Emigration and association

COMMENTARY

Emigration and association

George W. Rainbolt*

Department of Philosophy, Georgia State University, Atlanta, GA, USA

Citation: Ethics & Global Politics, Vol. 9, 2016, http://dx.doi.org/10.3402/egp.v9.33500

Copyright: ©2016 G. W. Rainbolt. This is an Open Access article distributed under the terms of the Creative Commons Attribution 4.0 International License, allowing third parties to copy and redistribute the material in any medium or format and to remix, transform, and build upon the material for any purpose, even commercially, provided the original work is properly cited and states its license.

Published: 17 October 2016

*Correspondence to: George W. Rainbolt, Department of Philosophy, Georgia State University, P.O. Box 3994, Atlanta, GA 30302-3994, USA. Email: grainbolt@gsu.edu

This paper is part of the Special Issue: Book symposium on Debating Brain Drain: May Government Restrict Emigration? More papers from this issue can be found at http://www.ethicsandglobalpolitics.net

 

In Debating Brain Drain: May Governments Restrict Emigration? Michael Blake makes an important and innovative argument for the view that humans have a right to leave their country and that this right severely limits the restrictions that governments may place on emigration. Blake’s defense of a right to emigrate is based, in large part, on freedom of association. I argue that basing a right to emigrate on freedom of association is in tension with Blake’s view that states have a right to exclude, a right to keep people from becoming citizens. Blake’s conclusion that governments may restrict immigration undermines one of his arguments for the view that government may not restrict emigration.

My focus will be on freedom of association. I will not discuss arguments regarding emigration and immigration based on freedom of movement, property rights, rights to what is needed to live a minimally decent life, rights to some level of equality, etc. To keep the focus on association, I will follow Blake’s suggestion and ask you to imagine a world in which, setting aside freedom of association, all human rights are protected.1 In this world, no human rights are violated. In this world, material goods are distributed justly. If you think that most developed Western democracies do a pretty good job of protecting human rights and that the economic inequalities within and between these countries are reasonably just, then the world that Blake and I are asking you to imagine would be similar to a world composed only of such states.

THE RIGHT TO EMIGRATE

Blake holds that ‘all humans have a basic right to leave any country, including their own’ and that this right ‘makes any attempt by a state to forcibly prevent people from leaving … fundamentally unjust, and a violation of the most basic norms of human rights’.2 He offers three arguments in support of this view: the argument from practice, the argument from the separateness of persons, and the argument from interests. I believe that the argument from interests is the most important and plausible. I will set the other two aside.

According to the argument from interests, freedom of association is a justification for the right to emigrate. The argument’s key premise is that

the state should not regard itself as licensed to interfere in the creation of new sources of value by interfering with the freedom to form consensual forms of relationship with others.3

Blake makes it clear that the rights implied by the freedom of association have the status of human rights. Like other human rights, they are important but not absolute.4 From this key premise, Blake draws the conclusion that

we should not, in general, be forced to remain within a relationship by a party to that relationship.5

From this it seems to follow that people have a human right to emigrate.

Blake does not discuss the grounding of freedom of association. One might refer to Aristotle’s claim that humans are social animals.6 One might point to the importance of associations with others in the execution of life plans. One might make consequentialist arguments for the freedom of association. One might refer to the importance of freedom of association to a well-functioning democracy.

The argument from interests points to the importance of association. Moreover, the importance of association with other humans is not merely the association with a random set of humans. It seems plausible that people have a right to choose their associates. Therefore, it seems plausible that people have a right to end their associations with others. Blake offers an initially plausible argument for the right to emigrate.

THE RIGHT TO INVITED ENTRY

Ulysses lives in the United States. Francoise lives in France. While Ulysses is on vacation, they meet and fall in love. They wish to marry and live together. Do they have a right to do so? Does Francoise have a right to move to the United States? Does Ulysses have a right to move to France? Blake’s argument from interests seems to imply that they do. As noted above, the key premise in the argument from interests holds that the state may not interfere with the formation of consensual relationships. Moreover, Blake explicitly says that ‘if a state were to prevent a person from marrying a consenting other person, we would rightly be outraged’.7

On Blake’s argument from interests, the right to freedom of association is not limited to marriage. The key premise is quite broad, applying to all consensual relationships. Anne-Marie owns a small web-design firm in Paris, and she thinks that Ulysses’ web-design skills are just what she needs. Ulysses, for his part, is thrilled to have the opportunity to move to France. The key premise seems to imply that France does not have the right to interfere with the formation of this consensual relationship. Blake’s understanding of freedom of association seems to imply that individuals who wish to enter into new consensual relationships have the right to enter any of the states in which one of the individuals resides.

