Post by Nathan Smith
Is it morally wrong, or morally permissible, to migrate to a country illegally?
The question matters, to those who have done it, to those who feel indignation at others who have done it, to those who profit by the labor of those who have done it, to the friends and neighbors and children of those who have done it, to those who are considering doing it, and to policymakers who must decide how to deal with those who have done it or may be tempted to do it in future. But above all, it matters to those who are faced with the choice: should I migrate illegally to a foreign country or not?
To be faced with this as a live option at all, a person must be in a position such that they want to migrate illegally. That is, considering all other factors, migrating illegally must seem to them better than their other options. In particular, (a) they think either they would be better off living in another country, even illegally with all the risks and inconveniences that entails, or that they can benefit others they care about by doing so, or both; and (b) they either cannot get permission to do so from the government of that country, or can do so only excessive cost and inconvenience. Usually, though, illegal migrants seem to be people who had no realistic option of migrating legally, even at great cost and inconvenience.
The question at hand is: If a person wants to migrate illegally (in the sense specified), should they not do so for specifically moralreasons? Presumably the answer is not an unqualified yes or no, since one can invent extraordinary cases in which the act of illegal migration is clearly morally right or morally wrong. If a migrant’s goal is to commit a terrorist attack, or steal, or abandon a wife and family, or escape justice after committing a heinous crime, or avoid paying burdensome but quite affordable debts, then he is clearly in the wrong. If a migrant is being hotly pursued by a gang of killers and crosses an international frontier in a desperate effort to save his life, or if he has secret information about an imminent terrorist attack which, if he can only arrive at the spot in time, he can prevent, saving millions of lives, there can be little doubt that the act of illegal migration is justified. The real question is how much, and what kind, of moral weight the law has in determining whether particular acts of migration are right or wrong.
There seems to be a widespread feeling that, except in strange and extreme cases, it is simply wrong to disobey the law per se, as if anything “the government” (whatever that means) forbids (requires) magically becomes morally impermissible (obligatory) for all of “its” citizens/subjects. I have this feeling myself, but as I can’t justify it directly, I take it that the generalization “it is wrong to disobey the law” holds (usually) true for a variety of often overlapping reasons that, between them, cover most of the cases. Most, but of course, not all. I don’t think anyone really holds that it is always wrong to disobey the law. As a Christian, I am not at liberty to hold that view, since the prophet Daniel and many other Biblical heroes violated human laws that were contrary to the laws of God, and many, many Christian saints were martyred for refusing to obey the law by worshipping the Roman emperors.
Recently, I was discussing the duty of obeying the law with my father, a law professor, and he seemed to recall that in the past I had expressed strong scruples about disobeying the law as such. I told him, that had never been my position, and that my most general reason for obeying the law is to avoid the temptation to lie to escape detection. But afterwards, I wondered whether I really had held the position he remembered, and if so, what arguments I had for it, that I might have forgotten. In a way, I would like to hold that position, since my complex of arguments for obeying the law seems to differ a bit from the historic position of most Christian churches, as far as I am able to discern it. I have the sense that they felt obeying the law was wrong as such, except when conscience forbade it, as in the case of the prophet Daniel or the Christian martyrs, rather than that it is usually wrong for a variety of indirect reasons. But I can’t see a way of justifying the attitude that seems most typical of Christians in the past. Not that this threatens any crisis of faith. The best arguments I can offer get me close enough for comfort to what is in any case only a rather imprecise perception of what most of my fellow Christians have thought. But if I did at some point find reasons for advocating a more robust and inherent duty to obey the law, I’d be interested in what they were. Anyway, here’s what I have to offer right now.
One reason to obey human laws is that they may coincide with natural laws. Thus, one should not murder, regardless of whether the law forbids murder or not. But as human laws do seem invariably to prohibit murder, we assimilate our condemnation of murder into a general condemnation of “breaking the law.” Likewise, one should not steal, whether the laws protect property or not, but human laws reinforce this duty. However, while killing is an objective fact quite independent of any government definitions or decisions about it, I don’t think government can be made irrelevant to the business of defining property rights. Some property rights really are simply natural rights. If a man settles on wild land to which no one had a previous claim, and cultivates it to feed his family, his property rights to that land are natural in a simple and readily perceivable sense. (This insight is associated most famously with John Locke.) But in complex commercial societies, it is not practical to establish consensus about property right by tracing all of them to such elemental origins, and courts and laws and judges are indispensable aids in defining and agreeing upon who owns what. Still, the duty not to steal is part of natural law and would apply even in the absence of government, and the reason to respect property rights remains fundamental and pre-political even when political actors have helped to adjudicate who owns what.
