Tag Archives: self-determination

A Critique of Wellman’s ‘Immigration and Freedom of Association’

Christopher Heath Wellman’s article in the journal Ethics, Immigration and Freedom of Association, (pdf) is generally well-regarded, even among advocates of open borders. Jason Brennan and Bas van der Vassen have both expressed plans to pen their own responses to it. In the essay, Wellman attempts to demonstrate a presumptive right of legitimate states to limit immigration on the basis of freedom of association, and then argues that neither egalitarian nor libertarian arguments can overcome this presumptive right to close borders.* I argue here that Wellman fails to establish this presumptive right, and that freedom of association suggests instead a presumptive right of individuals to migrate across national borders.

Wellman correctly points out that the freedom of association includes the freedom to not associate with certain others–the right to exclude–and this freedom exists for both individuals and groups. His workhorse analogies are marriage and private clubs. A person may unobjectionably reject suitors for marriage and a married couple is not required to open their marriage to outsiders. A private association is permitted to restrict its membership. The simple extension of this idea is that, likewise, a nation may restrict its membership by prohibiting immigration. Wellman illustrates the strength of the presumption that a group can exclude members by pointing to the examples of the Boy Scouts, who have been under fire for excluding gays and atheists from leadership roles, and the Augusta National Golf Club, which has similarly suffered scrutiny  for excluding women. Wellman correctly points out that even in these controversial cases, the burden of argument lies with those who seek to abridge the group’s freedom to determine its membership.

Marriage doesn’t work as a load-bearing analogy for other forms of association. A marriage requires and sustains unanimity both for its formation and for any subsequent membership changes. Unanimous decisions to associate are not distinguishable from individual decisions to associate in any interesting way. And neither private groups nor nations typically enjoy unanimity, so I won’t discuss the marriage analogy further.

The first objection Wellman anticipates is that states are different in morally important ways from other groups in that, for instance, “political states do not owe their membership to the autonomous choices of their constituents.” Instead of addressing this point on theoretical grounds, he deploys an interesting reductio ad absurdum.

[Here] I would like merely to highlight some of the unpalatable implications that follow from denying a country’s right to freedom of association. In particular, consider the moral dynamics of regional associations like the North American Free Trade Agreement (NAFTA) or the European Union (EU). If legitimate states did not enjoy a right to freedom of association—a right which entitles them to decline invitations to associate with others—then they would not be in a position to either accept or reject the terms of these regional associations. Think of Canada’s choice to join NAFTA, or Slovenia’s decision to enter the EU, for instance. No one believes that it would be permissible to force Canada into NAFTA or to coerce Slovenia to join the EU. (Of course, nor may Canada or Slovenia unilaterally insert themselves into these associations!) And the reason it is wrong to forcibly include these countries is because Canada’s and Slovenia’s rights to self-determination entitle them to associate (or not) with other countries as they see fit. Put plainly, if one denies that legitimate states like Canada and Slovenia have a right to freedom of association, one could not explain why they would be righteously aggrieved at being forced into these mergers.

It’s true that states are generally given ample room to negotiate these sorts of interstate associations, but consider what these arrangements really mean for the people involved. An association agreement is just a package of policies, usually including reductions of trade barriers, regulatory harmonization, easier immigration, and sometimes the establishment of limited, shared governance bodies. These are the policies that impact the lives of citizens. The ‘association’ is arguably just a symbolic bow to tie it all together, no more meaningful than when two municipalities half  a world away adopt one another as ‘sister cities’. Whether these policies are justified or not is a series of distinct questions, and they should be treated as such.

From the impacted citizen’s perspective, it makes little sense to speak of “forcing” a state to enter such a regional association. That would just mean some foreign government implementing new policies–which still need justification individually–instead of her own government. This may or may not be acceptable, but the question is more capably handled by democratic theory rather than a ponderous interpretation of the freedom of association. Incidentally, because immigration laws impact potential migrants so forcefully, there is a good case to be made that they should be included in that democratic decision.

