The claim-right to exclude and the right to do wrong

ABSTRACTMost challenges to immigration restrictions have not shown that states lack a claim-right to exclude, or a moral right against outside interference to make membership decisions. And an important, unexamined aspect of the claim-right is that states have the right against interference to wrongfully exclude, or the right to do wrong when making admission decisions. A major implication of this right is that even political or economic measures to affect states’ immigration policies are off the table – significantly compromising the prospect of meaningfully addressing the world’s growing refugee crisis. In the form of a reductio argument, I provide reason to reject this position. Specifically, I try to demonstrate that, in the relevant cases, a plausible moral defense for the right to wrongfully exclude can only be given for states with objectionable character – protecting the very states whose immigration policies we should be most concerned with, which is surely morally counterintuitive.KEYWORDS: Right to excluderaceidentityrefugeeimmigrationopen borders AcknowledgmentsI owe thanks to two anonymous reviewers for their valuable comments and questions. I am alsograteful for the helpful feedback that I received from the participants at a workshop for the Georgetown Institute for the Study of Markets and Ethics.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1. https://data2.unhcr.org/en/situations/ukraine2. https://www.unhcr.org/refugee-statistics/. The variance is due mainly to morally irrelevant definitional issues. The traditional conception of a refugee refers to someone who has departed their original state and includes about 32 million people. But about 53 million forcibly displaced people remain in their original states, and their conditions and circumstances typically mirror those of traditional refugees. For more, see: https://www.ohchr.org/en/issues/idpersons/pages/issues.aspx3. https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-migrants/global-refugee-crisis-statistics-and-facts/See references in my previous note. Andrew Altman and Wellman (Citation2009, esp. pp. 181–182) likewise maintain that wealthy states have moral duties to rescue refugees, which can often only be satisfied by admitting them.4. Some notable works stand out for arguing against the claim-right to exclude (e.g. Abizadeh, Citation2008), but they don’t examine its implications for wrongful exclusions – my focus here.5. I discuss recent work below.6. My arguments also suggest a new critique of individuals’ right to do wrong.7. The only other sustained analysis concerning states seems to be Gerhard Øverland and Barry’s (Citation2011) valuable paper, but its focus is different. It concerns whether a majority has the right to have its democratically-produced, morally wrong decisions complied with/not interfered with by other members, and is thus perhaps more related to issues of democratic authority and political obligation than the right to do wrong as held against outsiders. Relatedly, it does not discuss immigration decisions, which (as section 2 will highlight) are considered perhaps the most central domain for states’ rights against outside interference.8. Sometimes a ‘right to exclude’ pertains to denying citizenship (see Fine, Citation2010, pp. 342–43), but my interest here concerns denying territorial admission.9. Section 2, however, discusses the most plausible general rationale for states’ having the right to do wrong.10. For a general definition of a liberty-right, see Waldron (Citation1981, p. 29).11. For instance, Fine (Citation2013) argues that self-determination rationales for a right to exclude don’t establish the moral permissibility of excluding people. And below I discuss Hidalgo’s (Citation2015) paper, which seems to deny the possibility of the claim-right to exclude. A notable exception is Abizadeh (Citation2008), however it doesn’t examine the claim-right’s implications for wrongful exclusions (discussed next).12. Here I am referring to Miller’s (Citation2016, p. 163) description of the claim-right.13. For Wellman’s (Citation2008) allusion to a claim-right, see pp. 111–12; for the unilateral understanding, see the top of p. 114. Miller (Citation2016) refers to this understanding on, for instance, pages 33, 57, and 62–63 and in ch. 6. (In these same passages, as discussed below, authors sometimes refer to a liberty-right.) Carens (Citation2013, p. 8) suggests that even criticism may be