Case For Open Borders Research Articles

Review Essay: Recent Works in the Political Theory of Migration

Thirty-five years ago, Joseph Carens published “Aliens and Citizens: The Case for Open Borders” in the Review of Politics. It is only a slight overstatement to say that this article created the subfield of political theory of migration. Today, the field is flourishing. Migration continues to be one of today's most politically fraught and morally urgent issues. An estimated hundred million people have fled violence and persecution. Hundreds of millions more cross international borders every year. States have responded with highly restrictive policies, in which people need to resort to perilous routes, often in the hands of smugglers, to claim asylum.

Suffering for the Suffering of the Other: A Levinasian Approach to Immigration

Rather than trying to justify pain and suffering in terms of a general theory of necessity in which individual pain becomes intelligible and senseful only in the narrative of the whole, as in Leibniz’ Theodicy , Emmanuel Levinas asserts that suffering is “useless.” Against theodicy, Levinas defends the insurmountable futility and absurdity of pain, a paradigmatic example of which is found in the concentration camps. We must therefore choose, Levinas asserts, either theodicy or ethics. This approach makes the subject very significant, since it encourages activity and responsibility in the face of a possible passivity and indifference towards others. This approach makes the subject very significant, since it encourages activity and responsibility instead of passivity and indifference towards others. In trying to understand how to restore meaning to suffering, Levinas offers a typology of the sources of suffering: sins of commission, sins of omission, and suffering the other’s suffering because of love. In order to illustrate the ethical dynamics of suffering, we analyze the contemporary situation of immigration, rejecting the case for open borders as failing to offer a restitution for the suffering caused. Keywords: Levinas. Theodicy. Ethics. Suffering. Vulnerability. Immigration. DOI: 10.7176/JPCR/49-05 Publication date: June 30th 2020

Open borders and the ideality of approaches

Do liberal states have a moral duty to admit immigrants? According to what has been called the “conventional view”, this question is to be answered in the negative. One of the most prominent critics of the conventional view is Joseph Carens. In the past 30 years Carens’ contributions to the open borders debate have gradually taken on a different complexion. This is explained by the varying “ideality” of his approaches. Sometimes Carens attempts to figure out what states would be obliged to do under otherwise perfectly just conditions (i.e., he attempts to establish an ideal). At other times, he is more interested in what to do, given the (not fully just) world that we actually live in. In my view, the relevance of the ideal/non-ideal theory debate to the open borders debate (and the ethics of migration more generally) has not yet received sufficient attention. My aim in this paper therefore is to show in detail how Carens’ varying approaches affect his critique of the conventional view. To this effect I analyse three of his papers: “Aliens and Citizens: The Case for Open Borders” (1987), “Realistic and Idealistic Approaches to the Ethics of Migration” (1996), and “Who Should get in? The Ethics of Immigration Admissions” (2003).

Global equality of opportunity and self-determination in the context of immigration

David Miller’s political philosophy of immigration employs two complementary argumentative strategies to challenge open border theories. The first strategy is to defeat the principled case for open borders, such as the global equality of opportunity argument for more lax immigration control. The second strategy is to establish the democratic community’s prima facie right to determine the shape of its future, including membership and the right to exclude. First, I argue that Miller’s conception of global equality of opportunity is overly narrow and that his objections to the principle, to the metric and to what counts as feasible political action misfire against other, more plausible, accounts. Second, I argue that his democratic interpretation of collective self-determination does not solve the pressing question concerning the morally justified scope and content of self-determination and the moral limits of the right to exclude. I conclude by questioning Miller’s general strategy: whether theories of immigration should be engaged in an exercise of shifting the burden of proof between open and closed borders. By contrast, I argue that a more desirable task for the political philosophy of immigration is to find ways in which the joint requirement of global equality of opportunity and collective self-determination can be coherently upheld.

Open Borders, Intellectual Property Policy, and Federal Criminal Trade Secret Law

The mobility of skilled labor across firms has been identified as an important source of regional advantage. Scholars have shown how cultural, economic, and legal conditions (such as the nonenforceability of covenants not to compete) affect the development of high tech sectors that are geographically concentrated. This paper explores to what extent these theories are applicable to the movement of skilled labor across national borders. This inquiry is relevant because the United States enacted the Economic Espionage Act in 1996, and this Act has been used to prosecute non-US skilled workers for theft of trade secret. The Act has application to mobility within the United States as well. To what extent are justifications for the Economic Espionage Act of 1996 mitigated by its effects on labor mobility and the accompanying transfer of knowledge and technology? This paper addresses this question through a theoretical discussion of international trade and mobility of labor and knowledge across borders and an assessment of the case law under the Economic Espionage Act. The author criticizes the Act because of its effect on the transfer of knowledge and makes the case for open borders to promote the mobility of knowledge. Several policy implications are drawn for limits on the Economic Espionage Act, including extraterritorial application of state trade secret law and federal patent law.