This appears to have significant implications for the right to enter. In many cases, people in one state wish to associate with people in another state. They want to marry them, to employ them, to help them flee poverty, and to have various other consensual relationships. Thus, the key premise of the argument from interests seems to imply that those who want to form consensual relationships have a right to enter. This right to enter is circumscribed. Ulysses only has the right to enter France at the invitation of a French person who wishes to form a consensual relationship with him. Let us call this circumscribed right to enter ‘the right to invited entry’.

The contours of the right to invited entry raise difficult and interesting questions. What exactly constitutes a relationship? Marriage and long-term employment are clear cases of relationships. A one-time pat on the back is not a relationship. There are borderline cases. A group of people in the United States wants to support young Canadian people who want to move to the United States, because they think the United States offers them better employment opportunities. The group in the United States coordinates short-term housing opportunities for the Canadians and assists them in finding work. Does this constitute a relationship protected by freedom of association?

Because it is intended to show the existence of a human right, the argument from interests seems to imply that the right to invited entry is not subject to majoritarian overrule. Ulysses may want to buy unpasteurized cheese imported from France, but if the majority in the United States, perhaps feeling that unpasteurized cheese is dangerous, votes to ban the import of unpasteurized cheese, then Ulysses is out of luck. The majority’s preferences overrule his. Perhaps, the majority of French people say the same of his desire to move to France to marry Francoise. According to Blake, the argument from interests shows that people have a human right to exit and, therefore, a human right to invited entry. Human rights are not subject to majoritarian override. While the majority rules when it comes to cheese, it does not seem to rule when it comes to human rights.

Moreover, if the argument from interests implies rights that are subject to majoritarian overrule, then the right to emigrate that follows from this argument is subject to majoritarian overrule. In that case, the answer to the question, ‘may governments restrict emigration?’ would be ‘yes, as long as the majority favor restrictions on emigration’. This is not Blake’s view.

THE RIGHT TO EXCLUDE

Blake holds that, in a world in which all human rights are protected, states have the right to exclude, the right to keep people from entering the state.

There seems to be two versions of Blake’s argument for the right to exclude. The first version begins with the premise that the nature of some associations is such that, if you join, then others are bound to protect your rights.

When I crossed the line in the world that describes the American jurisdiction, I created a pattern of obligation on the part of current American citizens—to defend my rights, to protect them, to give me a place within which to speak in their defense, and so on.8 [Blake moved to the United States from Canada.]

On this version of the argument, if you join a state, then others are bound to protect all your rights.

The second premise in this argument is that we have the right not to have obligations to protect the rights of others imposed on us.

There is, I think, a limited right to be free from having to become obligated to others; while we would be morally praiseworthy—indeed, saintly—if we choose to accept all those who sought to enter into such a relationship with us, we seem to be within our rights to refuse to act in defense of those who are already adequately defended.9

The conclusion is that states have a limited right to exclude. Let us call this argument the argument from imposed obligations.

The limit in the limited right to exclude is that if another’s rights are being violated, then we may be morally obliged to come to their defense, and protecting rights may require their entry into our state. If, for example, a group of people are fleeing unjust persecution, a country does not have the right to exclude them. This limit is not relevant to this article, because we are assuming a world in which no human rights are violated.

The second version of the argument from imposed obligations begins with the premise that the nature of some associations is such that if you join, then others are bound to protect your human rights.

My own view is that the right to exclude is grounded in the right to avoid becoming the agent charged with the defense of another’s human rights ….10

The second premise is that that we have the right not to have obligations to protect the human rights of others imposed on us. The conclusion is that states have a limited right to exclude.

The second version of this argument strikes me as unmotivated. Blake understands ‘human rights as instruments designed to protect persons against certain standard threats; threats that can be understood as making lives intolerable generally’.11 It seems odd to say that we have the freedom not to be bound to protect human rights, but we do not have the freedom not to be bound to protect other, less important, rights. If we have a right to be free from imposed obligations to protect human rights, then it seems that we have a right to be free from imposed obligations to protect rights in general.

