Positive and negative rights of migration: a reply to my critics


Positive and negative rights of migration: a reply to my critics

Michael Blake*

Department of Philosophy, School of Public Policy and Governance, University of Washington, Seattle, WA, USA

Citation: Ethics & Global Politics, Vol. 9, 2016, http://dx.doi.org/10.3402/egp.v9.33553

Copyright: ©2016 M. Blake. 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: Michael Blake, Philosophy, Public Policy, and Governance, University of Washington, Box 353350, Seattle, WA 98195, USA. Email: miblake@u.washington.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


When I write, I worry. I worry, to begin with, that what I write isn’t going to be read; there’s too much good philosophy out there for there to be much of an audience for what I do. When it’s finally in print, though, I worry even more that I haven’t been able to express my ideas well—that what’s now out there in the world is, at best, half-baked or unclear. When the things I write are read, though, I worry most of all: I worry that what I have said is, in fact, clear, but subject to equally clear criticisms. This is what makes philosophy, for me, both terrible and wonderful: the very best case we can hope for is that the last of these worries comes true—that what we write will be picked apart by very smart people, who are very good at noticing the flaws we ourselves have failed to see. Being ignored is painful, but so too is being carefully examined.

The authors in the present exchange are all exceptionally talented philosophers, who have turned their considerable talents to a careful and thorough examination of the arguments made by Gillian Brock and myself in Debating Brain Drain: May Governments Restrict Emigration? I am grateful to them for their attentions, even if that attention is somewhat painfully acute in its focus on the shortcomings of my own part of that book.1 What I hope to do in the present context is not to offer a thorough defense of my own view of brain drain; the critics I deal with here offer too many criticisms of that view for such a project to be possible in this space. I want, instead, to deal with three especially important criticisms and show how a view like mine might respond to these criticisms. In particular, though, I want to show that my critics and I disagree about a fundamental moral principle: that there is a significant moral difference between a positive right and a negative right. This distinction posits that there is a moral difference between a principle that prohibits a particular action and a principle that demands some particular action. In particular, positive rights—by which I mean those rights mandating that a particular form of action shall be done—are in general more difficult to justify than negative rights, which specify some particular form of action that is morally prohibited. This distinction is not always clear, of course, and it is controversial; many philosophers, in fact, believe it cannot be made to bear any moral weight.2 For my part, I think that the distinction is a central one, even if it is not always a simple matter to deploy it, and I think also that views like mine may depend upon the distinction’s being morally significant. The views of my critics, similarly, seem to depend upon the distinction’s being illusory, or at least irrelevant in the cases under consideration. This means, though, that there is at least some possibility of an independent guide to whether or not these criticisms are defensible; the one who holds the distinction as significant will likely find herself attracted to my own view, while those who do not will find additional reasons to endorse the views of my critics. What I offer here, then, is not a defense of my view, but a way of explaining its relationship to another moral dispute. It is, thus, entirely possible that this article, for many of its readers, constitutes an additional reason to think my view mistaken.

Before proceeding to examine the arguments of my critics, I would briefly like to sketch how the distinction between positive and negative rights might be an important one for discussions of migration and morality. I have argued elsewhere that states have a limited moral permission to exclude would-be migrants, based upon the rights of current residents to refuse to bear the burden of protecting the basic human rights of those would-be migrants; we can, in other words, refuse to become the agents charged with the defense of your person, which, if you were to walk across the border into our jurisdiction, we would become simply in virtue of your territorial presence.3 This principle is limited, though, by the fact that such a justification cannot be offered to coercively exclude any individual whose rights are not in fact being adequately protected in their country of origin. We cannot, in short, act so as to coercively stop the refugee or the destitute from crossing the line in the soil demarcating our jurisdictional limit—and, once they are inside that line, we are obligated to serve as the agent charged with the defense of that agent’s basic rights.

