Joseph Carens emphasize that borders should only be open under ideal circumstances, and that the Open Borders Claim does not at the present moment justify pursuing a political program. On the other hand, writers such as Andreas Cassee and Kieran Oberman argue that states should open their borders immediately to a great extent. This paper argues against both positions, and sets out an intermediate approach. Keywords  Ethics of migration · Global freedom of movement · Joseph Carens · Nonideal theory

Since the publication of Joseph Carens’s paper “Aliens and Citizens” (1987), the ethics of migration have focused on what we will call the “Open Borders Claim”. Proponents of this claim argue that, although the system of states as we presently have it might be justified, those states should have open borders so that everyone can cross borders and choose where they want to live. In contrast, opponents of open borders claim that states hold the moral right to enforce restrictions on immigration

M. Hoesch (*) Exzellenzcluster „Religion und Politik“, Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected] N. Kleinschmidt Department of Philosophy, RWTH Aachen University, Aachen, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_11

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at their discretion, and that freedom of movement as a human right is restricted to the borders of the state in which a person lives.1 The Open Borders Claim seems at first sight to be a useful tool to evaluate current migration regimes, or to justify political programs or civil protests. If the claim is valid, then the extensive restrictions that liberal states impose on migration seem to be highly problematical. The Open Borders Claim, for example, brings to mind those “Freedom of Movement is Everybody’s Right” banners in the hands of demonstrators arguing for the rights of asylum seekers. In fact, the No Border Network, an actor from the political left, aims at undermining the reality of closed borders.2 Thus, the philosophical question of whether the Open Borders Claim is justified seems highly relevant when it comes to answering such questions as whether we should promote political attitudes like these, which party we should vote for in national elections, and whether we should give financial support to certain NGOs. However, given how our world looks today, is there really a direct path from the Open Borders Claim to endorsing a certain political program? Academic proponents of open borders have not yet sufficiently approached this question, but the positions that can be glimpsed from their mostly vague statements show that they disagree amongst themselves. Some believe that, even if border restrictions are imposed within the framework of a world like ours (a world with huge and largely unjust inequalities between individuals and states), the claim justifies the normative statement that states should throw open their borders to a great extent. Others reject such a view, claiming instead that open borders form a future utopia, taking place in an ideal world without huge economic differences between states; for them, it does not justify a political program within our world. In what follows, we discuss both positions in order to gain an insight into what the Open Borders Claim implies for nonideal worlds. In sect. 11.1, we provide the conceptual basis for our discussion by taking a closer look at how Joseph Carens approached this issue in his 2013 book The Ethics of Immigration (EoI). The different levels of theorizing we find in Carens help us distinguish a weak version of the claim, held by Carens, from a strong version, held in particular by Andreas Cassee and Kieran Oberman. Both versions are open to serious objections. In sect. 11.2, we present two arguments for rejecting the strong version; in sect. 11.3, we discuss two issues that give reason to doubt the weak version. We conclude in sect. 11.4 that an intermediate approach is necessary, and we offer some ideas that could be a first step towards formulating a nonideal theory of open borders.

 For an overview of the debate, see Wellman (2015).  There is a slight difference between the Open Borders Claim and what could be called the “No Borders Claim”, but that difference is not at stake here (see Chamberlain 2017, sect. 2). 1 2

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11.1  Two Versions of the Open Borders Claim In EoI, Carens gives a twofold argument for open borders (see chap. 11). First, he argues that closed borders now have an effect comparable to the effect that feudalism had some centuries ago: some people are born in rich states and are therefore privileged by birth when compared to those who are born in poor states. Thus, equality of opportunity requires opening borders for every human being. Second, Carens claims that every justification for Art. 13, § 1 of the Universal Declaration of Human Rights (“Everyone has the right to freedom of movement and residence within the borders of each state.”) also justifies the human right to freedom of movement around the whole globe. Hence, anybody who affirms Art. 13, § 1 also has to affirm the idea that freedom of movement across borders is a human right, too. However, Carens also qualifies the Open Borders Claim in the further course of his argument. While arguing that open borders are just in principle, he does not intend his claim to have any significant political implications. Rather, he restricts the scope of his argument thus: “Fundamentally, however, the open borders argument itself is not intended to advance a specific program of action” (EoI, 296). Instead, Carens emphasizes that the Open Borders Claim is designed for ideal circumstances only: “What would a just world look like? Iʼm not sure of all the particulars, but I am reasonably confident of this. If a just world had states, they would be states with open borders” (EoI, 287). As such a utopian ideal, open borders constitute more a general political aim of the future than a right that can be claimed in the present. While, according to Carens, there is a duty to aspire to that ideal in the course of history, there seems to be no duty to enact open borders at present: While I do think that a just world will be one in which people are largely free to live where they choose and in which there is relative economic equality among places and people, I am not certain that the best way to move in the direction of that world is to increase immigration to rich democratic states as much as possible (EoI, 296).

In making these claims, Carens seems to be following John Rawls’s distinction between two types of theory, ideal and nonideal theory (see Rawls 1971). In ideal theory, we imagine an ideal world that solely consists of states that act according to principles of justice and that are equipped with sufficient resources. Thus, in ideal theory, we can assume that there is only a modest degree of economic inequality between states: most sources of inequality do not exist. In nonideal worlds, in contrast, not all states act in accordance with what justice requires them to do, and not all states have sufficient resources. Thus, there is huge economic inequality between states, comparable to the situation in the world today. It is important to emphasize that elaborating a nonideal theory is not the same as limiting theory to what is feasible or what can be realistically achieved. If we claim that certain states should act in a certain way in nonideal circumstances, then we can concede that these states will probably act otherwise, due to the impact of self-­ interest or populism. Theorizing on a nonideal level is therefore to ask what justice requires a certain agent to do, given that some other agents do not comply with the

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demands of justice, while disregarding how likely it is that the agent in question will in fact act upon that requirement. Although it is not entirely clear whether Carens applies the Rawlsian distinction between ideal and nonideal theory consistently,3 it seems quite appropriate to read him this way: in an ideal world, states must open their borders (and can only refuse to do so in very exceptional circumstances; see EoI, 293). In contrast, there is no demand on states to open borders in nonideal worlds, and the Open Borders Claim does not justify any political program given a world like ours. In order to gain a more comprehensive view of Carens’s approach, we should bear in mind that Carens addresses different levels of reasoning in a second way. As we understand it, Carens’s approach is characterized by two main distinctions, the first between ideal and nonideal theory, and the second (and no less important) between two ethical assumptions, the so-called Conventional View and the Open Borders Claim. Most of EoI does not make use of the Open Borders Claim that we have presented here. Instead, Carens explicitly follows the Conventional View, which is the view that states have the discretionary right to control their borders, with exceptions for cases like family reunification and asylum. Carens assumes that most people today share the Conventional View, and that it would therefore be a mistake to base arguments unnecessarily on premises that contradict the Conventional View. Only the last chapters of EoI follow the path of rejecting the Conventional View. Thus, one part of Carens’s reasoning is based on the Conventional View, and another is dedicated to proving that the Open Borders Claim is justified. These two distinctions  – between ideal and nonideal theory, and between the Conventional View and the Open Borders Claim – make it necessary to keep apart four subtypes of theory that arise from combining the two theory types and the two ethical assumptions:

Theory Type Ethical Assumption Conventional View (CV) Open Borders Claim (OBC)

Ideal Theory (ideal) Theory Subtypeideal, CV (TSideal,CV) Theory Subtypeideal,OBC (TSideal,OBC)

Nonideal Theory (nonideal) Theory Subtypenonideal,CV (TSnonideal,CV) Theory Subtypenonideal,OBC (TSnonideal,OBC)

Carens devotes most of his book to TSnonideal,CV: he investigates what common democratic principles imply, given the world how it is now, with the Conventional View being among these widely shared democratic principles (chapters 2–10). There is 3  In some passages, Carens refers rather to what can be achieved realistically (see, for example EoI, 296). To acquire a more complete picture of Carens’s view, we should perhaps deal also with that further way of distinguishing between levels of reasoning – but that is an issue that we will not address here.

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no reason to believe that TSideal,CV differs substantially from TSnonideal,CV. Thus, we can assume that, according to Carens, the same principles apply in TSideal,CV as in TSnonideal,CV, perhaps with the difference that some of these will lose their importance when transferred to TSideal,CV. As we have already indicated, the chapters concerning the Open Borders Claim are intended to spell out the principles of TSideal,OBC (chaps. 11–13), and exclusively so. In the conclusion of his book (chap. 13), Carens discusses how his claims from the previous chapters about the rights of immigrants also apply (with some minor qualifications) in an ideal world with open borders. Thus, the “Conclusion” definitely addresses TSideal,OBC, too. However (and this is of great significance for our purposes), Carens largely disregards TSnonideal,OBC. What we know is that there is a duty in TSnonideal,OBC to overcome the unjust framework conditions by bringing about an ideal world – but it is difficult to say which acts promote that aim. The crucial question, however, is: given that we do not live in an ideal world and that we do not have the means to bring about an ideal world immediately, and given also that the Open Borders Claim is valid, which migration policies should we endorse? One objection that could be made here is that it is not necessary to know about TSnonideal,OBC. Most people believe that the Conventional View is true, and, since Carens’s claims regarding TSnonideal,CV are already demanding, it could, given the restrictive migration policies of practically all states, be superfluous to address TSnonideal,OBC. We are convinced that this objection is unfounded, however. Although providing arguments based on premises that we ourselves think to be false might be rational (and even morally required out of respect for other people’s convictions), we cannot ignore the question of what the convictions that we ourselves hold to be true imply. If we have built a theory on assumptions that we hold to be false, then we should abandon that theory; there is no sense in affirming a theory whose premises are false. Thus, if we believe that the Open Borders Claim is justified, and if we want to know which policies we should endorse, then we have to ask what the Open Borders Claim implies for nonideal worlds, regardless of the fact that other people hold the Conventional View. Indeed, there is some evidence that Carens does actually have an approach to TSnonideal,OBC, although the approach is drowned out by the main line of his arguments. In short, Carens seems to believe that TSnonideal,OBC has more or less the same content as TSnonideal,CV. Let us mention two observations that support this interpretation. First, Carens discusses TSnonideal,OBC very briefly in the conclusion of EoI, when he considers certain policy fields. Under the heading “What is to be done?”, he writes about irregular migrants and states that, given that the Open Borders Claim is justified, we should use the same principles as he has developed for the Conventional View: Those who accept the open borders argument should support the same policies. […] So, the analysis in that chapter also offers relatively concrete guidance about how to act in the world, guidance that should be helpful not only for those who accept the state’s right to control immigration but also for those who believe in a more demanding vision of justice (i.e. open borders) but want to promote justice as much as possible within the limits of what is feasible (EoI, 295).

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His view, then, seems to be this: given the world as it is now, everything that is argued for within the Conventional View is also valid if the Open Borders Claim is justified. The Open Borders Claim just adds further moral duties, especially the duty to bring about a world where open borders are possible, as well as perhaps some other duties. Second, let us introduce what David Miller (2015) has called “das Carensproblem”: like the problem of how to reconcile the two books of Adam Smith (widely known as the Adam Smith problem), there is, according to Miller, the problem of how to reconcile the part of Carens’s approach that challenges the Conventional View with all those chapters that assume that the Conventional View is valid. The Carensproblem can be restated as a set of three mutually exclusive statements: (S1)  The arguments in chapters 2–10 of EoI presuppose the assumption that the Conventional View is valid. (S2) The arguments in chapters 2–10 of EoI are sound. (S3) Chapters 11–13 of EoI prove that the Conventional View is not valid. It seems that Carens can reasonably only hold two of the three statements to be true. If S1 and S2 are true, Carens has to concede that the Conventional View is valid. If S1 and S3 are true, Carens has to concede that his arguments in chapters 2–10 only have the strategic purpose of pursuing some opponents, but he himself dismisses the idea that these arguments are sound. If S2 and S3 are true, however, it cannot be true that chapters 2–10 presuppose the Conventional View, if we take “an argument presupposes x” in the sense of “if x is unjustified, then an argument that presupposes x fails”. Interestingly, in his reply to Miller, Carens does not question one of the statements in general, but nevertheless rejects the view that the Carensproblem raises a serious objection to his position (see AAPT). In particular, he does not argue that the validity of the Conventional View is irrelevant for his arguments in general (which would reject S1), nor does he concede that the claims from chapters 2–10 have a merely strategic value (which would reject S2). Instead, he seems to pursue a further strategy, namely modifying S1 and S2 in a way that is compatible with S3. Most of his defense is concerned with the fact that the Open Borders Claim is not intended to be a principle that guides action in a nonideal world, although many of his claims in the first part of his book are. That strategy could be restated as: (S1’) Chapters 2–10 of EoI are largely independent of the question of whether the Conventional View is valid as long as we work within a nonideal framework; and presuppose the Conventional View, as soon as we work within an ideal framework. (S2’) Most of the arguments from chapters 2–10 of EoI are sound when faced with a nonideal world. (S3) Chapters 11–13 of EoI argue that the Conventional View is not valid. In consequence, Carens seems to hold the view that there is only a minor difference within nonideal theory between those who presuppose the Conventional View

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and those who presuppose the Open Borders Claim. This, however, implies that Carens actually has a position concerning TSnonideal,OBC: for Carens, TSnonideal,OBC contains more or less the same principles as TSnonideal,CV. Of course, the extent to which Carens admits deviations between TSnonideal,OBC and TSnonideal,CV remains unclear.4 However, there is for him at least broad accordance. Let us call that view the “Weak Version of the Open Borders Claim” (“OBCweak”). (OBCweak) In nonideal worlds, the Open Borders Claim does not have substantial implications for how to act right now that are not also implied by the Conventional View. Why does Carens hold OBCweak? He does not offer any elaborated argument to support such a view. As far as we can see, Carens briefly mentions in the course of his reasoning two prima facie arguments in support of OBCweak. First, most of the principles that Carens defends in EoI are concerned not with the admission of immigrants, but with the rights of those who have already migrated. Since the Open Borders Claim addresses the question of admission, it is plausible to assume that the rights of immigrants are not affected by the Open Borders Claim (Chap. 13). Second, the Open Borders Claim implies not an absolute right to migrate, but rather a right that can be restricted under certain circumstances. Since “[p]olitical communities require relatively stable, intergenerational populations in order to function effectively over time” (EoI, 287), it might be justified for states to close their borders when there is a threat of mass migration. As long as there are great inequalities between states, mass migration is indeed a plausible result of open borders. Thus, it seems that states may close their borders, just as they may do so within the Conventional View. In the philosophical debate, some defenders of open borders seem to pursue a more ambitious aim than Carens. They hold that the Open Borders Claim has clear implications for nonideal circumstances, although there might be reasons not to open borders completely. Kieran Oberman and Andreas Cassee claim that, as a human right, the right to open borders should be in force for all human beings at all times and in all places, and can be restricted for exceptional moral reasons only. From their point of view, Carens’s modest conclusion is striking, since it denotes global freedom of movement as a human right, but diverges greatly from what that would imply: the language of human rights is usually used precisely when we want to make demands that are to be fulfilled immediately, independently of contingent circumstances and the full compliance of other actors. It is fair to say that the idea of human rights as minimal standards of justice is even developed specifically to address normative problems in a nonideal world. However, although Carens holds that there is a human right to freedom of movement across borders, he apparently does not hold that individuals can claim that right under the present conditions.5 4  We will discuss a passage later where it seems that Carens does not hold the Weak Version in regard to certain questions. 5  A deeper issue seems to be at stake here: Carens does not reject the common assumption that freedom of movement within a state is a human right in the sense that it is possible to appeal to that

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Thus, Oberman claims that restrictions on immigration “might be justified in extreme circumstances” only (Oberman 2016, 33; see also 46), and that limiting the right to migrate should follow the same rules as for other human rights. He explicitly criticizes Carens for emphasizing that open borders are a mere ideal, and for not using the language of human rights consistently (Oberman 2016, 33 [fn. 11]). A similar view is held by Cassee, who argues that just principles to regulate immigration are those principles that all humans would rationally choose in an original position (in Rawls’s sense) – that is, a position from which people lack knowledge about who they will be (whether they will be born in a rich or in a poor state, what talents and preferences they will have, etc.). Cassee claims that people in such a position would choose principles that are very close to completely open borders. With regard to applying these principles, he writes: It is basically the right of every human being to move freely on the surface of the planet that we inhabit together, and any exception to this principle requires justification by other equally weighty claims (Cassee 2016, 279 [our translation]).

Cassee then implicitly concludes that a state is obliged to open its borders to a great extent in order to increase overall justice: Small steps towards a more liberal migration policy are not […] only small reductions of a great injustice, but potentially also pave the way for the complete overcoming of unjustified coercion, which is exercised daily against potential immigrants (Cassee 2016, 281f. [our translation]).

As can be seen here, Cassee views restrictions on immigration even in a nonideal world as unjustified coercion, and every step taken towards open borders as a reduction of injustice. That means, in turn, that justice requires the immediate opening of borders, even in nonideal worlds. Thus, Cassee views concrete activities in the actual world in light of the Open Borders Claim; in contrast to Carens, he insists on advancing a program of political action. As we see it, Cassee and Oberman both tend to fill the gap of TSnonideal,OBC with principles from TSideal,OBC: for them, states have to open their borders immediately and to a great extent, with every single exception needing substantial justification. We will call that the “Strong Version of the Open Borders Claim” (“OBCstrong”). The Strong Version is perhaps best characterized by two claims: that every human being has the right to enter a state as long as that state does not offer specific reasons for

right in order to justify concrete claims under nonideal circumstances. He then holds that there is a strong analogy between freedom of movement within the state and global freedom of movement. This analogy seems to justify the conclusion that global freedom of movement is also a human right in the sense that it is possible to appeal to that right in order to justify concrete claims under nonideal circumstances. However, Carens does not draw that conclusion, and he fails to explain from where the difference comes between the two rights of freedom. Such an explanation is suggested in Hoesch (2017a), who defends the view that global freedom of movement is a human right in the sense that it is a moral prima facie right that every human being has only because she is a human being; but only national freedom of movement is a human right in the sense that it is a right that deserves strong priority when it comes to conflicts between moral considerations. See also Düring/Luft, Chap. 10 in this volume.

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excluding her; and that, given the current restrictions on immigration, every step towards liberalizing migration policies is a step towards reducing injustice. (OBCstrong) In nonideal worlds, the Open Borders Claim implies that states should open their borders to a great extent, with every single exception needing substantial justification. Surprisingly, and contradicting what we have said above, Carens also seems to endorse OBCstrong in one passage of EoI, when he claims that, if the Open Borders Claim were true, he would have to revise his arguments on irregular migrants. For him, the Open Border View would mean that such migrants simply have enacted a moral right that should also be acknowledged in positive law, and that they should therefore not be subject to any constraints. Carens seems to be claiming here that, even in nonideal circumstances, these migrants had the right to migrate, and the Open Borders Claim therefore does justify a certain political program (albeit a program that is unrealistic to be implemented).6 The distinction between OBCweak and OBCstrong is not absolute. Rather, there is a range of possible versions between the two, these versions being weaker or stronger depending on whether they endorse principles that are closer to TSnonideal,CV or to TSideal,OBC. Indeed, in our view, neither extreme position, OBCweak or OBCstrong, is convincing, so that the difficult task is to spell out an intermediate position concerning the Open Borders Claim in nonideal worlds. In the next sections, we first propose two arguments as to why OBCstrong fails – hence, these arguments are in line with Carens’s approach of not making use of the Open Borders Claim to justify liberal migration policies in nonideal worlds. Then, we present two cases in which in our view the Open Borders Claim does make a difference for nonideal worlds, so that OBCweak also fails. In the conclusion, we outline what we hope is a plausible intermediate position.

11.2  W  hy the Strong Version of the Open Borders Claim Fails According to OBCstrong, states should, in order to increase justice, open their borders to a great extent, even in nonideal circumstances. The two arguments that suggest that OBCstrong fails, we discuss in the following, begin from the fact that mass migration would be a serious problem. As Carens rightly points out, states need a relatively stable population in order to function (EoI, 287). The threat of mass migration might be a reason to close borders even if we acknowledge global freedom of movement as a human right. The arguments take different paths to show why the threat of mass migration constitutes a general objection to OBCstrong. Our first argument focusses on the problem that, in a nonideal world, most states do in fact not open their borders. In our view, proponents of OBCstrong ignore the fact  We will return to that claim later.

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that, if other states keep their borders closed, this may have a significant moral impact. In an ideal world, all states have open borders; hence, every state is morally obliged to keep its borders open, or to open them if it has not yet done so. But what about a nonideal world, where the vast majority of states keep their borders closed? Does justice require state A to open its borders, even if A knows that B, C, D … will keep their borders closed? At the end of his book, Cassee reveals that all his claims about open borders presume full compliance by all states (see Cassee 2016, 253). He is using the method that Rawls outlined in A Theory of Justice here of theorizing on the basis of an original position; in our view, though, it is precisely this method that leads him into a serious problem. In A Theory of Justice, Rawls (1971) wrote about a society where the principles chosen are enforced by law – that is why the parties in Rawls’s theory quite rightly presume full compliance. However, in the case of open borders in a world of sovereign states, there is no law that forces the majority of states to comply; hence, the presumption of full compliance is implausible and leads to fallacies. Note first that for a state to open its borders while all other states keep theirs closed may be regarded as a moral overload. Imagine that state A opens its borders, but states B, C, D … keep their borders closed. What would happen? It is very likely that some of the migrants who have tried to reach B, C, D … will migrate to A instead. So, the problem is that, even if A remains willing to accommodate all those who want to migrate, it may be impossible for A to keep the state functioning while also accepting the number of people who want to migrate to A. As we have said, mass migration is a reasonable threat and, if we know that only a few states comply with the Open Borders Claim, the risk of mass migration increases dramatically. Needless to say, states do not have to wait until immigration actually causes serious problems. Instead, states do well to restrict immigration preemptively – they do not have a discretionary right to do so, but may restrict immigration to a level that they believe to be compatible with the long-term functioning of their institutions. Therefore, states should implement immigration laws that follow reasonable principles of selection to allow for a limited number of entries. Instead of opening borders to a great extent, states would be required to allow migration via a selective process of admission. And, instead of having to justify closed borders in every single situation, states would be allowed to close their borders preemptively.7 The fact that most states will not comply with the Open Borders Claim gives rise to a further problem. While opening borders would end the supposed injustice that migrants cannot enter, it would also lead to another injustice: namely, injustice between citizens of different states. Emigrants from B, C, D … now have the chance to migrate to A, but citizens of A cannot migrate to B, C, D … . What seems at first glance to be an increase in justice (inhabitants of B, C, D are no longer constrained from migrating to A) turns out to be an increase in injustice in another respect (inhabitants of A are disadvantaged compared with inhabitants of B, C, D). Thus,

 We address the question of how far that differs from the Conventional View in sect. 11.3.

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the fact that B does not open its borders to citizens of A is a reason for A not to open its borders to citizens of B.8 However, there is an important objection to that argument. It could be argued that, if global freedom of movement is a human right, the fact that B, C, and D do not comply does not justify A’s non-compliance. Take the example of the right to religious freedom. Suppose that Saudi Arabia does not provide freedom of religion for German emigrants. Is that a reason for Germany not to provide freedom of religion for Saudi emigrants who live in Germany? Surely not. We should not punish individuals for the moral mistakes that their home state or any third state has committed; and, even if we were allowed to do so, that punishment should not violate human rights. We believe that, when applied to the supposed human right to global freedom of movement, this reasoning is built on a false understanding of the sense in which global freedom of movement can be seen as a human right. Global freedom of movement is certainly not one of those rights that we by all means need to be able to lead a good life. Even if it is a human right in principle, it is far from being one of the fundamental rights that can hardly be restricted. Furthermore, freedom of movement differs from other human rights in that, since places are limited, granting the right to some people means withholding it from others (in contrast, we can easily grant freedom of religion to everybody). Given that, it seems plausible to think that states are required to open their borders only to those citizens whose home states also open borders. In summary, the argument shows that justice does not require states to open their borders to a great extent; rather, they should do so only according to general criteria of selection, one of which is reciprocity between states. Our second argument concentrates on the fact that the Open Borders Claim, if justified via the idea of a human right to cross borders, is valid for everyone, independent of the reasons she has to migrate. Cassee emphasizes that it is up to every individual to decide whether she has a good reason to settle in another place. As a consequence, it should not be up to states to set rules about who may migrate and who may not. On the other hand, Cassee concedes that priority should be given to those whose safety is threatened (see Cassee 2016, 215); he even emphasizes that the Open Borders Claim is attractive just because it gives weight to the interests of refugees (see Cassee 2017, 40). In the same way, we should acknowledge that family reunification generates a priority claim when it comes to immigration. However, as Rainer Bauböck has repeatedly pointed out, there is no fixed number of free places for immigrants that can be filled either with refugees or with economic migrants; he diagnoses here a common “fallacy of fixed integration capacities” (Bauböck 2018, 145), and argues that economic migrants might even enhance a state’s ability to take in asylum seekers and refugees, e.g. by creating jobs. This makes things even more complex, but it does not change the core fact that

8  Elsewhere, Cassee concedes that argument. He speaks about “new fairness problems” (Cassee 2016, 243) that arise between states that endorse a liberal migration policy and states that endorse a restrictive one.