THE TENSION

Freedom of association is in tension with freedom from imposed obligations. The right to invited entry does not sit well with the right to exclude. Consider Blake’s question in this passage:

Imagine, then, that someone wants to move between societies. What this person is seeking is a new relationship of rights-protection—one in which a new state, and hence new persons, will bear the burden of protecting that individual’s basic rights. Would the state to which he seeks admission have an obligation to admit him? I fail to see why it would ….12

Ulysses seeks admission to France in order to marry and live with Francoise. Does France have an obligation to admit him? Blake’s argument from interests provides an answer to the question that Blake poses above. France would have an obligation to admit Ulysses because failure to do so violates his rights of freedom of association. As noted above, Blake claims that ‘if a state [such as France] were to prevent a person [such as Ulysses] from marrying a consenting other person [such as Francoise], we would rightly be outraged’.13 On the contrary, consider Pierre, a citizen of France. If Ulysses moves to France, marries Francoise, and becomes a citizen, Pierre will have obligations imposed on him, obligations to protect Ulysses’ rights. Pierre’s right to be free of imposed obligations is in tension with Ulysses and Francoise’s rights to invited entry. The problem for Blake is that the key premise in one of his arguments for the right to emigrate (that the state may not interfere with the formation of consensual relationships) is in tension with the conclusion of his argument for the right to exclude. The tension exists because when states exclude, they often interfere with the formation of cross-border consensual relationships.

How might Blake respond to this tension in his view? He might point out that tension is not inconsistency. Blake’s argument from interests implies a right to invited entry. Blake’s argument from imposed obligations implies a right to exclude. This is consistent because rights sometimes conflict. Blake could respond to the arguments in this article by saying that I have pointed to another example of what he calls a ‘moral tragedy’, ‘a set of injustices that liberal politics cannot justly overcome’.14 He might assert that moral rights are not compossible. Similarly, Blake could take the position that the right to invited entry and the right to be free from imposed obligations ‘cancel each other out’, and therefore, other moral considerations determine the answer to this question. However, we seek an answer to the question that is the subtitle of Brock and Blake’s book: may governments restrict emigration? Both of these responses to the tension in his view leave Blake with no answer to this question.

Blake could drop the argument from interests. Recall that he offers three arguments in support of a human right to emigrate: the argument from practice, the argument from the separateness of persons, and the argument from interests. Dropping the argument from interests would remove the tension with his conclusion about the right to exclude. Due to space limitations, I can do no more than repeat that I think that the argument from interests is the most important and plausible of the three arguments. Dropping the argument from interests is dropping what I see as Blake’s best argument for the view that governments may not restrict emigration.

Blake could follow Matthew Lister and argue that familial associations are a special sort of association. Therefore, there is no right to invited entry but only a right to family-unification entry.15 Making this move would require the development of a theory of freedom of association that places various associations in a hierarchy. Blake could then restrict the scope of the right to invited entry to the associations higher in hierarchy. Presumably, marriages would rank high in this hierarchy.16 This argumentative strategy would require substantial modification of the key premise in Blake’s argument from interests for the right to emigrate.

There are a number of difficulties with this attempt to resolve the tension. As Luara Ferracioli points out, a preference for familial associations may not be consistent with the liberal state’s commitment to neutrality. She argues that state preference for familial associations in immigration law means that the state asserts that some types of relationships are more important than other and so shows disrespect for those in close relationships not covered by the preference.17 Moreover, this resolution of the tension would also amount to dropping Blake’s best argument for the view that governments may not restrict emigration. Suppose that freedom of association no longer applies with full force to all consensual relationships but only applies with full force within familial associations (or some other limited range of associations). In that case, many would be emigrants would not be covered by the argument from interests.

Blake could deny that the right to marry a willing partner implies a right to entry. He could hold that Ulysses has a right to marry Francoise, but this right does not imply that he has right to enter France.18 The right to marry does not imply the right to live with one’s spouse in a location of one’s choosing. Ulysses and Francoise have the right to marry, but they do not have the right to move into my house. The right to marry does not imply an unlimited right to live with one’s spouse. A professor’s right to marry does not imply that her university must see to it that her spouse has employment within driving distance of the university.