Note also that regional association agreements between nations in most cases expand freedom of association at the individual level, so there’s no conflict caused by the state exercising its freedom of association in this way.  This would be like the Augusta National Golf Club deciding to merge with a women’s golf club, thus admitting women into the new club and eliminating the source of conflict. Wellman acknowledges the distinction between expanding and limiting association, but maintains his argument by providing the example of an essentially uncontested secession of one nation from another, namely Norway’s 1905 secession from Sweden.

In this case, more than 99 percent of the Norwegians voted in favor of political divorce and Sweden as a country did not resist the separation. Whatever one thinks about the justifiability of statebreaking, this seems like a paradigmatic case of permissible secession. If each individual’s right to freedom of association trumps the state’s right to self-determination in those cases in which the group as a whole seeks to disassociate from others, however, then Norway’s secession was unjustified; it was impermissible because every last Norwegian (if not also each Swede) had the right unilaterally to veto the political divorce and the plebiscite in favor of separation did not garner unanimous consent. Again, I presume without argument that this position is implausible. And if an individual’s claim to freedom of association does not trump her state’s right in the case of secession, there seems good reason to believe that an individual’s right would be equally impotent in the realm of immigration.

There are a couple of problems with this argument. First, Wellman tilts at a straw man when he speaks of one individual’s right to freedom of association trumping the state’s right to self-determination. The question isn’t “Does each individual’s right to association have equal weight to a state’s handling of international affairs?” The closure of a nation’s borders violates every individual’s freedom of association en masse, impacting every individual on both sides of the border. A more germane question is “How does the general freedom of association for individuals compare in terms of moral weight to a state’s freedom of association in international affairs?”

The second problem is that the example of secession still does not grapple with the distinct issues involved in a political secession. My quick reading of the 1905 split between Norway and Sweden suggests Norway was already effectively self-governed, complete with its own political and legal institutions, when it broke from Sweden. I am not aware of how migration between the two nations evolved at the time, but this information is critical for understanding the full moral dynamics of the divorce.

Consider the hypothetical case of Scotland seceding from the United Kingdom. Most likely free movement across the border and individual freedom of association more generally would remain unimpeded and the political division would be benign. But suppose instead that one of the countries closed the border, severing presently existing and potential relationships between British and Scottish citizens. Regardless of how any plebiscite decided, I submit that the two scenarios would clearly not be equally just or permissible. The moral issues involved are not adequately characterized by the Scottish (or British) state’s freedom of association. It appears in this case that the severing of associations caused by closing the border would surpass any value gained from the state’s exercise of its freedom of association (or divorce). This is what closed borders around the world do now as a matter of course. This Scottish example shows that there is a morally significant difference between cases where state freedom of association and individual freedom of association converge and where they diverge. In the case of divergence state freedom of association does not obviously carry more moral weight than individual freedom of association, suggesting the former should not be treated as presumptive.

Wellman raises the stakes of the regional association example by suggesting that the forcible annexation of one nation by another cannot sensibly be condemned without appealing to a state’s freedom of association.

Imagine, for instance, that a series of plebiscites revealed both that an overwhelming majority of Americans wanted to merge with Canada and that an equally high proportion of Canadians preferred to maintain their independence. Would it be permissible for the United States to forcibly annex Canada? I assume without argument that, even if the United States could execute this unilateral merger without disrupting the peace or violating the individual rights of any Canadians, this hostile takeover would be impermissible.

Again, an annexation of a population into another state, complete with its already established institutions, is best understood not in terms of freedom of association, but in alternative frameworks, like democratic theory, which could more meaningfully grapple with the loss of democratic representation accompanying sudden, momentous policy shifts. Moreover, the assumption that such an annexation could be accomplished without the threat of violence is simply implausible. In the case of violence or the threat of violence, it becomes clear that the unilateral merger is impermissible for many reasons, including basic humanitarian concern.