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places are limited, both for refugees and for other migrants. Thus, the following argument appears to be sound: (P1) All states that are willing to open their borders have limited capacities to admit immigrants. (P2) All states that are willing to open their borders are faced with some potential immigrants who have priority claims of admission. (P3) All states that are willing to open their borders can expect to be faced with potential immigrants who have priority claims of admission in the future. (P4) If states have limited capacities of admission, are faced with some potential immigrants that have priority claims of admission, and can expect to be faced with further potential immigrants who have priority claims in the future, then states should admit those potential immigrants and so many of them that in the long run they can admit as many as possible of those with priority claims. (P5) If states should admit those potential immigrants and so many of them that in the long run they can admit as many as possible of those with priority claims, states should in the short run select as many as possible of those who have priority claims and some of those who can be expected to promote its future capacity of admission. (C) So, all states that are willing to open their borders should, in the short run, select as many as possible of those potential immigrants who have priority claims and some of those who can be expected to promote the state’s future capacity of admission.

As we have already indicated, (P1) is accepted by all participants in the debate. (P2) is held explicitly by Cassee, and (P3) seems to be a highly plausible addition to (P2). (P4) and (P5) are plausible specifications of Cassee’s claim to give priority to those immigrants who fear for life and limb. Thus, Cassee should accept the argument. However, borders that are highly selective, as expressed in (C), are de facto relatively closed borders. That means that, under nonideal circumstances, the Open Borders Claim not only justifies but also demands closed borders and highly selective, non-liberal border policies, possibly even including strict deportation policies.9 The argument proves that the claim that Cassee and Oberman seem to be making – namely, that every action towards liberal migration policies reduces injustice – is not justified in general. Rather, only those liberalizations of migration restrictions that do not worsen the situation of refugees are just. Hence, states should open their borders according to general criteria of admission that select or serve the neediest amongst the potential immigrants. If that is true, the Open Borders Claim in nonideal worlds demands border policies that are very similar to those demanded by the Conventional View. The reason is that, even if the Conventional View is valid, states have an obligation to admit refugees and to take action to extend their capacity to do so. The Open Borders Claim would not substantially alter that obligation. Thus, we are convinced that OBCstrong fails. States should not open their borders to a great extent, but implement 9  We could add that states are permitted to reject refugees if by doing so they increase justice in burden sharing, but that is a difficult issue that we should leave aside here; see Hoesch (2016), Hoesch (2017b), and Hoesch (2018).

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general laws of admission that consider amongst other criteria the priority claims of refugees and reciprocity between states. We have mentioned above a passage where Carens holds OBCstrong with regard to irregular migrants. Let us briefly investigate what our arguments imply for this case. Carens claims that, even though the Open Borders Claim does not justify policies in nonideal worlds in general, it does so in the case of irregular migrants: if the Open Borders Claim is valid, they must, according to Carens, not be subject to any constraints on account of their status as immigrants. However, given that states should implement general rules that give preference to the neediest and that recognize reciprocity between states, then why should states give priority to those who were able to cross their borders illegally when it comes to deciding whom to admit? To be sure, irregular migrants acquire the right to stay after some period of time. But this is also true within the Conventional View. As long as irregular migrants have entered the country only recently, any state who is willing to comply with duties of justice would be free to deport some of the irregular migrants in order to admit others who would like to enter and who meet the selection criteria better. Thus, we believe that Carens’s general position that the Open Borders Claim does not justify in general an individual right to enter in nonideal circumstances is also valid in the case of irregular migrants.

11.3  D  oes the Open Borders Claim Make any Difference in Nonideal Worlds? According to OBCweak, the principles that apply in nonideal theory are more or less the same principles that would also apply if the Conventional View were valid. Remember that the Conventional View claims that states have the discretionary right to restrict immigration, except when it comes to the reuniting of family members or the admission of refugees. So, the question is whether the Open Borders Claim makes any difference in nonideal worlds or not. Without elaborating too much on the issue, we present two cases that give reason to reject OBCweak. The first case in which the Open Borders Claim makes a difference is the issue of ordinary admission. As we indicated in the second section, states are obliged in nonideal theory – in TSnonideal,CV as well as in TSnonideal,OBC – to admit as many persons with priority claims as possible. Nonetheless, there are also some places that can be offered to people who do not have priority claims. This also holds true for both ethical assumptions, the Conventional View and the Open Borders Claim. However, the Conventional View and the Open Borders Claim disagree in how those places are to be allocated among potential immigrants. If we assume that the Conventional View is justified, then states are morally free to enter into agreements with other states that serve their interests. Think about agreements on free movement between states, such as free movement within the European Union (EU). Given that member states of the EU believe that free movement serves their interests, they are morally allowed to establish rules that guarantee free movement to their citizens. As long as migration between the states that have established free movement does not reduce the possibility to admit refugees, those states are perfectly free to make or not to make such agreements.

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Within the Conventional View, free movement can even be used as a tool in political negotiations: states are free to offer free movement to the citizens of any other state with the aim of gaining some advantage in return. The whole history of the EU is full of such negotiations regarding whom should be admitted as a new member of the EU, or whom should be admitted into the Schengen Agreement, with interests always being weighed according to the logic of “give-and-take”. Carens rightly mentions that there are also normative requirements in the Conventional View that the criteria of exclusion and selection have to meet – states have to reach agreements on free movement that guarantee that nobody will be excluded on account of her race, for example (see EoI, chap. 9). But, as long as those requirements are not violated, states are free to treat citizens from some countries differently to citizens from other countries. If we abandon the Conventional View, things look different. According to the Open Borders Claim, every human being has a prima facie right to migrate. As a consequence, states are no longer free to offer entry according to whatever preferences they have. Instead, they have to offer entry according to a system of giving priority to some on the basis of objective criteria – this seems to be the only morally acceptable way to respond to the fact that everybody has the human right to migrate in principle, but not everybody can be admitted because of the threat of mass migration. Every criterion of selection that would include discretionary preferences of states would violate the equality condition inherent in all human rights. Note that these priority criteria are not limited to giving priority to uniting family members and to admitting refugees. Every decision on admission has to follow some objective criteria. Take again the example of the EU. Suppose that the member states of the EU are able to absorb a certain number of immigrants n per year, and n is exhausted by immigrants from other member states of the EU and by the refugees whom they admit. Consequently, those member states deny entry to citizens of third states. It seems that hereby, the member states are violating the rights of those citizens of third states: since there is no objective process of choosing those who are admitted, citizens of third states cannot from the outset make use of their human right to free movement. As a result, given that the Open Borders Claim is justified, agreements on free movement could turn out to be illegitimate, because they hinder an objective selection process that considers all human beings equally. Of course, as we outlined in sect. 11.2, one of the objective criteria that states should use is the criterion of reciprocity between states: states should open their borders primarily to citizens of states that are themselves prepared to open their borders. Thus, in some sense, it is legitimate to offer open borders as a return for open borders. However, that does not mean that states are totally free to choose other states in order to conclude agreements of reciprocal free movement. Instead, states have to offer selective migration agreements to all states that are also willing to open their borders reciprocally. It is plausible to assume that there are many states in the world that are willing to conclude agreements of free movement with member states of the EU. That these member states decided to allow free movement among themselves but not with other states is a discretionary decision based purely on self-­ interest, and is a decision that lacks legitimacy if the Open Borders Claim is valid. Since free movement is a human right according to that claim, it is surely

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impermissible to negotiate free movement in the context of self-serving agreements – by, for example, offering open borders in return for economic gains. To sum up, the Open Borders Claim makes a great difference to real-life border politics. It demands that a migration policy based on the interests of states be replaced by one that is based on the rights of potential immigrants; and it suggests that many of the agreements between states could be illegitimate. Let us turn to the second case that can be made to argue for a difference between the Conventional View and the Open Borders Claim in a nonideal world – a case that is located in the area of the rights and duties of immigrants rather than in the area of admission: namely, integration requirements. One argument in favor of OBCweak is that, as far as the rights of those who have already migrated to a country are concerned, the question of whether they have the right to migrate is not relevant (see Sect. 11.1). However, is that really true? Think about so-called mandatory civic integration policies – an issue that Carens does not discuss,10 but one that has gained much attention in the social sciences recently. In the EU, most states today require immigrants to learn the official language and to join classes to learn about the culture, the moral values and the history of the country, with these requirements often being reinforced with penalties.11 Even within the Conventional View, the obligation to join such classes appears unjustified in many cases (and most EU states violate the moral rights of some immigrants, since they force them to join these classes and punish those who refuse to do so).12 However, defenders of the Conventional View could point to the moral power of contracts between autonomous agents when it comes to those immigrants who are neither refugees nor have a family link that constitutes the right to migrate. In more detail, they could argue:

(P1) States have the discretionary right to exclude all potential immigrants who do not have a moral right to migrate on account of being reunited with their family or their status as refugees. (P2) If a has a discretionary right towards b to do x, a is allowed to conclude agreements not to do x in return for other services performed by b or any third party, as long as the commitment to these services meets a certain set of minimal moral standards s. (C1) States are allowed to conclude contracts with potential immigrants that do not have a moral right to migrate on account of being reunited with their family or their status as refugees in order to grant admission in return for services that the immigrants will perform, if the commitment to these services meets s. (P3) The commitment of immigrants to participate in integration classes meets s if the classes observe neutrality, non-discrimination and proportionality. (C2) Thus, states are free to require immigrants who do not have a moral claim to migrate on account of being reunited with their family or their status as refugees to sign an integration contract, thereby committing themselves to participating in integration classes that observe neutrality, non-discrimination and proportionality.

 With the exception of naturalization tests; see EoI, 55–61.  See, for example, Joppke (2017). 12  See esp. Higgins (2018). 10 11

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In consequence, within the Conventional View, integration requirements can be justified for some people, although the content of the integration contract must be consistent with basic rights and be non-discriminatory (e.g., there must be no requirement to accept a certain religious denomination), with the normative force of the contract diminishing over time and disappearing entirely once the immigrant has acquired the moral right to stay.13 But things look different as soon as we abandon the Conventional View. Now, there is no discretionary right to permit entry. Instead, states are justified in rejecting entry according to objective criteria only. But, as soon as they admit entry to someone, it is not the case that states transfer a right that they are free to transfer or not. Instead, in admitting somebody, states are just responding to the existing moral right to migrate. So, states are not free to allow entry only under conditions that they determine at their will; hence, they must not demand immigrants to sign an integration contract that exceeds the requirement that immigrants respect the law. Thus, accepting the Open Borders Claim means seeing integration requirements as unjust in general.

11.4  Conclusion We have distinguished two versions of the Open Borders Claim. The Strong Version (OBCstrong), as defended by Cassee and Oberman, understands the right to cross borders as a valid human right. This right gives support in the actual world for opening borders to a great extent, so that more or less the same principles apply in a nonideal world as in an ideal world. We believe that OBCstrong, understood in such a general way, is unjustified. The danger of mass migration makes it necessary to implement very selective immigration arrangements preemptively. The Weak Version (OBCweak), which Carens seems to hold, considers freedom of movement across borders as a valid human right in ideal worlds, but does not justify policies in nonideal worlds such as ours. Instead, Carens recommends following more or less the same principles in nonideal worlds that are required if we do not hold the Open Borders Claim. To counter that idea, we showed that the Open Borders Claim does make some difference for theorizing migration in nonideal worlds. As soon as we abandon the view that states have a discretionary right to close borders, states are no longer free to withhold entry from whomever they wish. Instead, every rule of admission must refer to objective criteria that make clear why certain persons are admitted, and others are not. And, when it comes to admissions, states are obliged to treat immigrants as if they had a moral right to migrate. We are far from having an adequate account of all the details of what we have called theory subtype TSnonideal,OBC, which is the theory about what the Open Borders Claim implies for nonideal worlds. However, it seems that states should implement

13

 Goppel (2019) shows this for the case of language courses.

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general rules of admission that aim at the following four requirements, listed in order of importance: 1. They try to admit in the long run as many of those potential immigrants as possible who have priority claims to immigrate. 2. They select amongst those who do not have priority claims according to objective criteria of who should have preference. 3. They aim at reciprocity between states. 4. They seek to offer all human beings as much freedom to migrate as is compatible with the first three requirements. The question of what the Open Borders Claim entails for nonideal worlds has not yet been adequately addressed. If our reasoning is correct, then the Open Borders Claim demands the cessation of some policies that have up until now been widely accepted, such as negotiating agreements on free movement in return for economic benefits, or establishing integration requirements based on the idea of an immigration contract. However, we did not elaborate on the question of whether the Open Borders Claim itself is justified. Our conclusions will surely motivate to address that question with due diligence once more.

References Bauböck, Rainer. 2018. Europe’s Commitments and Failures in the Refugee Crisis. European Political Science 17: 140–150. Carens, Joseph H. 1987. Aliens and Citizens: The Case for Open Borders. The Review of Politics 49 (2): 251–273. (= AC). ———. 2013. The Ethics of Immigration. New York: Oxford University Press. (= EoI). ———. 2015. Alternative Approaches to Political Philosophy. A Response to Miller, Bauböck, and Abizadeh. Political Theory 43 (3): 401–411. (= AAPT). Cassee, Andreas. 2016. Globale Bewegungsfreiheit. Ein philosophisches Plädoyer für offene Grenzen. Frankfurt a.M.: Suhrkamp. ———. 2017. Zur Verteidigung der globalen Bewegungsfreiheit: Eine Replik auf Johanna Gördemann, Susanne Mantel, Andreas Niederberger und Oliver Flügel-Martinsen. Zeitschrift für philosophische Literatur 5 (2): 39–53. Chamberlain, James A. 2017. Minoritarian Democracy: The Democratic Case for No Borders. Constellations 24 (2): 142–153. Goppel, Anna. 2019. Linguistic Integration – Valuable but Voluntary. Res Publica 25 (3): 55–81. Higgins, Peter W. 2018. The Rights and Duties of Immigrants in Liberal Societies. Philosophy Compass 13 (11): 1–10. Hoesch, Matthias. 2016. Was kann philosophische Aufklärung mit Blick auf die Flüchtlingskrise leisten? Angewandte Philosophie. Eine internationale Zeitschrift 1: 130–143. ———. 2017a. In welchem Sinn kann es ein Recht auf offene Grenzen geben? Jahrbuch für Recht und Ethik 25: 49–73. ———. 2017b. Grenzpolitiken und Flüchtlingsschutz: Von der deskriptiven Analyse zur normativen Bewertung. Zeitschrift für Rechtssoziologie 37 (2): 313–336. ———. 2018. Taking up the Slack in the Context of Refugee Protection. Remarks on David Owen. Zeitschrift für Ethik und Moralphilosophie 1 (1): 163–175.

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Joppke, Christian. 2017. Civic integration in Western Europe. Three debates. West European Politics 40 (6): 1153–1176. https://doi.org/10.1080/01402382.2017.1303252. Miller, David. 2015. Das Carensproblem. Political Theory 43: 387–393. Oberman, Kieran. 2016. Immigration as a Human Right. In Migration in Political Theory. The Ethics of Movement and Membership, ed. Sarah Fine and Lea Ypi, 32–56. Oxford: Oxford University Press. Rawls, John. 1971. A Theory of Justice. Cambridge: Harvard University Press. Universal Declaration of Human Rights. United Nations. http://www.un.org/en/universal-declaration-human-rights. Accessed 21 Mar 2018. Wellman, Christopher Heath. 2015. Immigration. In Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta. https://plato.stanford.edu/entries/immigration/. Accessed 21 Mar 2018.

Chapter 12

Equality, Moral Incentives, and Open Borders: An Attempt to Connect the Strands of Joseph Carens’s Utopian Thinking Tobias Förster, Barbara Gotzes, Hannes Hennemann, Anna Kahmen, and Alexander Westerhorstmann

Abstract The following study is an attempt to combine the two utopias Joseph Carens lays out in his work: first, a world with open borders, and second, an egalitarian state designed by the socialist principle: “From each according to ability, to each according to needs”. To test the compatibility of the two utopias, we examine four hypothetical scenarios. Each scenario represents a combination of open resp. closed borders and coexistent egalitarian resp. capitalist states, which are depicted along the lines of premises that Carens presents in various writings. It will be shown that combining the two utopias may under some circumstances raise difficulties for the stability of the egalitarian system. We therefore suggest that Carens’s global utopia might consist in a world of economically equal egalitarian states with open borders or in an egalitarian world state. Keywords  Economic equality · Egalitarianism · Joseph Carens · Migration · Morality · Open borders

Imagine (1) a world with open borders, which is (2) organised in a way that assigns everyone an equal income. These are two of the main topics of Joseph Carens’s overall work, which he develops independently in The Ethics of Immigration (EoI) and Equality, Moral Incentives and the Market (EMIM). While EoI covers the topic

T. Förster (*) · B. Gotzes · H. Hennemann · A. Kahmen · A. Westerhorstmann Westfälische Wilhelms-Universität Münster, Münster, Germany e-mail: [email protected]; [email protected]; [email protected]; [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_12

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of immigration and, in the second part of the book, questions regarding the concept of open borders, EMIM was written to elaborate on the possibility of an egalitarian state system which could compete with capitalist systems on important points. Especially EoI with its focus on migration issues has been greatly appreciated in the academic discourse, however, the two concepts we focus on in this paper have never been tested regarding their compatibility. This could be due to the fact that the two books were published at a temporal distance of some decades: EMIM was published in 1981 and could be considered an early work of Carens while EoI is a relatively new publication, first printed in 2013. In fact, Carens himself, creating a ceteris paribus scenario that shows the internal functionality of the egalitarian state, excluded the interaction with other politico-­ economic systems from his discussion in EMIM since he “recognized that interaction with other systems could be a major source of political change” (EMIM, 173). The main question of this study is whether and how an egalitarian system as conceived by Carens could be joined with the ideal of a world with open borders to generate a utopian model of a just and stable society. In order to answer this question, we proceed as follows: First, to avoid false hopes on what we will elaborate on, we briefly present the methodology of this paper, explaining why we will follow Carens’s stated premises about the two utopias and accept all his methodological abstractions. Second, we outline Carens’s main arguments regarding his egalitarian system and his concept of open borders insofar as they concern our investigation. For this analysis we will follow the methodology presented in the former section and will only outline the premises on a descriptive level and abstain from any normative evaluation. Third, we describe four different scenarios setting the egalitarian system in a global context with and without open borders and examine the stability of the system in each scenario. The four scenarios examined for their stability (along some inner-theoretical criteria to be outlined later) will be the following: (1) the egalitarian system as a world state, (2) the egalitarian system with closed borders, (3) egalitarian states with open borders and (4) one egalitarian state with open borders. Each examination ends with a concluding evaluation of the scenario’s implications for moral issues and provides some impulses for further elaboration. We will end with a short general conclusion in which we summarize our main results.

12.1  Methodological Considerations Before starting our argumentation, we consider it necessary to make a few remarks concerning the nature of this examination and the corresponding chosen methodological approach. These methodological remarks are important to understand the aims of our enquiry and to demarcate our line of argument from other possible objections. First, we do not want to enter any ideological battles, such as those between Liberalism and Communitarianism or Neoliberalism and Marxism. While we do

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not think that these battles are in vain, we are nevertheless of the opinion that such a move would not do justice to a considerate and complex thinker like Joseph Carens, who in all his works resists being easily pigeonholed.1 Rather, then, we want to elaborate on his own work and try to bring the two most important strands of his writing together. This aim of our investigation requires us to abstain from ideological evaluations and to base our discussion only on theoretical considerations in line with Carens’s utopian thinking. Accordingly, it is important to examine Carens’s ideas inner-theoretically, to evaluate whether his argumentation itself is sound or whether his two argumentations may present conflicting or even incompatible visions of a just society. To this end, we will in the following accept all premises that Carens postulates in his discussions of egalitarian systems and open borders as well as the conclusions he draws. Moreover, in the course of our enquiry, we will largely abstain from any normative judgement about the egalitarian system or open borders.2 We do not want to address any possible problems concerning the economics of the egalitarian system, as this, too, is a field of hard-fought ideological battles. Second, we will not consider how Carens’s theoretical framework could be implemented in the real world. Doing so, we follow his own methodological approach concerning the question of open borders in EMIM.3 Of course, there are several well-known criticisms put forward against purely theoretical utopian thinking in political philosophy.4 Instead of engaging with such criticisms in detail, we merely give our three main motivations for following this approach. The first reason is connected to the aim of our enquiry: since we want to examine Carens’s work internally, we feel strongly compelled to follow his methodology and see where his approach leads us. Secondly, one should examine whether two postulated frameworks could be combined on a theoretical level before thinking about an implementation of the theoretical assumptions in the real world. Thirdly, if there are any tensions between the two utopian goals, the question arises whether one of them should get priority in our practical concerns, and, if so, which one. We will give some preliminary answers to these questions in our concluding section, where the promise of practical significance of our theoretical enquiry will in the end be redeemed.

1  Of course, the description of Carens as a liberal and a democrat is one which he would surely confirm – but that does not mean that he would not try to integrate the insights of Communitarist and Marxist thinkers into his own work, which gives his writings a rather complex and evenhanded character. 2  Only in the conclusion, after the main theoretical work is done, we will consider practical and normative questions. 3  For Carens’s clearest statements regarding the theoretical-utopian nature of his two main theses, see EoI, 296, and EMIM, 173, respectively. 4  Most famous might be the criticisms of Marx and Engels against the utopian socialists; see Marx and Engels (1989, 52–54).

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12.2  A Short Summary of Carens’s Two Utopias As stated above, we want to evaluate the compatibility of an egalitarian system with the existence of open borders. In this section, we will give a rough sketch of what Carens means by an “egalitarian system”, as well as his position on open borders, insofar as it is relevant to our discussion.5

12.2.1  The Egalitarian System: Central Characteristics In EMIM, Carens uses the term “egalitarian system” to denote a politico-economic system which has the following five characteristics (see EMIM, 4). First: Approximately equal distribution of after-tax income among adults. Carens imagines a state in which most people work in order to “make good use of their productive capabilities” (EESM, 55). As the distribution of productive capabilities varies among the members of the population, so does the pre-tax income which corresponds roughly to the productivity of someone’s work. In an egalitarian system, according to Carens, this pre-tax income will be redistributed so that everybody gets the same after-tax income.6 Carens considers this redistribution of income as a practically viable part of an interpretation of the socialist dictum “To each according to needs” (SPD, 146–149). Second: Use of moral incentives as the source of motivation. The first feature of an egalitarian system leads to an incentive problem in this system: why should anyone make good use of her productive capabilities, if her after-tax income does not significantly depend on it? This incentive problem is to be addressed by the second feature of the egalitarian system. In essence, the egalitarian system has to be governed by social norms and corresponding informal attributions of praise and blame, so that the satisfactions of following a moral incentive to contribute to society by working in a full-time job in which one makes good use of one’s abilities exactly replace the consumption satisfactions (CS) of a higher after-tax income in a capitalist society. This characteristic of the egalitarian system makes good of the other half of the socialist slogan, since it is an interpretation of the dictum “From each according to abilities”. To put it shortly, albeit crudely, sufficiently many members of the egalitarian system accept the socialist slogan as interpreted above as a moral imperative and adjust their actions accordingly, at least insofar as their work life is concerned. Because this “egalitarian ethos” (SPD, 173) is such a crucial aspect of 5   In what follows, we will use the terms “egalitarian system” and “egalitarian state” synonymously. 6  Carens acknowledges that there are different kinds of income, so that it seems neither in theory nor in practice possible to achieve absolute equality of income between citizens. Therefore, to be precise, we should qualify this statement by saying that everyone gets “roughly” the same after-tax income. Here and elsewhere in this paper, we will largely ignore this complexity and simply state here that “equality” should always tacitly be understood as rough equality (see EMIM, 4–8).

