Abstract
Recent debates in the political philosophy of immigration have tended to focus on whether or not there is a human right to migration. The debate has been dominated by two camps: one, often identified as cosmopolitan, defending the proposition that borders must be open to all who desire entry; and the other, often identified as nationalist, defending some version of the contrary. Peter Higgins’s Immigration Justice offers a way to transform this dialectic, by shifting our attention towards a more contextual analysis of how distinct forms of migration policy might affect the interests of different social groups. On his analysis, which is both plausible and attractive, we are bound by liberal precepts neither to a policy of open borders nor to a politics that permits the exclusion of unwelcome foreigners simply because they are unwelcome; we are, instead, commanded to discover and promote those forms of policy likely to undermine global relationships that perpetuate social and political marginalization.
Higgins’s analysis will, therefore, undermine both contemporary defenses and critiques of the right to migration. Against nationalists (for whom the nation ought to be preserved by means of migration controls) and defenders of the moral right of states (for whom the state has the moral right to determine its own principles of migration), Higgins offers a powerful critique: such theorists rely upon a grossly oversimplified account of what a state really is, subsuming relevant differences within an empirically false account of social cohesion. Against the cosmopolitan, similarly, Higgins offers a powerful claim: those who demand a policy of open borders ignore the ways in which such a program might harm the most marginal global citizens—including, notably, those too impoverished or disadvantaged to migrate. Higgins advocates, instead, for a more nuanced account of migration rights, which begins with the Priority of Disadvantage Principle: we ought not avoidably harm, through migration policy, the members of already unjustly disadvantaged social groups. This method will have distinct implications in distinct contexts, and so cannot be thought to imply a single set of policy implications. Higgins is clear, though, that it will potentially undermine some rights often prized by liberal thinkers on immigration; we might have to reexamine, on this account, whether family reunification is ethically permissible (215–17), whether underdeveloped states might not have the right to prevent the exit of their citizens (225–27), and whether states have any right to use criminal history or cultural similarity in their decision making on migration (209, 205).
This book has some powerful virtues. It is, to begin with, admirably clear, which sounds like faint praise until one considers how often that virtue is absent in political philosophy. It is encyclopedic in its treatment of current thought on the political philosophy of immigration; it discusses nearly all recent philosophers to have discussed immigration in depth, and discusses their views with charity and rigor. It offers, finally, a plausible and novel view of the morality of immigration. The view borrows from feminist analysis, but extends widely into social group marginalization and oppression, and encourages those of us who think about immigration to think of it in more subtle and contextual ways. The book is, in short, an important contribution to the field, and philosophers who are writing on immigration should read it carefully.
I do have, of course, some reservations about Higgins’s view, which can be nicely grouped into two sorts of worry: one about the idea of social group membership and injustice, and the other about the consequentialist rejection of agent-centered rights. I will discuss this in turn.
Higgins focuses exclusively upon groups, in his analysis of immigration justice; he rejects the possibility that there can be an idiosyncratic form of injustice—immigration, he argues, affects people “not as individuals per se, but as members of social groups” (1). These groups, moreover, are neatly categorized as disadvantaged or privileged, and they are categorized as such in all available global contexts; it is not plausible, Higgins insists, that a given group could be dominant in one context yet marginal in another (126–28). Higgins examines, instead, twenty-eight groups, of which eight are privileged and twenty are disadvantaged; justice in immigration, he argues, consists in undermining the avoidable harm done by migration policy towards those groups already facing an injustice, which is defined with reference to a low level of capability functioning (122–24).
I have three related worries about this conception of injustice. The first is that it seems to make all forms of group-based differences in capability functioning matters of political justice. Many of us, though, are convinced that not all inequality, even inequality affecting capability functioning, is politically relevant; relational egalitarians, for example, are convinced that being subject to racial oppression in politics is quite a different thing from being too unattractive to find a romantic partner—and that this is true even if being unable to find romantic love is, in fact, a rather severe sort of problem. Those of us of a relational bent, or a Rawlsian one, will tend to think that some sorts of differences in capability functioning are morally relevant and some others are not. Higgins, of course, disagrees; he simply asserts that “all non-voluntary social group disadvantage is, by its nature, unjust” (131). This is not an implausible view; it is, however, not obvious, and many of us will regard it as sharing entirely too much in the sorts of sins traditionally ascribed to luck—egalitarianism. Higgins’s view, in other words, is not necessarily wrong, but demands that its adherents accept certain conclusions about disadvantage that have traditionally been thought difficult bullets to bite.
