By MATTHEW LISTER
Review of Strangers in our Midst: The Political Philosophy of Immigration, by David Miller
Cambridge: Harvard University Press, 2016
David Miller, Professor of Politics at Oxford University, has long been one of the most important and interesting contributors to political theory and philosophy. He is well known for insisting on the mutual relevance of philosophical reflection and political practice, an approach well captured by the title of his recent book, Justice for Earthlings. In his most recent book, Strangers in our Midst: The Political Philosophy of Immigration, Miller revises and extends the work he has been doing for several years now on immigration. The result is a short yet rich defense of the right of states to control their own immigration policy. This right isn’t unlimited. Duties to refugees provide one restriction, and obligations to not discriminate on the basis of race and other similar grounds provide another limit. Yet, Miller contends, states ought to have considerable discretion in setting immigration policies so as to promote the interests of current citizens and to protect cultural values. Much of the theoretical literature on immigration in English has been dominated by Americans and Canadians. Miller’s book, which offers a more ‘European’ perspective, is a welcome addition to the literature.
The goal of the book is to help us think about immigration. Miller intends the book to be “political philosophy” and not “ethics”, meaning that its focus is on institutions and policies, not on what particular individuals ought to think and do. (17) Miller here focuses not on specific policies for particular countries, but on principles that should guide the setting of policies for states in general. However, I will argue at times that we must sometimes look more closely at particular policies and how they might be implemented than Miller is eager to do in order to know whether a principle is a plausible one or not.
Miller’s argument is based around four main values. These values include, “weak cosmopolitanism”, “national self-determination”, “fairness”, and “the idea of an integrated society”. (153-6) Miller argues that his account differs from rival discussions of immigration in that he has taken more seriously the need to be “realistic” about immigration, and in avoiding testing an immigration policy by thinking about the ways in which it might affect specific individuals who are subject to it. Rather than marshal intuitions drawn from particular cases, we should think about and advocate policies which will have to be adapted to a large number of cases and applied generally.
Miller starts his account with the “realistic premise” that “immigration regimes of most liberal democracies are under extreme stress”, with more people seeking to enter than there are spaces for, and with anxiety, resentment, and prejudice felt by a significant number of natives towards many immigrants. (159) We must, Miller contends, keep these facts in mind if we are to provide a useful account of immigration. In particular, we must keep in mind that “people want to feel that they are in control of the future shape of their society” and that “they have an interest in political self-determination, which includes being able to decide how many immigrants should be allowed to enter, who should be selected if more than this number apply, and what can reasonably be expected of those who are allowed in.” (13) While I am largely sympathetic, I will raise concerns about whether these premises are truly universal of liberal democracies, and how we should respond to the often quite confused opinions about immigration held by the citizens of these states.
As a first step in laying down and defending his theoretical framework, Miller notes that, in practice, all states treat ‘insiders’ better than ‘outsiders’, raising the basic issue of partiality towards compatriots. The interests of would-be immigrants are deeply affected by our choices of immigration policy, but what this by itself tells us isn’t clear, and depends on further premises. Miller notes that “strong cosmopolitanism”, the view that “the fundamental duties we owe to our fellow human beings are exactly the same regardless of the relationship in which we stand towards them” (22) would decide most questions about immigration in favor of the would-be immigrant. However, Miller argues that strong cosmopolitanism is untenable, and all that is required of us is “weak cosmopolitanism”, the view that “we must always consider the effects of our action on all those who will bear the consequences,” and that “if there are no relevant differences between people, we should afford them equal consideration.” (23). This requires that we give at least some consideration to the interests of would-be immigrants, and that reasons must be given for applying different weights to the interests of citizens and foreigners. Justification for giving more weight to the interests of citizens comes from the idea of “associative obligations”, or obligations that we have “simply in virtue of the relationships we stand in to other people rather than universal ones.” (26) These relationships have, Miller contends, intrinsic value – they make our lives better, simply by their existence. Furthermore, these relationships could not exist in anything like the way they do if they did not lead to special duties among the parties. Associative obligations are manifest between compatriots in inclusive schemes of cooperation, in civic relationships among fellow citizens and, most controversially, among nationals – “people who share a broadly similar set of cultural values and a sense of belonging to a particular place.” (26) Miller recognizes that the final relationship will not extend to all citizens of a state, but holds that, because such relationships are valued by many citizens, they are still important. Miller contends that these relationships allow people to coexist on terms of justice, and allow them to have some degree of control over the future direction of the associations.