A second, related reason to obey the law is that it serves as evidence of what the natural law is. Suppose that action A does not seem to me to violate the natural law, but the government of the country I live in has prohibited action A. Suppose further that I view the government of my country as generally just and reasonable. I may then judge that, if judges and legislators have seen fit to make action A illegal, they probably have some good reason for thinking action A is a violation of natural law, which I happen not to have understood. I should try to understand it, but meanwhile, I should obey the law, to reduce the risk of doing something wrong. Of course, this argument only applies inasmuch as the government is generally just and reasonable. If I live under a crazy, arbitrary, absolutist king or dictator, and the laws reflect his mere random whims, the law of the land ceases to be evidence about the content of natural law, and this reason for obeying it disappears.
Modern democracy presents an interesting case here, because modern democracies typically claim to be enforcing, not the natural law, but the “will of the people,” whose “sovereignty” consists in being able to make whatever laws they like. That I have moral reasons to obey the natural law is a tautology, since by the natural law I mean the moral law. But the “will of the people,” even if the concept itself were not naïve, has no power morally to command. A man ought to do what is right, not what his fellows approve of, unless he is fortunate enough that his fellow men are wise enough to want him to do what is right. We might conclude, then, that since under modern democracy, public officials do not even claim to govern according to natural law, no one should regard their judgments as evidence about right and wrong. But I would be inclined to give democratic laws more credit than this, because I don’t think democratic publics are so corrupt as to feel they have an arbitrary, “sovereign” right to make any laws they like. I think they know there are such things as unjust laws, and that democratic majorities have a duty not to make them. I also think that democratic majorities are reasonably good judges of what laws are just, reasonable, and appropriate, when they themselves are burdened with obeying those laws. The horror stories about the political ignorance of ordinary people miss an important point, namely, that the rule of “rational ignorance” about politics ceases to apply when a person is faced with the duty of complying with the law. Then they have an incentive to understand it, and think about it, and that makes them informed voters. But that qualification shows why the “wisdom of crowds” principle has no force when it comes to immigration laws. Voters are citizens and therefore they are not prospective immigrants, so they have little incentive or opportunity to see the law from a prospective immigrant’s point of view, in order to judge its reasonableness or lack thereof. And that is why democracies’ policies on immigration, ever since they got into their heads the baneful error that restricting it is okay, have always been wildly unreasonable.
A third reason one should obey man-made laws is because the government serves as a focal point for setting expectations, and thereby solving coordination problems. Thus, natural law has nothing to say about whether societies should make people drive on the right or the left side of the road, but it does say that whatever side others are driving on, one should do the same, for one ought not to needlessly jeopardize one’s own life or those of others. Society might be able to solve this problem in a decentralized fashion if it needed to, but surely if there is a government, there should be no objection to its taking the lead here.
The argument that one ought to obey the law because the law is serving the common good by solving a coordination problem is clearly valid here, but are there a significant number of similar cases? Daylight savings might be another example, except that it seems to have hardly any moral relevance. Money, I think, is another example. I think it is wrong to counterfeit money, though of course in a Lockean state of nature there would be no objection to making pieces of paper of a certain description, because (a) it is against the law, and (b) in this case the law is solving a coordination problem for the common good. Even some quite arbitrary and micromanaging regulations could be defended as solutions to coordination problems. For example, suppose the law regulates the size of oranges that can be sold in grocery stores. Natural law has nothing against selling very small oranges per se, but if the law has created a general expectation that oranges must be a certain size, then by selling smaller ones, I might mislead customers. But, you say, customers can see the size of oranges they are buying! All right, but what if someone is selling batteries with very little power, or appliances that emit fumes harmful to health, or building houses that have an unusually high risk of fire of collapse? Granted, some people might recognize the inferiority of these products and still buy them, but should societies not be able to opt out of at least some of the inconveniences of caveat emptor? While I would hesitate to affirm that such regulations can justify the use of coercion, certainly I think one moral reason to obey the law is that government is solving coordination problems for the common good, and you should help it to do so by following the rules.
