Rawls’ highly unpersuasive attempt to evade the open borders ramifications of his own theory

Open borders advocates sometimes claim that Rawlsian ethics imply support for open borders. If this is an implication of Rawls’ theory of justice, however, it’s one that Rawls himself does not acknowledge, for reasons he mentions in passing in his book The Law of Peoples:

Concerning the second problem, immigration, in #4.3 I argue that an important role of government, however arbitrary a society’s boundaries may appear from a historical point of view, is to be the effective agent of a people as they take responsibility for their territory and the size of their population, as well as for maintaining the land’s environmental integrity. Unless a definite agent is given responsibility for maintaining an asset and bears the responsibility and loss for not doing so, that asset tends to deteriorate. On my account the role of the institution of property is to prevent this deterioration from occurring. In the present case, the asset is the people’s territory and its potential capacity to support them in perpetuity; and the agent is the people itself as politically organized. The perpetuity condition is crucial. People must recognize that they cannot make up for failing to regulate their numbers or to care for their land by conquest in war, or by migrating into another people’s territory without their consent.

How convincing is this argument?

Rawls’ suggestion that a people should be concerned about their land’s ability to “support them in perpetuity” exhibits a strange neglect of international trade. Almost no country today is economically autarkic. In that sense, no country’s land “supports” its people. Some countries, like the United States, could probably get by without international trade, albeit with a lower standard of living. Others, certainly including Hong Kong and Singapore, but probably Japan too, and many others, could not do so, or only with tremendous difficulty. But that’s not a problem, because they don’t need to. They can buy what they lack from foreigners. A primitive Malthusian notion of carrying capacity seems to be at work in Rawls’ mind, but Malthus has been wrong, most of the time, concerning human populations in the last 200 years. Moreover, if a country were really on the verge of a Malthusian nightmare of mass starvation, it would not be an attractive destination for immigrants. It seems safe to say that there is no country in the world today where existing migration restrictions could be plausibly justified by an argument from limited carrying capacity.

This may be a low blow, but carrying-capacity-type arguments were crucial in motivating the policies of militarist Japan and Hitler’s Germany in the inter-war years. The Japanese felt, I think with some justification, that in an increasingly protectionist world they faced a threat of mass hunger if they were confined to their island. Hitler famously wanted Lebensraum, living space, and the Nazis’ belief that they were justified in seizing this at the expense of their neighbors to the east seems partly to have reflected the false economic view that there is only so much to go around and the only way to survive, in the long run, was to make sure others didn’t. Fortunately, Hitler and Rawls were wrong.

The argument from “the land’s environmental integrity” is slightly more promising, but if it proves anything, it proves too much. What, after all, is “environmental integrity?” The Central Valley of California, where I live, sometimes has “Code Orange” air, which obscures the view of the Sierras, and makes it advisable for certain population segments to stay indoors. Is this a breach of “the land’s environmental integrity?” If so, maybe the Valley should be depopulated altogether. But it’s still quite liveable and productive. And of course, people choose to live here: they could move to a place with better air quality, if they liked. If “environmental integrity” just means “can support human life,” then we’re nowhere near pushing that limit. If it means “is not changed by man so as to compromise natural beauty or human health at all,” environmental policy would have to be vastly more restrictive, and living standards, and maybe populations, will have to fall sharply.

More fundamentally, if population is a problem because it harms the environment, migration restrictions are a beggar-thy-neighbor way of dealing with it. If Mexicans leave Mexico and come to the United States, the US environment suffers, but the Mexican environment presumably benefits. As for the global environment, you might suppose that it suffers from the change, since Mexicans in the US will enjoy higher incomes, consume more, and therefore pollute more. In fact, there seems to be an environmental Kuznets curve, whereby economic growth initially leads to economic degradation, but later to environmental improvement. In that case, immigration to rich countries may improve the global environment by moving people into economies with more sustainable practices. Of course, it’s complicated: rich countries might be guilty of less deforestation but more CO2 emissions. But the global environmental impact of migration is ambiguous at worst. So, is it really sensible to defend countries’ right to defend the parochial little environmental integrity of their own solitary countries, and the global environment be damned– even when the levels of environmental integrity in question are far above the minimum necessary to sustain human life, and what is at stake is the avoidance of rather rare health problems plus purely aesthetic benefits?