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the egalitarian system, we will elaborate further on this at the end of this subsection. But before that, we want to get all the elements in place. Third: The market mechanism is still in place. This may be the most surprising characteristic of Carens’s egalitarian system. Carens imagines the market mechanism to be the controlling logic of the market without any difference to the capitalistic system. This means that all institutions and social practices such as banks, investments, loans, entrepreneurship etc. persist with their capitalistic operations, the only difference being the workers’ motivation as examined in the previous characteristic. This separates Carens’s egalitarian system from other egalitarian systems and reveals his attempt to use the advantages of both capitalist and egalitarian systems by combining the market mechanism with a form of egalitarian redistribution. One attractive feature of this is that it suggests a straightforward answer to the question of how one is to know how to make good use of one’s abilities in an egalitarian system: presupposing that pre-tax income corresponds to the productivity of one’s work, one merely has to compare one’s job opportunities regarding their respective level of pre-tax income.7 Fourth: Same efficiency as in capitalism. This characteristic could be regarded as a consequence of the second and third characteristic: if we assume, with Carens, (a) that the egalitarian system solves the incentive problem by relying on moral incentives, (b) that it is governed by the same market mechanism as the capitalist system, and (c) that the efficiency8 of the capitalist system is a result of the market mechanism, then the egalitarian system should be at least as efficient as a capitalist system.9  It is presumably this feature of the egalitarian system to which the most severe objections could be raised. We will note two which may be most important. First, Steele has argued in From Marx to Mises (1992, 207–228) that, for informational reasons, the market mechanism in Carens’s egalitarian system could not yield the same allocations as the market mechanism in a capitalist system, which would render this feature of the egalitarian system unworkable in practice. Second, in his most recent work Bullshit Jobs  (2018), David Graber has argued forcefully against the widely shared assumption that income and productivity correlate with each other. But following our methodological approach, we will assume for the sake of argument that the egalitarian system could work as Carens envisages it. 8  As Carens himself notes, the term “efficiency” is highly ambiguous. He clarifies his use of the term in EMIM, 12, and we will adopt his usage in this paper. Our arguments do not hinge on this term, so we do not expand on it here. 9  Alas, there is another major problem here. If we assume (1) that the market is governed by the laws of supply and demand, (2) that demand on the scale of society depends on individual demand, and (3) that a significant part of individual demand crucially depends on income disposable for consumption, then it follows from the different schemes of distribution in the egalitarian and capitalist system, respectively, that the outcome of the market mechanism in both systems should be so different as to render the talk of “comparable efficiency” of both systems largely groundless. Carens himself acknowledges as much in EMIM, which is why he conducts his enquiry on the (unrealistic) assumption that the pattern of demand should be the same in both systems. Carens claims that he is justified in making this assumption by the fact that the pattern of demand is an “irrelevant variable for the purposes of his enquiry” (EMIM, 25). But the fact that a variable has to be ignored to allow for the conduction of an enquiry does not necessarily mean that this variable may be ignored. In fact, it may also mean that the enquiry itself is impossible to conduct. But, as before, we will, for the rest of the paper, assume that an egalitarian system is as efficient as a corresponding capitalist system. 7

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Fifth: Almost the same freedom as in capitalism. This assumption is important for Carens’s design of a market-socialism because he wants to prove that socialism does not necessarily mean a significant decrease in individual freedom.10 By this important point, he wants to distinguish his model explicitly from other egalitarian and socialist systems, which often have a significant disadvantage because they reduce personal freedom in economic decisions by having central planning institutions. Carens aims to exclude any of these disadvantages from his system. Therefore, every individual in an egalitarian system should be granted the same individual freedoms as in the corresponding capitalist system – with the obvious exception that she cannot use the same amount of her pre-tax income for consumption satisfactions.11 From Carens’s later writings one can extrapolate a sixth characteristic of the egalitarian system, namely “democratic political arrangements in which strongly held views of the majority normally prevail” (SPD, 166). This characteristic serves at least two purposes. First, for the egalitarian system to satisfy the abovementioned first characteristic, the necessary redistribution scheme has to be institutionalized by the politicians in government. The assumption of democratic political arrangements together with the assumption of an egalitarian ethos in society leads to the satisfaction of this condition. Secondly, some sort of democratic process provides the egalitarian system with more flexibility in dealing with certain unavoidable policy issues, like, for example, how to figure out the needs of persons: “These sorts of questions [regarding the needs] have no single correct answer and should ultimately be settled through some sort of democratic process” (SPD, 148). This implies a kind of social atmosphere which obviously shapes the basic common sense of an egalitarian state. For example, if the majority of citizens votes, in a democratic process, for public transport to be seen as a basic need, then this decision should serve as an orientation for the provision of different goods.

 Carens even attempts to show that every economy, including capitalist systems, heavily rely on some form of (non-forcing) ethos which provides the citizens with incentives. If this is true, it follows that there is no difference between capitalist and egalitarian systems in this regard. Any critique that aims to reveal the possible lack of freedom in the egalitarian system would be a critique that can also be directed at the capitalist system. 11  There is a hidden ambiguity here, as it is not clear what should be counted as taxable income. In the appendix to EMIM, Carens suggests that if the egalitarian system is to be truly egalitarian, any net gains from an economic transaction would have to be taxed away, and explicitly acknowledges that any form of gift or inheritance should be considered as taxable income in the egalitarian system. When we consider the question of how to treat the property of immigrants on entering the egalitarian system – a question which Carens has to our knowledge not yet investigated – it seems to us that their property, too, should at once be considered as taxable income by the egalitarian system in order to prevent possible tax loopholes. The corresponding question of how to treat the property, esp. the savings, of emigrants on leaving the egalitarian system seems to us much harder to answer. The concept of property in the egalitarian system certainly merits further investigation, which sadly lies outside the scope of our paper. 10

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12.2.2  The Egalitarian System: Egalitarian Ethos The concept of the “egalitarian ethos” is of central importance for understanding how Carens’s egalitarian system is supposed to work. The “ethos” of a society, according to Carens, is “a widely […] shared set of beliefs about how people ought to behave”, joined with “a general […] willingness to act in accordance with those beliefs most of the time” (EESM, 53). An ethos is therefore constituted by a set of informal social norms internalized by most of the inhabitants of a state regarding the political, economic and social sphere and “affects how individuals act in their daily life” (SPD, 167). The content of the egalitarian ethos, as indicated above, can be regarded as an interpretation of the socialist slogan “From each according to ability, to each according to need”. The egalitarian ethos consists of the notion that in order to provide a good life for every inhabitant it is important to be solidary, which depends on having a “widespread internalization of a norm about one’s duty to others in economic life” (SPD, 167). The internalization of these values leads to peoples’ desire to contribute to social-economic life, for example in the form of redistribution, and to corresponding social duty satisfactions (SDS) when they work in a full-time job in which they make good use of their abilities. As we stated above, the assumption of a widely shared egalitarian ethos is partly motivated by the incentive problem: why would anyone work as much as she does in a capitalist system (or even at all), if a large part of her income was taxed away for redistribution? This question can be integrated into more abstract considerations. Suppose we have a politico-economic system with a set of institutionalized financial policies such that the first characteristic of an egalitarian system is satisfied. What preconditions are to be met for the institutions of this system to be as efficient as the institutions of a corresponding capitalist system? One crucial precondition, according to Carens, is the existence of a widely shared egalitarian ethos which motivates the members of a society to work just as hard as they would in capitalist societies. In the absence of such an ethos, the system is likely to produce less and less output over time, which would lead to the deterioration and eventual breakdown of the redistributive institutions. Note that this dependency of social institutions on the prevalence of a corresponding social ethos is not a feature of the egalitarian system alone, but of every politico-economic system known to us.12 It is important to realize that Carens regards the formation of an ethos as a result of socialization processes, and not to be implied by some supposed “human nature” understood as an anthropological premise. It only needs to be inherently coherent, as well as compatible with biological survival, to be in principle sustainable by practices of socialization. The fact that genetic dispositions might influence the relative effectiveness of socialization processes concerning the formation of an ethos in different individuals does not undermine the conception of an ethos, because an

 For a discussion of the dependence of democracy as well as market systems on a corresponding ethos see EESM, 60–62.

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ethos is not an all-or-nothing matter but only dependent on its prevalence in a sufficiently large part of society (see EMIM, 103–108). Now, if one compares the ethos of a capitalist system with that of an egalitarian system, it might seem like a far more intense socialization process, relying heavily on powerful state-controlled instruments, would be required for the preservation or even for the formation of the egalitarian ethos. It is important to see that Carens does not think that this is entirely the case. While the egalitarian system indeed requires a more intense socialization process, he thinks that this process does not necessarily rely on central planning but can be affected in a decentralized and informal manner, which might not even be consciously intended by its agents, by granting and withholding the social approval of the peer group of the individual (see EMIM, 119–127). Carens combines the idea of Egalitarian ethos with the basic assumptions of rational choice theory, according to which “every individual always chooses among available alternatives according to a consistent set of preferences” (EMIM, 18). We assume a general familiarity with rational choice models on the readers’ part and sidestep any discussion of objections raised in the literature against these kinds of models. We will note, however, that Carens’s model does not assume that it is necessarily monetary values the individual tries to maximize with their behaviour. All it assumes is that the preferences are commensurable by a common measure, such as utility or – as we are going to call it with Carens – satisfaction.13 Working with a rational choice model in the way we have described in the methodological section, we can state the impact of egalitarian ethos on the behaviour of the citizens of the egalitarian system in another way: in a capitalist system, citizens rank the alternatives open to them according to the amount of satisfaction that these alternatives are expected to provide them. When it comes to their work life, one aspect of the expected satisfaction of different job opportunities is the differing income consumption satisfaction they can derive from the respective after-tax income. In an egalitarian system, however, the income consumption satisfactions that one can expect from different jobs are exactly the same, since everyone gets the same after-tax income regardless of their pre-tax income. Therefore, there is a gap between the income consumption satisfactions in the capitalist system and the egalitarian system, respectively. It is this gap which the introduction of social duty satisfactions is supposed to close: the income consumption satisfactions which job A provides in the capitalist system shall be equal to the income consumption satisfactions which job A provides in the egalitarian system plus the social duty satisfactions that are implied by the choice of job A over the available job alternatives. This replacement of part of the income consumption satisfactions in a capitalist system by social duty satisfactions in the egalitarian system is assumed to be the only difference in the preference structure of individuals between the two systems, and the  Philosophically speaking, one might be reasonably suspicious of whether the proposed model has anything to do with how we act in real life at all. But, methodologically speaking, it is not clear whether, or how, one could model (and therefore predict) human behavior without any assumption along these lines. As we have stated, we will not discuss these matters and simply assume that humans behave roughly like Carens’s rational choice model predicts they do.

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ethos can be regarded as the social mechanism by which this difference is realized in the egalitarian system.

12.2.3  Open Borders Carens may be most renowned for his contributions to the ethics of migration, in particular for his criticism of what he calls the “conventional moral view on immigration, i.e., that […] each state is morally entitled to exercise considerable discretionary control over the admission of immigrants” (EoI, 20). Though he has devoted much of his Ethics of Immigration to a thorough examination of the implications of liberal democratic principles as well as the conventional view14 on the ethical questions of immigration, he is deeply convinced that the conventional view is false. In what follows we are concerned only with the open borders utopia and leave other (in part far more) important problems of immigration to the side. For Carens open borders means a guaranteed right to move across countries and to choose one’s residence freely: he presents three main arguments for this claim that borders should – in principle, from the moral point of view – be open, that is, that people should be able to leave their country of origin and settle in another country of their choice. First, he argues that freedom of movement between states should be regarded as a fundamental human right, the restriction of which would have to be justified by moral considerations which are – for the most part – not available, at least as far as the wealthy countries of the West are concerned. Second, Carens argues that freedom of movement would contribute to the ideals of equality of opportunity, as well as, third, to the reduction of political, economic, and social inequalities to which at least the democratic liberal societies of the West are committed by their own normative standards.

12.2.4  I mplementation of the Egalitarian System and Open Borders It is important to see that Carens is not arguing for opening borders right now, just as he is not arguing in EMIM for implementing the policies of an egalitarian system in every (or even any) state right now. Concerning both topics, Carens does not

 Carens defines the conventional view as, firstly in a political way, “the contemporary international order which divides the world into independent states with vast differences of freedom, security, and economic opportunity among them” and, secondly, in a moral way, “the conventional moral view on immigration, i.e., that despite these vast differences between states, each state is morally entitled to exercise considerable discretionary control over the admission of immigrants” (EoI, 10).

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discuss questions of implementation or transformation in detail.15 Rather, the egalitarian system as well as a world with open borders should be regarded as utopian visions of morally justified political structures. These utopian visions serve at least two purposes: first, they give political actors long-term goals for society to strive for, and second, they provide standards for a criticism of morally unjust political structures and institutions. However, in order for them to fulfil these, it is necessary that they do not present conflicting or even incompatible visions of a just society, for neither can we consistently strive for an impossible society nor can we criticize society coherently from inconsistent premises. In the next section, we will examine whether the egalitarian system and open borders do in fact cohere as utopian visions, and, if they cohere, under which conditions they do so.

12.3  The Scenarios of Egalitarianism and Open Borders Imagine there is a state that has fully implemented the egalitarian system. Conceivable instantiations of this egalitarian state would be an egalitarian world state (with only one state existing) and an egalitarian state that either coexists with other egalitarian states or with capitalistic states. Since borders can either be opened or closed, we derived four scenarios from the combinations of both utopias, which are illustrated in Fig. 12.1. In this chapter, we will evaluate the stability of the four criteria regarding their theoretical stability. As we will see, for an egalitarian state with closed borders the question whether it is surrounded by other egalitarian states or not is irrelevant for its stability. We do not distinguish between open and closed borders for an egalitarian world state, since the world state per definitionem has no borders that could be closed. Nevertheless, we will distinguish between the egalitarian world state and the egalitarian state with

Fig. 12.1  Scenarios of egalitarianism and border policies

15  To be sure, this is not to say that Carens does not say anything at all about implementation of immigration policies – consider, for instance, the whole first part of The Ethics of Immigration (see EoI, 296, as well as EMIM, 21).

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closed borders since our examination will show that different conclusive remarks can be derived from these scenarios. In the following, we use two inner-theoretical criteria of stability for the analysis of the derived four scenarios: firstly, the stability of the egalitarian ethos in the affected state and secondly, the availability of sufficient physical resources to provide for the physical subsistence of inhabitants in the egalitarian system. These conditions have already been identified as necessary in Carens’s EMIM.16 If there are any instabilities emerging from a combination of the egalitarian system and open borders, there are at least some incompatibilities which endanger the persistence of the state and therefore threaten the idea of combining the two utopias. Thus, if any of these four combinations does not fulfil these two criteria, we suggest that the combination cannot be part of the global utopia which Carens tries to bring into clearer focus.

12.3.1  Scenario 1: The Egalitarian System as a World State In the first scenario we imagine a world state in which the egalitarian system is implemented. There must be some form of world government organizing political and economic issues, especially the tax system, and including redistribution in an egalitarian way. Given the assumed correctness of Carens’s premises and thereby adhering to our methodological approach, this scenario would in principle work out. There is no sign of instability because (due to the wholeness of the system) there could not be any dangerous exogenous effects that could negatively affect the persistence of the system. There are also no threats to the stability of the ethos from within the system because ‘enough’ of the citizens (see SPD, 165 and EMIM, 163) intrinsically value the socialist principle and have no interest in either changing the system or exploiting it for their own profit. Concluding Remarks  In this scenario, we did not identify any major problems with Carens’s account. Nevertheless, this should not come as a surprise as it is a direct consequence of our methodological approach. Indeed, as we assume the correctness of Carens’s argument in EMIM, we regard the egalitarian system as inherently stable if there are no exogeneous influences to the state and if it meets the necessary preconditions identified by Carens. Therefore, our results should be regarded as mere consequences – or, if you will, as a direct application – of our methodological approach.

 The “stability of the egalitarian ethos” should be understood as a summary of the first four logically necessary preconditions of the egalitarian system, while the sufficiency of physical resources is the second empirically necessary precondition (see EMIM, 174f).

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12.3.2  S  cenario 2: One Single Egalitarian System with Closed Borders This scenario is similar to the first one, except it focusses on a single egalitarian system in the midst of other states and not a global egalitarian one. However, this single egalitarian state is, in a way, as insulated as the world state because of its closed borders. Closed borders forbid any material influences from outside states.17 Against this background, the egalitarian state with closed borders can be considered a miniature version of the world state, because there are de facto no potential exogenous influences from third parties – the outside world can be completely ignored for the purpose of this scenario. It is therefore irrelevant whether other states also follow the socialist principle and are organized as an egalitarian system, or whether they are built upon capitalist premises or if their constitution is something in between. When combining Carens’s two claims in the aforementioned sense, it seems that this scenario also must be ultimately stable. On the one hand, as there is no possibility for people with an ethos inconsistent with the egalitarian ethos to enter the system, we do not see how the egalitarian ethos could become undermined if the socialisation processes which produce this ethos remain intact. On the other hand, there may be some difficulties if one considers the shortage of resources which may arise if one state refuses every economic relation to other states. However, as we assume with Carens that the possession of “sufficient physical resources to provide for the physical subsistence of members of the egalitarian system” is a necessary prerequisite of the egalitarian system (see EMIM, 175), these problems need not concern us here. Nevertheless, we see one major caveat to these considerations: although we can disregard any material influences from the outside world, there might be immaterial influences heightening migration incentives. Even if we assume the egalitarian system to be as effective as a capitalist one, it could nevertheless be the case that the people in neighbour states can afford additional luxury. This is for instance the case, if the neighbour states benefit from special natural endowments, e.g. resources. We continue to assume that neighbour states have implemented a policy of open borders, and that citizens of the egalitarian state are allowed to leave their country and settle in the neighbour state. The egalitarian system might face a brain drain problem (as in scenario 4), or it might even collapse completely due to mass migration (as in certain cases of scenario 3) in this setting.

 At this point, as stated before, we disregard economic factors such as free trade between states, foreign exchange policy, and so on. If you wish, you can regard the “closed borders” of this scenario as not only the complete negation of open borders, but also the complete negation of any economic relations between the egalitarian system with the rest of the world. Of course, we tacitly assume here as in the following scenarios that the egalitarian system does not get involved in a war, since the critical test for the inherent sustainability of a utopian vision is its stability in peaceful times.

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Concluding Remarks  If we assume an egalitarian state with closed borders, inequal levels of factor endowment (e.g. resources or access to trading routes) between that state and the ones surrounding him would cause inequality between states, even if we follow Carens and assume productivity of capitalist and egalitarian system to be equal. We want to remark that the most straightforward way for the egalitarian state of dealing with these problems is to shut down its borders completely and thereby prohibit any form of emigration.18 This ‘solution’ would obviously be difficult from a moral point of view. But we do not need to consider this scenario in any more detail: even if the aforementioned problems could be solved in a satisfying way, this scenario cannot be a description of Carens’s utopia since the closed borders of the egalitarian system radically oppose his conviction that “if a just world had states, they would be states with open borders” (EoI, 287). There are other problems with Carens’s account which might be fundamental, but which we want to disregard for the sake of the argument. Our main aim for the following is to simulate opening the borders of the egalitarian system and test whether further theoretical prerequisites are necessary for the egalitarian system to maintain its stability with open borders.

12.3.3  Scenario 3: Egalitarian States with Open Borders The third theoretical scenario stages a world consisting exclusively of egalitarian states without a common regulatory body. There are material differences between the states; depending on resources, gross national product and other factors, there are poor as well as rich egalitarian states. Cultures of states may also differ from each other. But at the core, the states share at least two common characteristics: the majority of citizens share the egalitarian ethos as described in section two and support an open border policy. In this scenario, the question arises as to how migration behaviour develops in relation to differences of wealth between the different countries. At this point, one additional step must be taken to clarify the behaviour of the citizens in Carens’s egalitarian state. His egalitarian system works on the basis of two assumptions about the behaviour of the citizens: First, their work is (partly) motivated by the Social Duty Satisfaction (SDS) which measures their individual satisfaction in the pursuit of a job by the relation between the maximum possible and the actual income generated. Second, they all reap the same pay after tax, meaning they enjoy the same freedoms as in capitalism; they therefore possess free individual consumer behaviour according to preferences, buying behaviour, etc. Hence, in egalitarianism, SDS is a (possible) motivator, according to which the individual works for the collective. Precisely because of this individual freedom to use after tax income at will, the egalitarian market has optimal resource allocation due to the market laws 18

 This is the way how the German Democratic Republic dealt with these problems.

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of supply and demand. At the same time, consumption satisfaction represents part of the overall satisfaction of the citizens of the egalitarian state: the egalitarian citizen, as much as in other political systems, is stimulated by consumption, which leads Carens to state that “[i]ndividuals in the egalitarian system place some value on income-consumption satisfactions” (EMIM, 86 ff.). Moreover, he says that “income for consumption will almost inevitably be highly valued in any politico-­ economic system which relies heavily on the market mechanism because of the instrumental relation which money has to many other goals” (EMIM, 86). For our theoretical scenario, it is important to emphasize how consumption satisfaction (CS) affects differently rich egalitarian states on migration behaviour. Since CS, among other factors, impacts on the general satisfaction of citizens, it can be a stimulus to migration. Therefore, it is important to clarify its position regarding differently rich states: In egalitarianism, where the CS is independent of individual income and is determined by collective income, the rule is that the higher the wealth of a country, the higher the CS. Between two differently rich states, the CS of the citizens in the rich state is (ceteris paribus) higher than in the poor state. It can therefore be said that (ceteris paribus) an incentive to migrate exists between differently rich, egalitarian states: the richest country, which offers its citizens the highest CS, provide stronger incentives to migrate from states that offer lower degrees of CS. Of course, in a broader picture, the CS is not the only factor that is crucial for migration. The emotional effort involved in migration will therefore be well-­ considered by the rational agent, so that a variety of personal reasons, such as family, friends, culture, language, etc. will possibly influence her decision-making process.19 However, it should be emphasized that the SDS, if we use it in the way Carens introduced it, cannot form a factor in the decision-making process. The reason for this is that the SDS only measures itself against the potential scope of real revenues. This means that in both a poor country and a rich country, the SDS of the citizens is only measured by what they can possibly earn under the given opportunities. Their SDS is thus the difference between the actual and the potential wage. This means that even in a case where Jane in her country of origin has a choice between earning 4 € as a carpenter, 5 € as a bricklayer or 6 € as a sanitary specialist, while in the richer country she could choose only between 2 €, 2.50 € or 3 €, the differences in SDS will not change.20 In order to simplify our examination of migration behaviour, we look at only two states with a wealth gap between them. Here, the wealthy state exerts a migration  For some individuals these additional factors may increase the incentive to emigrate, while for others they may decrease it. As we will focus on the migration behaviour of whole sections of the population, we will abstract from these complexities of individual behaviour and simply focus on the incentives that stem from the ethos. 20  To further clarify this point, it is worthwhile to look at another interpretation. It is conceivable that the SDS, regardless of the country and thus seen globally, is always highest where the highest salary is paid. In this case, however, a person within a society would be socialized less as a member of a superior system, such as the world state in scenario 1. Such a cosmopolitan understanding of SDS can be assumed for scenario 1, but goes beyond Carren’s concept, which is only national. It can therefore be excluded in scenario 3. 19

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stimulus on the citizens of the poorer state (ceteris paribus), and the higher the discrepancy between states, the stronger the appeal. The discrepancy thus leads to a situation in which the citizens of the poorer country now have to weigh the potentially higher CS against other reasons, such as the expenses related to migration. Since the egalitarian ethos of the citizen expressly emphasizes the CS, it seems quite acceptable to assume that one part of society decides to immigrate into the richer country, while the rest of said society, which rates the CS less, decides to stay in the poorer country. At this point in our example, when part of society migrates, it is important to distinguish between possible outcomes in both the poor and the rich states. If we look at the rich state, three possible situations might arise: 1. The rich state lacks the necessary resources to provide for its citizens (old and new) and accordingly loses its stability. 2. The rich state has the necessary resources to provide for its citizens, so that stability remains, but its wealth decreases. 3. The rich state has the necessary resources to provide for its citizens, so that stability remains, and its wealth remains the same or increases. The first case is obviously problematic: the rich state, which does not have enough capacity to guarantee the stability of its country during a movement of migration, has difficulties in maintaining its open border policy. Accordingly, the basic assumptions about open borders between egalitarian states cannot be combined if the wealth of the richer country is not high enough to provide for the subsistence of the migrants. Although it is questionable to what extent such a state emits a stimulus for migration through CS, if the wealth is not sufficiently high.21 At the same time, however, an additional necessary condition for the success of open borders between egalitarian states can already be formulated here: A rich state must have enough resources (as well as capacities, infrastructure) to provide for its indigenous citizens as well as for immigrating citizens in order to maintain stability. In this sense, the second and the third case succeed, while the first one cannot work. In the second and third case, it is important to consider the further development of both the poorer and the richer state. For the second case, it could be assumed that the CS of the richer state is now closer to the CS of the poorer state. However, this development depends on the extent of migration: small migration movements which do not significantly burden the poor state’s infrastructure and productivity would produce such a result. However, it can be assumed that above a certain threshold, the poorer state’s infrastructure and productivity will be significantly burdened by the migration movement. Thus, depending on the total number of migrants, the poorer state runs the risk of losing stability, as infrastructure and productivity suffer from the potential shortage of workers. This in turn would affect the wealth of the poorer country, which now provides even less CS for its citizens. Therefore, on a purely  Thus, this case remains mostly theoretical. However, migration movements that do not take place over time but are explosive could be possible occurrences of the first case. Furthermore, small states which, while rich in wealth, do not have the necessary infrastructure for migration may be practical examples for case 1.

