A Lockean account of the moral status of undocumented immigrants

ABSTRACTThis article aims to show that Locke’s discussion of tacit consent and the right to punish aliens in the Second Treatise of Government has important bearings on the moral status of undocumented immigrants. It argues that Locke conceptualized both friendly and hostile aliens, counting the former as tacit consenters to whom host states owed rights and protection. Moreover, it highlights how his approach, unlike theorists before and after him, was one that saw individuals as capable of shaping their own relationship with the host. The article also examines Locke’s discussion of the federative power of the state, which includes the power to vet aliens within the country. Seen through this Lockean lens, the article argues that the vast majority of undocumented immigrants can be understood as tacit consenters or potential citizens who should be judged by how they choose to relate to the host, and not by their country of origin. While noting that the Lockean approach is not incompatible with border control, the article also shows how it puts the onus on the host to justify the power it exercises and to engage in dialogue with undocumented immigrants about what their status should be in the country.KEYWORDS: Lockeirregular migrationundocumented immigrantstacit consentpunishment AcknowledgmentsI would like to thank everyone who attended the online Locke working group workshop on June 25th, 2021. I have benefited greatly from their questions and comments. I would especially like to thank Douglas Casson who was the commentator for my session on this occasion. I would also like to thank Takuya Furuta and Brian Smith for reading an earlier version of this paper. Finally, I would like to thank the editor and the anonymous reviewers for their invaluable feedback.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1. By this, I mean irregular migration as it tends to be understood today. For example, the International Organization for Migration (IOM) defines this type of migration as the ‘Movement of persons that takes place outside the laws, regulations, or international agreements governing the entry into or exit from the State of origin, transit or destination’. https://www.iom.int/key-migration-terms (Accessed on September 9, 2021). However, what may be considered ‘irregular’ by today’s standards may not have been irregular, but quite ‘regular’, in seventeenth-century England. What I am doing therefore is to consider the implications of Locke’s comments for the debate over irregular immigration today. I am grateful to Brian Smith for his suggestion to clarify this point.2. References to Locke (Citation1988) will be by book (Roman numeral) and paragraph number (Arabic numeral).3. The irrevocability of citizenship may be puzzling to some and may make Locke’s theory less appealing. I make no effort in this article to explain or defend it, simply regarding it as a part of Locke’s argument. At the same time, I do not think it seriously undercuts the relevance of Locke’s discussion for undocumented immigrants.4. In seventeenth-century England, denizenship was a legal status granted by the King. Denizens enjoyed certain rights such as the right to purchase land or send their children to English schools. However, it was a status short of full citizenship, and so they did not enjoy political rights nor the right to bequeath their land to their children (Casalini, Citation2008; Matar, Citation2008).5. That is 21 years or older (II.59). According to the ‘Fundamental Constitutions of Carolina’, adulthood starts at 17 (Locke, Citation1997b, p. 179, 181). I am grateful to Brian Smith for pointing this out to me.6. So, while the state of nature is a ‘State of perfect Freedom’ (II.3), unless you were living outside an existing political society, you would quickly become a tacit consenter, agreeing to subject yourself to some kind of rule without leaving your natural state.7. Pinheiro (Citation2020, p. 14) suggests that Locke was not interested in naturalizing unskilled agrarian workers. Locke (Citation1997a, pp. 324–25), however, plays down the fear that the labourers would be ‘idle’ or that ‘too many’ would come in.8. I am grateful to Johan Olsthoorn for pointing this out to me. A brief survey of how Locke uses the term ‘in effect’ in the Two Treatises of Government and other works such as the Letter Concerning Toleration shows that the reading is consistent with his use.9. Perhaps Simmons (Citation1992, p. 86) implies this when he refers to the alien tacit consenters ‘with whom the state is at peace’. See also Simmons (Citation2001, p. 169). My point here is that this point needs to be emphasized much more.10. Both Waldron (Citation2002, p. 125) and Ward (Citation2010, p. 82) note the complementary nature of the two arguments while offering no explanation as to why this is so.11. Perhaps there is an interesting question about punishing crimes committed by an alien tacit consenter against another alien tacit consenter from a different country.12. Other interesting cases might include bluffers and deniers of hostile intent. Also, in the aforementioned case of the fleeing former tacit consenter, should the state decide to punish this individual, the state would use its federative power.13. ‘Offences for which aliens, within the jurisdiction of a country are punishable, are – first, offences committed by the nation of which they make a part, and in whose offences they are involved; secondly, offences committed by themselves alone, without any charge against the nation to which they belong. The first is the case of alien enemies; the second, the case of alien friends’ (Madison, Citation1900, p. 364).14. See also Madison (Citation1900, p. 366): ‘that the removal of alien enemies is an incident to the power of war; that the removal of alien friends is not an incident to the power of war’.15. I have benefited from an exchange with Douglas Casson on this point. His comments have helped me clarify the point I wanted to make.Additional informationFundingKeio Gijuku Academic Development FundsNotes on contributorsJ.K. NumaoJ.K. Numao is an Associate Professor of Foreign Languages and Liberal Arts in the Faculty of Science and Technology at Keio University. His research interests are in political theory and the history of political thought, especially the ideas of the seventeenth-century English thinker John Locke. He has written on topics ranging from toleration to emigration.