A fourth reason to obey the law would be that one has agreed to do so through a social contract. If valid, this argument has great generality, but it depends on the social contract having some kind of reality. And it takes a heroic effort to maintain that the social contract has any reality in the face of the obvious fact that we never actually sign one. Yet I do tend to make somewhat reluctant and embarrassed attempts to argue this, because I think we need at least some legitimate government (albeit we could do just find with a good deal less of it than we have), and the social contract is the governed countries, do in fact morally will for there to be a government rather like the one they have. Even if their permission is never asked, they do give their permission through their intentions and attitudes and desires and states of mind. And the manner in which they occasionally ask for its assistance carries a sense of entitlement that reflects their real sense of duty to, and their intention to, uphold their end of the bargain. I might try to argue that many gratified Constitution, but some others too, have a historic warrant from some sort of old social contract. I would then try to argue that such commitments can be presumptively passed on from generation to generation, unless explicitly and conscientiously repudiated, since we owe so much to our parents and may be regarded as having a duty, in return, to uphold the commitments that they regarded as valuable and important, inasmuch as conscience permits us to do so. Probably the sum total of these arguments would still be a bit lame, but they might have a little bit of force, and what force they have favors obeying the law.
A fifth reason to obey the law is that to break the law may involve lying, or an intention or temptation to lie under certain circumstances. The penalties governments impose on lawbreakers are usually sufficient to make lawbreaking a bad plan, except for those who expect to escape detection. Detecting lawbreakers would be easy if everyone always told the whole truth. The government would only have to ask you whether you did it. Of course, there is a difference between telling the whole truth and not lying. It is not lying to refuse to answer an unwelcome question. Often, a lawbreaker is never asked whether he broke the law or not, so he does not have to lie, or even to refuse to answer. But he certainly might be asked, and he deserves little credit for not lying if he intended to do so at need, but simply never found it necessary. There is a danger, too, that without directly lying, one might deceive by allowing falsehoods to be assumed true. Depending on the circumstances, this might be almost as culpable as a direct lie. All this lends to lawbreaking a strong aura of dishonesty, and one’s duty to the truth is a strong reason to obey the law.
Civil disobedience stands out as a case where, far from being dishonest, breaking the law is uniquely and specially truthful. The whole point of civil disobedience is that one does not try to escape detection and punishment. On the contrary, civil disobedience tends to be deliberately public, and one submits willingly to whatever punishments the oppressor chooses to perpetrate, hoping that the moral burden of administering unjust punishments will break the oppressor’s will and cause him to repent. I don’t think civil disobedience has to be deliberately public, but I do think it has to be resolutely honest. One can be civilly disobedient without actually courting arrest, or advertising one’s lawbreaking. But one has to speak about it openly, and avoid any deceit.
A sixth reason to obey the law is simply that you should presumptively comply with any request that anyone makes of you, including if that anyone is a government. Of course, this presumption isn’t a very strong reason for action. If someone asks you to, say, give them a ride to work, you probably should if it’s no great inconvenience, but it doesn’t take much to override that. It may be no great sin to refuse even if your only reason is that you’re very tired, or your favorite TV show is about to come on. Still, one reason to pay taxes (for example) is just that the government says it needs the money, and it’s usually good to be obliging when someone requests something of you.
Now, how do all these reasons for obeying the law affect the ethics of undocumented immigration?
One reason that I’m unusually lenient in my attitudes towards migrating illegally is that I put a lot of weight on the social contract as a reason for obeying the law, and this argument doesn’t apply to foreigners. If it’s difficult to defend the claim that an American should obey US laws because they’re part of a social contract, to say that a foreigner should obey US laws because of a social contract is an obvious non-starter.
To save space, I’ll dismiss the first two arguments by saying that migrating illegally is not against the natural law, and that the judgments of democratic legislators on this point are of negligible value, because they are serving voters who are not subject to the immigration laws they vote for through their representatives. Of course, there’s more to be said, and I even think some vague and highly attenuated version of the “collective property rights” might have a little force, such that migrants might act unjustly if, after migrating, they made no effort to assimilate and effectively appropriated large and important parts of a nation’s territory in such a way that natives no longer felt safe and at home there. A weak duty to assimilate might also arise out of the coordination problems that occur when, say, ignorance of English becomes widespread. All such arguments seem hardly worthy of being put in the scales against the desperate economic needs of migrants who need to feed their families or earn the money to pay for essential medical care, but they may have a (very) little force.
The sixth argument, the argument that one ought presumptively to comply with any request, is obviously weak, but if it were really the case that no one in a country wanted you there, that might be a pretty good moral reason not to go. In practice, though, the people most directly concerned with an immigrant’s decision usually want him to immigrate. Thus, Mexican migrant workers are declared illegal by the government, but welcomed by the growers, and probably by landlords, grocers, and churches as well. So I don’t think the sixth reason to obey the law has any force in most cases.