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theoretical level, the CS-incentive to migrate does not necessarily decrease in the course of the migration movement for citizens of the poor state. At the same time, it should be emphasized that additional migration incentives might be emerging for the remaining citizens of the poorer country. Because of the weakening performance of the country, a stay in the country becomes more unattractive. In addition, the tendency to move to the richer country is reinforced by the already existing community that immigrated during the first wave of migration.22 It can therefore be said that the migration stimulus in the poor country intensifies if the CS discrepancy does not converge and additional stimuli from the loss of function of the infrastructure and the already immigrated community in the rich country arise. In addition, this trend intensifies itself, because the more people immigrate, the more the performance of the poor country is limited and the larger the community in the rich country becomes.23 This trend could theoretically become so strong that the poor country collapses under the burden of migration and dissolves altogether.24 In the light of the assumption of this self-reinforcing migration and the collapse of the poor country, the question arises whether the resources of the rich country are sufficient to absorb the complete migration of the population of the poor country while maintaining its stability. In the worst possible outcome, there is a tendency toward the first case, in which the rich country cannot guarantee its functioning. In this case, as shown above, open borders are not compatible with egalitarian states. However, in the event that the rich state fulfils the necessary condition of enough resources and capacities, a complete migration succeeds. Under this assumption, the combination of Carens’s egalitarian system with his more normative demand for open borders is consistent insofar as the egalitarian system with open borders would not necessarily fall apart. Concluding Remarks  The third scenario shows that open borders between egalitarian states can fulfil our two stability criteria and thus succeed. Since the ethos of egalitarian states is already the same by definition, it cannot be undermined by migration. More important, therefore, is the second criterion according to which a state must have sufficient resources to ensure its stability and the supply of its citizens. If the rich state meets this condition, Carens’s concepts can be formally reconciled. At the same time, however, it is questionable from a normative perspective to what extent such an implementation can be considered successful. Rather, it could be argued that under conditions of the same ethos in both countries, economic  For an elaboration on this point see the second chapter of Collier (2016).  Note that this problem differs from the brain drain problem which we discuss in the fourth scenario, since the rich state radiates a CS-incentive to migrate on every citizen of the poor state equally. 24  The disintegration of the poor state, however, is not crucial to the success of the scenario. As long as the rich state can manage the migration, no relevant criterion of instability is fulfilled. Looking at the poor state is irrelevant from this perspective. 22 23

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equality between the states should be created in advance to keep the CS discrepancy low enough and thereby prevent (in the worst case) a collapse of the poor state through excessive migration from the outset. Such an initiative would prevent the burden on migrants that arise from leaving their country. Additionally, it would be possible to avoid the loss of resources that is caused by the collapse of the poor country. Against the background of these considerations, the third scenario shows that the necessary resource in the rich country is a formal condition, whereas economic equality might be regarded as a normative precondition for the success of open borders in egalitarian states. This result reflects Carens’s statement that “[t]he ideal of justice that I have identified has two components: a right to freedom of movement across borders and relatively little inequality between states” (EoI, 278). This economic equality is all the more important because it is not only a starting prerequisite but must continuously be established in order to prevent an exceedingly high CS discrepancy, which in turn would create a too strong pressure to migrate. From a normative point of view, therefore, economic equality between the egalitarian states has to be perpetually (re-)established.25 Nevertheless, it is questionable to what extent such perpetually regulated economic equality between states can be guaranteed without a central transnational administrative body that controls redistribution. In this case, we seem to be pretty close to the first scenario where we have shown that a world state with egalitarian ethos succeeds in maintaining its stability. It can therefore be concluded that Carens’s two concepts, although they can be formally combined, amount to a new concept in consideration of moral demands: egalitarian states with open borders under a higher administrative authority with the power to redistribute wealth between the states. The question whether this effectively amounts to an egalitarian world state will not be pursued in detail here.26

 This result, too, is consistent with Carens’s arguments against the view that “significant inequalities between states can be a legitimate outcome of collective self-determination” (see EoI, 262–270). 26  One potentially important difference between the first and the third scenario might be this: in a world state, there might be higher pressure from social duty satisfactions to leave one’s surroundings to work in another region far away, because the social duty satisfactions one derives in a world state depend on the global job possibilities, whereas the social duty satisfactions in scenario 3 relativize to the local job possibilities within the egalitarian state. Therefore, although seemingly close to scenario 1, scenario 2 might be a far more accurate description of Carens’s utopia, since he explicitly states that he is “not arguing for a world in which human beings move frequently from one political community to another, with no sense of home or belonging and no deep attachment to place and people” (EoI, 87). 25

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12.3.4  Scenario 4: One Egalitarian State with Open Borders Let us now simulate the last scenario in which one egalitarian state is characterised by the egalitarian ethos but is surrounded by capitalist states. The second parameter is the same as in the scenario before: the borders of this state are open and migration (emigration as well as immigration) is, in principle, possible. This examination has to include that there may be different versions of this scenario depending on whether there are economic inequalities between the states and depending on the level of wealth of the different states. In this scenario we have a set of different states with different economic approaches and institutions. We have, on the one hand, an egalitarian state in which people act upon the egalitarian principle. We have, on the other hand, capitalist states in which people are socialized with so-called capitalist ethos and act upon capitalist principles. These people have the understanding that their work is directly linked to their income – the more they work, the more money they get.27 Just because immigration and emigration are in principle allowed, this does not necessarily mean that many people would take this chance. We assume, following the argumentation about scenario 3, that people stay in their countries of residence until they have sufficient incentives to leave their country and immigrate to another. We do not want to balance incentives to stay and incentives to leave against each other but simply assume that there has to be a strong incentive to emigrate before emigration takes place. This is a simplification of why and how people choose to leave their countries,28 but we do not deal with deeper analyses of the reasons that people have or do not have to change their place of residence. The incentives themselves can take on various shapes: in reality, some people may move due to personal reasons, some may move due to financial reasons. In our scenario, however, we want to focus on the incentives people raised with a specific ethos may experience – people who share the ethos of a capitalist society and people who live upon an egalitarian ethos. People socialised with an egalitarian ethos still have the urge to maximize their after-tax income for consumption. If they see the opportunity to do so, we assume that, given there are no big countervailing factors, they would do so. People who are raised in a capitalist environment also have the desire to maximize their income. If they are given the opportunity to raise more money while doing the same or less work or to make the same money for less work or, to put it shortly: if it simply is rational to take the chance, they would, in theory, do so. Given these two assumptions which we derive from the different types of ethos for these two state principles an egalitarian state with open borders would be faced

 This is, of course, a very simple idea to describe the complex phenomenon of capitalism. For the sake of the exemplification of the argument, we set aside countervailing factors which would interfere with this proportional relation between work and income. 28  That the act of choosing whether to migrate or not follows somewhat rational reasons is also a claim that Carens makes (see EoI, 334). 27

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with mainly two kinds of problems regarding the first criterion of stability: the problem of free-riders (1) and the problem of brain-drain (2).29 Let us examine the problem (1): workers of capitalist states who have an income which is less than the after-tax income in the egalitarian state have a strong incentive to increase their income, and thus ultimately their wealth, by migrating to the egalitarian state. This incentive stems from the fact that people who have internalized a capitalist ethos in principle try to increase their wealth – if they can get more money for the same work elsewhere, it is (other possibly contradicting factors aside) likely that they will do so. This is problematic because of the following reasons: People raised in capitalist states do not have internalized the egalitarian ethos. They would – given freedom of migration – be allowed to move to the egalitarian state and would be included in the collective system of after-tax income, even if they themselves do not feel the egalitarian urge to act upon the socialist principle. It is possible that these people simply enjoy the benefits of the after-tax income without contributing to the wealth of the collective. They do not feel the urge to use their abilities in the best way possible to gain social duty satisfaction and contribute to a consequently higher after-tax income for everyone. This behaviour is not in conflict with their capitalist ethos; in fact, it follows from the logic of a capitalist ethos. This can threaten the first criterion of stability we have explained before. We can distinguish two consequences that follow in this theoretical scenario: (a) There may be the possibility of the ethos getting undermined by too many people not sharing it. As we have already seen in scenario 3, the persistence of the egalitarian ethos is one of the two main criteria of a stable egalitarian state. If the ethos gets undermined by too many people not sharing it, the egalitarian state would not be able to persist and would, ultimately, loose its egalitarian character. If, for example, 51% of the habitants do not share the egalitarian ethos, it would collapse. (b) Because it would, for a capitalist citizen, be rational to do the least work for the greatest amount of money, it is imaginable that the egalitarian state’s wealth would decrease due to a lack of productivity forces. This is exactly the reason why Carens develops his idea of the ethos which morally binds citizens to contribute to the state’s wealth in the first place. If the state wants to avoid this kind of free-rider problem, it has to ensure that a sufficient number of citizens shares the egalitarian ethos so that the system and the country’s wealth are secured. The second problem which we have to face in this scenario is the problem of brain-drain (2): Carens has explained that people who are socialized with the egalitarian ethos also try to maximize their spending capacity for consumption satisfaction. These people indeed feel the need to fully work according to their abilities, but they also have an interest in increasing their personal wealth apart from their urge to fulfil their duty to increase their state’s wealth. Workers who could ultimately earn  The same problems arise regarding the second criterion of stability, namely the problem of resources, which we examined in detail in scenario 3 and which can be transferred to this case. Because of that, we will not elaborate on these problems again.

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more money in (capitalist) neighbour countries would still strive to maximize their pre-tax income but would also benefit from the higher after-tax income in another state. Moving places of residence is therefore something socialist people would also consider, if this would increase their consumption income or their working satisfaction.30 This problem is similar to the problem we discussed in scenario 3. It stems from the fact that different (egalitarian) states can have different levels of wealth, and this fact may ultimately lead to the emigration of only some social groups, e.g. the well-educated workers.31 One important point, which again separates scenario 3 from scenario 4, concerns both of the possible problems, the free-rider problem and the brain drain problem: economic equality between states is not enough to avoid the problems we explained before. Even if the states themselves are roughly on the same level of economic wealth, it does not follow for capitalist countries that individual persons lack incentives to move to the egalitarian state. In capitalist states, the average income, which in the egalitarian state determines the state’s wealth, does not allow to draw conclusions about the situation of every individual citizen. If two states, one capitalist, the other egalitarian, have the same gross domestic product, it is possible that – assuming a relatively linear distribution of interstate wealth levels – merely half of the population of the capitalist state has an income below this average. These are exactly the people that have an incentive to move to the egalitarian state. So even if all states would have approximately the same level of wealth, this problem would still occur, if just some people would benefit from migrating to the egalitarian state. Economic equality between states does not solve the problem of free-riders, or even just the problem of decreasing wealth in our egalitarian state. Concluding Remarks  We showed that a system of open borders with capitalist as well as socialist states faces some problems, which mainly include the problems of free-riders and brain-drain. However, there may be some (formally possible) solutions to these problems we want to address in this section. First, some of the problems of migration (either between a capitalist and a socialist or two socialist states) could be mitigated by introducing some kind of egalitarian, national ethos, which could be an addition to the egalitarian ethos developed by Carens. This might provide a reason within the ethos for people not to migrate even if it seems to be their best alternative under the condition of open borders. A theoretical solution would be the extension of the socialist ethos to the importance of the community, a certain loyalty or identity that trumps the appeal of foreign CS. However, it is questionable whether this is possible in a moral framework that promises (personal) freedom. Accordingly, one must be aware that in the most extreme scenario this could lead to a kind of nationalism that, intuitively, does not  Carens could, indeed, argue that people raised with a socialist ethos would not want to move to a capitalist country due to reasons of e.g. ideology. However, we wanted to hint at the possibility of such a behavior. 31  If everyone, regardless of their qualification, had an incentive to leave the country, we could not speak of ‘brain drain’ but rather of a general movement of labour. 30

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seem compatible with the original open borders thesis as it undermines people’s freedom to choose their place of residence according to their own preferences. Second and connected to the former aspect, there would be the possibility to reduce any destabilisation of the egalitarian ethos by the capitalistic ethos in the fourth scenario by introducing a sort of legally institutionalised form of the egalitarian ethos. This sort of legal institutionalization must include at least some kind of obligation for migrants to learn to live by the egalitarian ethos. In this case, the ethos would not get undermined in the long run, because the state would ensure that ‘enough’ of the habitants share it. However, in the most extreme case this might lead to a certain kind of camp, in which migrants must learn to live by the special egalitarian ethos. In our opinion, this is not a desirable option or conclusion because it threatens people’s freedom in a dangerous way. The only way that seems to be an adequate solution is ‘teaching’ through social pressure, which is not institutionalised in the former sense.32 In this sense social pressure could be regarded as necessary (alongside internalization) for a solution for the free-riding problem, if it means that free-riders will follow the ethos because of the social pressure, than nobody will undermine it, even if the free-riders did not internalize it. Furthermore, there would be the possibility to reduce the egalitarian ethos to special areas of social life, for example health care or education. This would not be market socialism but instead a kind of social market economy that combines socialist principles with the advantages of the market system. This solution would have to be worked out in more detail. Maybe the problems that we illustrated would still occur. However, from a practical perspective, a market socialism could be a relatively operable option.

12.4  Conclusion The goal of the above examination was to combine the two utopias Carens lays out in his work, namely the egalitarian system and the world with open borders. We therefore accepted all his premises regarding these two utopias for the sake of the argument. We identified and differentiated four relevant scenarios and described them on an inner-theoretical level before we evaluated them from a normative point of view. We concluded that according to our two stability criteria the first two scenarios could be described as unproblematic. But some difficulties arise in the last two scenarios. In scenario 3 we examined how undermining of the ethos is not a problem. So, one could state that according to the two stability criteria no difficulties arise, provided the egalitarian state has enough resources to provide for its citizens as well as for immigrants. Nevertheless, from a broader normative perspective we argued that

 Social pressure is not as it may suggest at first glance a strong form of coercion but rather an unavoidable everyday social mechanism that always occurs in social communities.

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economic equality between the states is a prerequisite for opening borders, because even if the two stability criteria were satisfied, opening borders would have on the whole consequences, regarding the stability of the system, if economic inequality between states is above a certain threshold. One can hardly imagine implementing a system with only egalitarian states, open borders and economic equality among all states (and therefore economic equality among the citizens of all states because of the equal distribution) without any supranational institutions to regulate the redistribution of resources between states. In this scenario, therefore, we are very close to our first scenario and one can regard our discussion as an exemplification of an ideal, just world with open borders and egalitarian systems. In the fourth scenario difficulties different from those in previous scenarios with regard to the stability arise: the scenario with open borders and capitalistic as well as egalitarian states leads to the instability among our accepted stability criteria. As shown, immigration from a capitalistic to an egalitarian state could lead to the undermining of the egalitarian ethos necessary for the stability of the system. The second criterion of stability plays no significant role in our investigations concerning problems that arise for the first criterion of stability, but of course it remains in place: like in scenario 3, the system loses its stability if the egalitarian state does not have enough resources to provide for its citizens as well as the immigrants. But in contrast to scenario 3, the logic of scenario 4 seems to require global economic equality between individuals to prevent the free rider problem. Yet, it is hard to see how global economic equality between individuals could be attained in this scenario without it collapsing into a form of scenario 3, because income equality would have to be established inside the capitalist system itself. We do not see any normatively desirable possibility to modify only the egalitarian system so as to preserve its stability in this scenario. Finally, we want to address the question of practical implications because of the abstract level of our argumentation. Our investigation was developed on a purely theoretical level: we have ignored countervailing factors, laid down a very simple picture of human behaviour, have set aside political influences and so on. This has to be considered when one wants to draw lines to our world’s state system. However, this was also not Joseph Carens’s plan. He himself wanted to show a theoretical construct to present a form of egalitarian state which meets some conditions and, for the most part, is comparable to a capitalist state system in many respects. We developed this idea further to test whether Carens’s thoughts are in accordance with his open borders theory. We suggest that scenario 3 – a world that consists of roughly equal egalitarian states – presents the utopian vision is most consistent with Carens’s thought. Therefore, if you share Carens’s convictions, this might be the vision you should strive for in the long run. The fact that economic equality between states can be regarded as a normative precondition for open borders also suggests that global economic equality should get some priority in the process of trying to realize this vision. How global economic equality could in fact be realized, and which role migration politics should play in this process, is of course a question which goes beyond the scope of this essay.

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References Carens, Joseph H. 1981. Equality, Moral Incentives, and the Market. An Essay in Utopian Politico-­ Economic Theory. Chicago: University of Chicago Press. (= EMIM). ———. 2003. An Interpretation and Defense of the Socialist Principle of Distribution. Social Philosophy and Policy 20 (1): 145–177. (= SPD). ———. 2013. The Ethics of Immigration. New York: Oxford University Press. (= EoI). Carens, Joseph. 2015. The Egalitarian Ethos as a Social Mechanism. In Distributive Justice and Access to Advantage. G.  A. Cohen’s Egalitarianism, ed. Alexander H.  Kaufman, 50–78. Cambridge, UK: Cambridge University Press. (= EESM). Collier, Paul. 2016. Exodus. Warum wir die Einwanderung neu regeln müssen. München: Pantheon. Graeber, David. 2018. Bullshit Jobs. A Theory. London: Allen Lane. Marx, Karl, and Friedrich Engels. 1989. Das Manifest der Kommunistischen Partei. Stuttgart: Reclam. Steele, David Ramsay. 1992. From Marx to Mises. Post-Capitalist Society and the Challenge of Economic Calculation. La Salle: Open Court Publishing.

Part VI

Replies

Chapter 13

Replies to My Interlocutors Joseph H. Carens

Abstract  This text comprises replies to the contributions of this volume. It is framed by some initial remarks concerning the role of presuppositions in philosophical discussions. The responses address methodological issues (Sect. 13.1), challenges to the contextual approach (Sect. 13.2), issues of immigration (Sects. 13.3 and 13.4) and the potential compatibility or conflict between the utopian ideals of a world with open borders on the one hand and the existence of egalitarian societies on the other hand (Sect. 13.5). Keywords  Contextual approach · Ethics of immigration · Fiji · John Rawls · Methodology · Open borders · Utopian ideals

I want to begin by thanking the contributors to this volume for their thoughtful and serious engagement with my work. I have found their discussions to be stimulating and productive, both when they seek to extend or clarify my views and when they seek to question or challenge them. I hope that what I have gained from these exchanges will become clear in my replies. Before turning to my reactions to specific chapters, I want to offer a brief reminder, and to some extent an elaboration, of some key aspects of my approach to political theory. I will then use this to frame my responses to particular chapters. As I note in the methodological appendix to The Ethics of Immigration, I think that all philosophical discussions – and certainly all philosophical discussions of topics like immigration, multiculturalism, or economic arrangements – take place against a background of presuppositions, some of which are explicit and some of which are implicit. Normally, people have reasons for adopting particular presuppositions, though again these reasons may be explicit or only implicit. Different thinkers may adopt different presuppositions, explicitly or implicitly, so that what J. H. Carens (*) Department of Political Science, University of Toronto, Toronto, ON, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2020 M. Hoesch, N. Mooren (eds.), Joseph Carens: Between Aliens and Citizens, Münster Lectures in Philosophy 6, https://doi.org/10.1007/978-3-030-44476-1_13

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appear to be substantive disagreements are sometimes really just differences that derive from their choice of presuppositions. The thinkers are, in effect, talking past one another– an all too common occurrence in philosophical debates. In my responses to the chapters in this volume, I want to reduce the likelihood that my interlocutors and I talk past one another. I think that many of the issues on which my interlocutors in this volume appear to disagree with me really just reflect differences between the presuppositions I adopt and the presuppositions they adopt, including presuppositions about what questions one should ask and how one should ask them. One can, of course, argue about what presuppositions should be adopted for a particular topic or in a particular discussion. Such arguments can be fruitful, and they are sometimes unavoidable. For example, in a political debate or some other context in which we are deciding how to act, the question of what presuppositions to adopt in thinking about an issue is likely to affect how we actually address that issue. So, it makes sense to argue about what are the most appropriate presuppositions. In a philosophical inquiry, it also often makes sense to discuss what presuppositions are desirable and why, but it is sometimes possible to avoid, or at least to postpone, arguments about what presuppositions should be adopted. Instead of insisting on one set of presuppositions rather than another, we can simply ask what follows from the different presuppositions that have been proposed by those thinking about a given topic. This sort of approach may help us to become conscious of the role that particular presuppositions are playing in our own arguments and in the arguments of those with whom we appear to disagree. If we adopted the same presuppositions that the thinker we are challenging is using, would we come to the same conclusion? If they adopted our presuppositions, would they come to the same conclusion as we did in our arguments? Shifting presuppositions in this way can contribute to intellectual clarity about the nature and extent of our differences with others. I will take this approach in responding to some of the chapters, trying in particular to see when their presuppositions differ from mine and, when they do, whether I would agree with their conclusions if I adopted their presuppositions. At times, I will consider the comparative merits of particular presuppositions.

13.1  Methodological Issues I propose to respond to the chapters in a somewhat different sequence from the order in which they appear in the book. I begin with the two chapters that explicitly raise methodological issues: Chapters 7 and 8. Some of what I say in this section will then have a bearing on the other chapters as well. Chapter 8 presents itself as offering a clarification and extension of my discussion about the theoretical benefits of moving back and forth between theory and practice. For the most part, I agree with what Jonas Pöld, Can Ünlü, and Sophie Zemke say in their chapter. On the whole, I found their discussion to be both

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accurate and illuminating. I want to build on their analysis, exploring further what it means to talk about moving back and forth between theory and practice, addressing, as I proceed, the three questions that they raise at the end of their chapter. I am responding to this chapter in considerable detail because I have several other chapters in view at the same time and am laying the groundwork for responses to them as well. I liked their term “intuition upgrading” (131) for the step of reflection and articulation that I say is necessary if one finds that an intuition about the moral desirability of some practice conflicts with one’s prior theoretical views. I also liked their proposed “framework for moving back and forth” (136) in Sect. 8.3 of their chapter which I interpret as an attempt to make more explicit some of the steps that might be involved in this dialectical process of criticizing theory in the light of practice and criticizing practice in the light of theory. One of the things I liked about their proposed framework was that they were very explicit that this should be understood only as one way of describing, and especially of guiding, this process of moving back and forth. They describe it as a tool, and not (I would add) as a rule. Seeing the steps of a back and forth inquiry made explicit may help someone who is puzzled by the idea of moving between theory and practice as a way to do political philosophy. It may enable some readers to understand what such an inquiry involves and help them to carry one out. On the other hand, others might engage in this sort of reflective dialectic without articulating the process in advance or following any formal steps. In the 1960s and 1970s, at the beginning of what is sometimes described as second wave feminism, women sometimes gathered for what they called “consciousness raising groups.” They would tell stories to one another about their lives and experiences, noticing their dissatisfactions, sometimes dissatisfactions with how they were treated by others, especially men, or what was expected of them by others, but sometimes also dissatisfactions with how they behaved themselves and what they expected of themselves. They had an intuitive sense of something wrong or problematic, but not yet a way to identify it. As women shared these experiences with one another, they began to be able to identify as problems gender norms and expectations that most people, themselves included, had previously tended to take as both natural and acceptable. They began to find a language to articulate why these gender norms and expectations were problematic, which led in turn to debates about what was and was not problematic and why. Ultimately, these conversations helped to enable the emergence of many of the feminist theories that have so enriched political philosophy in recent decades, but it is useful to remember that the conversations did not always start with theoretical aspirations and did not always lead directly to theory. Sometimes the first step is just critique. The brief story I have just told about feminist consciousness raising groups and feminist theory is a familiar way for critiques of domination and oppression to emerge in social and political life. I see it also as another way of describing the process of moving back and forth between theory and practice, but it is a much less formal and structured model of that process than the one offered by Pöld, Ünlü, and

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Zemke. I do not intend this as a critique of Pöld, Ünlü, and Zemke, who are very clear that they are providing only one way of looking at the process, and as I have said, I find their approach helpful. Nevertheless, I think that it is important to leave space for theorists to engage in reflections that are somewhat informal, unstructured, and partial. Of course, for the process to constitute movement from practice to theory, there must be some form of articulation and explicit reflection, but I worry a bit about the risk of premature closure. I think that there is a disciplinary pressure within political philosophy to move too quickly to the construction of categories, structured arguments and formal analysis in ways that can make us unaware of the extent to which our own thinking is shaped by presuppositions. I want to encourage theorists to pay more attention to the social worlds in which we find ourselves and to become more aware of what is being taken for granted but deserves scrutiny. For most of us, it should be enough if we are able to advance the conversation a little and help people to see something that matters but was not noticed before, even if we are not ourselves able to integrate this into a grand new theory. Take my discussion of the case of Fiji as an example of a way to move back and forth between theory and practice. Ask yourself why I thought it was worthwhile to spend so much time on the case of Fiji. (Let me say immediately that I have never visited Fiji or tried to do so, and so the otherwise plausible hypothesis that I thought that study of the case would give me an opportunity for a lovely vacation does not hold up.) To me, Fiji was an interesting and compelling case because it involved two groups in conflict over how the political and economic life of their state should be organized, and I thought both groups had powerful moral claims. What made it intellectually challenging was that one of these groups (the Indo-Fijians) was advancing its claims through appeals to familiar liberal democratic principles and institutions, while the other (the Fijians) was asking for the continuation of special arrangements regarding land ownership and political authority that had been introduced a century previously with the goal of preserving their culture and way of life. Normally, given my own liberal commitments, I would have expected that I would simply support the moral claims of the Indo-Fijians, and I did indeed find myself supporting some of their claims. But as I learned about the case, I also came to feel that there was a powerful moral claim for the initial creation and the subsequent preservation of the special arrangements regarding Fijian land ownership and traditional chiefly authority and that those arrangements were morally justifiable even though they conflicted in certain respects with conventional liberal principles and institutions. At the same time, I thought that some of the other demands that some Fijians were making (e.g., the suspension of the constitution, the expulsion of Indo-­ Fijians) were clearly unjust because of the way they conflicted with liberal principles. So, one might say, I saw it as a case in which practice challenged theory but also one in which theory challenged practice. Of course, the intellectual challenge was to say why practice prevailed over theory in some respects but not in others. Both moments (using understandings of practice to criticize familiar principles, and using familiar principles to criticize actual or proposed practices) require the “intuition upgrade” (133) of which the authors speak. My view was that, in both moments, the upgrade should take the form of paying careful attention to historical

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and contemporary details of the case and then considering how these details interacted with our understanding of the relevant moral principles at stake in the case. I thought it was essential to base our moral assessment of the issues in the case in part upon our understanding of how the people in the case saw themselves and their interests (rather than relying upon a generic account of human interests) and upon claims about how things had actually worked in the world or how they were likely to work in these circumstances (rather than assuming that they would follow patterns familiar to us). In other words, the particulars of the case were essential. Pöld, Ünlü, and Zemke ask what all this implies about my metaethical position. Am I a metaethical particularist or a metaethical generalist? I want to resist making this choice. On the one hand, as I have just explained, the particular details of the case matter. Change some of the details and the moral assessment of what was done and what should be done in the future would also change. On the other hand, I had no personal connections to Fiji, and I assumed that most of my readers did not either. In taking up the case, I was certainly not trying to influence public debate in Fiji or to guide action there in any way. I hoped that the distance of this case from my own situation and that of most of my readers might make it possible to approach the case in a more open way, less shaped by prior attachments and commitments than we sometimes are when we discuss contested issues about the places where we live, although this hope did not play any explicit role in my analysis. What this hope reflected, however, was that I was interested in the broader lessons that could be gained from engaging with this case. I do not really see myself as a methodological particularist who is only willing to evaluate the case in front of him. The way I framed my discussion of Fiji at the outset of the chapter in my book, linking that case to other discussions of liberalism and culture, makes it clear that I am driven by more general concerns. Nevertheless, I did not try to generate a revised theoretical principle along the lines that Pöld, Ünlü, and Zemke suggest: “Citizenship demands the same rights for every citizen, but only as long as a vital interest of a group is not threatened” (134). And I still resist doing so. Why? Part of the answer lies in the fact that this statement, while it is probably as good a generalization as I could provide myself, does not really draw our attention to the questions we must ask or the standards we should use in thinking about a case like Fiji. The idea that equal citizenship requires that all citizens have the same rights can be a useful formulation in some contexts, but it may obscure important moral considerations in other contexts. The case of Fiji illustrates this point, as we shall see, but it does not lend itself to a more precise generalization. Pöld, Ünlü, and Zemke ask about the similarities and differences between my approach to the relationship between theory and practice and the approach of John Rawls. Rawls says that we should test our theoretical views against our considered moral convictions about what is right and wrong, just and unjust, or good and bad. He calls these “fixed points” in our moral understandings, though that overstates their stability since he allows that they can be revised in light of theoretical arguments. That is the point of the back and forth. Still, he does think that considered convictions should not be easily revised.