This account of associative obligations is contentious, but Miller’s purpose here isn’t to defend it (he has done so elsewhere) but to make use of it. Here the most important issue is that these relationships are valued by many people. I do, however, question the role of “national identity”. Miller sees it as “an additional source of value”, one that leads to a “more communitarian” society. (28) However, if a national identity can provide a sense of unity, it may also serve to divide a society, marking certain members as ‘outsiders’ who are not part of the majority nation. It’s not clear to me why a so-called “political” identity – one based on civic values and commitments rather than cultural and ethnic ones – could not serve as well with less chance of the disruptive and exclusive features that all too often accompany nationalism. However, while Miller does include national identity as a source of value, and while we must keep in mind that such an identity is valued by many citizens, the main thrusts of the argument do not seem to me to depend on it. Therefore, even for those such as myself who are skeptical of the value of national identity, there is still very much of interest in this argument.
If we have associative obligations, then strong cosmopolitanism is false and only weak cosmopolitanism is tenable. This implies that we may give more weight to the interests of our fellow citizens in many cases, but doesn’t mean that we have no obligations to outsiders. We owe other societies fair terms of cooperation and impartial dealing, and to individuals, we owe respect for their human rights, understood here in a fairly minimal sense. Human rights, unlike associative obligations, create obligations even without there being any prior relationship between the individuals in question, and so must be respected in all cases. The weak cosmopolitan view doesn’t claim that we may ignore the interests of others when we interact with them, but positive obligations to promote their interests only come with urgent needs. Miller illustrates the point with an example of coming across a hiker lost in the wilderness and in danger of dehydration. If we are able to meet the hiker’s urgent need for water without putting ourselves in serious danger, we have an obligation to do so, even if the hiker has no other relationship to us at all. But suppose the hiker, since saved from danger from thirst, goes on to note that he is also out of reading material, and asks to have one of the books we have with us. Do we have any obligation to give the hiker a book? It would seem not. We may have reason to consider the request, and give it weight, but no obligation to act on it, even if it would not hurt us to give the hiker a book. Miller contends that, in many cases, states stand in a relationship to would-be immigrants analogous to that between the hiker and the person who finds him in our example. At this point Miller briefly introduces an idea that has arguably become more important than might have been expected. He suggests that if a state intends to do, in relation to non-citizens, “more than fairness demands”, then it should get explicit permission to do so from its citizens. (36) Why anything – and if so, what – more than normal political accountability is needed here isn’t made clear. So long as the reasoning and actions are not secret, why should this decision demand any more special process? It’s at least arguable that Angela Merkel’s decision to accept more than one million refugees, mainly from the Middle East, into Germany during 2015 might fit this description. (Surely Germany has done much more than the typical European state, though perhaps that just shows that the other states are significantly under-shooting their obligations, not that Germany is doing more than what is rightly required of it.) If the German people think that Merkel has made a mistake, they may vote her party out of power and reverse the decision. It’s unclear to me why this would not be enough. Miller doesn’t elaborate on this point. As this issue is of great salience in light of the on-going refugee crisis in Europe, this is unfortunate.
Under weak cosmopolitanism, states do have to give consideration to the interests of outsiders, even when human rights are not at stake. And, if granting a request is essentially costless, it ought to be done. Miller here uses the example, taken from Cicero, of allowing another to take a light from a fire we have made. This seems straight-forward, but a serious worry arises here. In any individual case, allowing in any particular alien will be essentially costless. So, if we consider requests one by one, it seems that the alien should always win. But, in the aggregate, such requests are costly. Miller, reasonably enough, suggests that we must look at the aggregate, though I would have liked to see more discussion of this point. To my mind, the moral is that we are here deciding on policies and not the particular treatment of individuals. This is an implication of the “political” and not “ethics” approach followed in the book, but might also suggest we will need more attention paid to the workings of particular policies than is found here, or in much theoretical work on immigration.