The second worry is that disadvantage must be, for Higgins, global, rather than local; if Christians are dominant, then they must be thought to be dominant in all contexts, rather than marginal in some and dominant in others (121). Faced with the objection that Christians might have an advantage in some contexts (such as the public culture of the United States) and a disadvantage in others (public universities), Higgins insists that we must therefore ascribe two distinct social groups: the Christians-in-the-United-States and the Christians-in-universities. The former is dominant, and the latter presumably marginal. The problem, of course, is that the same Christians move freely between the groups and recognize themselves as members of a group that exists in both contexts. The group recognized by members, in other words, is simply that of Christian, and the members react to advantage or disadvantage as Christians. Allowing this, though, would make Higgins’s theory more complex, and so he simply rules it out from the beginning. There is a deep worry here that Higgins is accepting an empirically false premise for the sake of explanatory ease; it’s simply easier to run a theory in which all groups are either marginal or dominant. Theoretical simplicity is no virtue, though, when it erases complexity that is relevant to accurate moral understanding.
Similar concerns motivate my third worry about social group membership. Higgins insists that we must analyze immigration justice with reference to groups, rather than to individuals; idiosyncratic forms of injustice are thus erased from view. The problem, of course, is that advantage and disadvantage sometimes exist without a social group that understands itself as such lurking in the background. All things being equal, for example, a prospective migrant who tells good stories and jokes—or one who knows how to put an interviewer at her ease—might well have an easier time in migration. This is true, moreover, even if we do not posit that there exists a social group to be understood as “the witty” or “the empathetic”; these may be aggregates, as Higgins uses the term, but they are not likely to be social groups. And yet there may be disadvantage, and so perhaps injustice, even in such cases. Higgins’s reply to such worries is that it would simply be “too unwieldy” to consider idiosyncratic disadvantage, as it would be to consider the intersectional effect of plural group membership (136). This is an inadequate reply, though; it seems to repeat the same sin Higgins ascribes to the nationalist—to subsume relevant forms of difference within a totalizing whole, thereby erasing morally relevant differences from our attention.
The second general family of worry focuses instead on the idea that we ought to consider all migration policies with reference to their effects upon the status of the globally marginal. This is a powerful idea, but it should be noted that it makes it difficult or impossible to think that there are any genuine rights to be found in the world of migration. Rights, after all, often involve an agent-centered permission to do less than one might for the world. In marriage, we have the right to be free from considerations of global justice in choosing our spouse; even if the result of the pattern of marriage decision is increased inequality (as compared to, perhaps, random mating), we are free to marry whatever spouse also chooses to marry us. The point here is not to equate migration with marriage—the two are distinct—but to point out that Higgins assumes that there are no genuine rights here to be found; if a given pattern of migration policies exacerbates global injustice, then that pattern must be altered. The abandonment of rights is explicit—Higgins notes that even the most cherished international rights of migration, such as nonrefoulement, are merely prima facie rights to be justified with reference to their consequences (188). Many of us, however, will take some convincing. Refugees, for instance, seem to have rights that are defensible even when the exercise of those rights might exacerbate injustices back home; it seems a mistake to let the rights of refugees wait upon a forward-looking consequentialist calculus. The right to exit a given state, similarly, seems legitimate, even when one might make things better for one’s compatriots by staying put. Higgins disagrees, of course, explicitly rejecting a basic right to exit, and passing over the rights of refugees largely in silence. He is not necessarily wrong, of course; but those of us who are attracted to a more robust account of rights will need more than he provides us, before we are convinced.
These objections, of course, should not be taken as a rejection of the worth of the book; it is eminently worthy, and deserves the wide attention it is likely to receive. I disagree with much of Higgins’s view, but am extremely glad that Higgins has put that view forward.