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What theoretical views are relevant to the discussion of the case of Fiji? Where do those theoretical views come from? What are the considered moral convictions, if any, that are relevant to the case? Where do those convictions come from? When Rawls talks about “theoretical views,” I think that he has in mind something like his own theory of justice  – an elaborate, well developed philosophical account. My own approach is a bit different. I try to identify general moral principles that I think are widely accepted rather than views that are tightly tied to a particular philosophical theory. This was true in my analysis of the case of Fiji, and it has also been true in my work on the ethics of immigration. In that respect, the “theory” pole of my own reflective disequilibrium process may often look a lot like what Rawls would regard as a considered moral conviction. But sometimes I appeal to what I regard as a considered moral conviction about something relatively concrete in order to challenge or qualify one of these widely accepted general moral principles. What makes something count as belonging to the theory pole in the movement between theory and practice, therefore, is primarily the fact that it is articulated as an abstract general principle. Let’s see how this worked in my discussion of Fiji. For simplicity I will focus only on the practice of landownership and the way in which that conflicts with liberal principles. When I wrote the article, 83% of the land in Fiji was owned by Fijians, but not as individual private property. Instead the land was held through collective units and was inalienable. Indo-Fijians and others who were not part of the indigenous Fijian community could not buy the land. This practice regarding landownership seemed to me, as it does to others, to be at odds with liberal principles. Pöld, Ünlü, and Zemke put it this way: “We assume it to be codified liberal democratic principles such as that there should be no legal differences between groups of citizens and that the state should be neutral towards culture and identity. In addition to this, people should have the freedom to do whatever they want with their private property which they cannot in the Fijian situation.” (132–133) In identifying what they call “codified liberal democratic principles” (132) Pöld, Ünlü, and Zemke do not appeal to any systematic theory. Instead, they simply identify three normative claims that they assume most liberal democrats will accept. I am not criticizing them for proceeding in this way. On the contrary, they are simply trying to reproduce what they take to be my own method in identifying the theoretical pole in the dialectic between theory and practice in which I try to engage. I do differ from them in some respects with respect to the content of the theoretical pole in this case, as we will see, but I think that they have accurately captured the form of the approach. I had not noticed until I read their essay how much my way of identifying the content of the theoretical pole in reflective disequilibrium differs from the way Rawls goes about this. Now let’s examine the content of the theoretical pole presented by Pöld, Ünlü, and Zemke. In reading their piece, I was struck by how much their understanding of the theoretical pole differed from my own understanding, even though they were simply trying to make my own reasoning process more explicit. Consider the three things that they describe as “codified liberal democratic principles.” The first is that

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“there should be no legal differences between groups of citizens.” (132)  This is stated a bit too broadly because many laws distinguish one group of citizens from another, but if one said there should be no legal differences between groups of citizens on the basis of race, gender, or ethnicity, one would probably find that most liberal democrats, at least those who are not political theorists, would agree that this is a fundamental principle, and one that corrects past practices of discrimination against certain social groups. One might even call this idea that there should be no legal differences between groups of citizens on the basis of race, gender, or ethnicity the sort of thing that many people would regard as a considered conviction. I raise a caution about the agreement of political theorists with this view because some theorists like Iris Marion Young have argued that not every form of group recognition should be regarded as unjust discrimination, that justice is best served in some circumstances by the formal recognition of group differences, and that patterns of unjust domination are sometimes perpetuated by the refusal to acknowledge group differences and to take them into account (see Young 1990). I do not want to enter into the substance of that theoretical debate here, though I am myself quite sympathetic to Young’s position. I mention this alternative perspective to draw attention to the fact that this first element in what Pöld, Ünlü, and Zemke call “codified [...] democratic principles” (132) is one that has been and remains theoretically contested, and to the fact that I have my own reservations about the general principle formulated in this abstract way. Despite this caution, if one were to say, “it is unjust if almost all of the property in a state is owned by one ethnic/racial group and other ethnic/racial groups are prohibited from acquiring it,” I suspect that almost everyone, including most theorists who defend some forms of recognition of group differences, would be inclined to agree. It sounds like a self-evident principle, one that does not depend (today) upon any formal theoretical elaboration or any particular theoretical account. Although it takes the form of a statement of general principle, most people would probably regard it as a considered conviction. So, as this formulation makes clear, one of the things I was trying to do in my discussion of the case of Fiji was to unsettle at least one theoretical principle that might also be called a widely accepted intuition. I was not trying to challenge a full developed theory (like the theory of Rawls) from which this principle had been derived, and my way of unsettling the theoretical principle did not depend on the construction of an abstract general theory of my own. All of that seems at least a bit different from the Rawlsian model of reflective equilibrium. It is not necessarily in conflict with the Rawlsian approach, but it is a bit different. The second principle that Pöld, Ünlü, and Zemke identify is “that the state should be neutral towards culture and identity” (132–133). This principle seems to me quite different from the first one. In contrast to the principle of legal equality for citizens, this strong neutrality principle is one that does derive from a particular contemporary theoretical tradition, and one in which Rawls’ theoretical work plays a prominent role. My guess is that most ordinary people who see themselves as committed to democratic principles broadly construed would not think that this entailed the idea that the state should be neutral towards culture and identity as distinct from,

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say, the idea that respect for religious freedom and cultural differences is an essential component of liberal democracy. I do not think that the language of neutrality has the widespread cultural resonance among liberal democrats that the language of non-discrimination and legal equality has. I doubt that most people would regard it as a considered conviction or even perhaps agree with it at all. But nothing in my own subsequent argument depends on whether I am right about this or not. The neutrality principle is certainly one that many contemporary political theorists defend, and it is a principle that my discussion of the case of Fiji was intended to challenge. Indeed, one central argument of the book in which the Fiji chapter appeared was that no state is actually completely neutral with respect to matters of culture and identity and that imagining the state to be so perpetuates precisely the kinds of unconscious domination to which Young and others object. So, the neutrality principle does belong on a list of the theoretical principles that are in play in this particular move between theory and practice. The third principle that Pöld, Ünlü, and Zemke identify is that “people should have the freedom to do whatever they want with their private property” (133). Suitably qualified, I think this is a principle that a lot of people in democratic states would accept, though many people and most theorists would want strong qualifications regarding social regulation, public ownership, patterns of taxation, distribution and redistribution, and so on. Rawls himself would almost certainly not regard this sort of statement either as a considered conviction or as something that flowed without qualification from his own account. I do not want to overstate this, however. In the Fiji case, the key issue was that 83% of the land was collectively owned by the indigenous Fijian community. It was not privately held by the members of that community. They were not able to sell it. And others, including members of the large Indo-Fijian community were not legally permitted to buy it. So, it is probably fair to say that if this arrangement were described abstractly (“one group in the society owns almost all of the land, but collectively not individually, and people from other groups are not permitted to buy property from the collective or to join the collective arrangement”), most people would think that this was a violation of liberal democratic principles of freedom, equality, and fairness. Restated in this way, one might say that the principle that is being advanced is really a negative intuitive response to an abstract (but not inaccurate) description of a social arrangement rather than either a considered conviction (as with the legal equality principle) or a claim drawn from political theory (as with the neutrality principle). As the preceding discussion makes clear, the content of the theoretical pole in a discussion of the movement between theory and practice can be contested on what one might call theoretical grounds, even when one is not starting from a particular theory like that of Rawls but from what one sees as widely shared principles. This can certainly complicate the analysis of the movement between theory and practice. Nevertheless, differences in assumptions about the content of the theoretical pole may not matter very much for the purposes of a particular discussion, if one would support practice over theory or theory over practice, regardless of the precise formulation of the theoretical pole. That is the case, I think, in the discussion of Fiji. Whether one adopts the three liberal principles that Pöld, Ünlü, and Zemke identify

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as the content of the theoretical pole or my somewhat revised version of that content, one can still ask about the moral legitimacy of a practice that conflicts with either version of the theoretical pole. What is the content of the practice pole of the argument in this movement between theory and practice and what supports the practice? Obviously, the practice in question here is the arrangement regarding collective and inalienable Fijian landownership. As I learned about the case, I came to think that it was justifiable to create this arrangement in the first place and that it was still (or at least could be) justifiable to preserve it in the late twentieth century when I first wrote about the case. If we treat that overall view as my intuition about the moral legitimacy of a practice that conflicts with liberal principles (whether the principles are interpreted as Pöld, Ünlü, and Zemke do or as I do), we need what Pöld, Ünlü, and Zemke call an intuition upgrade, i.e., an articulation of the reasons why we should regard this practice as morally acceptable despite its conflict with the liberal principles identified above. Pöld, Ünlü, and Zemke say that such an argument has to have normative, empirical, and logical components and that the normative component has to be sufficiently compelling that it overcomes the weight of the recognized liberal principles. I agree with this way of framing the challenge facing an appeal to practice. In my Fiji chapter, I tried to meet this challenge by arguing that the collective landownership policy was a crucial component in the government’s effort to preserve much of the traditional Fijian culture and way of life and that these efforts at cultural preservation, despite many flaws and limitations, played a crucial role in preventing indigenous Fijians from suffering the disastrous fates, past and present, of most indigenous peoples in other British colonies like the United States, Canada, Australia, and New Zealand. I acknowledged that the collective landownership policy was not as crucial in the late twentieth century to preserving the well-being of Fijians as it had been a century before, but I claimed that it still played a vital role in protecting their basic interests and that the legitimate land-related interests of Indo-Fijians, who were the people most negatively affected by this policy, could (and should) be addressed by other means. In making this argument, I was in effect treating as a considered conviction the judgment that what happened to indigenous peoples in these other states was and is a moral disaster. I did not try to argue in support of that view. I simply presupposed that my readers would be broadly familiar with those cases and would share my view of how bad those outcomes had been from a moral perspective. Of course, like any presupposition, this one could be challenged. Someone could argue (as indeed people in the past did) that indigenous people had no legitimate moral claims that were violated by colonial settlers. And if someone made that argument, I would try to challenge it. But one cannot address every possible objection. So, for the purposes of my argument in the case of Fiji, the wrongness of what happened to indigenous peoples in other British settler colonies was a background assumption, not something I tried to defend. By contrast, I did not simply assume that collective and inalienable landownership was an appropriate way to prevent similar bad outcomes for Fijians. I made that claim an explicit part of my argument, not an assumption. I offered evidence in support of the claim that in the past the efforts at cultural

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preservation, especially the landownership policy, played a crucial role in helping Fijians to avoid the fates of other indigenous peoples and that those efforts were still playing an important role in the late twentieth century. Like all empirical claims, my claim about the effects of the landownership policy could be challenged. Someone might argue that the policy played no significant role at any time, or that it played an important role in the nineteenth century but did not do so in the late twentieth century either because the policy itself was no longer effective in preserving an important aspect of Fijian culture or because the risks to Fijians from the sale of their land and the transformation of their culture were no longer as significant. The empirical issues that I have just identified could certainly be the focus of an intellectual discussion. On the other hand, I also think that this is one of those intellectual contexts in which it can be helpful to adopt and shift presuppositions as a way of clarifying what is at stake in a given view. Thus, I said explicitly that my defense of the original policy depended upon my claim that the only realistic alternative at the time would have had disastrous consequences for Fijians. Similarly, I said that my argument for continuing the policy in the late twentieth century was contingent upon its effects upon the lives of ordinary Fijians and upon their own connection or lack of connection to the land. So, suppose that I am wrong about the effects of these policies. For example, if the landownership arrangement, past or present, merely served to provide an economic advantage for Fijians in relation to other citizens of Fiji and did not protect them against other harms, that policy would not have been justifiable in terms of my own argument. My argument depended upon those empirical claims about its consequences. One can ask whether the arguments of those who want to criticize the landowning arrangements are similarly dependent upon and sensitive to empirical claims. So, in my view, those who would criticize the Fijian policy on the grounds, say, that people should normally be able to hold land as private property or that governments should be culturally neutral ought to say whether they were assuming that those arrangements would have no significant negative effects on Fijians or whether they thought that such effects were morally irrelevant. Different thinkers might offer different answers to these questions about how sensitive their position is to a set of empirical claims, and for purposes of this methodological inquiry, I do not want to advocate for any particular position. My point here is simply that by shifting the assumptions about the actual consequences of the landownership policy, we get a better sense of the weight that a given argument assigns to principles like private property ownership and government neutrality with respect to culture as compared with, say, the prevention of severe harm. Let me conclude my discussion of Pöld, Ünlü, and Zemke with a brief response to their third question. They ask if their proposal is a helpful tool. I hope that it is obvious why I think it is. Turn now to Chapter 7. Yvonne Elger and Anja Zurwehme examine the role of real cases in my methodological approach. One of the things that I like about this chapter is that they do not simply examine what I say about why theorists should use real cases. Instead, they examine how I actually use cases in my work, focusing on

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two examples. So, one might say, they practice what I preach even if they want to criticize some parts of my sermon. One of the interesting things about this chapter from my perspective is that I think I agree with many of the things that Elger and Zurwehme say, even though they see these things as criticisms of my approach. I see those same things as expressions of my approach. I am not sure what explains this difference. Perhaps some of my previous formulations have given rise to their interpretation of my approach or perhaps they are simply presupposing that philosophical inquiries must have a certain kind of goal (a presupposition that I do not share). In any event, the explanation of that puzzle does not really matter since responding to them gives me an opportunity to present some aspects of my views more clearly. Elger and Zurwehme argue that I overstate the contrast between hypothetical examples and real cases, and they are probably right about that, though I think they overstate somewhat how sharply I draw the contrast. I spend only a few lines on that contrast, and in those passages I make claims about what I take to be general tendencies, not necessary or inevitable features, of reliance upon hypotheticals and real cases in one’s philosophical reflections. I am not opposed in principle to the use of hypotheticals, and I often use them myself. Indeed, I think that there is a place for purely abstract theory that does not make use of any examples as well. I just want to provide some balance to what I see as the dominant trend in political philosophy to overuse hypotheticals and to neglect the advantages of real cases. Elger and Zurwehme write, “Carens clearly prefers working with real case examples to working with hypotheticals. He presents a variety of advantages of using real cases, as well as numerous shortcomings of working with hypotheticals.” (116) I think that is a fair statement, and I would add that this is, in some respects, a preference shaped by a particular intellectual context. If I were in a discursive context in which people only talked about actual cases, I might argue that we need more hypotheticals to liberate our imaginations from the constraints of what is too familiar and concrete. And sometimes what is needed is a focus on more general claims rather than on particulars, whether hypothetical or real. Indeed, in The Ethics of Immigration I say explicitly that I decided not to use a contextual approach to the topic in order to come up with more general principles, although there are plenty of real cases that I use to illustrate the general points I am trying to make. Another point that Elger and Zurwehme make is that real cases are not really real. The narrative one provides about a “real” case is always partial and limited in some respects, and the case itself is not chosen randomly but selected to serve some intellectual purpose. In these respects, the use of real cases is not fundamentally different from the use of hypotheticals. Again, I agree. I made clear throughout my discussion of Fiji, for example, that I had not chosen this case at random. Rather, I selected it precisely because I thought it provided a basis for challenging certain conventional liberal views about morally acceptable policies and practices. Moreover, I recognized that what I said about Fiji did not fully capture the history of Fiji or the experience of those who lived there. Early on in in my chapter on Fiji, I said this: “I recognize that in this book ‘the case of Fiji’ is inevitably the story that

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I tell about Fiji. Any such narrative is an interpretation. It is bound to contain controversial and contestable elements and to reflect, in ways of which I am only partly conscious, my own particular angle of vision. Someone else would tell the story differently. But that does not mean that there is no point in my trying to tell it.” (CCC, 203) It seems to me that this statement fits well with the points that Elger and Zurwehme want to make, although perhaps I might have emphasized this aspect of real cases more fully in my methodological writings. At the same time, it is important not to slide from the recognition that any narrative of a case will be partial and limited into a radical skepticism about our knowledge of reality or about our ability to distinguish truth from falsity. In my discussion of Fiji, I said explicitly that I was drawing my account of the history of Fiji in part from scholars who I knew disagreed with my normative judgments about the case and that I hoped that even those who thought that the efforts to preserve Fijian culture were not justified would agree that I had not misrepresented the history. One of the advantages of real cases in my view is that they invite, or at least are usually open to, critical scrutiny regarding their accuracy. The discussion by Elger and Zurwehme of my use of the St. Louis example illustrates this point. They argue that I have left out relevant details of the case, details which would weaken my overall argument if they were included. They are able to advance this argument precisely because the St. Louis example is a real case, discussed by historians, and so it is possible for them to discover facts about the case that I did not include in my discussion of it. They are right to say that I left out some details about the St. Louis case, but they are wrong, I think, to say that these details would affect my argument or that my analysis is weaker because I left them out. Let me explain why. My mention of the St. Louis case occurred at the beginning of my chapter on refugees. I use the word “mention” advisedly because I described the case in three sentences, using it as one example of a widespread pattern of democratic states turning away Jewish refugees from Nazi Germany in the late 1930s. Contrary to the way in which Elger and Zurwehme discuss my use of the case, it played no important role in my discussion in this section or in the chapter as a whole. It was used only as an illustration of the overall pattern. The central claim of the section in which my discussion of the St. Louis case appeared is that most people today regard the turning away of Jewish refugees as a “profound moral failure” and that we should treat this view as a considered conviction in Rawls’ sense of that term. So, I explicitly invoked Rawls’ method of reflective equilibrium discussed above in connection with Chapter 8, trying to set up the requirement that we compare any theoretical arguments we advance about our responsibilities for refugees today (including limits on those responsibilities) with the considered conviction that we were wrong not to protect Jewish refugees fleeing Hitler. The method implies that we should give considerable weight to that considered conviction in such a comparison, so that if we come up with a theory that would seem to have justified excluding Jewish refugees in the 1930s, we should be very wary about accepting that theory. I say “very wary about accepting” rather than “refuse to accept” because, as we have seen, there is a back and forth to this process

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and sometimes the result is that we change our considered convictions, not our theoretical views. Furthermore, I chose to use the term “reflective disequilibrium,” rather than Rawls’ term “reflective equilibrium”, to characterize my own general approach. I did this to signal that I am somewhat more open than Rawls to changes in something that one has held strongly, either as an intuition or as a principle. The crucial point with respect to the St. Louis case, however, is that the considered conviction that should be given great weight in my view is the general judgment that it was deeply wrong to turn away Jewish refugees in the late 1930s, not any specific claim about the treatment of the passengers on the St. Louis. There are two ways to interpret the objections posed by Elger and Zurwehme to my use of this case. The first is to say that they accept the general claim that it was wrong on the whole to turn away Jewish refugees but that this general claim does not apply to those on the St. Louis because of specific features of their situation. In other words, the principle is fine, but the St. Louis is a bad example of the general principle. The second is to say that they want to challenge the general claim that it was wrong on the whole to turn away Jewish refugees. Some of the points they make about the St. Louis case suggest the first, while others suggest the second. Of course, it is possible to argue for aspects of both. Consider the bad example line of argument first. I never claimed that the people on that boat had more compelling claims than other Jewish refugees. I only claimed that they were Jewish refugees fleeing Hitler in a context in which all such refugees should not have been turned away. For that reason, the additional details that they offer about the case do not really matter, so long as one accepts the premise that, as a matter of general principle, it was wrong to turn away Jewish refugees and accepts the specific claim that those on the St. Louis were Jewish refugees. (The latter is not something that Elger and Zurwehme challenge.) Furthermore, the general claim about the wrongness of turning away Jewish refugees is the claim that was fundamental to my discussion. Even if, for some reason, the St. Louis case turned out to be a bad example of the general point, it was only an illustrative example. Nothing in my overall argument rested on the details of this particular case. Some of the details introduced by Elger and Zurwehme seem to challenge not the specific merits of the claims of those on the St. Louis but my more general claim that it was wrong for democratic states to turn away Jewish refugees. For example, they note that the people on the St. Louis were not returned to Germany but received temporary safety in other European states and that I acknowledge myself that at this time “the Jews had not yet been persecuted and murdered by the Nazis in an organised manner” (120). They ask, “can one really blame an actor for an action if the consequences could not be foreseen at the time of the action and although no moral principle was violated?” (ibid.) and, more specifically, “can we really blame the states that rejected the passengers of the St. Louis for not providing asylum to the refugees or for not having correctly assessed and predicted international political developments?” (ibid.) Note that these questions implicitly challenge, at least in part, not just the treatment of the people on the St. Louis but my more basic claim that the response of democratic states to Jewish refugees in the late 1930s was a “profound moral failure” (ibid.).

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This challenge posed by Elger and Zurwehme gives us a chance to probe the process of reflective disequilibrium a bit further. What is the nature of my claim that it was wrong to turn away Jewish refugees in the 1930s? What sort of arguments do I offer in support of that claim? In one important sense, the answer is “none”. In treating this claim as a “considered conviction”, I simply assumed that my readers would share my view, just as, in my discussion of Fiji, I assumed that readers would share my view that what had happened to most indigenous people in settler colonial states was a moral disaster. So, the claim was not the conclusion of an argument. Rather it served as a presupposition of the argument that I developed in the rest of the chapter. As I argue at the outset of this chapter (and in more detail in The Ethics of Immigration), all philosophical arguments take place against a background of presuppositions. Any particular presupposition can be challenged, of course, but when one presents some moral claim as a considered conviction, one is saying in effect that it should be considered a background presupposition of the argument in which one is engaged. The assumption is that the considerations in favour of that conviction have prevailed, at least at the outset. The process of reflective disequilibrium may require us to re-examine that conviction and its underlying considerations, but the starting point is to assume that the conviction is correct. That is precisely the way in which I advanced the claim that it was wrong for democratic states to turn away Jewish refugees in the 1930s. I did not offer any arguments as to why it was wrong. Instead I simply assumed that readers would share my view that it was wrong. In other words, I treated that claim as a presupposition. I don’t mean to say that it was an entirely unreflective presupposition, however. On the contrary, I spent several sentences reminding readers of the kinds of objections that people had to admitting Jewish refugees, objections that seemed reasonable to many people at the time (competing moral claims, limits to obligations to outsiders, uncertainty about the seriousness of the threats faced by these refugees, the other alternatives available to the refugees, etc.). Some of these objections are similar to the ones that Elger and Zurwehme introduce themselves, though the objections I discussed were not limited to the specific case of the St. Louis because they applied to other Jewish refugees as well. I then asserted that the current consensus was that these countervailing considerations were not actually sufficient to justify exclusion of the refugees, no matter how reasonable and powerful they appeared at the time. I made no effort to work through the details of any arguments explaining why these objections were not sufficient to justify exclusion, however. Instead, I simply presented this as a considered conviction. How should an interlocutor respond to this sort of considered conviction claim? It is possible, of course, to challenge any claim that is put forth as a considered conviction. If you always take that approach, however, you basically abandon the idea of pursuing reflective equilibrium. You give no weight to moral intuitions, no matter how widely shared or deeply felt, and rely only on theoretical reason as a moral guide. Personally, I doubt the wisdom of that approach. Another option is to challenge a particular claim without rejecting the method of reflective equilibrium or disequilibrium altogether. One can argue that something

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that someone else has put forward as a considered conviction really does not have that status, at least in the view of many other people. I took a step in that direction above in saying that I disagreed with some aspects of what what Pöld, Ünlü, and Zemke called “codified liberal democratic principles” (132) (which seems to me to be a category quite similar to considered convictions), though I also made it clear that I regarded this difference between us as a minor disagreement that did not affect the main argument. Finally, a third option is to acknowledge that something is a considered conviction and to say that one wants to challenge it anyway. That is what I do in my open borders argument, for example. Although I do not explicitly say that the conventional view on immigration (i.e., that states have a moral right to exercise considerable discretionary control over immigration) is a considered conviction, I think it would be accurate to give it that label. And my argument is intended to challenge that particular considered conviction. I am not certain which of these three approaches, if any, Elger and Zurwehme are taking towards what I present as the considered conviction that turning away Jews fleeing Hitler was a profound moral failure. For the purposes of the discussion of this chapter, however, the key point lies elsewhere. The roles that real cases can play in an argument vary considerably, even if we grant that all real cases involve narratives that are partial and limited and shaped for certain purposes. In my use of the case of Fiji to challenge conventional liberal views about acceptable policies and practices, the details of the case were crucial to my argument, and the argument itself could not be easily separated from my description of the case. My use of the St. Louis case was quite different. It served merely to illustrate a general pattern and the precise details of the case did not affect my basic argument. One final point. Elger and Zurwehme are skeptical about the capacity of careful study of real cases from the past to provide guidance for how to act here and now: “When someone asks herself what moral principles she should follow in a certain situation today and then looks at a principle that concludes, in relation to the past, that one should have acted in a certain way, then she still has no principle at hand telling her how to act right now.” (122) Again, I don’t disagree with this claim, although I think that it can be overstated. I do think that they inadvertently misrepresent the intellectual goals that lie behind my use of real cases. They say, for example, “Carens’s approach tends to overrate the systematic function of real case examples.” (ibid.) But I don’t think of real cases as having a “systematic function” at all. I think they can help to expand our moral horizons and can lead us to take into account moral considerations that we might otherwise overlook or underestimate. That is a far more modest and tentative role than they seem to assume I have in mind for my approach. I am not imagining that thinking about the case of Fiji will tell us what to do here and now. What I actually say we can learn from the case of Fiji is that “claims about what justice requires in a particular case can never be settled at the level of abstract principle but always requires an interpretation of history and context. In contexts that are familiar to us this interpretation is often presupposed implicitly and perhaps unconsciously. Yet if the interpretation were made explicit, its contingent and contestable character would become more apparent.”