It’s worth stepping back now to consider some basic questions. In the examples above I have appealed to a conflict between the state’s and the individual’s right to association, implying the moral concerns are different between states and other groups, which I have conceded do have a presumptive right to exclude. But there is conflict when a non-state group excludes individuals. When an individual’s right to association is violated, she may be forced to interact with someone against her will. When that right is compromised for a group, an individual within the group will often still be able to avoid direct interaction with ‘interlopers’, and may only suffer indirect interactions with them (seeing them at meetings or hearing about their activities within the group). Simultaneously, some individuals within the group–not to mention erstwhile outsiders–enjoy an expanded freedom of association. It must be remembered that dissenting gay- and atheist-friendly Boy Scouts, and non-sexist Augusta National golfers, would prefer their respective groups did not exercise the right to exclude.

Still, Wellman is correct to point out that “if no one doubts that golf clubs have a presumptive right to exclude others, then there seems no reason to suspect that a group of citizens cannot also have the right to freedom of association …” Why then do I balk at allowing the same group freedom to prevail at the national level? Wellman’s argument pivots on the analogy of states to garden variety private clubs. This analogy fails because of the scope and nonvoluntary nature of states.

The scope of an individual’s belonging to a nation is vast. All of an individuals actions occur within the context of her nation.  Every exercise of liberty and every association an individual has occurs within that nation and under the guidelines set out by the state. And an individual is born into a nation, having no choice among alternatives. Any option to join an alternative nation is severely limited (indeed the justice of this fact is the subject of dispute). In contrast, an individual is typically free to choose what private organizations to join, and those organizations each serve distinct and limited purposes.

Suppose Billy the Boy Scout would enjoy scouting with Ahmed the gay atheist, and Ahmed likewise would like to join the Boy Scouts. The exclusive policy of the Boy Scouts clearly exacts a toll on these individuals. But at least Billy and Ahmed are free to interact with each other outside the Boy Scouts. They may be colleagues, or one may employ the other, or they may live together, join the same hobbyist clubs, or they may simply be friends who enjoy one another’s company. The dynamics of national membership are radically different. If Billy’s nation excludes Ahmed then our starstruck protagonists are precluded from interacting in a wide range of capacities, including those above. This is a severe curtailment of the individual freedom of association in favor of group freedom of association. This severe loss of freedom  does not obtain in the case of private groups because of the many alternative possibilities remaining for individual association. This drastic difference in outcomes between private group exclusion and state exclusion calls into question any presumptions based on the analogy between the two.

There are other miscellaneous problems with the analogy of nations to private groups. Many private groups, for instance, have rules providing for the expulsion of members, an authority not readily granted to liberal states vis-à-vis citizens. Meanwhile, membership of most private associations is not hereditary or granted at birth, as is citizenship. On that point, the state’s right to association seems equally applicable to restricting births among the native population as it is to restricting immigration, another unsavory implication. These issues may have satisfactory answers. Perhaps Wellman would argue that reproductive freedom is so important that it simply defeats the presumptive right of states to exclude that he has outlined. But these considerations suggest the analogy of nations to private groups is not straightforward.

Wellman acknowledges that a state’s right to exclude immigrants directly limits its subjects’ freedom to invite and interact with foreigners. He addresses this while discussing whether immigration restrictions violate the property rights of citizens, but I think the pertinent problems arise even if we just stick to freedom of association and forego a discussion of property rights. Wellman appeals to the argument from political externalities that people have good reason to care about–and control–their nation’s immigration policy.

And if there is nothing mysterious about people caring about who are (or could become) members of their golf clubs, there is certainly nothing irrational about people being heavily invested in their country’s immigration policy. Again, to note the lack of intimacy among compatriots is to miss an important part of the story. It is no good to tell citizens that they need not personally (let alone intimately) associate with any fellow citizens they happen to dislike because fellow citizens nonetheless remain political associates; the country’s course will be charted by the members of this civic association. The point is that people rightly care very deeply about their countries, and, as a consequence, they rightly care about those policies which will effect how these political communities evolve. And since a country’s immigration policy affects who will share in controlling the country’s future, it is a matter of considerable importance.