Miller considers three types of important and influential arguments from the theoretical literature on immigration for open borders – common ownership of the earth, global equality of opportunity, and a human right to migrate, and finds all three wanting. The idea of common ownership of the earth is an old one, but is a hard idea to make coherent. Though it may be understood in different ways, none of them lead to a general right to free movement. At most, they suggest a right to travel (but not to remain in any particular place) and a remedial right to safety when one cannot live safely in one’s original state. Much of the force in the idea that common ownership of the earth could ground a right to free movement, Miller contends, actually comes from appealing to an idea of global equality of opportunity. It’s obvious that where one is born is important in determining one’s life chances, and that this is largely a morally arbitrary fact. However, much of the rhetorical and emotional force of these arguments comes from looking at cases of serious deprivation. While this is a clear problem, we do not need open borders to address it. Absent severe deprivation, Miller argues that we need not be concerned with global inequality of opportunity in the same way or with the same urgency as in the domestic case, where such inequality is often closely linked with unequal treatment by the government or institutions of society, giving us special reasons to care about it. These reasons do not apply, Miller holds, at the international level, at least to anything like the same degree. If this is so, then it’s unlikely that a concern about equality of opportunity can ground a general right to free movement.
If there is a human right to migrate between countries, it could trump our associative obligations. Miller helpfully clears up two potential confusions in a discussion of a human right to migrate, noting that such a right, if there is one, must be general and not apply only to remedial cases – it has to apply just as much to a well-to-do person from the US who wishes to move to Canada as to a refugee from Syria trying to get into the EU – and that the right would only plausibly be a right to not be prevented from moving, not a right to positive assistance in moving. If the worst-off globally are too poor to migrate, then a human right to do so won’t provide much help and may leave them worse off still, as their better-off or more skilled compatriots leave them behind. Miller considers three main ‘human rights’ arguments, a “direct” argument, an “instrumental” argument and what he terms a “cantilever” argument, based on an analogy between internal and external free movement. A “direct” argument would claim that we have a fundamental interest in being able to migrate, or that it would be difficult or impossible to live a fully decent human right without this right. As Miller notes, this doesn’t seem like a promising argument. While some preferred lifestyles may require freedom to move between different countries, this isn’t generally so, and there is no human right to live the lifestyle that one most desires, or to have one’s specific interests met.
The indirect argument at first sounds more promising. It holds not that a right to migrate is itself a human right, but that such a right is necessary to effectuate other human rights. Miller here draws a useful comparison with the right to a lawyer. It would seem funny to think that the right to a lawyer was itself a basic human right, but in a legal system with any complexity, the right to a lawyer is necessary as a means to making the right to due process of law effective. Could the right to migrate be a (contingently) necessary enabling right in a similar way? Miller argues that the case is really only plausible in relation to a remedial right to enter another country when basic human rights are being violated. But, such a remedial case cannot ground a right to migrate that inheres in all people.
The “cantilever argument”, developed most fully by Joseph Carens, starts with the fact that internal free movement is widely considered to be a human right, and argues that external free movement is merely the logical extension of the same right. Two problems quickly arise with this argument. First, the costs and the ability to deal with them vary greatly between internal and external free movement. Secondly, the best justification for a strong right to internal free movement is that it’s implicated in equality of opportunity and treatment by the government in a way that doesn’t apply to external movement. Given these differences, the cantilever argument is unable to get a human right to migrate off of the ground.
