Abstract
In the course of presenting a compelling and comprehensive framework for immigration justice, Brock (2020) addresses discriminatory immigration policies, focusing on recent attempts by the Trump administration to exclude Muslims from the U.S. (the ‘Muslim ban’). This essay critically assesses Brock’s treatment of the issue, and in particular the question of what made the Muslim ban and similar policies unjust. Through examining these issues, further questions regarding the immigration justice framework on offer arise.
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Notes
In using this label, I have been influenced by Elizabeth Anderson’s The Imperative of Integration (2010). To borrow Anderson’s medical analogy, as a doctor diagnoses the patient and thereby determines what is wrong with them, the philosopher can also diagnose an injustice by determining what is wrong with it, i.e. what makes it wrong. While the label is convenient for my purposes here, it is worth noting that Anderson has something broader in mind with her focus on ‘diagnosis’ in non-ideal theory, including determining the causes of a given problem and also what to do about it, given our motivational and cognitive deficiencies. Still, the question is close enough to Anderson’s approach that the connection is worth mentioning.
Though perhaps there are additional reasons why they are not morally permitted to exclude, as one might glean from, e.g. Carens’s other arguments for open borders (Carens 1987).
This is generally true of her account, although sometimes other moral or prudential commitments are brought to bear on particular issues.
Brock gives a helpful overview of how the Muslim ban in the U.S. was gradually implemented in Chapter 4.
Article 4 focuses on the right of states in emergency situations to derogate from their obligations under the ICCPR to the extent required so long as this does not involve discrimination ‘solely on the ground of race, colour, sex, language, religion or social origin’. Article 18 also includes a clause noting that freedom of religion is subject to limitations ‘as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
Wellman claims that while it may be the best available justification, he does not find the critique of discriminatory immigration policies on grounds of domestic justice fully satisfactory (Wellman and Cole 2011, pp. 149–150). I instead develop the critique from domestic justice in an argument against the traditional state sovereignty view in Lindauer (2017).
See, e.g. (Brock 2020, pp. 87, 196, 223–224).
For a helpful overview, see (Lynch 2020). Also see the American Civil Liberties Union (ACLU) FAQ page on the ICCPR (https://www.aclu.org/other/faq-covenant-civil-political-rights-iccpr).
Brock also notes that when states fail to meet the requirements of LC1 and LC3, they threaten the legitimacy of the state system as a whole and make a legitimate state system harder to achieve, thereby violating LC2 (Brock 2020, pp. 65, 76–77).
Regarding these policies as just as morally wrong as one another is entirely compatible with thinking that we should sometimes judge people in the past more leniently than our contemporaries. I am grateful to an anonymous reviewer for raising this point.
These are the Genocide Convention, the Slavery Convention, and the Supplementary Convention on the Abolition of Slavery.
Brock (2020), p. 165, note 63.
Of course, other factors will matter in determining whether a particular way of giving preferential treatment to certain visa applicants is morally acceptable. For instance, a state arguably cannot deny visas to the spouses of non-Christian citizens, or create inordinately long wait times for them, in the course of giving preferential treatment to Christian visa applicants. The point here is that the fact of preferential treatment for certain visa applicants itself need not involve the objectionable treatment of any citizens or non-citizens. I am grateful to an anonymous reviewer for suggesting that I clarify this point.
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Acknowledgements
I would like to thank Christian Barry, Serene Khader, Daniel Putnam, and an anonymous reviewer for helpful comments.
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Lindauer, M. Why are Muslim Bans Wrong? Diagnosing Discriminatory Immigration Policies with Brock’s Human Rights Framework. Res Publica 28, 413–424 (2022). https://doi.org/10.1007/s11158-021-09523-2
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DOI: https://doi.org/10.1007/s11158-021-09523-2