This post is in answer to Vipul’s post “Immigration enforcement — what’s morally acceptable? A question for fellow open borders advocates.” I have indeed thought a lot about this. In fact, to establish the answer to this question was one of my main goals in writing Principles of a Free Society, though I don’t focus my arguments on that question in any one place in the book. Vipul asks: “I feel that harping too much on [criticism of enforcement] is dismissive of… legitimate concerns, namely, how can you enforce any immigration policy — or any specific keyhole solution — without some enforcement teeth?” Yes, that’s why I had to be a rather careful policy designer in Principles. Because I think conserving good institutions is very important, but at the same time, deep moral logic compels me to regard most of the sorts of measures governments use to control immigration today as unjust. Morally, I think ICE is pretty much on a level with any gang of robbers: an organization whose raison d’etre is unjust violence.
My starting point in Principles is natural rights:
A human being is mind and body. The body has a particular telos, or peculiar flourishing, of which we have some natural understanding. Thus, we see the difference between a healthy body and a body wounded, injured, decrepit, or sick, though it would probably be impossible mathematically to define the difference in microphysical terms. To flourish, the body must have food, water and air; must not be subjected to cold or heat too extreme or for too long; must not be pierced by sharp objects or crushed by heavy blows; must not be exposed to certain substances, certain types of radiation, certain intensities of sound; must be allowed a certain degree of movement and a certain degree of sleep; should not spend too much time in water or darkness; and so forth. Each body is naturally subject to one human mind. To be subject to that mind is part of the body’s telos. The means by which the body can be subjected to the power of other human minds– it can be beaten, wounded, dragged in chains, and so on– trespass against or violate the body’s telos. The body should belong to its natural possessor. (Principles of a Free Society, p. 1)
I call this the habeas corpus principle, “taking some liberties with a venerable phrase from the English common law, yet faithfully capturing, I think, both its strict semantic sense and its highest historical significance.”
To cut a long story short, you can’t violate natural rights except as retribution for violations of natural rights. Utility can’t trump natural rights because (a) a person must generally be presumed to be the best judge of their own utility, and (b) utility isn’t interpersonally comparable. The state’s claim to a special right to use violence must derive from a social contract if it is to be just at all. Most problematic here is taxation. Ordinary law enforcement is (if the laws in question are just) retribution against violations of natural rights, usually at the behest of the victim, so that’s fine. But what justifies the state in forcing people who have violated no one’s natural rights to pay it money. To this, I give a handful of answers which are not that satisfying, but which I think are the best you can do. Three of them are:
- Violating rights to protect rights.Even if utility does not trump rights, might an action be acceptable which violates rights but prevents other rights violations so that there are “less” violations (whatever that means) than otherwise?
- Free-rider problems.It’s possible that Pareto-improving collective action could be prevented by interminable problems of negotiation. Perhaps a state is assuming power justly if doing so improves the welfare of all members. (Interpersonal utility comparison is not a problem in this case, but it’s still a problem that utility is unobservable.)
- Payment for judicial services.Complex forms of property rights, such as corporate property rights with their separation of ownership and control etc., are probably only possible with the help of state coercion. To the extent that the state facilitates wealth creation through provision of sophisticated property rights (which arise from natural property rights but are too complex for casual moral intuition to settle disputes about), it may be justified in extracting some of the wealth thus created from the beneficiaries of judicial services.
Where does this leave the undocumented immigrant? To simplify somewhat, he has violated no one’s rights, and no one has a right to interfere with him. Continue reading “Answer to Vipul’s question about enforcement” »