Rawls’ property argument is valid but utterly misapplied. That “unless a definite agent is given responsibility for maintaining an asset and bears the responsibility and loss for not doing so, that asset tends to deteriorate,” is a profoundly important truth. It is, as Rawls says, a strong justification for property rights. But given that we do have property rights, the force of the argument is largely exhausted. Under open borders, most land would, of course, still be privately held. Its owners would have the same incentive as they do now to look after it, regardless of how many immigrants might be living somewhere on the national territory. If anything, they’d have more incentive to do so, because there would be more potential buyers, guests, customers, etc. to reward them in a pecuniary or non-pecuniary fashion for temporary access to or permanent acquisition of the land. Of course, not all land is privately owned. But there’s no prima facie inconsistency between making non-privately-owned land– the streets— accessible to foreigners without restriction– open borders– and having public agencies care for this land to prevent excessive degradation. Restaurants, shops, malls, etc., make privately-owned available without restriction (at least during their business hours) to strangers, but still look after its upkeep. The state is not, in my view, wholly analogous to such enterprises, because I take their rights of private ownership to be uncontested, whereas the state’s right to control access to the streets in an arbitrary and discretionary fashion, I deny. But the state could nonetheless imitate private businesses in allowing unrestricted access to the streets which it maintains.

The most sinister aspect of Rawls’ argument is his hint about “failing to regulate their numbers.” What does he have in mind? Well, immigration control, in the first place, but “regulating… numbers” even more obviously suggests a direct policy of restricting fertility, along the lines of China’s one-child policy, which is widely, and rightly, regarded as an intolerable violation of human rights. It’s also stupid and unnecessary. The world can feed itself. We’re not pushing up against any limits on what the environment can sustain. But suppose we were. That would genuinely provide an argument in favor of directly restricting fertility, but it wouldn’t really provide any support for migration restrictions, even from a narrowly citizenist ethical perspective. Ultimately, food markets are global. If the US lets in more immigrants than it can feed, that’s fine: they’ll produce manufactures or something, which can be traded for food from abroad. Since you’re not increasing the global population, you’re not increasing global demand for food (or not much, though of course immigrants may raise their living standards and eat more), so open borders wouldn’t even tend to raise food prices, not even in the United States.

But even if Rawls’ arguments from carrying capacity and environmental integrity were persuasive on their own terms, there’s a deeper problem with the whole project in The Law of Peoples. Rawls describes it thus:

The basic idea [of a just law of peoples] is to follow Kant’s lead as sketched by him in Perpetual Peace (1795) and his idea of foedus pacificum. I interpret this idea to mean that we are to begin with the social contract idea of the liberal political conception of a constitutionally democratic regime and then extend it by introducing a second original position at the second level, so to speak, in which the representatives of liberal peoples make an agreement with other liberal peoples. This I do in ##3-4, and again later with nonliberal though decent peoples in ##8-9. Each of these agreements is understood as hypothetical and nonhistorical, and entered into by equal peoples symmetrically situated in the original position behind an appropriate veil of ignorance. Hence the undertaking between peoples is fair. All this also accords with Kant’s idea that a constitutional regime must establish an effective Law of Peoples in order to realize fully the freedom of its citizens.

A bit of explication is in order. Rawls’ theory of justice begins by placing individuals behind a “veil of ignorance” (the “original position”) from which they are asked to evaluate the question of what kind of social order they desire. Rawls supposes that they will decide the question using a maximin criterion, maximizing the welfare of the worst off (minimum) individual: this is called the “difference principle” (because inequalities are only justify if they are in the interests of the worst off). Here, in The Law of Peoples, he is suggesting that this procedure can be applied again, at a higher level, with “peoples” in the role of individuals, deciding on some law that will regulate their relations.

Such a project is disastrously ill-conceived. To begin with, one would never get to the end of the problem of defining “peoples.” Probably most human beings in history have regarded themselves vaguely as members of a “people” in some sense or other, a tribe or a nation or city-state or whatnot. But what they mean by that, what the nature of the “people” is, what unifies it, what rights it has over them and what rights they have from it, how it ought to be governed, how it might be established, or separated, or dissolved, how one might join it or exit it, has been so endlessly diverse that it seems a waste of time to theorize about a “law of peoples” at all. Very often, indeed probably most of the time, agreement among the constituents of the “people” about who the constituents of the “people” are fails to exist. Some will regard themselves as members of the “people” who are not so regarded by others; others will deny their membership of a “people” whom others insist are part of it. Some clamor for inclusion, others for secession. Typically “peoples” can be defined at multiple levels: Londoner, Englishman, Briton, European; Egyptian, Arab, Muslim; Muscovite, Russian, Soviet. There are no answers to these questions. The only thing for a competent theorist to do is to avoid having to ask them, by developing a theory that can do without defining the undefinable concept of a “people.”