Because border controls impose significant costs on would-be migrants, the lack of a basic right to migrate doesn’t, on its own, justify giving states large degrees of discretion in controlling their borders. Miller doesn’t aim to argue for any particular immigration policy, nor to argue for closed or tight borders as such, but to justify the availability of selective immigration policies by liberal states, leaving aside for now questions about refugees, and show that there may be good enough reasons to allow states to adopt these policies, even in the face of the costs to would-be migrants (and to citizens who might wish to associate with them). Miller starts by rejecting the traditional claim that sovereignty itself justifies border controls, and argues that we need the more substantive notion of territorial jurisdiction to do this. Miller’s claim is that the right to control movement into a country is part of what it means to have (proper) territorial jurisdiction. Proper territorial jurisdiction has three conditions: maintaining social order and protecting human rights to a sufficient degree; representing the citizens of the country, not necessarily requiring (full) democracy, but requiring that the population of the state normally see it as having legitimate authority over them; and the people represented by the state must have a right to occupy the territory in question. None of these conditions are perfectly straight-forward. However, Miller doesn’t spend significant time fleshing out these ideas, but rather sets out showing how they contribute to the right to engage in selective admissions.
Territorial jurisdiction leads to a right for a state to control its resources and borders. These rights, Miller contends, are necessary for the stability of society and for it to be able to engage in self-determination. Self-determination involves “the right of a democratic public to make a wide range of policy choices within the limits set by human rights.” (62) Many of these policy choices will be difficult, if not impossible, to make if the state in question doesn’t have the ability to control its borders. For example, being able to set up and adequately fund the social policies needed for a just society – education, social insurance, health care, etc. – would be extremely difficult without a fair amount of control on entry to a country. (Some libertarians have argued in favor of open borders on this ground, seeing the fact that they would make social programs difficult or impossible as a plus rather than detriment.) It’s important to see that this argument doesn’t necessarily call for low immigration. A state may well decide that high levels of immigration could best help it achieve its goals. But, if we value self-determination, we likely need to allow significant control over borders.
Miller argues that not giving states the ability to control their borders would undermine self-determination in two main ways. The first comes merely from the potential of a large number of entrants, perhaps in unpredictable numbers, and the increased rate of social change that would come with that. Second, there is some reason (though not, I think, definitive reason) to think that rapid social change of the sort made likely by uncontrolled immigration can reduce social trust, and that a reduction in social trust can undermine the sort of support needed for social democracy. As Miller says, “Where trust is lacking, deliberation is likely to be replaced by self-interested bargaining on the part of each group, where outcomes reflect that balance of power between them.” (64) This in turn leads to fewer public goods and less redistribution.
The literature on diversity, social change, and social trust seems to me to be more equivocal than Miller suggests, but assuming it to be a problem, we can ask how to deal with it. Miller often suggests that what is needed is a shared national culture, but this seems unclear to me. I am not sure why a more politically focused public culture, one centered on the fair and equitable exercise of political institutions, cannot suffice. Many traditional countries of immigration (such as Canada, the US, and Australia) have more “politically” focused public cultures than do many European countries. Canada, at least, is a social democracy even though it’s a diverse society with a high percentage of foreign-born citizens. Such ‘civic’ approaches may also help deal with another issue that concerns Miller, the development of “parallel societies” among immigrants. In societies with a political public culture, there is less reason to develop such parallel societies, as there is less need to assimilate into the mainstream or else be seen as an outsider. In such societies, where there is less pressure to take strong steps to maintain a minority culture, since there is less pressure from the outside, immigrant enclaves, where they exist at all, tend to be fluctuating and temporary, not ghettos that persist and remain perpetually apart.
One final point about Miller’s discussion of self-determination is worth noting. Much more than most others writing in this area, Miller emphasizes that people very often value self-determination. (The recent vote by the UK to leave the EU might be seen as illustrating this point in stark fashion.) This fact should be taken into account when considering issues such as border controls. Miller’s claim isn’t primarily that there is a right to self-determination, but rather that people value it, and because they value it, they have an interest in it. If there were a general right to free movement, this interest alone would not be enough to justify allowing states to set selective immigration policies, but once we reject the claim that there is a basic right to migrate, then this interest in self-determination becomes one that must be considered and given weight. Though we here have competing interests (and the interests of a would-be immigrant may be very strong), under the weak cosmopolitan view relied on by Miller, a state can and should give more weight to the interest of its current citizens. This can allow the state to favor the citizens’ interest in self-determination over the would-be immigrant’s interest in entering the state. (This argument would not apply in the case of refugees, a situation I will turn to shortly.) An important question left largely undiscussed here is how these decisions are to be made, in particular how far they should be left to the democratic process, in light of the fact that it’s unlikely that there will be consensus on how many and which sort of immigrants to admit. Except insofar as he rules out certain selection criteria such as race as illegitimate, Miller doesn’t explicitly address this issue.