This picture forms the background to my discussion of the right to emigrate, in Debating Brain Drain. There, I defend the right of the individual to emigrate—but I do not also insist that other states are necessarily required to admit the individual who leaves. This has led some people to think my view somewhat incoherent. What is the value of the right to emigrate, if it does not have some correlative obligation on other states to offer admission?4 My view, though, differentiates between positive and negative rights to cross borders. The positive right would include not just the freedom to leave a particular jurisdiction, but the right to enter into some particular other jurisdiction; if viewed through the lens of its correlative duty, it would say—you have a right to leave this jurisdiction, and some other jurisdiction has the moral duty to allow you entry. The negative right, though, would simply say to the state of origin—you are not allowed to do this thing: coercively prevent exit—and would offer no necessary guidance about what other institutional acts must be in place for the right to be made useful or profitable. I think, when we talk about migration, we are often unclear about what sort of rights we are discussing. Some of the time, to be sure, we are speaking about negative rights. When we speak of the rights of asylum, or of non-refoulement, for instance, we are speaking purely of the moral duty on the state of refuge to not do a particular thing—namely, to use coercion to prevent the migrant’s entry into their society or to force that migrant’s return to her country of origin.5 In other cases, of course, we might think that we have some positive duties, as well; some forms of refugee crisis might give rise to a demand that we not only open the border, but provide the tools by which needy individuals might physically arrive at that border. These cases, though, are somewhat exceptional, and we often think of rights to migration as negative rights. If a given migrant has a right, moral or legal, to enter into a rights-protecting society, it does not necessarily follow that the rights-protecting society is obligated to perform positive acts designed to ensure that she is able to make maximal use of that right. I believe, for instance, that many states in Europe are obligated to allow entry (and, eventually, citizenship) to the refugees streaming out from the Syrian conflict. It does not follow, though, that Europe is therefore obligated to organize transportation, so that all potential migrants can easily make use of these rights to enter a European society. European states cannot exclude these migrants; these states are not, though, obligated to maximize the ability of would-be migrants to exercise their right to migration.

My view, then, depends upon there being a moral distinction between positive rights to migration, on which states are obligated not only to refrain from exclusion, but to perform particular acts designed to ensure the actual mobility of prospective migrants; and negative rights, on which those states are not allowed to exclude, but are not (always) required to perform particular acts to assist migrants in making use of their rights to migrate. This moral distinction, between the positive and the negative, emerges from my focus on the agency of the individual as the basic moral unit of analysis. We are right, after all, to think that there is a moral difference between preventing an act, and insisting upon a particular action, when our chief moral concern is the freedom of the individual to build a life of value for herself.6 This is, of course, merely a sketch of an argument. The argument, to be complete, would have to fill in many details, such as how to understand the line between the violation of a negative right, and the failure to provide the means by which that right would be made useful. It is also incomplete, even as an abstract picture of the morality of migration, since states might be judged as uncharitable or unmerciful were they to do no more than avoid the violation of rights. The state might, in other words, have imperfect duties or mercy or beneficence, in addition to its perfect duty to avoid the violation of rights. All this, though, I leave to one side here, and note simply that my own view tends to assume that there is some moral distinction between positive and negative rights, and that much of what we talk about in migration concerns negative rights. The individual has the negative right to leave her own state, I argue, but this does not entail the duty of any other state to admit her; the state has the negative duty to admit the refugee, similarly, but this does not automatically entail that the state has a positive duty to develop infrastructure through which all those similarly needy might be able to actually migrate to a country of refuge.

All this, though, is merely preamble to a discussion of my critics. In what follows, I will use the above analysis as a way of responding to three criticisms, in particular. The first, which comes from George Rainbolt, argues that there is an inconsistency in my view; my argument from interests establishes a strong presumptive claim in favor of the right to migrate, which stands in uneasy tension with my strong right to exclude the unwanted would-be migrant. The second, which comes from Luara Ferracioli and Lucas Stanczyk, argues that my conclusions about the brain drain are unduly pessimistic, since there is a potentially effective way of addressing this issue: the wealthy states might focus their attention on the global poor, rather than siphoning off the most educated of the developing world’s population. The final comes from Ryan Pevnick, who argues that my analysis of the separateness of persons does not suffice as an argument in favor of the right to exit, since that argument cannot establish whether it is the migrant, or the one left behind by that migrant, to whom a justification is owed. I believe a response to all of these criticisms might emerge from an engagement with the idea of a negative and positive version of the right to migrate; reiterating and making explicit my use of this distinction, then, may help offer some response to these criticisms—or, as I have said, might offer a sort of diagnosis about where exactly views like mine go wrong.