I doubt that Blake would want to take this resolution of the tension in his view. If the French government were to announce that its citizens may marry non-citizens but that their spouses would not be allowed to enter France, this would be a hollow right to marry. It reveals that France has an incorrect view of the importance and nature of freedom of association. In general, freedom of association often requires some sort of right to physically be together. As Nelson Algren told Simone de Beauvoir, ‘no arms are warm when they are on the other side of the ocean’.19

Moreover, other cases raise problems for this possible resolution. Ulysses and Francoise spend time together in France and have a child, Madeline. The United States adopts a strict jus soli policy, and Madeline is not a US citizen. When Madeline is eight, Francoise dies and Ulysses decides to move back to the United States. Madeline has loving French grandparents who will assure that none of her human rights are violated if she stays in France. That one has a child does not logically imply the right to live with that child. Nevertheless, I think that taking freedom of association seriously requires the view that the United States may not exclude Madeline, that Madeline has a right to enter the United States.

Blake could argue that the right to exclude outweighs or limits the right to invited entry. He might borrow a strategy from Christopher Heath Wellman. He might argue that the right to exclude is required for a state to ‘effectively perform the crucial political function of protecting human rights …’.20 Whatever the merits of Wellman’s claim, I do not believe Blake can adopt this strategy. He holds that the right to exclude does not apply if the person seeking admission is coming from a country that does not protect human rights. Thus, he does not think that the right to exclude is required for a state to perform its function of protecting human rights. Moreover, as with other responses considered above, this response would require Blake to drop the key premise in one of his arguments for the right to emigrate, the premise that the state may not interfere with the formation of consensual relationships.

Blake could argue that the right to invited entry outweighs or limits the right to exclude. Because he thinks that the argument from interests implies a human right to emigrate, the right to invited entry is also a human right. Blake does not argue that the right to exclude is a human right and holds that the right to exclude does not apply when the person seeking admission is coming from a country that does not protect human rights. Thus, Blake might hold that the right to invited entry is an additional limit on the right to exclude. The right to exclude would apply only when (1) the person seeking admission is coming from a country that protects human rights, and (2) no member of the country to which she seeks admission wants to form a relationship with her. Given how many people want to form cross-border consensual relationships, this move would substantially reduce the scope of the right to exclude. If Blake adopted this view, substantially more obligations would be imposed on people (as a result of invited immigration).

When states exclude, they often interfere with the formation of consensual relationships. Therefore, a premise in one of Blake’s arguments for the right to emigrate (that the state may not interfere with the formation of consensual relationships) is in tension with the conclusion of his argument that the state has the right to exclude. It is not clear to me that Blake’s views allow for an adequate response to this tension. In general, it seems that a defense of the right to emigrate that is based on freedom of association will have implications for the right to exclude that many philosophers will see as problematic.

NOTES

1. Michael Blake, ‘The Right to Exclude’, Critical Review of International Social and Political Philosophy 17, no. 5 (2014): 532.

2. Gillian Brock and Michael Blake, Debating Brain Drain: May Government Restrict Emigration? (Oxford: Oxford University Press, 2015), 111.

3. Brock and Blake, Debating Brain Drain, 199.

4. ‘The right to form new relationships [may be overridden] but the showing of why it may be overridden here must be made’. Brock and Blake, Debating Brain Drain, 201, emphasis in original.

5. Brock and Blake, Debating Brain Drain, 200.

6. Aristotle, Politics, trans. Carnes Lord, 2nd edition (Chicago: University of Chicago Press, 2013), Book 1.

7. Brock and Blake, Debating Brain Drain, 198.

8. Blake, ‘The Right to Exclude’, 533.

9. Blake, ‘The Right to Exclude’, 532.

10. Blake, ‘The Right to Exclude’, 521.

11. Blake, ‘The Right to Exclude’, 534.

12. Blake, ‘The Right to Exclude’, 532.

13. Brock and Blake, Debating Brain Drain, 198.

14. Brock and Blake, Debating Brain Drain, 227.

15. Matthew Lister, ‘Immigration, Association, and the Family’, Law and Philosophy 29, no. 6 (2010): 717–45.

16. My thanks to Christopher Heath Wellman for suggesting this response.

17. Luara Ferracioli, ‘Family Migration Schemes and Liberal Neutrality: A Dilemma’, The Journal of Moral Philosophy 13, no. 5 (2106): 553-575.

18. My thanks to Christopher Health Wellman for suggesting this response.

19. Ursula Tidd, Simone de Beauvoir (London: Reaktion Books, 2009), 99.

20. Christopher Health Wellman and Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude? (Oxford: Oxford University Press, 2011), 81.

About The Author

George W. Rainbolt
Georgia State University
United States

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