If border controls were unjustifiably coercive, however, it would raise an important challenge to the above argument. Several authors have argued that coercive acts done by a state must be democratically justified to all who are subject to them. This implies that would-be immigrants should be given a right to a say on immigration restrictions. It seems reasonable to think that this would greatly lessen, maybe even eliminate, border controls. Miller has two main replies to this argument. First, he notes that it’s far from clear that all cases of coercion must be democratically authorized. At least in some cases, coercion may be instrumentally justified, or justified on the basis of desirable results. Democratic authorization seems more strongly called for in the case of a state’s use of coercion in relation to its own citizens, and less clearly so in other cases. A paradigm example would be the use of force to stop an invading army, where it would be absurd to claim that the coercive force used needed to be democratically authorized on the part of the invaders. Next, Miller draws two related distinctions, between prevention and coercion, and between exclusion and enforcement (as a means to exclusion). Excluding aliens need not be coercive at all, Miller contends, and in any case, prevention needs less justification than coercion. To illustrate: deciding to not admit aliens on its own (exclusion) isn’t an act of coercion. Now, imagine that, to make this effective, a state built a high and impenetrable wall on its borders. This action would prevent entry, but would not clearly be coercive, Miller claims.
There is something important in the area of this claim, but I do not think that it maps fully onto the distinction Miller wants to draw here, even if we ignore any unfortunate and unintended similarities with the policy proposals of the Republican candidate for President of the US. Consider again a wall. It surely seems coercive to those held inside by a wall when they want to get out. What is the difference with the case of entrance? I suggest that focusing on coercion is mistaken here. We need to start with whether the person in question has a right to do the thing desired. Most of our intuitions in this area, I claim, piggy-back on the question of whether the person in question has a right to do the thing at issue. If there is no right for a migrant to enter, then many steps taken to prevent entry (though of course not all of them) will be fine, regardless of whether they are coercive or not. Such acts of coercion may be justified instrumentally. But, if there is a right to enter, then nearly any step taken to stop entry will be illegitimate, regardless of whether it’s coercive or not. If this claim is correct, then there is an important conversation to be had over which methods of border enforcement are compatible with human rights and other moral and political obligations, but the focus on coercion is largely a distraction, better left aside. However, if like Miller (and me), we think that there is no general right to free movement, we end up in largely the same place as Miller wanted.
Miller next turns to the problem of refugees, one of the most pressing issues facing Europe now, and one exploited, rather dishonestly, in the recent campaign to have the UK leave the EU. Many of the above noted arguments in favor of allowing states to control immigration have less force in relation to refugees. Here the human rights of would-be migrants are at risk, both greatly increasing the risk to them, and bringing in to play the duty to protect human rights. Many people around the world do not receive adequate protection from their own states. Should all of these people be treated the same? Miller says no, adopting a fairly traditional account (drawing on some of my work) that full refugee protection is best limited to people facing persecution on the basis of one of the “protected grounds” noted in the UN Refugee convention – race, religion, nationality, membership in a particular social group, or political opinion. Other forms of protection may be appropriate for those fleeing different types of danger, and others still may best be helped “in place”. This is all plausible, but not especially ground-breaking. The most interesting discussion in this chapter comes with Miller’s discussion of the problem of burden-sharing.
In more typical times, burden-sharing is most salient in relation to resettlement of refugees housed in camps, typically in poor and often unstable countries. That a very large number of refugees linger, for years or even decades, in these camps is strong evidence that not enough is done by wealthy countries for refugees. Now, however, a more immediate issue is confronted, by Europe and the rest of the world, in the face of the refugee crisis from the Middle East and Africa. In some cases, those seeking protection might be what Miller calls a “particular claimant” – a person with some special claim to protection by a particular country. In most cases, however, what the people in question need is just some safe place or other to go for a yet indeterminate term where they might hope to live a decent life. A camp is very unlikely to provide such a setting, and so isn’t a proper alternative. As Miller notes, refugees have a right to live somewhere safe, though not necessarily the place of their choosing. This is right, though there can be several additional factors telling heavily in favor of allowing refugees to go to particular countries, such as the presence of family, language ability, cultural connections, and so on. These vary in strength, but deserve more attention than they are given here.