We can begin, then, with George Rainbolt. Rainbolt argues that the best of my three arguments in favor of the right to exit is what I call the argument from interests: people have a broad right to form value with other consenting people, I argue, and in general, there is a presumption that they ought to be allowed to do so. Rainbolt reads this as a version of an argument from the moral centrality of freedom of association. If we care about association, though, we care about it most strongly with those forms of human association through which people’s lives are most profoundly affected: marriages, to be sure, but also other forms of deep and ongoing human relation. Thus, when Ulysses seeks to marry Francoise (from France), the argument from interests seems to give him the right to enter France in order to do so, and for them to be able to make a life for themselves there. The tension, though, emerges when we consider Pierre, who would rather that Ulysses not come into his society. Since, Pierre (or, perhaps, the set of Pierres that is the French polity) form the ground for my right to exclude, it seems as if—on Rainbolt’s construal—there is a simple and profound tension in the heart of my view: Francois and Ulysses have a right to build a life of value together, and Pierre seems also to have a right to stop them. We want a theory of rights, though, to tell us exactly who gets to do what—and that’s not something my view, on Rainbolt’s analysis, allows. The view I defend, then, is mired in—at best—an internal tension; some part of it must be jettisoned, for it to be internally coherent.

I think the tension can be dissolved, though, by looking at the distinction between positive and negative rights. As I understand my argument from interests, it says simply that we ought not to coercively prevent people from forming lives of value with consenting others; it does not mandate that we must always provide them the tools they need to do so. Think of this in relation to the rights of free exercise of religion. The state that specifically bans my worship of a particular faith does something that is deeply wrong, on any plausible interpretation of this norm. The state that refuses to purchase me an expensive building in which to worship does not wrong me—even if I am sincere in my insistence that such a building is a necessary precondition for my effective worship.7 The state cannot stand in the way of my free exercise of my religion; it is not obligated, in general, to provide me with the means for that free exercise.

I think something similar can be said about migration, and the moral significance of freely creating lives of value with others. In general, I have argued, it is a bad thing for us to coercively prevent this value from being made. I do not say it is always morally prohibited; there may be cases in which we cannot help but deny some value, in the name of some pressing moral value. In the present context, though, I want simply to say that the right to build lives with others is best understood as a negative right, one that precludes states from coercively stopping people from creating that value. This means, though, that there is indeed an asymmetry between entry and exit. If Ulysses is prevented by his home country from journeying to France, then all parties to the sought-after relationship—his romantic partner Francois, and his new political compatriot Pierre—have consented to build a form of life together, and this value is simply prevented by Ulysses’s country of origin. In contrast, if Pierre insists that Ulysses not be allowed into his country to build a life with Francois, matters are more complex. He is not insisting that Ulysses and Francois be prevented from marrying, nor that they should be coercively prevented from building that life together in some other place. He is only insisting that they not be provided with one of the tools through which that life might be made possible—namely, an ongoing political relationship with Pierre and with the rest of the French polity. Pierre is saying, in short: feel free to build a relationship of value with consenting other people, but don’t presume to do that with me; I have not offered my consent.

Rainbolt anticipates this response, but argues that I would be unlikely to want to endorse it. The right to marry it announces, he argues, would be ‘hollow’, since it does not provide us with the right to be physically present with one another. For my part, I do not think the right I describe is actually hollow—at any rate, it is hardly more hollow than the right to free speech or the right to free exercise, neither of which actually entail equal access to the means by which that right might be made maximally exercised. I do not, in fact, think that the right to freedom of association is that strong; certainly, I have elsewhere expressed skepticism about views, like that of Christopher Heath Wellman, which take associative rights as powerful deontic constraints.8 My formal point, though, is that we are right to distinguish between the right understood as a negative constraint on actions undermining voluntary creation of value and the right understood as a positive right to the preconditions for the exercise of that right. I believe the latter is implausible, regardless of how strong or weak the norm of freedom of association might be; I am therefore convinced that Rainbolt’s critique of my position is not fatal to that position.9