impermissible.14. Convention Relating to the Status of Refugees Article 33(1), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150.15. Concerning stances on identity criteria, see, e.g. Blake (Citation2002); Carens (Citation2013, p. 179, 174–75); Miller (Citation2016, pp. 104–106); Wellman (Citation2008, pp. 109–141). Shortly, I discuss stances on refugees.16. I owe great thanks to two anonymous reviewers for pressing me to discuss and elaborate on this issue.17. For a prominent description along these lines, see the work of Allen Buchanan (Citation2003, p. 193, 266, chs. 4, 6). More recently, compelling accounts of immigration justice tie the legitimacy of individual states to the system of states being legitimate: in general, for the state system to be legitimate, it must include a global, cooperative migration scheme. More specific conditions for state-system legitimacy might refer to refugee protection (see especially Owen, Citation2020.), decisions concerning irregular migrants and identity-based immigration selection (see especially Brock, Citation2020), or even exclusion more generally (see especially Bertram, Citation2018). These accounts argue that whether some immigration decision or set of decisions is right or wrong cannot be determined from the perspective of individual states but must be considered from the collective perspective of the state system. See a recent paper by Daniel Sharp (Citation2020) for helpful discussion and critical analyses of these positions.18. For a more comprehensive list, see Buchanan (Citation2003);19. See Miller’s (Citation2016, pp. 103–104) discussion of this idea, which he rejects.20. This is also how Criddle and Fox-Decent (Citation2021, pp. 1093–1096) read these authors.21. Though I do not share this understanding of legitimacy, I accept it here for the purposes of examining RWE.22. He writes, ‘my intention is not to lay down any particular immigration policy … . These are matters to be decided by democratic means within each state.’ (p. 57) Also see p. 163.23. Miller expresses great moral concern with this position but seems to regard it as unavoidable.24. More generally, here and elsewhere (e.g. p. 92) he suggests it’s up to a state to decide how many refugees it admits.25. He describes the idea of sovereign democratic states in the context of human-rights obligations (pp. 7–8; Also see pp. 90–93).26. On pp. 218–220, he extends this point to decisions to admit refugees. Chandran Kukathas (Citation2017, p. 714), another open-borders proponent, also appears to accept the idea, though it’s not entirely clear whether he thinks the right to exclude is only a legal right or also a moral right.27. As I discuss below in note 32, it seems for these authors that only disastrous consequences forfeit a state’s right against interference, such as if excluding migrants triggers a war.28. This is true of the right to do wrong generally. See Herstein (Citation2012, p. 18). See also Enoch (Citation2002, p. 363); Galston (Citation1983).29. Enoch (Citation2002, pp. 360–361), suggests that such a right would be uncontroversial. And Herstein (Citation2012, p. 18) writes, ‘The cutting edge of the right to do wrong is that it gives the right-holder a moral claim to enforce the duty of non-interference on others.’30. For instance, Miller (Citation2016) expresses that urgent admission needs ‘may override the state’s right to exclude them’ (p. 58). But here he’s suggesting that, sometimes, excluding urgent cases is all-things-considered morally wrong – not that outsiders may intervene (see p. 163).31. Carens (Citation2013) says states’ ‘discretionary authority’ is limited by duties not to use (e.g.) racial criteria (see, e.g. p. 174). But he’s suggesting that states lack not the claim-right but the liberty-right to use certain criteria (i.e. such criteria are morally wrong). See my notes 38–40 for further references.32. Altman and Wellman (Citation2009, pp. 6–7) say the right to exclude is not absolute, but it seems defeated only if a state’s exclusion decision causes disastrous consequences (the example they give of an individual’s right being defeated is when their decision would cause a world war) (p. 165). Since standard exclusion decisions aren’t likely to provoke such consequences, we can leave this qualification aside.33. Clear expressions of this are found in Altman and Wellman (Citation2009, pp. 6–7), who describe deontic reasons not to interfere with the state’s decisions as ‘exclusionary reasons.’ See my previous note for a possible exception. Also see Carens (Citation2013, p. 6); Miller (Citation2016, p. 163).34. He focuses on one type of wrongful exclusion – roughly, not admitting people with urgent needs (p. 4) – but says his analysis applies to any kind of wrong exclusion (see pp. 4, 5n16).35. To preempt a possible objection: RWE isn’t simply the right to design wrongful restrictions, but also to implement and enforce them.36. His view is that since everything is either morally required, indifferent, or prohibited, without the right to do wrong one ultimately only has the right to choose the required option (because the prohibited is ruled out and the required dominates the indifferent) (p. 35). Critics have argued that his view fails to capture the full space of moral life and fails to distinguish morally permissible from indifferent. See Bolinger (Citation2017); Enoch (Citation2002, pp. 365–366).37. Carens (Citation1992, p. 40; Carens, Citation2013, pp. 276–287) suggests that these options, though often pro tanto wrong, might not be all-things considered wrong in our actual world.38. This is distinct from Hidalgo’s focus discussed above – namely, border agents causing migrants (threats of) physical harm.39. If a state’s members have morally legitimate ownership rights over the relevant territory or public goods/resources, it seems more accurate to say excluding urgent cases fails to prevent substantial harm. And though the latter can be wrong, it may not be as egregious as causing people substantial harm, and so it’s not obvious that the wrong manifestly outweighs the reasons for RWE. Consider that it’s commonly thought there is a claim-right not to donate one’s property to charity (even when the stakes of not donating are high), presumably because the wrong is not conceived of in terms of causing harm.40. RWE’s defenders likely also conceive of these wrongs this way (since we can assume they wouldn’t think there’s a right to commit them otherwise).41. Herstein’s (Citation2012, p. 15) discussion is relevant here.42. Bolinger (Citation2017) makes a different (very effective) point when considering whether for ‘an agent to freely choose to be virtuous’ (p. 51), they must have the right to do wrong. She shows that if moral valence differs among the morally permissible choices, one is free to choose to be virtuous; thus, justifying the right to do wrong requires demonstrating why freely choosing to be virtuous also requires at least one wrong (not inferior) option (esp. pp. 51–52.) My argument (demonstrated next) is that if there’s a range of morally permissible options, justifying the right to do wrong requires that some particular wrong option be morally significant to autonomy, which, I argue, is only true of states (or, by extension, individuals) with very bad character.43. For recent discussion, see https://www.theatlantic.com/international/archive/2021/04/uyghur-women-china-xinjiang/618531/;https://www.nytimes.com/2021/01/19/us/politics/trump-china-xinjiang.html; https://www.economist.com/leaders/2020/10/17/the-persecution-of-the-uyghurs-is-a-crime-against-humanity;https://www.theatlantic.com/international/archive/2020/10/chinas-war-on-uighur-culture/616513/.44. Constitution of Kiribati, Articles 19 and 23.45. Even under Carens’s open-borders view, it at most seems pro tanto wrong (see (e.g.) Carens (Citation1992), p. 40).46. See discussion in section 2.47. Moreover, the views surveyed thus far would likely interpret the examples as I have. See Blake (Citation2002, p. 286; 2005, pp. 232–233); Carens (Citation1992, pp. 37–39); Wellman (Citation2008, pp. 139–140).48. The state’s vicious character may even partly explain the exclusion’s being wrong. On several accounts, an action is right if it is what a virtuous agent would (characteristically) do in those circumstances. See, e.g. Oakley (Citation1996); Hursthouse (Citation1999, p. 28). For an alternative view that retains the tight connection between wrong action and vicious character, see Kawall (Citation2002).49. Also, note common right-to-do-wrong examples (e.g. Waldron, Citation1981, p. 21).50. Carens (Citation2013) seems to interpret interference like this.Additional informationNotes on contributorsSahar AkhtarSahar Akhtar is faculty at Georgetown University and writes at the intersection of philosophy, politics, and economics. Her book, Immigration and Discrimination, is forthcoming with Oxford University Press, UK. She has published many articles on immigration, including recently in Ethics.