I won’t get bogged down in the nuances of political externalities here (start here if you’re curious), since my goal is limited to disabling Wellman’s establishment of a presumptive right of states to exclude immigrants. Above I hinted at a distinction between direct and indirect associations among individuals. Direct associations are those such as friendship, work or employment relationships, religious or community fellowship, teacher/pupil relationships, etc. Roughly, one might think of these sorts of associations as those in which two individuals know each other’s names. Indirect associations include the other folks in line at the checkout line, passers-by on the street, fellow commuters, and indeed, one’s civic associates. The existence and actions of these others do impact an individual, and vice versa, as is readily felt during rush hour traffic, say, or when one’s political values are affirmed or rejected on election day. But on an individual basis, these indirect associations have far less impact than direct associations. Perhaps they have important aggregate effects, but such effects would need to be very significant and very frightening to justify interfering with intuitively valuable direct relationships. Just as importantly, any such effects must be demonstrated. They are not the stuff of presumption.

To summarize, Wellman seeks to establish a presumptive right of states to exclude immigrants by making the analogy of states to private associations, which do enjoy a presumptive right to exclude. But exclusion by states severely limits individual freedom in a way that private exclusion does not; options still remain for individual association when private groups exclude. Wellman’s provocative examples of states exercising the freedom of association seem harmless only because they also expand individual freedom of association. I have attempted to show that there is an unavoidable conflict between a state’s right to exclude and a general right of association among individuals, and that this individual right has greater moral significance than the alleged right of states to exclude. If this is true, then, contra Wellman, individual freedom of association actually suggests a presumptive right to migrate across national boundaries. Even if I have failed to make this stronger claim, I believe these considerations still show that Wellman’s arguments fail to establish a presumptive right of states to exclude. In this case, the state’s and the individual’s freedom of association simply annihilate one another, and the ethics of migration must be settled by other arguments.

*Wellman stipulates “legitimate” states throughout his essay, but never defines the term (other than providing Canada and Slovenia as examples); I’ll leave off this modifier. I am uncomfortable with the language of states having rights. Throughout this piece, when I say “state’s right” I mean the “collective right of the citizens of a nation, as expressed or enforced by their democratically elected governments,” the legitimacy of which I’m also assuming here.

The illusion of self-determination

The right of a people to determine its own fate—national self-determination—is one of pillars of the Westphalian model of world political order holding nation-state sovereignty as its core principle. It also underpins most philosophical defenses of the right of nation to control who moves across its borders and who can join its citizenry.

Here at the outset I’d like to submit that, provisionally, the principle of national self-determination makes a fair bit of sense. The principle was included in the Westphalian model in order to minimize war (capably discussed by my co-blogger in this post). It proscribes invasions of foreign lands for causes like defending or advancing a religion or ideology, for instance. After all, the birth of Protestantism was the proximate cause of the Thirty Years War which ended with the Treaty of Westphalia and the principle of national self-determination.

But the presumption in favor of national self-determination can be overridden in certain circumstances. I take it as mostly uncontroversial to say that if a genocide is underway within a nation’s borders, national sovereignty carries insufficient moral weight to prevent a humanitarian intervention (even if, say, military intervention is ruled out for pragmatic reasons, it isn’t respect for sovereignty that restrains those who would intervene). More importantly (and less dramatically), I’d like to suggest that the principle of self-determination loses coherence when it strays too far from its primary task of protecting a population against external threats of violence.

To bring this to migration, national self-determination is often appealed to in order to justify the right of a state to limit its membership. Michael Walzer, the distinguished communitarian philosopher, has argued in his book, Spheres of Justice, that the authority to limit membership of the national community is fundamental to national independence.

Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could not be communities of character, historically ongoing associations of men and women with some special commitment to one another and some special sense of their common life.