We can move, then, to the issue identified by Luara Ferracioli and Lucas Stanczyk. Both of these thinkers react, in subtly different ways, against my worry that the brain drain represents a case of moral tragedy—a case, that is, in which we are in unjust circumstances, with no morally permissible moves away from those circumstances. Ferracioli argues that the political circumstances of the brain drain, which ultimately are produced by political institutions and choices, should not be assimilated to such natural and inevitable tragedies as romantic heartbreak. Surely, she argues, if the wealthy states of the world ceased to act so as to favor the well-educated in their migration decisions, which would at least undermine the brain drain’s effects, and so represents a way in which the basic structure might effectively respond to the brain drain. Stanczyk, similarly, notes that nothing I say would imply that an inversion of current migration priorities—a choice, that is, to favor the ‘countless poor and unskilled individuals who are … desperate to move’, instead of the world’s most educated and skilled inhabitants—is itself prohibited by justice. If this is right, though, then is it not false that the world lacks an effective response to the problems of the brain drain, even if—as Stanczyk notes—it is unlikely that the world’s well-off societies will actually make the sacrifices such a policy would entail?10

This objection is, in a sense, well-taken: if this policy response would, in fact, undermine the brain drain as a phenomenon, then that means that there is a way forward, and there is a strong moral reason for the wealthy states of the world to act accordingly. Nonetheless, I think there are still problems here before we think that the brain drain has been undermined as a tragic phenomenon. The first sort of problem is empirical. I am not convinced that a reversal of policy, and a consistent preference for the world’s least-advantaged, would always lead to uniformly positive results. In the first instance, it seems at least plausible to me that the world’s least advantaged citizens—those whose vulnerability is the most profound, who are concerned with the means for literal survival on a daily basis—are unlikely to be able to acquire the resources to move.11 Recall, once again, that we are not talking about a positive right to migration; we are not imagining that the United States might begin an airlift, designed to ensure that the world’s most vulnerable citizens are able to directly travel to new homes in America. We are, instead, talking about the obligation of the United States to extend a negative right to enter into that country, if the person in question has the means to do so—and those who are able to acquire that means are not likely to be among the most impoverished inhabitants of the world. The demographic, and economic, effects here are unpredictable, and it is hard for anyone—let alone a philosopher—to say with certainty what they will be, for the country of origin. There are, similarly, unpredictable potential consequences for racial justice within the country of migration. It is, I think, an inadequately addressed benefit of the brain drain that, in the country of immigration, there now exists a large section of the most educated and respected professionals who identify as persons of color. Twenty-seven percent of British doctors, for example, come from outside Europe; this fact, in itself, can undermine subtle forms of implicit bias and racism, simply through the presentation of non-white professionals whose words about health will be taken as authoritative by British patients.12 The significance of this can be debated; its importance, clearly, is not as central as the right of people in developing countries to health care. But a migration policy on which newcomers are likely to be both poorly educated and members of racialized minorities is, we might think, likely to have unpredictable effects for the projects of racial equality and democratic self-rule.

All this, though, is simply empirical speculation, and I am not an empirical thinker. A more basic worry, though, is about the stability of a system organized by the voluntary self-restraint of wealthy states. Stanczyk shares this worry; there is no reason, he writes, to think that advantaged states will voluntarily give up the policies that help them perpetuate their advantages. I agree with this, but I would argue more strongly than he does that there is something inherently unstable here: something unstable, that is, about a system that takes the voluntary self-restraint of the wealthy as a key tool for the development of the poor. Immanuel Kant, most notably, argued that political systems should not depend upon virtue; for a system to work well, it must not depend upon the private decision-making of individual agents about whether or not to live up to the demands of moral duty.13 Something similar seems true internationally; this is, I think, why Brock and I did not discuss the policy of wealthy states as a key part of our response to the brain drain. I have discussed elsewhere some possible political ways of regularizing international duties—the Constitutional device of the Alien’s Bill of Rights, for instance—but all of these are speculative, and Stanczyk is right to wonder whether states would voluntarily accept these innovations.14 This, then, is in the end why I continue to think of this case as tragic; the only stable and effective solutions to the phenomenon are coercive acts undertaken by the states that would benefit from the coercion, and it is precisely those acts that are prohibited by justice.