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(CCC, 259) So, my goal is primarily to unsettle (somewhat) confidence in the ability of abstract principles to provide guidance, an idea that I think they should find congenial. At various points they also express dissatisfaction with my suggestion that the considered conviction that democratic states failed badly in responding to Jewish refugees should provide us with a “fixed point on our moral compass.” (CCC, 194) A compass is not a google map. It provides information about a general direction, not a voice uttering precise instructions. And, in fact, I do not think there are simple lessons to be drawn from this experience. Elger and Zurwehme seem to assume that this claim is what undergirds the principle of non-refoulement, but while I do defend the principle of non-refoulement, I also note that the exclusion of Jewish refugees often took the form of denying them visas to travel elsewhere, an obstacle that is widespread today and not addressed by the principle of non-refoulement. So, again in this discussion, I made no assumption about an easy transition from real cases to action in the world.

13.2  T  he Contextual Approach to Political Theory: Challenges and Illustrations Let me turn now to the third chapter that discusses the case of Fiji, Chapter 3 by Nicolas Vogt-Reimuth and Leonard Jeggle. The main focus of the chapter is the effort by the authors to develop theoretical principles about culture and politics that they can use to discuss the case of Fiji. That effort will be the focus of my discussion. It is worth noting, however, that Vogt-Reimuth and Jeggle use Israel, and, in particular, the official identification of Israel as a Jewish and democratic state, as a central example to illustrate their theoretical points. As I have just tried to explain in my discussion of the chapter by Elger and Zurwehme, I am in favour of using real cases both as the focus of one’s analysis (as I do in my discussion of Fiji) and as illustrations of theoretical claims, but there is a difference between these two tasks. In my view, if one is trying to use a particular case primarily as an example to illustrate a general theoretical point, one should pick a case that is typical of the issue being addressed. I do not think that the case of Israel meets this requirement. Most of those who discuss the case of Israel, whether they do so to defend or to criticize Israeli policies, treat Israel as a special case. For that reason alone, it seems problematic to use it to illustrate points in an argument that aims to identify certain general issues in the debate about cultural preservation. Moreover, to interpret the fact that Israel has been declared to be a Jewish and democratic state as a claim that Israel is committed to the preservation of Jewish culture requires an interpretive leap for which the authors offer no supporting evidence. There is in fact an extensive literature and debate about what it means to say that Israel is a Jewish state (and whether that is compatible with the idea of Israel as a democratic state), and many people would argue that declaring Israel to be a Jewish state has nothing to do with

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culture but is rather about Israel’s identity as a homeland for the Jewish people. What that means is also contested, but it is hard to discuss that in abstraction from the historical context in which Israel was founded. In sum, in my view, Israel would be an excellent case to use as the focus of a detailed contextual analysis to see the ways in which the moral views that flow from abstract general principles might or might not be affected by historical details and other contextual considerations. That is precisely what I try to do in my discussion of Fiji. Because of the complexity and uniqueness of the case of Israel, however, I do not think that it is a good example to use to illustrate general theoretical points. Moreover, despite its prominence in their chapter, I do not think the theoretical arguments of Vogt-Reimuth and Jeggle depend in any way on what they say about Israel. So, I will not comment further here on what they say about Israel but will focus instead on what they say about Fiji. Vogt-Reimuth and Jeggle are clearly skeptical about the moral legitimacy of the efforts taken to preserve Fijian culture. I think their skepticism is in part a byproduct of the way they seek to do political philosophy, and so I will spend a bit of time contrasting my approach with theirs and defending mine. Let me start with a point of agreement. They say early on in their chapter that “the concept of culture is notoriously contested” (34) and that “there is no clear-cut definition of ‘culture’ that is universally accepted and recognised” (ibid.). I agree with these statements and that is precisely why I do not try to offer a definition of culture in Culture, Citizenship and Community. Instead, I try to see how questions about culture, variously defined, emerge in political contexts and to see what we can say normatively about those questions without having to rely on a contested concept of culture. Despite their recognition of the contested character of the concept of culture, Vogt-Reimuth and Jeggle seem dissatisfied with my approach. They object that while “Carens regards CCC as work of reference for his concept of culture, upon closer inspection it does not provide a systematic account of his position” (ibid.). I find this puzzling because, from my perspective, the whole point of a contextual approach like the one I adopt in my book is to offer an alternative to a systematic account, and to show that this alternative, although not systematic, can be carefully reasoned, reflective, and critical, while drawing attention to morally relevant considerations likely to be ignored in any account that seeks to be systematic. Vogt-Reimuth and Jeggle then propose to identify “three conceivable positions” in the debate on “the moral value of the preservation of culture” (35) and to examine my Fiji chapter to locate my view in relation to these positions. In the section that follows, however, they make clear that they are presupposing that liberal democratic states must be committed to neutrality, understood as “neutrality of justification” (ibid.). The rationale for government policies must be culturally neutral, they assume. So long as the policy justification is neutral, it does not matter if it has differential effects on different cultural commitments and practices. I am familiar with the distinction between neutrality of effect and neutrality of justification, and I do not claim that it is never relevant or helpful. I also think, however, that this distinction can serve as a pretext for policies that create unjust inequalities. Recall Anatole France’s famous remark about the law equally

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forbidding the rich and the poor from begging bread in the streets and sleeping under bridges at night. The mere fact that a policy can be justified in culturally neutral terms does not mean that we can reasonably ignore its differential cultural effects. More fundamentally, one of the central themes of my book is that it is a mistake to think that liberal democratic states ought always to try to be neutral with respect to culture. That argument is not affected by the distinction between neutrality of justification and neutrality of effect. The case of Fiji is intended to provide one illustration (among several others in the book) of why a non-neutral approach to culture can be justifiable. So, from the outset, Vogt-Reimuth and Jeggle seem to have an assumption about what is required for a satisfactory justification of policies to preserve culture that is at odds with my own views. Their “three conceivable positions” do not appear to include mine. Next, Vogt-Reimuth and Jeggle draw attention to the distinction between intrinsic value and instrumental value. Again, I think that the distinction between intrinsic and instrumental value can be illuminating in some contexts but also that it may obscure important questions in other contexts. Moreover, intrinsic value and instrumental value are not fixed properties. Something may be seen as having intrinsic value from one perspective and instrumental value from another, whether the perspectives are those of a single person shifting her angle of vision or those of different people. More importantly, I do not see how the idea of preserving a culture or some part of a culture because of its intrinsic value could ever be compatible with the idea that the justification for cultural preservation must itself be culturally neutral. One could perhaps defend the idea that supporting some aspects of a particular culture serves culturally neutral instrumental goals but how could one ever treat a claim about the intrinsic value of some cultural practice or institution as a culturally neutral claim? So, I think this claim simply excludes on an a priori basis moral considerations that may be relevant to the assessment of a public policy or practice. Consider a concrete example. I write this chapter several months after the terrible fire in Notre Dame. The French government is going to spend vast sums of money restoring Notre Dame. It seems to me plausible to think of this as a policy of cultural preservation. I would be astonished if anyone thought that spending money to restore Notre Dame was morally wrong because it violated the state’s obligation to be neutral in matters of culture and religion. (Some might think the money could be put to better uses, but that is a different matter.) Why is the government willing to embark upon this effort at cultural preservation? One instrumental answer might be that Notre Dame attracts lots of tourists and so it is a good investment from the perspective of the tourist industry. The expenditure will repay itself. That argument might be true and might even be what motivates some people to support the effort. But another answer surely is that Notre Dame is a structure of great symbolic importance to the people of France and an important part of France’s history and culture. That would be to assign intrinsic importance to the restoration of Notre Dame. It is valuable not just because of what it contributes to the French economy but because of what it is. And, I might add, some might think that the fact that Notre Dame was a great artistic achievement also matters, that not all old churches would be equally worth preserving. At one point, however, Vogt-Reimuth and Jeggle say that it is

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incompatible with neutrality of justification to want to preserve a culture because of the intrinsic value of the content of that culture. What I worry about in the approach taken by Vogt-Reimuth and Jeggle is that the focus on abstract formulations will distract us from thinking about the things that matter morally, even if they do not logically prevent us from considering these matters. Consider this passage in their article: “Preferring pre-existing cultures to the ones that may come into existence in a possible future constitutes a form of conservatism. A basic assumption about the world that can inform this position is that the probability of a substantially changed culture to prove less valuable than the preexisting one may be significantly higher than vice versa.” (38) The example of Notre Dame is intended to bring into view the problematic character of this abstract formulation. To try to restore Notre Dame is indeed to assume that this particular product of a pre-existing culture is more valuable that whatever might replace it. Is that really an unreasonable assumption? Suppose it is a form of conservatism, is conservatism always objectionable, and, if so, why? Let us return to the case of Fiji. Consider the way in which Gordon, the first colonial governor of Fiji, explained his decision to adopt various policies to preserve Fijian culture. He had seen the severe negative effects of conventional liberal policies (privatization and sale of land, pushing people into the paid labour force, etc.) in colonial Africa, and he did not want to be responsible for Fijians suffering the same fate. I do not think it was unreasonable for Gordon to assess the likely outcome of these two policy paths and to favour the one that involved much greater conservation of Fijian culture. Perhaps one could say that the Fijians themselves valued their culture and wanted to preserve it primarily for intrinsic reasons (i.e., what they saw as the intrinsic goodness of the way of life that culture embodied and made possible), while Gordon may have had primarily instrumental reasons for wanting to preserve Fijian culture (i.e., thinking that its preservation would have better consequences for Fijians than its destruction with respect to values like longevity, health, and social stability, values that were not in themselves tied to Fijian culture in any specific way). These sorts of general consequential considerations were a major factor in my own normative judgment about the case of Fiji, and, as best I can tell from the historical record, they played an important role in Gordon’s judgment as well. At the same time, I said explicitly in my chapter on Fiji that I thought the traditional Fijian way of life was admirable in many respects, although this judgment was less central to my overall argument. From that perspective, one might say that I see the traditional Fijian way of life as having had intrinsic value, at least under certain historical circumstances. Perhaps Gordon thought the same. One could certainly challenge either the judgment that the traditional Fijian way of life was good for instrumental reasons or the judgment that it was good for intrinsic reasons or both. If I read Vogt-Reimuth and Jeggle correctly, however, they want to exclude altogether the second sort of consideration (i.e., the claim that the traditional Fijian way of life was admirable and good for many or most of those who lived it). I confess that I am puzzled as to why they want to rule this sort of claim out of bounds. I do not think that they want to exclude altogether the first sort of claim (i.e., the good consequences for Fijians of preserving their traditional way of life),

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but I remain a bit unclear about this, because, so far as I can tell, they offer no assessment of the consequences of the preservation or elimination of the traditional Fijian way of life or of the introduction of familiar liberal institutions and practices like private property. At some points, they seem simply to assume that such arrangements are desirable, but they never really say why. The point of my chapter on Fiji was to challenge any assumption that these arrangements are always desirable regardless of context. Vogt-Reimuth and Jeggle clearly do want to insist that the interests of the non-Fijian inhabitants of Fiji, especially those of the large Indo-­ Fijian population, also matter morally, and I fully agree. In my writing on Fiji, I argued that the legitimate interests of Indo-Fijians and other non-Fijians could be respected and protected even if ownership of land remained in the hands of Fijians as collective and inalienable property and even if the Council of Chiefs held veto power over certain kinds of public policies. I recognized that this would seem intuitively implausible to those accustomed to conventional liberal democratic arrangements. That is precisely why I found the case to be so interesting and so worth an extended discussion. Chapter 4 by Luca Güttner, Marcel Heying, and Evelyn Irina Kulthida Luangyosluachakul engages with my discussion of the limits of toleration in liberal democratic states, especially with respect to Muslim minorities in Chapter 6 of Culture, Citizenship, and Community. If I understand their project correctly, they see the first half of the chapter as offering what might be called an internal critique of my views. In other words, they are not challenging the principles that I advance in my discussion but rather arguing that if I were to apply those principles consistently, I should be critical of male circumcision as well as female circumcision and wife-beating. The second half of the chapter is presented not as a critique but as an extension of my discussion of religious symbols to other symbols. This is a very interesting and carefully argued analysis. I generally agree with and find helpful their extension of my analysis to other symbols in the second half of their chapter, though I worry a little that they understate the importance that liberal states do and should attach to religious and moral commitments and to the symbols associated with those commitments, such as matters of dress and diet. It is appropriate, it seems to me, to make greater accommodations for symbols connected to religious and moral commitments than, for example, symbols connected to one’s favourite sports team, no matter how passionate one’s attachment to the team. The parallel here from other areas of public policy is the value that liberal democratic states often place on matters of conscience. For example, when (male) military conscription was widespread, it was common (though not universal) for liberal democratic states to provide exemptions from conscription, or at least alternative forms of service, to those who had reasons of conscience (often, but not always, associated with religious commitments) for not wanting to serve in the armed forces. Other important reasons (fear of death, family attachments) were rarely given comparable weight. So, it seems to me that it is appropriate to ask why someone wants to wear or display a certain symbol, and to give greater weight to some reasons than others.

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My main disagreement with the authors with respect to the first half of the chapter is that I think they are wrong to think that we disagree, at least given the current form of their argument. This is one of those cases in which what appears to be a disagreement may really be only a difference, in this case a difference between us in the questions we are asking and the presuppositions we are adopting. When I addressed the topic of male circumcision, I did so briefly, and primarily to provide a contrast with female circumcision, which was my main focus. For these purposes, I simply assumed that male circumcision had no medical benefits but that the pain and risks associated with the practice were relatively small and that the practice did have considerable cultural and religious significance for Muslims, Jews, and others. I also noted that no democratic states had banned the practice despite the fact that it was something important only to minority communities within these states, and so did not have the sort of political force behind it that attaches to most things that majorities care strongly about. I concluded, “The conventional view seems to be that the minor pain and small risk associated with the practice are outweighed by the meaning attached to it by the child’s parents and the cultural and religious community to which they belong and which the child will therefore join. I think that is a reasonable view.” (CCC, 149) It seems to me that what Güttner, Heying, and Luangyosluachakul challenge are primarily the assumptions that lie behind the conventional view and my endorsement of it rather than the view itself. They argue both that the practice does not have as deep a connection to religious traditions as I was assuming and, more importantly, that the health risks associated with the procedure are much greater than I was assuming. As I hope is clear, I have no objection to challenging the conventional moral view of some issue or to challenging the assumptions that lie behind an argument. If the claims that Güttner, Heying, and Luangyosluachakul advance are correct, that would affect my view of the acceptability of the practice for the reasons that they lay out in their chapter. In particular, if the risk of severe negative health consequences from male circumcision is as great as they claim, I would regard that as a powerful reason to oppose the practice. I state this as a hypothetical because I am not sufficiently knowledgeable about these religious traditions or about health care to assess the merits of their claims, although I did google the question “Are there any medical benefits to male circumcision?” and the (qualified) positive answer to that question from what seemed like a reputable source suggests to me that this issue may be more contested than their presentation suggests. One issue that is not clear to me is whether or not Güttner, Heying, and Luangyosluachakul accept my claim that physical well-being is not the only important human interest even for infants and that it is appropriate to give weight to concerns about their inclusion in cultural and religious communities. Recall what I said at the outset of what we can gain by shifting presuppositions. One way to clarify the question of whether we disagree would be to ask them whether they would accept male circumcision if my assumptions about its great religious significance and relatively low health risks were correct (contrary to their own view of these issues). Then it would be easier to see whether their opposition to the practice is an absolute principle that one should never interfere with the physical integrity of an infant for

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non-medical reasons or something more contingent and qualified. Similarly, I should be expected to say whether I would want to place legal restrictions on male circumcision if they are correct about its limited religious significance and its great health risks. As my comments in the previous paragraph indicate, under those presuppositions I would favour legal restrictions. To get some perspective on this issue, it might be helpful to explore secular analogies where what is at stake is the extent to which a child is likely to be accepted or socially marginalized. Suppose, for example, that an infant has something in her physical appearance which does not actually affect her physical functioning but seems likely to affect the way people engage with her because it makes her appear different from other children in ways that people will respond to negatively. For example, suppose that she has a benign but large tumor on her face. Suppose further that this tumor could easily be removed by a medical procedure that has a low risk of severe complications, but not no risk. Should the parents have the option of having that surgery performed so that their child will avoid the negative social repercussions of her unaltered appearance? If the answer to that question is ‘yes’, then that implies that sometimes it can be acceptable to transform an infant’s physical appearance not for medical reasons but to satisfy cultural norms, and the question becomes one of asking which cultural norms count and why and also how much they count, given some level of health risk. If the answer is ‘no’, that suggests that the principle that one should not interfere with the physical integrity of an infant for non-medical reasons is an absolute principle or close to one. Obviously, my own position is the former, and I do not know what the position of Güttner, Heying, and Luangyosluachakul would be. Finally, note how this discussion reflects my earlier point in my discussion of Elger and Zurwehme that my opposition to hypotheticals is itself not an absolute principle but something contingent and qualified. I turn now to Chapter 9 by Bernadette Schwabe and Judith Urselmann. This is listed in the book under the heading of immigration admissions because they argue that Herero people living in Namibia today are morally entitled to immigrate to Germany because of the genocidal policies of the German colonial government in the late nineteenth century and the ongoing harms to Herero people today resulting from those policies. That is certainly a valid classification, but I think that their chapter is even more closely connected to what I say about the virtues of a contextual approach to political theory, and that is why I discuss it here. My discussion will be brief because I found little to challenge or to add. I was not previously familiar with the case of the Herero. I found Schwabe and Urselmann’s discussion of the case to be thoughtful and illuminating. Their discussion of the philosophical issues raised by historic injustice was nuanced and carefully argued, and I find myself broadly in agreement with it. They make a strong and compelling case that Germany owes reparations to the Herero. The one point about which I am somewhat uncertain is their claim that the Herero should have almost complete control over the form that those reparations should take and that the options should include a right to immigrate to Germany. I am not fully persuaded that the existence of an asymmetry in power (which is certainly relevant in some respects) entails deference to the weaker party on questions about what justice

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requires. But this interesting topic strays too far from the parameters of my own work to pursue further.

13.3  Immigration I: The Claims of Residents Let me turn now to the chapters that focus on my work on immigration, beginning with Chapters 5 and 6. Both chapters raise questions about the moral relevance of time to claims by immigrants to certain kinds of legal rights, and they both offer proposals to separate the right to vote from social membership, although they do this from different, and, in important respects, contrasting perspectives. Both chapters also offer what might be called internal critiques of my work in the sense that they both try to show that my arguments rest on principles whose implications I have not fully recognized. I enjoyed reading these chapters. They are well argued, carefully constructed, and philosophically sophisticated. At some points the chapters raise issues that I had thought about previously but decided not to pursue in my book for various reasons. So, I am happy to have the opportunity to engage with those topics here. At other points, the chapters introduce new questions or provide opportunities for me to extend and clarify what I said in my book. Let me start once again with methodological issues because I think the biggest differences between me and the authors of Chapters 5 and 6 are methodological, not substantive. My work on immigration has generally been a bit different from my work on contextual approaches to questions about culture and community. As I noted previously in contrasting my discussion of the case of Fiji with my use of the St. Louis example, in writing on immigration, I have tended to use cases as examples to make questions concrete or to illustrate some general claim, rather than making the details of the case the primary focus of my normative inquiry as I do in writing about culture and community. My goal in most of my writing on immigration has been to identify normative principles that apply to affluent liberal democratic states today, principles that set moral constraints upon the range of options that states may consider when choosing what policies to adopt, if those states want to remain faithful to fundamental democratic values and commitments. In trying to identify these general principles governing immigration, I am still deeply committed to the idea of moving back and forth between theory and practice and using each to correct the other. I describe my approach early on in The Ethics of Immigration as “political theory from the ground up”, meaning that I start with real problems and questions about immigration and try to identify the principles that should guide us in thinking about our policies and practices. (EoI, 9) Sometimes there are important principles embedded in policies and practices that are not fully articulated but that challenge conventional statements of principle, and sometimes there are more abstract general principles that challenge our policies and practices and their rationales. So, at one point I say that I am “trying to make sense of our practices and to make our practices more sensible” (EoI, 169).

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One consequence of this approach is that the principles I identify are almost always partial and imperfect, much closer to guidelines than strict rules. There is always some roughness around the edges, and I do not want to ignore that roughness. There will often be moral considerations that are not captured by a principle and that limit its application or extend our conclusions. Sometimes (though not always) the implementation of a principle in practice requires a sharp distinction that does not correspond to the principle itself in important respects, and sometimes what matters most may be the way a practice works rather than its formal rationale or justification. I think that the authors of Chapters 5 and 6 are less drawn to this sort of engagement with practice and to the ways in which such engagement might qualify or modify conclusions arrived at from a purely theoretical perspective. I will try to show this in my discussion. In Chapter 3 of my book, I identified the principle of democratic legitimacy – that people should have a right to participate in shaping the laws by which they are governed – as one of two reasons why adult immigrants were morally entitled to easy access to citizenship. (The other reason was their social membership.) I acknowledged that the principle of democratic legitimacy was concerned primarily with the right to vote and that one could in theory separate the question of who should have the right to vote from the question of who should have citizenship, but I said that most states linked the two and I was simply going to assume that only citizens had the right to vote. In Chapter 5 of this volume, Fabian Bonberg and Lars Rensing say that I was wrong to bracket the question of whether the right to vote should be formally separated from citizenship status. Instead, they say, this question should be addressed and given a positive answer. The right to vote, they contend, should be extended to all legal permanent residents, regardless of how long they have been present. In other words, even if immigrants are not yet full members of society, given my way of identifying social membership, they should be able to vote. They defend this on the basis of my principle of democratic legitimacy, a principle that they explore and develop further. They argue that requiring legal resident immigrants to wait years to acquire the right to vote violates this principle of democratic legitimacy. Then they argue that the same principle of democratic legitimacy also entails that the right to vote should be taken away from citizens living abroad. My first point is a minor one but worth making because it is connected to a central feature of my overall intellectual strategy. I wanted my book on immigration to be accessible to a non-academic audience and to deal primarily with questions about immigration that ordinary people could see as relevant and important. In practice, the question of whether immigrants should have the right to vote is almost always linked to the question of whether they should have access to citizenship. So, I thought it would be more effective to assume that linkage and explore the question of access to citizenship. I did note that one could frame the issue differently and focus instead on the possibility of separating the right to vote for immigrants from access to citizenship, as Bonberg and Rensing have in fact done. I regard their focus on that issue as a legitimate academic inquiry, but I do not agree with them that I was obliged to address it, even if they are correct in claiming that their argument for

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separating the right to vote from citizenship follows from my own principles. Everyone has to bracket some questions, as they do themselves at various points in their chapter. What matters most with regard to the appropriateness of one’s choice of what to bracket is whether the issues that one has bracketed have significant implications for the issues that one has chosen to explore. In this case, I think the answer is ‘no’. Even if Bonberg and Rensing are right to argue that the principle of democratic legitimacy requires us to separate the right to vote from citizenship status and to grant the right to vote to all permanent residents, this would not change anything significant in the other arguments I have made about the ethics of immigration. This will become even more apparent as we look at the substantive issues. Consider first their claim that granting a right to vote to non-resident citizens violates the principle of democratic legitimacy. One reason why Bonberg and Rensing take up this issue is that they want to show that separating the right to vote from citizenship status is preferable to an approach that simply extends citizenship status immediately and automatically to immigrants who are permanent residents. They argue that it is appropriate to preserve the options of dual or multiple citizenship for the reasons laid out in my book. As a result, they say, one cannot address the democratic legitimacy issue by stripping citizens living abroad of their citizenship. So, they argue, the only solution is to treat the right to vote as something independent of citizenship status. I confess that I find this line of argument puzzling, and I wonder if they develop it because they are not paying attention to practice. Their argument seems to assume that those who want to link the right to vote to citizenship status must be committed to the principle that every citizen has the right to vote, perhaps on the assumption that all citizens must have the same rights. In fact, as I note in my book, citizens living abroad often enjoy fewer rights with respect to things like income support policies than citizens who are residents and indeed than non-citizens who are residents. Moreover, there are always people who have citizenship status but not the right to vote, namely those below whatever age threshold a given state establishes as the minimum age for voting. (There is debate about where that age threshold should be set, but no real debate, so far as I can see, about the need for some threshold.) So, it is clearly possible for states to decide to limit the rights of some citizens if they have a sufficient and plausible justification for doing so. It seems to me that if we think that non-resident citizens should not be able to vote as a matter of principle, but we also want to keep the connection between citizenship and the right to vote (which might be desirable for a number of reasons), then the obvious solution would simply be to make the right to vote contingent both upon having citizenship status and upon being a resident. If we look at practice, we will see that many states do in fact limit in various ways the rights of citizens living abroad to vote in their national elections, with some states not allowing non-resident citizens to participate in national elections. So, that is clearly a feasible option. On the other hand, we might want to ask whether Bonberg and Rensing are right to claim that democratic legitimacy prohibits citizens living abroad from voting in national elections. They make some good points about the dangers of permitting expatriates to vote, but they do not fully address the positive reasons why states