But let’s grant, for the sake of argument, that the peoples have been defined and they are situated behind the veil of ignorance, deciding what sort of global social contract to establish, not knowing whether they will be rich or poor, strong or weak, or I suppose, populous or few in number. (The last seems to be a necessary condition for the international social contract to be suitable for “equal peoples,” though how a people could conduct deliberations without knowing its own numbers is hard to imagine.) A further question arises: Does the “people,” while negotiating from the original position, represent the interests of the “people,” or of the individuals who comprise it? For example, suppose under open borders all Haitians would emigrate, thereby greatly improving their own lives, but causing Haiti, as a nation, to disappear? Would Haiti want to negotiate for open borders, in the interests of the human beings who comprise it, or to oppose them, in the interests of the collective entity, Haiti? I’ll assume that “peoples” will represent their constituents’ interests. In that case, the first thing they would negotiate for would be open borders. They’d know they were likely to be born into the world as poor countries, and that their constituents’ best hope would be to emigrate to rich countries. Of course, they might happen to be rich, but first, if immigration harms rich countries at all (debatable), it almost surely harms them less than it benefits the immigrants, so the “expected value” of open borders from the original position would almost surely be positive (probably enormously so), and second, if Rawls applied his “difference principle” he would have “peoples” completely discount their possible well-being as rich nations, and focus solely on the worst-case scenario, in which emigration would be most desirable.

But most fundamentally, the project of the “second original position” is illegitimate from the start, because it’s inconsistent with the Rawlsian social contract. It’s extremely implausible that people behind a veil of ignorance would accept an initial partitioning into “peoples,” some of whom would end up very rich and others very poor, who would then provide the basis for a second level of social contract. To the extent that one can imagine at all what kind of system people would elect from the standpoint of the original position, the most obvious possibility is that they’d vote for some sort of democratic world government. Possibly that’s unworkable in such a way that dividing the world into sub-populations with some degree of political autonomy would actually be desirable from the original position, but if so, given the high priority that unborn Rawlsian contract-makers must set on avoiding the huge international disparities of income that we observe, the result would surely be some complicated sort of global federalism, with territorial states’ powers limited, and in particular, with limited– probably few or no– rights to curtail migration. That the extremely inegalitarian and also highly inefficient institution of discretionary, “sovereign” controls on international migration could pass the Rawlsian test is implausible enough that open borders advocates can regard Rawls’ philosophy as on their side, even if Rawls tried to evade this.

I’m no Rawls expert, but it’s hard to believe Rawls didn’t know this at some level. But the irritating thing about him is his massive complacency, his parochial assumption that the leftish American intelligentsia of a certain era, and only they, were “decent” and “reasonable” and “liberal,” and his determination to gerrymander his otherwise admirably rationalistic theories to support their prejudices. But left to themselves, Rawls’ theories break out of the straitjacket of the biases of Rawls and his class.

Nathan Smith

Nathan Smith is an assistant professor of economics at Fresno Pacific University. He did his Ph.D. in economics from George Mason University and has also worked for the World Bank. Smith proposed Don’t Restrict Immigration, Tax It, one of the more comprehensive keyhole solution proposals to address concerns surrounding open borders.

See also:

Page about Nathan Smith on Open Borders
All blog posts by Nathan Smith

2 thoughts on “Rawls’ highly unpersuasive attempt to evade the open borders ramifications of his own theory”

  1. Sophisticated restrictionists generally don’t make the claim that migration will destroy the environment. In fact, they don’t even make the claim that the environment in the rich world after migration will be somewhat worse than the environment before migration. Rather, their claim is that the rate of environmental improvement in the rich world under free migration will be lower than the rate of environmental improvement under closed borders (I have quotes from Mark Krikorian’s book on the subject here).

  2. isn’t there a simpler problem with Rawls’ argument? Rawls argues (in A Theory of Justice) that justice is concerned with basic social institutions. (I think this is partly to ward off libertarian objections that distributive justice will have to be concerned w/ every possible kind of unfairness.) The focus on the “basic structure of society” is b/c a) basic institutions are distinctive for their profound impact on life chances b) these institutions can’t really be maintained without some kind of coercion, which calls for justification. Well, it’s pretty bleeding obvious that state borders satisfy the criteria for basic institutions, so don’t they have to be justified in the same way? (i.e., to the individuals who want to immigrate). This post is a good discussion of these issues:
    http://crookedtimber.org/2008/12/16/freeman-replies/

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