The final response to this worry, though, is to return to the distinction between positive and negative rights, and focus here on the underlying cause of the brain drain: the relative underdevelopment and poverty of the lower-income countries from which migration occurs. The question that must be asked is the following: if Stanczyk and Ferracioli are right, and the policy imagined might respond to the brain drain, would it thereby become ethically mandatory? My answer to this, I think, is still no—or, at least, not always. The reason for this is simple. Global justice imposes at least two sorts of moral imperatives on agents such as powerful states; they are obligated to avoid violating the rights of the global poor, and they are obligated to bear some proportional costs of developing effective responses to unjust forms of inequality. These two sorts of imperative, though, might be understood as creating different sorts of rights. On the first, the impoverished have specific rights against the wealthy: the wealthy are not allowed to do certain things, even if they are otherwise able to do so, because the impoverished have rights against those things being done. On the second, the wealthy states have some moral obligations to work together to create new forms of institutions and relationships, that might form the basis of a new, and less unjust, form of global background order. On this latter category, though, it is not possible for us to say that any individual impoverished person has a claim against a particular wealthy state for a particular act or policy. The obligation of the wealthy states is to do something; they are not thereby compelled to do any particular thing.

We can think of this with reference to a case I have discussed elsewhere.15 Suppose that a particular society has gathered a large pile of gold and encased it in a single building, owing to their democratic endorsement of a particularly odd sort of fiscal policy. Suppose further that Robin Hood breaks into that building, liberates the gold, and distributes it to the poor. The distribution of wealth after Robin Hood acts, we might stipulate, is more just than the distribution prior to his act. Is the state therefore compelled to let the poor keep their gold? Reactions differ to this case; my own answer, though, is no—the state shows itself to be cold and unfeeling when it reclaims the gold, but it does no injustice when it does so. The state has an obligation to work for a more just world; there exist any number of pathways toward that just world, and it is a matter for democratic deliberation about which one of these the state might select. Robin Hood is an inappropriate agent to determine which of these that society will end up choosing; he is, as it were, a fiscal vigilante. The individuals given gold by Robin Hood have a right to something—but it is not necessarily to the gold they were given. Similarly, even if the policy of preferring the world’s poor to the world’s rich in migration decisions were to make the world less unjust, it represents at best one means by which that world might be made less just. If a state is able to say—well, we have done enough for global justice, we have made the following alterations in our terms of trade, have undermined the legacy of colonialism in our uses of international legal instruments, and we simply don’t want to admit the global poor—then it is at least possible for what that state says to have some moral weight. Much depends, of course, on how we are able to establish the referents of the words ‘enough’ and ‘justice’. But we can at least use these ideas to ground the thought that the policy imagined by Stanczyk and Ferracioli is not necessarily mandatory, even if it might be made effective.

I say not necessarily, of course, because in the real world any wealthy state making this sort of case is likely making it in bad faith indeed. This means that our real principle might be something like the following: if a focus on the world’s least advantaged would effectively undermine the brain drain, and if the state to which migration is sought is unable or unwilling to do enough through other means to promote development, then the policy imagined might become ethically mandatory, even if we recognize that it is unlikely to be adopted by actual political communities as we know them. Phrased in this way, though, I think the principle starts to become difficult to reject; at the very least, I think I do not want to reject it. Taken in this form, then, the principle Ferracioli and Stanczyk defend is indeed one that I cannot consistently reject.

The final argument I wish to discuss is the argument of Ryan Pevnick, to the effect that the notion of the separateness of persons does no work in my argument—or, perhaps, that this notion cannot consistently explain why the individual has the right to leave the state I defend. Pevnick presents here a broader package of responses to my arguments, which end with the thought that the real work is being done by the pragmatic argument: the real reason to think states should not have the right to prevent exit is that states, as we know them, should not be trusted with that sort of right. I think he is right on this; even if my other arguments were to fail, I think this is the fundamental reason I would persist in distrusting the thought that restrictions on emigration could ever be made legitimate. I do think, though, that my arguments can defend themselves against Pevnick’s criticisms, so I will try here to show what they might say.

Pevnick begins with the thought that humans have interests in welfare, as well as considerations of agency that give rise to rights. I use these ideas, in my argument from the separateness of persons, to argue that the one who is prevented from leaving her state so that others might receive health care, is being used, in an objectionable way, for the purpose of protecting the interests of others; I think this idea echoes a similar one found in John Rawls, for whom the problem with utilitarianism was that it did not respect the separateness of persons, and their right to be treated as immune from being used as a mere means in the way utilitarianism allowed. Pevnick, though, argues that we can make the same point in the opposite direction: What justification can be given to the patient of that doctor, when the doctor is allowed to depart from the society? If she is thereby made to suffer great pains, in virtue of her lack of medical care, does that not give rise to a claim on her part? Pevnick argues two things, each of which deserves our attention: first, that we ought to focus on both rights of autonomy and on interests in welfare, in deciding these questions; and second, that we ought to regard the claim of the patient and the doctor—namely, that the other party’s demands propose to use me, in an objectionable way—as identical in nature and in strength.