In his essay, Immigration: the Case for Limits (found in this book), David Miller has also defended the right of the citizens of a nation to exclude migrants at the border on the basis of cultural continuity:

[T]he public culture of their country is something that people have an interest in controlling: they want to be able to shape the way that their nation develops, including the values that are contained in the public culture. They may not of course succeed: valued cultural features can be eroded by economic and other forces that evade political control. But they may certainly have good reason to try, and in particular to try to maintain cultural continuity over time, so that they can see themselves as the bearers of an identifiable cultural tradition that stretches backward historically.

The ability to preserve culture is fundamental to self-determination-based defenses of controlled borders. “The distinctiveness of cultures and groups depends upon closure. … If this distinctiveness is a value … then closure must be permitted somewhere.” (Walzer again) Given the persevering cultural distinctiveness that can be observed among the several states of the USA and among nations within the European Schengen area of porous borders, for a couple examples, it seems like this concern may be overwrought. Indeed, cultural distinctiveness can even be observed among various neighborhoods within individual multicultural metropolises around the world. Nonetheless, the preservation of national cultural distinctiveness has a strong and intuitive appeal. In Migration and Morality: a Liberal Egalitarian Perspective (found in this anthology), Joseph Carens—a friend of liberal migration if ever there was one—sketches out a case for limiting immigration for the sake of preserving culture as one of the few acceptable—in principle—justifications for limiting migration. He argues that Japanese culture, for example, would be worth preserving even to the inconvenience of would-be immigrants. This argument can only go so far, however, for he concludes that this cultural preservation can’t overcome the claims of migrants whose basic needs are not being met.

[M]ost people in Japan share a common culture, tradition and history to a much greater extent than people do in countries like Canada and the United States. It seems reasonable to suppose that many Japanese cherish their distinctive way of life, that they want to preserve it and pass it on to their children because they find that it gives meaning and depth to their lives. They cannot pass it on unchanged, to be sure, because no way of life remains entirely unchanged, but they can hope to do so in a form that retains both its vitality and its continuity with the past. In these ways many Japanese may have a vital interest in the preservation of a distinctive Japanese culture; they may regard it as crucial to their life projects. From a liberal egalitarian perspective this concern for preserving Japanese culture counts as a legitimate interest, assuming (as I do) that this culture is compatible with respect for all human beings as free and equal moral persons.

It also seems reasonable to suppose that this distinctive culture and way of life would be profoundly transformed if a significant number of immigrants came to live in Japan. A multicultural Japan would be a very different place. So, limits on new entrants would be necessary to preserve the culture if any significant number of people wanted to immigrate.

Carens anticipates the most obvious counter that restricting immigration limits real individual freedoms for the sake of what is essentially a “by-product of uncoordinated individual actions” that does not itself violate any individual’s rights.

The problem with this sort of response (which clearly does fit with some strains in the liberal tradition and even with some forms of liberal egalitarianism) is that it uses too narrow a definition of freedom. It excludes by fiat any concern for the cumulative, if unintended, consequences of individual actions. A richer concept of freedom will pay attention to the context of choice, to the extent to which background conditions make it possible for people to realize their most important goals and pursue their most important life projects. That is precisely the sort of approach that permits us to see the ways in which particular cultures can provide valuable resources for people and the costs associated with the loss of a culture, while still permitting a critical assessment of the consequences of the culture both for those who participate in it and for those who do not.

The problem with Carens’s “richer concept of freedom”—which I acknowledge is real and worthy of consideration—is that it is difficult to conceive of a legitimate ownership of it. Who decides which aspects of “traditional” society are worth preserving (at the cost of more focused and observable individual freedoms, let’s not forget) and which aspects are merely parts of inevitable cultural evolution? The “by-products of uncoordinated individual actions” can presumably manifest as cultural improvements, and not just “erosion”, as Miller seems to assume. Some things (Islam, manga comics, or capitalism, for a few examples) that may represent cultural decay to some will be embraced by others as beneficial innovation, and it’s difficult to say who would be right in such a contest of values. Should a committee of bureaucrats be set up to decide which foreign influences are acceptable cultural adaptations, the way the French have circled their wagons around the integrity of their language? Even if such a committee were popularly elected, it’s difficult to see how that democratic mechanism would achieve any greater legitimacy than uncoordinated individual actions.