By far the strongest reason not to migrate illegally comes from the duty not to lie. To that, I’ll return. But first, let me say that there do seem to be a few weak reasons why a migrant should obey the laws of a country he wants to migrate to, and if there is not at least something to put in the moral scales against them, I would hesitate to condone an act of illegal migration. Suppose, for example, that an affluent Bostonian has a perfectly satisfactory life in the US, but has a fancy to live in Toronto. Canada won’t give him a work visa, but he still wants to go, so he moves to Toronto and works on the black market. I can’t find it in myself to judge this hypothetical person. I rather like his spirit of adventure. But I probably would advise a person against taking the moral risk of breaking the law for so casual and non-compelling reason.
In more typical cases, illegal migration is motivated by real economic desperation. No jobs at home. A family to feed. Maybe fear of religious persecution, or gang warfare. Scanty earnings are channeled into remittances. Or parents make huge sacrifices, living in the shadows for decades, so that their children may have a better life. All such morally serious reasons for illegally migrating easily override the weak arguments against it, except for the argument from truth, to which we now turn.
If we accept the absolute duty never to lie (admittedly a controversial claim), does that rule out illegal migration? Is it possible for an illegal immigrant to live in truth? Can one navigate modern life in America, or Europe, or elsewhere, without legal status, and without lying?
It seems to me that it would be almost impossible to be an illegal immigrant without using falsehoods in various formal and bureaucratic contexts. For example, one might get work, or a driver’s license, using a fake Social Security card. The question is whether there is such a thing as a morally permissible legal fictionwhich can be used without lying. I hope there is, because I often use legal fictions myself. Case in point: If one engages in online commerce, one will often have to click boxes saying “I have read the terms and conditions,” in order to complete a transaction. In these cases, I usually don’t even click the hyperlink to glance at the terms and conditions. If I do, I never read them thoroughly. I don’t think I would be capable of doing so, written as they are in mind-numbing legalese. Boredom would overwhelm my powers of attention long before I got to the end of them. So, if lying to a form counts as lying, then I tell lies all the time. Is that a sin? Should I shun online commerce, on pain of being a liar?
I don’t think so. It would probably be a better world if our understandings of consent were modified such that the types of contracts we recognize as valid were calibrated to what people could reasonably be expected to understand. But our current institutions routinely make use of “I have read the terms and agreements” as a legal fiction, and we do not really expect people to do so. By the same token, it is well-known that fake Social Security cards are widely used in the economy, and I think there are some industries in which employers routinely accept fake Social Security cards. They may prefer not to be made explicitly aware that a given employee is illegal, to avoid culpability, but they would not be surprised to discover it, or consider themselves deceived. In these contexts, to present a Social Security card is not to assert, “I am such-and-such a person,” but simply to give an employer a means to clear a bureaucratic hurdle. It therefore does not qualify as lying, and is not inconsistent with the duty of living in truth. Of course, the bureaucrats to whom the Social Security number will be reported, and the politicians and voters who stand behind them, really do want to know the truth. But they are not morally present in the situation, because they are not available to be reasoned with. To have the right to be told the truth to, one must be available to listen to the whole truth. In the same way, if I were face-to-face with a representative of the companies I engage in online commerce with, I would say, “I can’t really read this agreement, you know. It’s exorbitantly long and I’m not a lawyer.” But a form is not a human being and doesn’t have the same right to be told the truth. The people behind the forms forfeit the right to be told the truth if they demand information in unreasonable ways, and are not available in person to be held accountable for their unreasonableness.
Even if it is sometimes morally permissible to use fake Social Security cards, the duty of telling the truth will doubtless involve extra risk and sacrifice for those who migrate illegally, over and above what they would face by being here without any scruples about lying. There may be jobs a person cannot conscientiously take, because conventions have not given the presentation of a Social Security card the nature of a legal fiction. One might have to tell such employers the card was fake, to avoid really deceiving the employer. Social relations might also involve special dangers. You never know who might be a tattle tale, but again, you can’t lie.
So, to someone who was considering migrating illegally, but was not sure whether this was a morally acceptable thing to do, I would advise them to examine themselves and make sure that they were really determined not to tell any lies in the process, with the tricky but important exception of legal fictions. I would advise them to think of themselves as engaged in conscientious civil disobedience, and to err on the side of telling more of the truth than honesty demands. I would ask them if they had the courage to tell the truth at great personal risk, and the magnanimity to face the injustices of the system, should they be arrested and deported, without rancor or bitterness, and in a spirit of love and forgiveness. If not, I would advise them not to migrate illegally.