I want to resist both of these claims. On the first part, I think it is simply wrong to think that welfare and agency are on a par, morally speaking; it is, I think, morally impermissible for us to destroy a human being’s agency, for the sake of even significant gains for some other person’s welfare. Pevnick disagrees with this and has written elsewhere about the proper relationship between the two moral concepts; in the present context, though, I cannot hope to adjudicate between these two moral frameworks.16 I would note, though, that it is possible—on my view—to sometimes reframe the claim made by the patient and note that her medical need might be so significant that she would be destroyed or impaired as an agent by the doctor’s departure. We might then reframe the patient’s complaint: Why is it acceptable for my agency to be disrespected through neglect, if the agency of this doctor isso central that it precludes even Brock’s moderate program of compulsory service? This version of the argument has the advantage of not shifting the terrain onto the broader question of the priority of autonomy over welfare. So, what can be said to this patient?

I think one thing that can be said is: the patient’s request for justification, in this case, is not wrongful. She might be disrespected by the doctor’s departure, just as that doctor might be disrespected were he prevented from leaving. We would, here, have a genuinely tragic set of circumstances, in which we would necessarily treat one person in ways they are right to regard as disrespectful. Indeed, I defend in Debating Brain Drain the idea that there might be circumstances under which we are simply unable to defend all the rights we take to be morally salient; the possibility exists that we might be in emergency circumstances, which require the suspension of some rights, so that others might be preserved. This, in the end, is likely the best that can be done in defense of compulsory service: it is pro tanto wrongful, but in circumstances of injustice and radical inequality, it is the least evil of many wrongful options open to us.

Imagine, instead, that the patient is instead speaking simply with reference to interests—significant interests, to be sure, but not directly related to her survival and her identity as an agent. What can be said now, if she attempts to demonstrate the parallelism between her claim and that of the doctor? The initial response, I think, will be to note the difference in kind between her claim, and that made by the doctor. The doctor is claiming: I have a right to my body, and my life, and to move those to where I will find the most value. The patient is claiming: I have a right to your body, and to your life, and to move those to where I will find them most value. Is the parallel really all that persuasive, once phrased this way?

This is, of course, somewhat unfair; the patient is not claiming a literal right to the doctor’s body—only to the sorts of action the doctor does, that is, to health care. This response, though, might not help. What the patient is claiming is, once again, that particular acts be done by someone, for her, in the name of her interests. Even if this is a legitimate claim—as I think it is, here—the nature of this claim is simply to identify a standing obligation, an obligation that ought to be filled by someone. Why, though, is the doctor in question the one who ought to be made to serve in that role? Subsidiary arguments might be used—and are used by Brock—to explain this; perhaps the doctor is licensed by the state, or voluntarily accepted the role. All this might help Pevnick’s case. The key, though, is that something else must be pressed by the patient, when she insists that she is being used by the doctor in his departure. Otherwise, the patient’s claim is likely to seem somewhat odd; she isn’t being used as a tool, or as a mere means, or as anything of the sort. She may have a positive right to health care, and that someone to provide her with that health care. The doctor, though, has a negative right to not be subjected to coercion in the name of other people’s interests; and this seems to me to be of a significantly different character. The difference seems to me to be somewhat akin to that used by John Stuart Mill, in his response to the intolerant Christian, who argues that the heathen is abusing him, by persisting in his abominable creed.17 A man’s creed, argues Mill, is his own affair; in more modern terms, we have asymmetrical rights over the nature of that creed. I would argue that we have similarly asymmetrical claims over the bodies and activities of others; a man’s creed may be his own affair, but so too is what he does in his working life.

I believe, in short, that the distinction between positive and negative rights might offer some possible responses to the objections raised by Pevnick, as I believe it does to the objections raised by Rainbolt, Ferracioli, and Stanczyk. I do not, of course, hope to have given a dispositive reason to prefer my own view of these matters to their own; indeed, I think those who are inclined to think the distinction morally irrelevant have good reason to reject my view along with that distinction. I continue, though, to think that this distinction reflects a defensible view of morality, and I am enormously grateful to my critics—both for their wise and subtle criticisms, and for the chance to better understand my own thinking on these issues. I look forward to the debates to come.