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might want to permit this. For one thing, many, perhaps most, people living abroad do not in fact have a second citizenship. Their state of citizenship is the only political community to which they formally belong. Moreover, many people who live abroad do so for limited periods, regardless of their legal status in the place where they are living. They intend to return home and often do. If prospective residence is the key to democratic legitimacy, as Bonberg and Rensing argue elsewhere in their chapter, one might argue that a clear plan to return home should give non-resident citizens some claim to a right to vote, perhaps especially in cases where the state is one in which they have previously lived. I introduce these considerations not to settle the question but simply to suggest that the issue of non-resident voting may be more complicated than Bonberg and Rensing acknowledge. In thinking about this issue, it seems to me that it would make sense to examine existing state practices in this area and to see whether there are any plausible rationales for existing state practices that permit non-resident voting. Perhaps the right answer is that it makes moral sense to permit non-residents to vote in some cases and not in others and perhaps also that there can be reasonable disagreements about the appropriate criteria for permitting non-resident citizens to vote. One of the points that I make in my books is that even though moral principles set limits to what democratic states may do, there is often a range of morally permissible alternatives, even with respect to the implementation of fundamental principles of justice. For example, there is no complete consensus on what is required to provide an accused person with a fair trial. Different states may legitimately adopt somewhat different policies and practices in such matters, even though some policies and practices are ruled out. As I have already indicated, when it comes to the right to vote, we already recognize some indeterminacy with respect to the question of the age at which people ought to acquire the right to vote. Perhaps there is some indeterminacy with respect to the question of residence as well. On the other hand, this is not a topic that I have discussed in any depth myself, and for the reasons already given, I do not think that my own arguments about immigration would be affected even if one concluded that non-resident citizens should never be allowed to vote. Turn finally to the central claim of Chapter 5, namely that the principle of democratic legitimacy requires that immigrants who are permanent residents be granted the right to vote immediately, regardless of how long they have been residents and therefore regardless of their claims to having established a claim to social membership. As they note, this could be accomplished in principle either by separating the right to vote from citizenship and giving residents the right to vote or by keeping the connection between voting and citizenship and extending citizenship to anyone who has permanent resident status. Let’s assume for the moment that their argument is correct. It follows, as they explicitly argue, that attaching voting to citizenship and making residents wait a few years before they are eligible to acquire citizenship (as indeed is the practice in most states) violates the principle of democratic legitimacy. How concerned should we be about this sort of violation? Bonberg and Rensing clearly think that we should be greatly concerned by such a violation of principle. I am not so sure. In my book, I argue that in principle

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immigrants should not have to pass a test to acquire citizenship. I also say explicitly, however, that I do not think it is a terrible harm if there is a test as part of the citizenship acquisition process so long as the test is free or very inexpensive and easy to pass and people can take it again if they fail. It seems to me much more important morally, as well as much more feasible politically, to press for citizenship tests that are not highly exclusionary than to try to eliminate them altogether. Similarly, when I discuss the acquisition of citizenship by immigrant children who have grown up in a society, I argue that in principle the acquisition should be automatic. I then draw attention to the contrast between my view and the view of the French state that such children are entitled to citizenship at age 18 but must consent to its acquisition. I note, however, that the key variable in determining whether immigrant children in France actually do become citizens is the default rule. Under some French governments, consent has been assumed to occur unless a child explicitly rejects citizenship, which very few do. Under other French governments, acquisition has depended upon the child making an explicit request to receive it, and many do not. So, I say, it is not worth worrying too much about the disagreement over principle. It makes more sense to focus on reinforcing a practice that generates basically the same outcome as the correct principle, even though the practice technically conflicts with the principle. What this kind of approach on my part reflects is the attitude towards principles that I discussed above under methodology. It is important to clarify our principles, to explore their implications, to see how they fit together, and so on. But in most cases, it is a mistake to imagine that principles are absolute and unqualified (Note the qualification ‘in most cases’). There are dangers in this sort of approach, of course, but it seems to me that there are also dangers in focusing only on principles and in seeking principles that are completely clear and precise. If we take that approach, we will miss important moral considerations. To illustrate this point, return for a moment to Bonberg and Rensing. Following Goppel, they say that “comprehensive and permanent subjection” (78) to a state entitles one to the right to vote in that state’s national elections. One is comprehensively subjected, they say, if one lives within the state. What makes for “permanent” subjection? They emphasize that this can involve prospective, not retrospective time. Hence one looks not at whether someone has already lived in the society for a period of time, but whether they will do so in the future. One way to interpret this line of argument is to say that “permanent subjection” is more or less equivalent to what I call social membership, because permanent subjection amounts to ongoing residence within the boundaries of a political community. Therefore, we could interpret the claim of Bonberg and Rensing to be that a reasonable prospect of becoming a member of society in the relatively near future provides a sufficient basis for claiming a right to vote. I should make it clear that I am not opposed to the idea of taking prospective time into account in an analysis of moral claims to citizenship. That is precisely what I do in my own discussion of why the children of resident citizens and the children of permanent resident immigrants should receive citizenship at birth. They should be made citizens at birth, I argue, because we can reasonably expect that they will grow

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up in the society and we should formally recognize them as members from the outset. Notice the focus there on prospective time living in a society. With adult immigrants there is an important complication to this idea of prospective residence, however. Who is to decide whether or not the immigrants’ prospective timeframe of residence is permanent or only temporary? After all, it is a common phenomenon for states to admit immigrants on a temporary basis. Sometimes this is later changed to a permanent status, but sometimes the immigrants are required to leave at the end of their temporary permission. Bonberg and Rensing do not tell us whether or not they are presupposing that immigrants themselves are the ones who get to decide if their prospective timeframe is temporary or permanent or whether they are assuming that the current practice of letting the state determine that would persist. Each option poses difficulties for their argument. If the immigrants get to decide, that entails a much more radical restriction of the state’s discretion in the area of immigration than saying that a state must grant the right to vote when it grants permanent residence. They could bite that bullet, of course, but I think it is important when one makes a radical challenge to the status quo, that one acknowledges that one is doing so (as I do when I argue for open borders). If immigrants are entitled to decide for themselves whether their residence is permanent, we can presumably expect that states will be much more reluctant to let immigrants in at all (on the assumption that they are still working within the conventional view on admissions and bracketing the open borders question as I do in discussing access to citizenship). Moreover, immigrants might have an incentive to declare themselves permanent residents regardless of their actual intentions (about which they will actually often be unsure). If the state continues to control access to permanent residence, then the argument by Bonberg and Rensing suddenly looks far less radical than it first appears. The state is in a position to admit all immigrants on a temporary basis, granting them permanent residence status only after they have lived there for a number of years and have thereby become actual, not just prospective, members of society. That is not so different from the current practice of requiring some years of residence before granting immigrants access to citizenship. The key point is that once one begins to think about practice, the implications of the principle of democratic legitimacy appear far less precise than they appear to be when one remains in the realm of abstract theory. The principle is not wholly indeterminate, in part because it fits together with the principle of social membership. At some point, it is no longer plausible to claim that people admitted on a temporary basis are only there temporarily, as many European states discovered in dealing with guestworkers in the post World War II period. Indeed, I argue in my book that once people have been legally present for something like 5 years, they are morally entitled to permanent resident status, a claim that corresponds to European Union norms. But by itself and considered only as an abstract principle, democratic legitimacy does not have the concrete implications that Bonberg and Rensing seem to assume it entails. One final point. I do not think that the idea of immediate access to the right to vote when someone moves into a political jurisdiction is unimaginable or

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intrinsically problematic. After all, that is more or less what happens now within states when a person moves from one subunit jurisdiction to another. A citizen of Texas who moves to Massachusetts becomes a citizen of Massachusetts and eligible to vote in elections in Massachusetts very quickly if not immediately. Let me add that my use of the term “citizen” here is not a bit of rhetorical persuasion, or at least, not only that. There is a formal legal status of citizenship in each of the American states. One could argue, of course, that moving across a national boundary is very different, and that it is appropriate to impose a longer waiting time for access to the right to vote. I do not find that argument very compelling if it is presented as a necessary truth. In a world of open borders with relative equality between states, like the one I defend in the last part of my book, I think that immediate or almost immediate access to the right to vote would make moral sense and would not create any practical problems. But in a world in which we assume that states are entitled to control admissions, which is the framework within which my initial discussion of access to citizenship takes place, it is a bit different. In that context it is more plausible to argue that it is reasonable to expect immigrants to wait a few years before acquiring the right to vote. In Chapter 6, Johannes Müller-Salo also wants to create a separation between the right to vote and social membership, but in his case that is because he thinks that one can be a member of society without being a member of the political community that governs the society. So, in contrast to Bonberg and Rensing who seek to expand access to the right to vote to include residents who do not yet qualify as members of society, he seeks to limit access to the right to vote of some people who clearly are members of society and who may even be legal citizens. In addition, Müller-Salo is worried that the mere passage of time is an insufficient measure of social membership, thus challenging my theory of social membership from another perspective. There is much to appreciate in this chapter. Müller-Salo endorses the idea that we should pay attention to how things work in the world in thinking about normative questions. He seeks to encourage active participation in democratic politics. He insists, correctly in my view, that we have duties as well as rights, and that normative discussions pay too little attention to these duties. He is attentive to the concern that any policies that exclude some from political rights may reflect unfair forms of discrimination. Nevertheless, I have a number of concerns. I begin again with a minor point about definitions, but one that is connected to my focus on linking theoretical discussions with practice. Müller-Salo says, “I use the term citizenship as referring to membership in a political community. As I am basically interested in political rights, I exclude other parts of citizenship like the right to be supported by diplomatic services and embassies in case of emergency when travelling in foreign countries.” (97) Notice how this approach to the definition of citizenship departs from what citizenship means in the real world, where statelessness is regarded as a perilous condition (and not just because of the absence of political rights). Moreover, under this definition, children below the age at which they are permitted to vote would not count as citizens. At one level, this does not matter very much. Müller-Salo is not interested in statelessness or children in this chapter, and he does not make any claims that have

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terrible implications for people in these categories. He recognizes that I use the term citizenship in a more conventional way to refer to a particular kind of legal status, and he says that the real question he wants to address is “what kind of membership grounds rights to political participation” (ibid.). On the other hand, this sort of stipulative definition can remove important problems from view. I draw attention to this in my chapter on birthright citizenship when I ask why we make babies into citizens (quite apart from any concerns one might have about passports for international travel, consular assistance, etc.). Thinking about that question, I argue, helps us to think about what should and should not matter when we think about the nature of the political community and who should be regarded as a member of the political community. Young children complicate our thinking about those issues, and they should. One solution might be for Müller-Salo simply to talk instead about access to the right to vote as Bonberg and Rensing do or about access to political rights if he wants a slightly broader frame. That is the approach I will take in my discussion of his argument. As we will see, however, this approach reveals a problematic assumption underlying the argument of Müller-Salo that is a bit harder to see when one uses his definition of citizenship. In my book, I begin by exploring a series of concrete questions about the moral claims of immigrants in relation to the societies in which they have settled. I ask about access to citizenship, the requirements for full inclusion beyond legal citizenship, and the legal rights that various categories of non-citizens (permanent residents, temporary workers, irregular migrants) should possess. Then in Chapter 8 of my book, I try to weave together the themes of these previous discussions into what I call a theory of social membership. The central claim of this theory is that living in a society over time matters morally. I try to make it clear, however, that the theory of social membership is built up from the particular answers in the previous chapters and so is not to be construed as an abstract, a priori account, and that the general principle that I have just identified is not by itself sufficient to explain all of the reasons why immigrants and their descendants have the moral claims that they do. Moreover, in these chapters, I simply take as a background assumption the moral legitimacy of the existing practices of democratic states with respect to their own citizens and ask whether immigrants should be treated the same as citizens or differently. I do this not because I think there is nothing to criticize in the ways in which democratic states treat their own citizens, but because I want to keep the focus on immigrants. To do that I need to bracket broader questions about the justice of existing arrangements. Müller-Salo proceeds differently. He offers a more general and abstract reading of what I have said about social membership, suggesting that it is a broader account of how one acquires a claim to membership in a group: “The theory of social membership can explain how an individual attains a justified claim to full membership in a group: such claims are attained via participating in activities and via forming ties that are typical or central for the group in question.” (97) He seeks to apply this theory of social membership to what he identifies as two different groups within a state: “A state’s civil society and a state’s political community” (ibid.). Then he

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seeks to show that one can belong to civil society without belonging to the political community because the kinds of activities that make one a member of civil society (and these appear to be basically all of the activities of daily life that involve interactions with others within the state) are different from the kinds of activities that make one a member of a political community (and these appear basically to be talking and thinking about public policies and electoral politics), although he also says that the activities involving each group may often be performed simultaneously and with the same people. Still the distinction is crucial, and, in particular, it is crucial to his argument that one can perform the activities required to make one a member of civil society without performing the activities required to make one a member of the political community. Engaging in the latter, in political activities, seems to be what makes one a member of the political community and therefore entitled to political rights, including the right to vote. The attempt to limit claims to political rights to those who engage in (appropriate?) political activities creates a puzzle. One obvious political activity in which many ordinary people engage is voting. It makes no sense, however, to say that voting gives one the right to vote. An adult citizen living in a democratic society normally has the legal right to vote and may or may not exercise that right by engaging in the activity of voting. Non-citizens normally do not have the legal right to vote, even if they are residents (pace Bonberg and Rensing). In any event, the acquisition of the legal right to vote must precede the activity of voting. Who has a moral claim to that legal right and how does someone establish such a moral claim? If the way to acquire the moral claim is through becoming a member of the political community and one does that through engagement in politics, what political activities must one engage in to acquire a moral claim to the right to vote? The kinds of activities to which Müller-Salo points when he seeks to identify the distinctive activities that make one a member of the political community are reading and talking about politics. Does Müller-Salo think that engaging in these activities give one a moral claim to the right to vote? One obvious objection to that as an unqualified approach is that people may read and talk about the politics of a political community without living within its boundaries. So far as I can see, there is nothing in what Müller-Salo says about the activities that make one a member of the political community that include a residence requirement. Perhaps he could fix that by adding such a requirement, although, as we have just seen in the discussion of the previous chapter, one can at least consider the possibility that some non-residents should be entitled to vote, and that argument makes sense only if one treats citizenship as a legal status distinct from possession of the right to vote. In his actual answer to the question of what makes one a member of the political community with a moral claim to the right to vote, Müller-Salo slides from a descriptive to an evaluative approach and from a focus on activity to a focus on knowledge. He proposes that people who want to vote be required to pass a test of their knowledge of the “political system” and of “current state of important political debates” (99). One of the most interesting features of Müller-Salo’s proposal is that he intends it to apply to all residents equally, and so, in ordinary language, to

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citizens as well as permanent resident immigrants. Although he explicitly worries about the dangers of marginalisation and discrimination, he also says, “we have to see that a significant number of people in fact abstain from any political activity and, at the same time, lack the very basic knowledge that is needed to get involved in a political community’s activities” (103). Here the people he has in mind are clearly citizens who now have a legal right to vote, not immigrants seeking to obtain citizenship. One important point to note is that Müller-Salo’s argument switches the focus from the kind of question about the ethics of immigration that I was trying to ask (“To what extent and under what conditions should the legal rights of adult immigrants resemble or differ from the rights of resident citizens, including their political rights?”) to a question of democratic theory (“Who should have the right to vote and why?”) in a framework in which he implicitly accepts my claim that long-term adult immigrants have a moral claim to receive the same legal rights as current citizens, including political rights, so long as they meet the same requirements and the requirements should bear no direct connection to the fact that they are immigrants. So, in that respect, there is no real difference between us with respect to the ethics of immigration. On the other hand, we do disagree deeply on what democratic justice requires with respect to the granting of the legal right to vote. As my discussion of Bonberg and Rensing makes clear, I accept the view that the principle of democratic legitimacy requires that all adults living in a political community and subject to its laws have a right to participate in the political process, whether they exercise that right or not. Müller-Salo does try to address this democratic legitimacy argument but it seems to me that he simply finesses the central challenge by constructing the issue as a question about membership and then setting this activity requirement for membership. Müller-Salo never mentions the long and deep history of restrictions on the franchise in the name of ensuring the competence of those who would have a right to vote. Many of those restrictions involved tests and were justified in terms very similar to the ones he advances. I discuss this history and the reasons why no democratic states today accept such restrictions in my book in connection with my arguments for not requiring immigrants to pass a test to acquire citizenship (see EoI, 56–60). Müller-Salo simply does not engage with these concerns. Once again, it seems to me, paying attention to practice and asking why practices have evolved in the way that they have can bring into view moral considerations that one may overlook from the vantage of abstract theory. Finally, let me say a few words about Müller-Salo’s critique of my theory of social membership in the first half of his chapter. I understand the distinction he draws between the indexical value of time and the normative value of time. If I had to choose, I would choose the indexical value, but I am inclined to think that this is one of those categorical distinctions that makes formal sense in logical terms but does not help us pay attention to what matters morally with respect to the topic we are considering. I argue explicitly that it is a moral mistake to try to measure the degree of a person’s social membership, even though the duration of time is a proxy for the kinds of activities and connections that we expect human beings to develop

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when they live in a society. Talking about “indexical value” encourages thoughts of measurement, and I think that takes us in the wrong direction. What about the recluse, a hypothetical case that I took up very reluctantly and only because I was pressed to address this question on a number of occasions? Again, I think this hypothetical leads us astray. The question itself presupposes the possibility of a principle without rough edges, and, as I have said, I am skeptical about that possibility. And in practice, as I argue in the book, this type of hypothetical leads not to clarity but to justifications of further marginalisation of people who are already facing problems. But if I had to say why I think a recluse should be regarded as a member of society, I would say that it is not because I assign a normative value to time but because the recluse is in fact living within the boundaries of the state, and I do not think that it is possible in the modern world for a human being to live within the boundaries of a state over time without making the kinds of connections that make a person a member of society. Müller-Salo imagines that a recluse could be granted the legal status of a right to residence without the other rights that go with social membership, but he never identifies any right to which he thinks the recluse would not be entitled, but to which a normal member of society would be entitled simply in virtue of social membership. I think that it would be impossible to do so. After all, what I have called social membership rights are often contingent on some action or contribution besides simply living in society (pensions, unemployment benefits, etc.). Anything to which one is entitled simply because one is a citizen or a resident is something to which a recluse would be entitled whether the recluse is a citizen or a resident. Müller-Salo says that the recluse would be harmed if expelled and therefore that harm avoidance, rather than social membership, can ground the claim to non-deportation. But implicit in that claim of harm is that the recluse has valuable ties of some sort to the society where he or she is living. That is why deportation is harmful. If the recluse had no such ties, it would be impossible to specify a harm in making the recluse leave. What is implicit in Müller-Salo’s approach to this example is the kind of relative (might I say, ‘indexical’) evaluation of different types of activities and connections which I am trying to avoid for reasons spelled out in my book.

13.4  Immigration II: The Open Borders Debate Chapters 10 and 11 explore aspects of my argument for open borders. As with several previous chapters, I think that these chapters bring into view methodological differences more than substantive disagreements. Again, I enjoyed reading both chapters and learned from them. They are thoughtful and well argued. In Chapter 10, Jeremias Düring and Constantin Luft subject my cantilever argument for global freedom of movement to careful scrutiny. One of the things I liked about this chapter was that it led me to reflect upon the similarities and differences between my use of the analogy with feudalism to argue for open borders and my use of a comparison between domestic and global freedom of movement also to argue

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for open borders. Although I have spent a lot of time developing and thinking about both arguments, I had never really asked myself before what I thought made each of the arguments work and whether it was the same or different in the two cases. Part of what motivated me to pursue these reflections was that as I have listened to the reactions to my work over the years – formal and informal, written and verbal – I have become aware that the feudalism analogy is the one that has been most effective by far in persuading people that there is something to be said for the claim that justice requires open borders. One of the things that is interesting about that fact is that, from some perspectives, one might say that the feudalism analogy is not a very carefully developed argument. It is just a brief comparison, drawing attention to a few similarities between feudalism and the modern international order. When I teach my students how to construct an argument, I always tell them to consider the most plausible objections to the positions that they want to defend and to present those objections in their strongest forms. On the whole, that is what I try to do in my own writing. I devote all of Chapter 12 of The Ethics of Immigration to objections to the open borders argument, and even earlier in Chapter 11 in laying out the cantilever argument for open borders I spend a lot of time on possible objections. I don’t do that with the feudalism analogy, however. Why not? I think that part of the answer is that this is one of those cases in which less is more. A fuller and more detailed discussion of the analogy might weaken its effectiveness. There is something dramatic about the picture created by the brief comparison between feudalism and the modern world. It presents an image that helps people to see the whole question of border controls differently. Of course, I try to buttress my basic claim that there is something deeply unjust in the restrictions on movement in the modern world with lots of detailed arguments (including the cantilever argument), but I do not do so by developing the comparison between feudalism and the modern world in more detail, considering objections, trying to show that the similarities are what matter and not the differences, etc. I mention all of this because I think that an implicit presupposition of the chapter by Düring and Luft is that a certain kind of formal, precise, highly structured form of analysis and argumentation is superior, from an epistemological perspective, to a more informal, open-ended form of analysis and argumentation. As the previous discussion in this chapter will have made clear, I am more drawn to the latter mode of reflection. I should make it clear that I am not claiming that my approach is superior. I am simply suggesting that different forms of reflection and analysis will have different strengths and weaknesses, that they may foster different insights and make different considerations visible. Düring and Luft say that my cantilever argument is inductive rather than deductive and that it only shifts the burden of proof from those who would defend global free movement to those who would criticize or limit it. I infer that they think this makes the argument less satisfactory in some respect and that it is at odds with my aspirations, but in fact I am perfectly happy if they or others think the argument succeeds to that extent, and I welcome the additional support they provide for that conclusion through their own discussion in the second half of

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their chapter where they offer a number of additional arguments that I see as supporting my own. Düring and Luft seem to think that I was trying to provide “an unshakable and discursively unassailable extension of national freedom of movement” (177) and that I have failed to do so. In fact, I am not troubled if readers do not think that the cantilever argument provides an unshakable and discursively unassailable argument because I think that there are few if any arguments in political philosophy that meet this standard. One can (almost?) always raise a question or pose a challenge to a particular line of argument. In Chapter 2 of my book Culture, Citizenship, and Community, in a discussion of Michael Walzer’s approach to political theory, I say that Walzer offers reasons and arguments in support of his views but he does not aspire to supply “knock-down arguments”. I also say that I regard that as a virtue, not a defect, of his approach because “We are rarely enlightened or persuaded by knock-down arguments even when we cannot refute them” (CCC, 22). Düring and Luft worry much more about terminology than I do. They say that I should not have spoken of a “logical extension” if I did not mean the term “logical” in the strict sense of the term in a book aimed at professional analytical philosophers (see 177). But as I explain at the outset of my book, professional philosophers are only one of the audiences I have in view. Ordinary people interested in immigration are another explicit audience for the book, and because I have them in view, I generally try to avoid technical language and overly formal argumentation. That may occasionally mean that I neglect a nuance or write with less precision than I might if I were only addressing a professional audience (as I acknowledge in the introduction), but I am not persuaded that anything substantive is lost as a result of the way in which I have constructed the cantilever argument. Even the use of the term “logical” is not misleading if one pays attention to the context. The google dictionary definition of the term “logical” offers three meanings of the term. Two correspond to the possibilities they cite, one connecting it to the “rules of logic or formal argument” and the other very colloquial, meaning “natural or sensible given the circumstances”, but the third simply links “logical” to “sound reasoning” which is precisely the sense in which I was using the term and the way in which I think most readers would interpret it. In the same vein, I am not persuaded by their critique of my use of the term “analogy” in part because their critique relies on a particular philosophical account of analogical reasoning that I found unpersuasive and on an interpretation of my argument that I thought was misleading. I do not have the space to pursue those issues here, however. The more important point is that I am not using the term “analogy” in a technical way. My overall goal in this section of the book is simply to draw attention to the similarities between one practice (internal free movement) that is very widely accepted as morally obligatory and another (global free movement) that is not generally accepted but that I think is similar in all the ways that matter morally. I use the terms “analogy” and “logical extension” at different points to develop this claim of similarity. Even though I do not accept the critique presented by Düring and Luft, I have learned from their challenge. I can now see that these different terms (“analogy” and

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“logical extension”) have somewhat different implications with respect to the way an argument is structured. The claim about the similarities between feudalism and the modern world is a claim about an analogy, not an extension. It might be interesting to see which parts of my argument about the similarities between domestic free movement and global free movement rest on the claim that there is an analogy between the two practices and which parts rest on the claim that the principles that undergird the first practice support the second one as well (the extension argument). Nevertheless, I do not see why one cannot make both sorts of claims. I do think that the term “cantilever” argument (which itself rests on an analogy between the construction of a physical building and the construction of an argument) fits better with talk of an extension than talk of an analogy, but again I do not think that precludes the claim that there is an analogy to be drawn between the two practices. Düring and Luft cite Wittgenstein’s duck/rabbit discussion to assert that my argument cannot be an analogy and an extension at the same time. (I think they are drawing that analogy, though they use the term “metaphorical”.) Perhaps they are right that one cannot see the argument simultaneously as an analogy and as an extension. But, as Wittgenstein points out, one can see both the duck and the rabbit, just not at the same time. It is a question of perspective. So why can one not consider the comparison between domestic and global free movement first from the perspective of a claim about analogical similarity and then from the perspective of a claim about the extension of a set of principles from one practice to another that is relevantly similar? For reasons of space, I will not let myself be drawn further down this philosophical rabbit hole (or into this theoretical duck pond). For the purposes of this chapter, I think the most important point is that even if Düring and Luft are entirely correct in their critique, their substantive arguments reinforce my claim that there are morally relevant similarities between domestic freedom of movement and global freedom of movement. In Chapter 11, Matthias Hoesch and Nicolas Kleinschmidt point out that theorists like me who have argued that justice requires open borders have said very little about the implications of this argument for what political action we should take and what public policies we should endorse in the world as we find it today. They argue that silence on this question is unsatisfactory: “[W]e cannot ignore the question of what the convictions that we ourselves hold to be true imply. [I]f we believe that the Open Borders Claim is justified, and if we want to know which policies we should endorse, then we have to ask what the Open Borders Claim implies for nonideal worlds.” (185) They then go on to offer an analysis and critique of what I and other advocates of open borders have said about the implications of the Open Borders Claim and to provide their own alternative reading of its implications. This is a provocative and stimulating discussion. Although I disagree with much of what Hoesch and Kleinschmidt say in their chapter, it is a helpful sort of disagreement. Their chapter has persuaded me that I need to say much more than I did in my book about my reasons for not trying to draw out more specific and concrete implications from the open borders argument. I agree with Hoesch and Kleinschmidt that questions about how to act in the world are urgent and important and that we have a responsibility to think about the implications of our fundamental convictions.