Basic Income and Migration Policy: A Moral Dilemma?

In this paper, the author argues that globalist egalitarians may face a dilemma between a generous welfare policy such as a national basic income (NBI) for all residents, and an egalitarian immigration policy such as open borders, because NBI may have a welfare magnet effect that generates pressure for tightening of borders or restricting NBI to citizens only. However the case for open borders is weaker to the extent that global transfers (such as might occur with a regional basic income or global basic income) address the economic inequities and motives for migration. In the absence of such global or regional institutions, NBI advocates can justify border restriction and a waiting period for BI entitlement, to the extent necessary to prevent a worsening of the condition of the least advantaged compatriots, as temporary measures on a path toward global justice.

Bounded and cosmopolitan justice

Since antiquity justice has been thought of as a political or civic virtue, more recently as belonging in a ‘bounded society’,John Rawls relies on the idea of a bounded society throughout his work. References to Rawls's writings cited here may be abbreviated in subsequent footnotes: A Theory of Justice (Cambridge, MA: Harvard University Press, 1971); ‘Themes in Kant's Moral Philosophy’ (1989), in Collected Papers, Samuel Freeman (ed.), (Cambridge, MA: Harvard University Press, 1999), pp. 497–528; Political Liberalism (New York: Columbia University Press, 1993); The Law of Peoples (Cambridge, MA: Harvard University Press, 1999). or as a primary task of states.This view evidently underlies the UN Universal Declaration of Human Rights of 1948; the text uses a varied range of seemingly nonequivalent terms, including member states, peoples, nations and countries; a coherent reading of the document requires us to take all of these as referring to states. All such views assume that the context of justice has boundaries, which demarcate those who are to render and to receive justice from one another from others who are to be excluded. Yet the view that justice is intrinsically bounded sits ill with the many claims that it is cosmopolitan, owed to all regardless of location or origin, race or gender, class or citizenship. The tension between moral cosmopolitanism and institutional anti-cosmospolitanism has been widely discussed over the last twenty years, but there is still a lot of disagreement about its prpoer resolution.A selection from this literature might begin by noting Charles Beitz, Political Theory and International Relations (Princeton, NJ: Princeton University Press, 1979), ‘Cosmopolitan Ideals and National Sentiment’,Journal of Philosophy, 80 (1983), pp. 591–600 and ‘Cosmopolitan Liberalism and the State System’, in Chris Brown (ed.) Political Restructuring in Europe: Ethical Perspectives, (London: Routledge, 1994); Simon Caney, ‘Global Equality of Opportunity and the Sovereignty of States’, in International Justice, ed. Anthony Coates (Aldershot: Ashgate, 2000), and ‘Cosmopolitan Justice and Equalizing Opportunities’, forthcoming in Metaphilosophy; Joseph Carens, ‘Aliens and Citizens: The Case for Open Borders’, Review of Politics , 49 (1987), pp. 251–73; Charles Jones, Global Justice: Defending Cosmopolitanism (Oxford: Oxford University Press, 1999); David Miller, ‘The Nation State: A Modest Defence’, in Political Restructuring in Europe, Chris Brown (ed.), pp. 137–62 and ‘The Limits of Cosmopolitan Justice’ in International Society: Diverse Ethical Perspectives, David R. Mapel and Terry Nardin (eds.) (Princeton, NJ: Princeton University Press), Thomas Pogge, ‘Cosmopolitanism and Sovereignty’ in Political Restructuring in Europe, Chris Brown (ed.), pp. 89–122 and ‘An Egalitarian Law of Peoples’, Philosophy and Public Affairs, 23 (1994), pp. 195–224; Onora O'Neill, ‘Justice and Boundaries, in Political Restructuring in Europe, Chris Brown (ed.), pp. 69–88 and Bounds of Justice (Cambridge: Cambridge University Press, 2000), Henry Shue Basic Rights: Subsistence, Affluence and US Foreign Policy, 2nd edn. (Princeton, NJ: Princeton University Press, 1996).