Miller considers three approaches to burden-sharing. Each has its virtues but none is fully satisfying. First, establishing an international system to regulate and distribute refugee burdens; next, a system of side-payments to states to take in “extra” refugees from states that do not wish to allow refugees to enter; finally, giving states discretion to decide the level they will take, and to make it difficult for people to get in beyond this amount. The first approach – establishing an international system for coordination and determining refugee burdens – seems in principle to be the most desirable and promising, but, as Miller notes, in practice we have little reason to expect that such a system might be established in the near future. We might think that regional agreements are more practical and plausible, but the problems faced currently by the EU, and the problems the EU has had in coordinating and deciding on refugee burden-sharing, even with a significant governing structure already in place, ought to make us less than optimistic about even this more modest task.
The second option, of having states that do not wish to take in significant refugees pay other states to take them in, has faced criticism for the supposed “commodification” of refugees. Here we might think that it’s better to be commodified than to be ignored, but Miller focuses on another, more concrete problem – making sure that the states paid to take in the refugees actually meet their burdens to respect the human rights of those resettled, and to eventually make them full members, if they are unable to return to their home states in a reasonable period of time. He suggests that the paying state ought to have a burden to make sure that the refugees will be properly protected in the second state. The nature of this burden, however, isn’t spelled out enough to know if this is any more plausible than the first option. Is the burden to be continuing? If so, for how long? How is the obligation on the first, paying, state to be enforced, and who would have a cause of action to enforce it? Who would be able to hear such an argument? These are not trivial problems. It’s possible that this system is more plausible than the first proposal, insofar as it takes the self-interest and desires of states into more explicit consideration, but it would still require significant international institution-building of the sort we have good reason to doubt is plausible if it’s to be fully acceptable.
The last option is to allow states to set their own standards on how many refugees to take in. On its face, this option, which is similar to the status-quo, is at least practically possible. The clearest problem, which Miller does recognize, is that it will predictably leave many people needing protection unprotected. The most interesting discussion in this section deals with the question of whether the is an obligation on the part of states to “take up the slack” of unmet need caused by other states not doing their fair share, or whether they may rest easy with what would be their fair share if every other state was doing its part. Miller suggests that, if states have set targets for immigration, they must be willing to sacrifice taking in “desirable” migrants so as to take in refugees, if the need is greater than would be otherwise met. But, he contends, there is no obligation to take in more than this number, for the same arguments that tell in favor of allowing restrictions on immigration in general come into play here. That this will predictably leave many unprotected is “tragic”, but not more than that.
This argument doesn’t seem satisfactory to me, and perhaps not even fully consistent with Miller’s earlier account. Recall that the right to limit immigration was dependent on associative duties, but that these did not trump the human rights of others, even if we have no special connections to them. But, in the case of refugees, it’s their human rights that are at risk, so the strongest of Miller’s arguments in favor of allowing immigration limits doesn’t seem applicable here. He suggest that allowing in more than the desired number might put “democracy” and “social justice” at risk in the receiving states, but this doesn’t seem close to describing a real risk in any modern, western state in light of the situations we face or are likely to face in the future. (93) Surely, it doesn’t describe, in any realistic sense, the situation faced by any EU country at the present time. (Perhaps if, say, Belgium tried to take in all of the unprotected refugees on its own, it would face such a situation, but no one proposes that.) We have seen, in the recent vote to leave the EU by the UK, and with the rise of anti-immigrant rhetoric with Donald Trump, that large populations in mature, stable democracies are sometimes willing to throw self-destructive temper tantrums because of immigration levels that pose no objective threat to the society’s ability to survive as a democracy or even to provide meaningful social justice. What is needed here is better leadership, though this is obviously in short supply. There are significant issues about what states must do to ‘take up the slack’ when others do not do their part (this seems to me to be one of the hardest issues in political morality), but the discussion here doesn’t seem to correctly address the problems actually faced by mature and wealthy states.