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As will become clear, however, my relative silence on the question of what admissions policies to endorse and what political actions to take is a principled silence. It flows from my view that the question of how to act responsibly in light of our principles often depends upon judgments about the consequences of alternative policies and about political realities, and these are matters which vary from one context to another and on which political philosophers can claim no special expertise. Let me begin with the suggestion by Hoesch and Kleinschmidt that it is helpful to read my work in light of the Rawlsian distinction between ideal and nonideal theory. When I first constructed my open borders argument in my 1987 article, I drew in important ways upon Rawls, and in that discussion I did explicitly explore the question of how the context of nonideal theory would affect the open borders argument. I will not repeat the details of that analysis here. My central claim was that nonideal theory provided a bit more space to justify restrictions on immigration than could be found in ideal theory, but not much. It should be obvious therefore, that as I read the Rawlsian approach to nonideal theory, it remains primarily a theory of justice, not a guide to political action. In my own book, however, I never refer to the distinction between ideal and nonideal theory, and the absence is deliberate. This is not just because I did not explicitly use the Rawlsian framework in my book. I came to feel that the ideal/nonideal distinction was too limiting, that it drew our attention away from the many different possible frameworks within which we might want to conduct a normative analysis, and that the categories of ideal theory and nonideal theory rested upon presuppositions that I did not share and did not find helpful as a framework for analysis. At the same time, I do see the value in abstracting from many of the constraints of existing politics in order to reflect more deeply on our principles and their implications. In my methodological chapter therefore, I speak about an approach that pays explicit attention to the inevitability of presuppositions in any theoretical discussion, that tries to identify the presuppositions one is adopting for a particular purpose, and that is open to examining the consequences of shifting those presuppositions. In my view, this approach leaves space for many of the sorts of considerations that Rawls was bringing into view with his ideal/nonideal distinction but the approach provides much greater analytical flexibility, including, as we shall see the possibility of providing a much more helpful framework for thinking about how to act in the real world. Since I do not accept the ideal/nonideal framework, I am not inclined simply to embrace the four part table that Hoesch and Kleinschmidt have constructed to analyze my work. Indeed, I think attempting to discuss my work within that framework almost inevitably gives a misleading impression of what I am trying to do. Nevertheless, I think it will be helpful to comment on some of the things that Hoesch and Kleinschmidt say in their discussion to clarify the differences between us that go beyond the utility of this ideal/nonideal distinction and, more importantly, to pursue their question about what guidance, if any, my discussion of open borders provides with respect to public policy and political action in the real world. To explore the practical implications of my open borders argument, we have to consider first the practical implications of the other arguments in the book.

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I conduct Chapters 2–10 of my book under the presupposition that what I call the conventional view (i.e., the view that states are morally entitled to exercise discretionary control over immigration admissions for the most part) is a correct moral view and so compatible with the requirements of justice. But the conventional view is not the whole of the theory or its only relevant moral principle. In other words, the discussion in these chapters is a theoretical discussion of how immigrants and their descendants should be treated within democratic states and about what obligations democratic states have with respect to new admissions, given a range of democratic principles including the principle expressed by the conventional view. The chapters are not presented as immediate guides to action, however. Their relevance to policy prescriptions varies considerably, depending on the topic under discussion. Let me make this concrete. In Chapters 2–6 of my book, I examine questions about access to citizenship for immigrants and their descendants, about the inclusion of immigrants and their descendants beyond access to citizenship, and about the legal rights of legal residents and temporary workers. In all of these cases, I argue that what justice requires as a matter of principle (including the conventional view as one relevant principle) is not very different, for the most part, from what most democratic states are currently doing. I think that it is a clear implication of my discussion, although I am not sure that I ever make this implication explicit, that it is normally appropriate to criticize states that are not doing what democratic principles require in these policy areas and to support policy changes that would bring them into compliance with the requirements of justice. One factor that makes this line of argument easier in these chapters is that the capacity of one state to act justly in these areas is not much affected by what other states do. The fact that some other state may have unjust laws regarding access to citizenship, or the inclusion of immigrants, or the legal rights of residents and temporary workers does not provide another state with any plausible justification for doing something similar because the background presupposition is that each state is entitled to control immigration and is able to do so, and we are talking in these contexts about how a state should treat people whom it has chosen to admit. The fact that principle is generally relevant as a guide to practice in these cases does not mean that there is no place at all for guides to action that depart from principle, however. At a few points in my discussion, I consider possible reasons for departing a little from what democratic principles require. I argue that it may make moral sense not to worry too much about a policy that conflicts with some theoretical principle if the policy leads to approximately the same result as the principle would require. One might think of these relatively brief discussions as places where I am exploring more directly the implications of my theoretical account for action in the world and considering the desirability of modifying what principles demand in order to take account of political and social realities. In my discussion above of Chapter 5 by Bonberg and Rensing I mentioned two examples of this sort of approach: not challenging the French practice of requiring immigrant children raised in France to consent to the acquisition of citizenship so long as the assumption of consent was the default position and not challenging

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naturalization tests so long as they were inexpensive and easy to pass. In both cases, I argued that, strictly speaking, the principles of justice required something rather different but the results of the policies in question were close to what just policies would produce and the existing policies were much more feasible as a practical matter. The broader point is this. When the gap between what justice requires and what states are doing in a specific policy area is not very large and the differences that do exist have few morally important consequences, then there will be little practical difference between the prescriptions that flow from principle and the prescriptions that flow from concern for feasibility with respect to that policy area. Contrast this assessment of the implications of Chapters 2–6, with my discussion of irregular migration in Chapter 7 of my book. In that chapter I argue that democratic states have a moral obligation to provide a wide range of legal rights to people who have settled without authorization, to create a firewall between the enforcement of immigration laws and the protection of many of these legal rights, and to grant such people legal authorization to remain as residents if they have lived in the society for an extended period. Note that I explicitly develop these arguments in a context in which I am still assuming that states normally have the moral right to control admissions and, as a consequence, that they normally have the right to apprehend and deport irregular migrants if they discover them relatively soon after their arrival or unauthorized settlement. In other words, my argument about the rights of irregular migrants is part of a discussion of principle. Although there have been occasional amnesties and although there are efforts in some states to protect the rights of irregular migrants to some extent, no democratic state comes close to meeting what I present as the requirements of justice in this area. So, my analysis clearly is confined almost entirely to the realm of principle. Suppose that we wanted to consider what these principles might entail for practice with respect to policies dealing with irregular migration. What would that look like? One possibility is that we might turn our attention more closely to distinctions among different categories of irregular migrants to see whether there are moral distinctions among them that should affect our policy priorities in efforts to bring state policies closer to what justice requires. For example, in my discussion, I say that irregular migrant children who grow up in a society have an even stronger moral claim to regularization of their status than their parents since the social formation of the children has taken place in the state where they live and the children cannot be held responsible for the fact that they settled without authorization. This corresponds in fact to a widely shared moral view. There is much more popular support in the United States for permitting such children (the so-called “Dreamers”) to gain legal status than for granting legal status to their parents. So, one might think that even if the parents also have a moral claim to legal status, the top policy priority should be to ensure that these children are regularized. In fact, however, there is a substantial debate among irregular migrants and their supporters about whether this is a wise path, and many of the irregular migrant children themselves have strongly resisted any policy that would separate their own legal status from that of their

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parents because they fear that such a separation will make it easier to adopt harsh policies towards their parents. This example brings into view some of the difficulties of moving from an analysis of principles to prescriptions about how to act in the real world once there is a substantial gap between what a principled theoretical account says justice requires and existing policies within a society. On the one hand, it is clearly a matter of urgent moral importance to try to figure out how to change existing policies so that they reflect what justice requires. On the other hand, as my discussion makes clear, one cannot always assume that the best path is a straight line or that any step in the right direction is an improvement over the status quo. What a principled account implies for action in the world is often neither simple nor straightforward. The answer to the question “what is to be done?” will often, perhaps always, depend on contingent and contextual judgments about the likely consequences of one course of action rather than another both in the short term and in the long run. I am not alone in claiming that theory can be highly indeterminate with respect to the question of how to act in the world, especially when there is a large gap between what justice requires and what is being done now. In his own (limited) discussion of nonideal theory Rawls explicitly recognizes this. For example, he cites the theory of the second best from economics as a model for thinking in a nonideal context. In ideal economic theory the aim is to create conditions of perfect competition, but if in fact there is monopoly in one area of the economy, efficiency may require a countervailing monopoly in another area rather than simply an attempt to promote as much decentralized competition as possible. So, on Rawls’ account, one cannot assume that a normative prescription from a theory of justice for an ideal world is immediately applicable in nonideal circumstances. Rawls explicitly says, for example, that the priority of liberty over other concerns is something that operates only in the long run. Ideal theory provides a picture of the goal at which we should ultimately aim. It does not always tell us what is the best way to move in that direction in the here and now. Let me cite one other example from my book that brings this tension between principle and practice even more sharply into view: the issue of refugees. My discussion of this issue takes place in Chapter 10 of my book, still under the assumption that the conventional view is a principle of justice. In other words, even those who endorse the conventional view usually accept the idea that refugees have a special moral claim to admission. In my analysis of what justice requires with respect to refugees, I argue that even within the constraints of the conventional view, states have a much stronger obligation to admit refugees than is normally acknowledged and that no democratic state today comes close to meeting its responsibilities in this area. Again, I won’t repeat the details of the argument. For the purposes of this discussion what matters is not whether or not my account of our responsibility for refugees is correct, but what that theory implies for action in the world as we find it today. In my book, I say almost nothing about this question, focusing almost entirely on what I take to be the fundamental principles at stake and offering almost no concrete guidance on how to translate those principles into action. Here I want to take a few

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steps in the direction of doing so, largely with the goal of explaining more fully why I think the restraint I displayed in my book was appropriate. One way to respond to the kind of argument I have advanced about our responsibilities for refugees would be to say that differences of degree matter. While all states fail, some fail to a much greater degree than others. So, one might say, we should encourage and applaud those few states that are doing more to receive refugees and provide them with new homes, even if they still fall short of what justice requires. Do not let the perfect be the enemy of the good is one of the conventional phrases used to promote this approach (although notice how it contrasts the perfect and the good rather than the bad and the really horrible). Perhaps the saying “better to light a candle than to curse the darkness” is a better maxim (though again the implication is that the one lighting the candle has no responsibility for the darkness and no capacity to shed more light). Despite these cautions, I do think it makes sense to distinguish bad from worse and perhaps even to praise some policy that is inadequate but a step in the right direction. From this perspective, the key normative question is not ‘what is right in principle?’ (which is the question I ask in most of my book), but rather ‘what is the best we can realistically hope for under this particular set of circumstances?’ If one is interested in influencing public policy, it makes sense to focus on the policies that are on the table (or at least on the side cupboard), not on ones that have no chance of adoption (regardless of why they are not feasible). And one may want to shape one’s criticisms to foster the best possible outcome rather than to draw attention to the ways in which the best possible in a given context falls short of the best possible in principle. Focus on the latter may be demoralizing for those trying to work within the limits of the currently possible. That was my own attitude a few years ago when the Syrian crisis led millions of Syrians to seek safety abroad. Under Angela Merkel’s leadership, Germany accepted almost a million refugees in response to this crisis. Canada, under Justin Trudeau, resettled forty thousand. Both policies stood in stark contrast to other states in Europe and North America, and so I thought that both deserved praise and support, though Germany even more than Canada, even if, in principle, both states might have accepted even more as indeed some of the neighbouring states in the Middle East have done. Now, however, I have had second thoughts about my praise for the policies pursued by Germany. Merkel’s decision seems to have led, at least in part, to the rise of a right wing party in Germany which is deeply hostile to migrants. If that party (Alternative for Germany) gains power, then we can say that from a theoretical perspective that is concerned with choosing the morally best policy among feasible alternatives, Merkel made an ethical error in opening the door so wide to refugees because this is ultimately going to lead to a situation in which fewer refugees get protection than would have been the case if she had been more cautious. The point here is not to blame Merkel (because we all make mistakes) but rather to draw attention to the importance of realism, or taking into account what is and is not politically possible in a given context. Let me add that I may well be wrong about the negative consequences of Merkel’s policies. I am not qualified to judge what is happening in

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Germany or what will happen. I know that some people think that the course she chose will not have the negative consequences I now fear and therefore remains the morally best course of action. I deeply hope that they are right. The general point is this. It is a fundamental requirement of political ethics that when engaging in political action and making political choices, we should always take into account risks, probabilities, and consequences both of what we are recommending and of the likely alternatives. In actual politics, it is almost never enough to focus only on the intrinsic merits (moral or other) of a particular course of action, though that is precisely what we do as theorists when we focus on questions of principle. From a practice oriented perspective, the backlash against refugees in Germany matters morally because it affects the policy choices that are realistically open to us here and now and in the future. When people are upset, we normally ought to pay attention to what is upsetting them, even if we think they are wrong to feel upset. And in thinking about what policies we ought to adopt with respect to refugees, no matter how sympathetic we are to refugees and no matter what we think justice requires with respect to refugees, we should pay careful attention to what the citizens of a given democracy are willing to do to help them and what they are not willing to do. Trudeau’s policy in Canada has not led to any significant backlash, and so we might say that was a good policy even, or perhaps especially, from the perspective of practice. But perhaps Merkel tried to go too far in the direction of what justice requires, and as a result we will wind up with less justice for refugees in the end than if she had been somewhat less ambitious. I hope that will not be the case, but whether it is or not is a question about what happens, not about principles. These observations should not be read as a defense of all those states that closed their doors. Most of them made no effort to do as much as they could for refugees without provoking a backlash that would make things worse. Claims of political feasibility are often used as excuses for inaction when the real motivation is a concern for personal or collective self-interest and the absence of any concern for the claims of justice. Nevertheless, it is a moral mistake to ignore questions about what it is possible to achieve in a given political context or to make overly optimistic assumptions about the consequences of a course of action, even when that course of action is intrinsically desirable from a moral perspective. I have introduced this long discussion of refugees because it seems to me that this issue illustrates in a concrete way the great difficulty in moving from principles to prescriptions for how to act in the world, especially in contexts where the gap between what is and what ought to be is very large, as is the case with the issue of refugees. As we shall see, the gap is even larger with the issue of open borders. The question of how to act in these circumstances is inevitably intertwined with calculations of possibilities and consequences in particular contexts, and political philosophers rarely have any special expertise in assessing such matters. Occasionally, we may be in a position to make some specific recommendation. For example, in Chapter 10 I argue that in principle justice requires an expanded definition of who counts as a refugee and a fundamental transformation of the refugee regime, but I say that it would be a mistake to try to do either of these things now because, in the current climate, any opening up of these matters would be likely lead to a narrower

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definition of a refugee and an even less open refugee regime. That is another example of one of my brief forays into the question of how to act in the world as distinct from questions about what principles require. I feel that I know enough about the current climate with respect to refugees to be able to say that much. Still, often the best that philosophers can do is to point to the kinds of questions that need to be addressed. Sometimes we cannot even do that very well. With these observations in view, let me return to Hoesch and Kleinschmidt to explain why I think their efforts to spell out the implications of the open borders claim are fundamentally misguided. Let me start with what they say about my own work and its implications. They claim that my theoretical account entails the following view: “In nonideal worlds, the Open Borders Claim does not have substantial implications for how to act right now that are not also implied by the Conventional View.” (187) This is not my view, and I do not think it is implied by anything I say in my book. I am a bit puzzled about why they think this is my view. In Chapter 13 I argue that the open borders argument would not greatly change the conclusions of Chapters 2–6 regarding what justice requires with respect to some immigration related questions (access to citizenship, etc.), even though those conclusions had been based on the assumption that the conventional view was correct, an assumption that is removed by the open borders argument. The main reason why those earlier conclusions remain unchanged is that the principles leading to those conclusions are not principles about admissions but principles about how to treat people who have arrived. They are the principles that I summarize in Chapter 8 in my discussion of the theory of social membership. Hoesch and Kleinschmidt explicitly recognize this. But one cannot infer from this that the open borders argument has no implications for action in the real world that are different from the implications of the conventional view. An admissions principle (which is what both the conventional view and the open borders argument offer) might or might not affect other immigration questions. One has to conduct an analysis to see if it does. That is what I do in Chapter 13. The conventional view accepts the moral legitimacy of state control over borders and, at least in most versions, the legitimacy of very significant economic inequalities between states. My version of the open borders argument rejects both and so creates an obligation to look for ways to move in the direction of economic equality between states and freedom of movement for individuals. That is an obligation that does not exist under the conventional view. In Chapter 13 I show how the open borders argument significantly affects our thinking about irregular migration (which would no longer exist as a phenomenon in a world of open borders) and selective admissions (which would no longer be permissible in a world of open borders) and even the question of refugees (who would be rarer and easier to accommodate in a world of open borders). What do these differences in principle imply for how we should act in the world? As I have just tried to show, that is highly indeterminate because the answer will depend on what is possible in a given context. But indeterminacy is not indifference. To think about the question “What is to be done?” in light of a commitment to economic equality between states and freedom of movement for individuals seems

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likely to lead to a different set of practical proposals for action from the proposals of someone who does not share that commitment, although people who share that commitment will often disagree about what course of action will best move us in that direction and people with different commitment may sometimes endorse similar courses of action for unrelated reasons. One conclusion that is certainly not warranted is the one that Hoesch and Kleinschmidt reach that my open borders argument would not entail any commitment to opening borders further in practice, at least in the world as it is. They say, “Since ‘[p]olitical communities require relatively stable, intergenerational populations in order to function effectively over time’ (EoI, 287), it might be justified for states to close their borders when there is a threat of mass migration. As long as there are great inequalities amongst states, mass migration is indeed a plausible result of open borders.” (187) First, I spend a lot of time in Chapter 12 showing why this sort of argument cannot be used to justify closure at any deep level, pointing out, among other things, that fear of mass migration does not justify discretionary control as distinct from reasonable measures to limit migration to manageable levels where ‘reasonable’ and ‘manageable’ are not interpreted with only the interests of those in the receiving state in view. Second, as I have just indicated, any claims about the desirability of restrictions on migration would have to be justified on the grounds that they would ultimately move us more effectively than alternatives towards a world of greatly reduced economic inequality between states and freedom of movement for individuals. One cannot rule out in advance the possibility that there might be plausible arguments in some circumstances as to why restrictions on migration would contribute to this long run goal, but it would require much more than a simple generic appeal to the need for stability and intergenerational continuity. For reasons of space I will not be able to offer detailed comments on some of the other issues raised in the chapter by Hoesch and Kleinschmidt. Let me just offer a few claims, most of which are at least partially supported by the points made above about the inevitability of indeterminacy about how to act in the real world even if one accepts my open borders argument. First, as I make clear in the book, I regard freedom of movement as only one component of a just world, with the reduction of global inequality being an even more important component in some respects. Second, I do think that we should regard freedom of movement across state borders as a human right, but I disagree with Hoesch and Kleinschmidt about what such a claim entails. Many human rights, including ones already legally recognized in international documents, are aspirational to some extent. They tell us what justice requires, not how the world works today. They provide a basis for critique but not always a clear guide to action since there are different ways of trying to realize these aspirations. Third, I do not think that one can always regard any increase in a state’s willingness to permit movement across borders as a step in the right direction regardless of the conditions under which it takes place. As I argue in my book, I do not think that democratic states should admit migrants on terms that deny them basic rights provided to others or that violate the state’s own standards with respect to the normal regulation of economic activity, even if migrants would be willing to come under those terms. Fourth, I do not think that strong civic integration policies

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are morally permissible for reasons that apply under the conventional view as well as under the open borders argument for reasons spelled out in Chapters 3 and 4 of my book. Finally, I am very skeptical that one can derive from the open borders argument specific prescriptions and recommendations of the sort that Hoesch and Kleinschmidt identify with regard to EU immigration policies for reasons spelled out above in my discussion of the inevitability of indeterminacy regarding the best path forward towards the ideal of open borders. The kind of specific claim they make rests on a host of unspecified assumptions and leaves out too many relevant variables. I recognize, however, that the claims in this paragraph are only claims, and there is certainly a case for further argument and reflection.

13.5  Two Utopias I am grateful to Tobias Förster, Barbara Gotzes, Hannes Hennemann, Anna Kahmen, and Alexander Westerhorstmann for their thoughtful exploration of the potential compatibility and the potential conflict between the two rather different utopian ideals that I have presented in my work over the years. In the section on implementation, the authors’ comments show that they have clearly understood my own goals in offering these sorts of utopian reflections – criticizing existing unjust arrangements and offering a vision of alternatives towards which we might strive. I agree with them, therefore, that it is a reasonable question to ask how the two utopian visions fit together and especially whether they might conflict with one another in some way. My comment on their chapter will be brief because I agree with almost everything that they say. They have understood the basic logic both of my arguments about the way an egalitarian market system could theoretically work and my reasons for saying that justice requires a commitment to open borders. I also appreciate the method that they use in conducting their analysis. I think their approach fits well with my own emphasis on the importance of recognizing that all inquiries take place against a background of presuppositions, and that it makes sense to try to make one’s own key presuppositions explicit and to identify the questions one is bracketing for the sake of examining others more fully. They do a nice job of performing these tasks in their methodological section, and I fully understand that they are not endorsing my substantive claims but simply assessing their overall consistency. I regard that as an important task in the examination of any theory. I agree with the authors that my two utopias would be most likely to work together well if there were either an egalitarian world state with internal free movement or a world of egalitarian states with free movement but also relatively little economic inequality between them. They rightly see that I lean towards the latter without insisting, however, that it is the only just option. And I agree with them that a closed borders utopia is obviously incompatible with my claims about what justice requires in my writings on migration. My original discussion of the egalitarian system assumed a closed society, not because I was imagining that it actually had

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closed borders but because I thought that one could simply bracket questions about interactive effects of the egalitarian society with other societies. That was a simplification that followed the approach of other theorists like Rawls. There may still be contexts in which it makes sense to take that approach for certain purposes, bracketing questions about migration and focusing only on what goes on within a given society. Indeed, that is still largely what I have done even in my recent writing about an egalitarian market system. Nevertheless, I do think that approach is ignoring some fundamental questions. If one aspires today to a full understanding of what justice requires, one cannot reasonably ignore questions about the relations among different political jurisdictions and questions about the movement of individuals from one political jurisdiction to another. My own view is that justice requires a deep commitment to equality and freedom within jurisdictions and between jurisdictions, for both collectives and individuals. That is what lies behind both of the utopian visions that I develop. Does this mean that it would not be possible to have an egalitarian state in a world in which there were many inegalitarian capitalist states as in their Scenario 4? It would be more difficult, to be sure, and the authors are right to point out some of the risks to an egalitarian system with respect to free riding and brain drain. I certainly agree with their suggestion that the forced inculcation of an egalitarian ethos would be entirely incompatible with the freedom requirements of my utopian visions. On the other hand, one need not be an extreme nationalist to be attached to the place where one has grown up, whose language one speaks, and whose culture is familiar. Permanent migration within the European Union remains relatively low, with only 3% or so of European citizens living outside a country in which they hold citizenship, even though European citizens do have a right of free movement among European states and there are substantial differences among European states with respect to overall levels of economic output, taxation levels, redistributive social programs, and so on. So, the actual impact of migration alternatives on a state’s ability to construct a (relatively) egalitarian system may be a bit more complex and contingent than the authors of this chapter suggest. Still, this is just a minor qualification to what they have said or perhaps only a difference of emphasis. As I have already indicated, I agree with the authors that it is scenario 3 – freedom of movement among states that are relatively equal economically both internally and in relation to one another – that is the one that fits best with my utopian visions.

References Carens, Joseph H. 2000. Culture, Citizenship, and Community. A Contextual Exploration of Justice as Evenhandedness. Oxford University Press. (= CCC). ———. 2013. The Ethics of Immigration. New York: Oxford University Press. (= EoI). Young, Iris M. 1990. Justice and the Politics of Difference. Princeton. Princeton University Press.