1. I am therefore going to pass over Alexander Sager’s response, which focuses on Gillian Brock’s own arguments instead of my own.

2. The most central example is James Rachels’ criticism of the distinction between passive and active euthanasia. See his ‘Active and passive euthanasia’, New England Journal of Medicine 292 (1975): 78–86.

3. The view is laid out most fully in Michael Blake, ‘Immigration, Jurisdiction, and Exclusion’, Philosophy and Public Affairs 41, no. 2 (2013): 103–130.

4. See, on this, Lea Ypi, ‘Sharing the Burdens of the Brain Drain’, Moral Philosophy and Politics 3, no. 1 (2016): 37.

5. After entry into that society, of course, the migrant will necessarily be in a position to claim positive rights, in virtue of her presence within that society; the first step, though, is to establish the negative right to be free to move across that border, unimpeded by coercive acts intended to keep her out.

6. This analysis is supported by the arguments of Warren S. Quinn, ‘Actions, Intentions, and Consequences: The Doctrine of Doing and Allowing’, Philosophical Review 98, no. 3 (1989): 287–312.

7. John Rawls discusses these issues as relating to the distinction between liberty and the worth of liberty; equal liberty is compatible with unequal ability to make use of that liberty, and the latter must not be confused with the liberty itself. See John Rawls, A Theory of Justice (Cambridge: Belknap Press, 1971), 204.

8. Michael Blake, ‘Immigration, Association, and Anti-Discrimination’, Ethics 122, no. 4 (2012): 748–762.

9. Rainbolt also discusses the problem of children for my view; if Francois and Ulysses have a child in France, and then Francois dies and Ulysses must return to the United States, does that child not have some right to enter into the United States? Rainbolt is quite right here, but I think he is wrong to think that it is the freedom of association that grounds the child’s right to stay with Ulysses; I would argue, instead, that it is the right of the child to a family, which can be grounded in terms having nothing to do with associative freedom, that is at the root of the child’s right to American citizenship.

10. Stanczyk also challenges both Brock and I on our shared idea that we can rightly bargain away some basic liberties, if that bargain is made against a backdrop of free choice and full information. I cannot adequately address this critique here; I would argue, though, that there is some value in the ability to give up even some basic rights, in the name of some particular other goods. Those who enter the military explicitly give up many of their basic rights, such as the right to walk away from their place of employment, when they volunteer to serve; this is not obviously morally wrongful. Stanczyk’s more basic point, though—that we ought to regard the arguments given by Brock and myself as incomplete, without some greater moral analysis of how and when we are able to trade rights for other goods—is quite right.

11. This is emphasized in Peter Higgins’s Immigration Justice (Edinburgh: University of Edinburgh Press, 2013).

12. These figures are from the General Medical Council of Great Britain, and are current as of April 2016, http://www.gmc-uk.org/doctors/register/search_stats.asp (accessed October 03, 2016);

13. Kant’s distinction between the Doctrine of Virtue and the Doctrine of Right grounds his analysis here. See Immanuel Kant, ‘Groundwork of the Metaphysics of Morals’, in Cambridge Edition of the Works of Immanuel Kant in English: Practical Philosophy, ed. Mary Gregor (Cambridge: Cambridge University Press, 2004): 37–108.

14. I discuss the Alien’s Bill of Rights in Justice and Foreign Policy (Oxford: Oxford University Press, 2013).

15. Michael Blake, ‘Equality without Documents: Political Justice and the Right to Amnesty’, Canadian Journal of Philosophy, supplement, 40 (2010): 99–122.

16. See his ‘Should Civil Liberties Have Strict Priority?’, Law and Philosophy 34, no. 5 (2015): 519–549.

17. ‘There are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings; as a religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregard his feelings, by persisting in their abominable worship or creed. But there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it’. John Stuart Mill, On Liberty (1859) (New York: Harper Perennial Classics, 2014).

About The Author

Michael Blake
University of Washington

Professor of Philosophy

Public Policy, and Governance

University of Washington

Box 353350

Seattle, WA 98195

United States,

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