Most migrants are not refugees, but rather people seeking to better their lives. Here our question is what sort of admission categories and terms of admission are acceptable. Miller says that, because this group has no right to enter, the guiding principle here must be mutual advantage among the citizens of the receiving state and those seeking to enter. The terms of exchange between citizens and immigrants must be “fair”, and the surplus gained must be “fairly distributed” among the parties. (95) This is implied by the modest cosmopolitan requirement on receiving states that they not only protect human rights, but also give due consideration to the interests of the would-be immigrants. This need not entail offering them the terms that immigrants most desire, but, if the programs are generally fair, Miller argues, it’s reasonable to assume the consent of those who take part.
Weak cosmopolitanism further requires that, in making immigration decisions, the reasons we give for the decisions are ones that would-be immigrants could accept. This seems to easily rule out racial classifications. A more interesting and difficulty question is whether cultural background should be treated differently from race. Miller is at least more open to this possibility, though there are many possible problems here. For one, it’s very easy for racist elements to be claimed to be “cultural” ones. This is even more so if determinations are not made on a case-by-case basis. If cultural attributes are assigned to people by, for example, their country of origin, it’s not clear that these will be any less problematic than race-based elements. Miller suggests that a plausible criterion would be whether the would-be immigrant would “acknowledge the authority of the state they wish to join” (106), but how this is to be done, and what it means, is left somewhat obscure. Even if we (plausibly) think that we don’t need to apply the same level of toleration to would-be migrants as we do to current citizens (given that the migrant already has somewhere to live), it isn’t clear how we can reasonably establish what is sought here without serious risk of unfairly getting things wrong. This is one of several areas where principles that seem reasonable on their face quickly become more problematic when we try to turn them into actual policies. Though Miller, reasonably, wishes to avoid prescribing particular policies to states, it isn’t clear to me that we can properly evaluate many principles relating to immigration if we don’t work them out at the level of plausible policy more than is typically done in this book.
Once we have decided to admit immigrants, what might be reasonably demanded of them, and what might they reasonably demand from the society of immigration? Miller argues that “immigration should be regarded as a two-way street, in which immigrants who are treated fairly by the society they join in turn recognize obligations to contribute to that society and to help it function effectively as a democracy.” (112) This seems reasonable, but leaves a lot of details open. Consider first what is owed to the immigrant. Human rights of all people must be respected, but these are considerably less than the full social and political rights of citizens. Even here, there are some questions. Many accounts of human rights include a right to subsistence and shelter, and Miller seems somewhat sympathetic to these accounts, but it isn’t clear how recognizing such rights for immigrants, at least before they become full citizens, is compatible with the various “public charge” provisions and restrictions on access to welfare benefits that are common in most Western countries. It does seem reasonable to limit the political rights of immigrants, at least before they become citizens, and this is especially so in the case of temporary migrants, who even more than permanent residents are properly thought of as primarily citizens of their home countries.
Even the unauthorized population, Miller accepts, has many human rights that must be respected, at least insofar as this is compatible with the possibility of the removal of the non-citizens. As Miller notes, the unauthorized do not show “wanton disregard for the rights of others” in the way that criminals often do, so we should not think that they forfeit their rights merely by being present without authorization. The limits on their rights are not a penalty, as in the case of criminals, but merely because they are in the society without permission. Although he doesn’t directly address the issue, we might wonder whether this argument (and the claim that at least some of the unauthorized are engaged in “queue jumping”) is fully applicable to those who entered a country without authorization as minors. While they, too, are “in a society without permission”, this is typically not plausibly due to their own will, a fact of some moral significance.