The larger point I want to make is that restricting immigration for the sake of cultural preservation is ineffective to the point of quixotic. There are other influences that will impact culture, influences that cultural preservationists are less willing to stifle by coercion. Indeed in the quotes above Carens and Miller both recognize that culture evolves in ways that “evade political control”. The first of these purely internal. Culture, including language, social values, artistic (literary, musical, etc) expression, and political values can and do all change as a result of younger generations challenging the ideas and practices of their forebears. This process of change over generations may be exacerbated by outside influences, but it would be hard to deny that at its core it is a natural phenomenon at work even in closed societies. I think the relatively recent and rapid expansion of the gay rights movement in America is a good example of this. It has seemed primarily domestic in origin (the fact that some other countries have possibly made greater strides in gay rights hasn’t been particularly influential), and the level of acceptance of gays and lesbians in society is famously starkly divided between young and old folks. The Civil Rights Movement of the 1960s can likewise not be said to be imported, as the legal and cultural legacy of southern slavery and the long reign of Jim Crow were peculiar to American history. Less politically, musical innovations like rock & roll, entertainment innovations like video games and the mobile solitaire app, and linguistic innovations like African American Vernacular English have not needed outside influences to sprout and evoke consternation among parents and other squares.

It isn’t even clear that anyone notices the difference between cultural innovation by natives and that by outsiders. Invention from the outside can “go native” as well as a person can. Carens’s example of Japan gave me an excuse to read about the history of manga, an art form I think I can safely describe as distinctively Japanese. Five minutes of research unearthed a surprisingly mongrel history, including its inspiration by a nineteenth century British cartoonist and “U.S. cultural influences, including U.S. comics (brought to Japan by the GIs) and images and themes from U.S. television, film, and cartoons (especially Disney).” The desire to protect a national culture from outside influences seems to ignore the ability of those same cultures to ingest, adapt, and own inputs from the outside, all in bottom-up fashion without need for supervision from any cultural defenders at the top.

Technological innovation can radically change the contours of a society and isn’t intrinsically related to immigration. The Industrial Revolution destroyed old occupations and enabled people to leave rural life en masse. Widespread rail networks and the adoption of the automobile made the world a smaller place, even within nations. Electrification, radio, television, the airplane, the printing press, the integrated circuit, and the Internet have all profoundly changed human life and the ways individuals relate to each other and wider society. The birth control pill empowered women to control their own sexual and reproductive lives and enabled them to pursue opportunities in the world outside the home (occupational, educational, political, etc). All these innovations have arguably changed national cultures on a scale greater than anything widespread immigration could likely achieve.

It could be argued that the American examples above do not actually serve my cause since America is so famously and fundamentally shaped by immigration. And it could be argued that the technological innovations I mentioned and the ways they undoubtedly transformed societies are nonetheless irrelevant to the present discussion: technological changes affecting the whole world can be adapted to different national cultures in unique ways and so perhaps the point is more that each national culture must be allowed to express itself through technological advancement in its own way. Technological change is, of course, not all homegrown, but it spreads through international avenues other than migration, avenues which most immigration restrictionists would not attempt to close.

Ideas are spread through trade between nations, through travel and tourism, through international communications and media, and through common international gatherings like professional conferences and sporting events. Good ideas (and bad ones), will find ways to spread whether there are appreciable levels of migration or not. International migration will surely speed up cultural change, but it’s not the only driver of change, or even the most important one. Yet the focus of the argument for national self-determination is always on preserving the right of a nation’s sovereign authority to restrict entry of new members, and little ink is spilled advocating closing off these other pathways of social change. Given the long odds of meaningfully preserving national culture (however it is defined), and the apparent lack of enthusiasm for protecting it from equally powerful mechanisms of change,  it is fair to ask, Why does immigration warrant such special treatment?