Abstract
Neo-republicanism seems well suited to provide insight into current policies for the control and restriction of immigration. In this paper, I discuss three different accounts of domination to assess whether they can provide intuitively acceptable responses to the types of domination experienced by different groups of immigrants. First, I present and criticize an argument offered by Philip Pettit in support of the view that immigration restrictions could in principle avoid being dominating. My criticism focuses on Pettit’s account of non-arbitrary governmental action that claims that laws and policies are not dominating when people have democratic control over the government’s activity. Given the failure of Pettit’s argument, I turn to the proceduralist account of non-arbitrary state action proposed by Frank Lovett, and discuss the limitations of the account in diagnosing all ways in which border controls and immigration policy can generate domination. Finally, I present and defend the view that governmental action is not dominating when there are adequate checks that protect the objective interests of individuals.
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Notes
For example, Lenard (2015) assumes that the state has discretion in controlling its borders and granting membership, but argues that deportation practices should be non-arbitrary. But this is not a consistent view: if republican principles are adequate, then they should also guide border control policy. Honohan (2014) and Hovdal-Moan (2014) rely on Lovett’s account of domination to discuss immigration policies. But this account cannot properly explain the domination of refugees who are outside the territory of a democratic state. Refugees who are stateless are a paradigmatic example of domination in the neo-republican literature inspired by Hanna Arendt’s work.
For additional arguments in support of the interests-based account of domination see Arnold and Harris (2017).
Theorists disagree about the precise criteria that international law should use to grant refugee status, since most think that the requirement of being subject to persecution is too narrow. See Cavallero (2014).
This also applies to those who entered with authorization but stayed in the country after their permission expired.
Fine (2014) claims that one should also consider what is required for the state itself to count as free or non-dominated. This requirement might well rule out the permissibility of an externally imposed immigration policy, or any policy that would lead to the collapse of the political institutions of the country. But it does not yield an argument that a free state should have discretion regarding its immigration policy, based on the value of democratic self-determination. See Abizadeh (2008).
Pettit (2012, pp. 166–179). This is quite a selective or idealized appeal to historical facts. It overlooks events such as colonization or the expulsion of people from their lands. These sorts of events are relevant to the justifiability of the claims of some states to have a right to control their territory and restrict immigration.
Pettit (2012, pp. 177–179).
Pettit (2012, p. 162).
Pettit (2012, p. 162).
Arash Abizadeh (2008) argued that democratic theories have a common problem when it comes to justify border controls. Such theories presuppose that coercive laws can only be legitimate if those subject to them have democratic rights to participate in their creation, but non-citizens are subject to immigration law without having any such rights. Abizadeh argues that these laws subject non-citizens to the will of others, thus invading one basic condition for autonomy. The fact that non-citizens are subject to forms of coercion for which there are no proper checks also shows that their freedom as non-domination is compromised. On the differences between Abizadeh’s view and the neo-republican view I defend see Costa (2016, pp. 402–404).
For example, in 2003 Argentina passed a non-restrictive immigration law based on the view that there is a human right to immigrate. See Hines (2010).
The terms of political debates about immigration have also changed over time. Interestingly, some historical republicans in the U.S. defended immigration as a way to avoid the domination both of citizens and aliens, claiming that membership should be based on ‘volitional allegiance’. See Hoye (forthcoming).
See Sager (2017, p. 46).
Thanks to Jennifer Morton for this example.
Another option that is consistent with the democratic control account is to recognize a right to freedom of movement and to hold that using force to regulate the movement of individuals across borders violates that right.
Perhaps he would support using a lottery as a mechanism to make impartial decisions about admission. However, many intuitively find a lottery system arbitrary because it fails to consider who has the most urgent interest in admission.
It is worth noting that Pettit does not assume that states have a basic ‘right to exclude’, or that they have the discretion to decide their immigration policy. His argument implicitly admits that the republican state needs some sort of justification for using its coercive power against non-citizens.
This example is inspired by Ypi’s discussion of whether academic visitors count as exploited by host universities. See Ypi (2016, pp. 156–157). Similar things could be said about diplomats who live in foreign countries for many years. They, like the professor, lack democratic rights in their place of residence. Still, they enjoy significant diplomatic protections there, and they are able to exercise their democratic rights as citizens of their home country.
Lovett (2010, p. 120).
Lovett (2010, p. 96).
Owen (2014) argues that granting individuals civic statuses such as citizen, legal resident, temporary worker, etc., involves the exercise of power by the state, which can be arbitrary or not. States certainly exercise this power towards foreigners present in their territory or at their borders, and it is appropriate to evaluate these decisions from the neo-republican perspective. But my point is that there is a distinctive form of exercise of arbitrary power which consists in the use of coercive force to pre-empt attempts to request asylum or to enter the territory without authorization.
We would also consider strictly enforced immigration procedures arbitrary if they had unreasonable requirements and of failing to satisfy those requirements had severe consequences. For example, the U.K. used very strict non-compliance rules for asylum seekers as a technical ground for exclusion: they were given 10–15 days to present evidence for their cases and those who failed to present documentation were deemed non-compliant. See Gibney (2008).
Lovett (2012, p. 147).
Sager (2017) has shown that it is extremely difficult to implement restrictive immigration policies that are non-arbitrary in Lovett’s proceduralist sense. He argues that immigration agents (those who patrol borders, work in detention centers, do administrative work, or make deportation decisions) have enormous discretion. This discretion is unavoidable because of the complexity, vagueness, and frequent inconsistency of immigration laws. Immigration agents must therefore use discretion to interpret the law, and they do so with limited accountability and no transparency. Sager argues that these facts help make an indirect argument for open borders. I find his argument persuasive, but not because there are ‘inconsistencies’ in the treatment of similar cases but because of the serious harms that can result from these decisions that his argument powerfully illustrates.
See Pettit (1997, pp. 51–73).
According to Pettit: ‘There is a fact if the matter as to whether or not the state is effectively forced to track non-sectional interests and ideas when it interferes in people’s lives. Politics is the only heuristic available for determining whether the interference of the state is arbitrary or not, but the issue for which it provides a heuristic is still an issue of fact’ (1997, pp. 56–57).
See Pettit (2019). On some problems with the democratic control account, see Lovett (2019).
See Lovett (2012, pp. 141–142).
See Pettit (2014, p. 72); Carens (2013, pp. 225–254); Oberman (2016). Oberman points out that democratic states are expected to grant freedom of movement within their territory to foreigners as well as to citizens, even if those foreigners are only authorized to stay in the territory for a limited time.
For a more developed argument along these lines see Oberman (2016). As Oberman prophetically notes, even if some of these activities could be moved online, much of their value would be lost.
Even if states do not eliminate restrictions on immigration, they could reduce some of the most severe forms of domination by eliminating certain measures used to control immigration, such as intercepting migrants on their journeys, detaining those who lack visas but did not commit a crime, or conducting raids in immigrant communities. Still, many difficulties remain for states that attempt to enforce immigration controls without causing severe harms. See Mendoza (2015).
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Acknowledgements
Many thanks to María Julia Bertomeu, Joshua Gert, Frank Lovett, and two anonymous reviewers for their comments on this paper. I have also benefitted from discussion of a shorter version of this paper at the 36th International Social Philosophy Conference in San Francisco in 2019.
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Funding was provided by College of William and Mary, Summer Research Award.
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Costa, M.V. Neo-Republicanism and the Domination of Immigrants. Res Publica 27, 447–465 (2021). https://doi.org/10.1007/s11158-020-09489-7
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DOI: https://doi.org/10.1007/s11158-020-09489-7