A further issue arises here with the unauthorized population – how the passage of time impacts their rights to remain. Again, this question is perhaps most salient with minors, since they will have had little experience of life in their native country, though this point isn’t emphasized by Miller. Miller has sympathy with the common suggestion that after some significant period of time – perhaps between five and ten years – it’s reasonable to grant some form of permanent residence to these people. While Miller worries that those who have entered without authorization have acted “unfairly” (a claim that seems less obvious to me than Miller suggests), he accepts that there is a strong principle that “all those who have been social members for a sufficient period of time and who plan to continue to make their lives in the society should advance towards full membership”. (126) The particular details of how to do this are left up to different societies. It’s perhaps worth pointing out that there is a significant potential here for moral hazard, one that doesn’t seem to be squarely faced by most theorists of immigration. Any set policy of legalizing unauthorized immigrants after a period of time will encourage greater unauthorized migration. Whether this is a significant enough problem to tell against such a regular policy is unclear, but these worries need more attention than most theorists have given them. We see again, I claim, that we cannot fully tell if a principle is acceptable without working out how the policies it would authorize would work in practice.
What may be required of immigrants who remain in a state and move towards citizenship? As a general rule, Miller claims that, “citizens have to be convinced that [immigration policy] assigns rights and responsibilities fairly. When these conditions are not met, tolerant acceptance of newcomers can give way to hostile resentment.” (129) This point is perhaps well illustrated in the lead up to, and aftermath of, the vote on whether the UK should remain in the EU or not. As a practical point, this is important to keep in mind. A worry arises, however, as to what to do when the beliefs of the public, or at least that part of the public hostile to and resentful of immigrants, are misguided or false. Anyone who is closely familiar with both immigration policy and public opinion on immigration will know that this situation is extremely common. (For example, areas with low immigration, yet a rapid increase in immigrants from a very low base, often have populations that express worries about being swamped by immigrants, even when the absolute numbers are very small. The salience of the change leads to the false belief.) Worries along these lines become especially important in Miller’s discussion of the integration of immigrants.
Integration requirements can be broken down into three main categories, social, civic, and cultural. Social integration involves people regularly interacting with each other across a range of social contexts, including work, clubs, neighborhoods, and so on. Many theorists regard social integration to be desirable and a sign of a healthy society. Civic integration involves a sharing of principles and norms which govern social and political life. These need not involve having all the same goals for society, but do involve agreement on the means that are acceptable for achieving whatever goals are held. Finally, cultural integration involves having a shared common culture. Miller here mentions “enjoying the same TV programs or films, reading the same books or newspapers, listing to the same music, or identifying with the same religion or the same city” (133).
Some sorts of integration are plausibly enforceable, and others are merely aspirational. Consider social integration. A society that has a very low degree of social integration is likely one where certain communities are perpetually disadvantage. This seems to be the case in the US in areas where there is a low level of social integration among Whites and Blacks, for example. However, there is a limit to what the state may do here. Anti-discrimination laws and similar means are clearly appropriate to prevent immigrants from being involuntarily forced into ghettos or similar situations, but overly strong regulation would risk seriously interfering with important liberty interests. For that matter, immigrants, especially new ones, may have legitimate interests in living in communities where they are able to enjoy food they find familiar, to meet people who share their language, and so on. In healthy societies these immigrant neighborhoods are often way-stations before the immigrants, or their children, merge more fully into the wider society, but to prevent them in the meantime would be a serious intrusion into the liberty of the immigrants.
A significant degree of civic integration is necessary if immigrants are to be full members of society, and for that reason alone there is good reason to encourage it. Miller also argues that encouraging civic integration may be a useful means to help combating illiberal practices such as coerced marriage. Cultural integration is more controversial. The argument against requiring it is straight forward – doing so will almost always be oppressive and illiberal. It’s also arguably unnecessary. We might plausibly hope that civic and non-oppressive social integration will be enough, and that, in a healthy society, as much cultural integration as we might like will happen on its own, at least with the children of immigrants. Miller argues that the real issue in relation to cultural integration is where to draw the line between public and private culture. Miller is at least sympathetic to a program of cultural integration that lead to immigrants “recognizing cultural landmarks such as feasts and holidays, artistic and literary icons, places of natural beauty, historical artifacts, sporting achievements, popular entertainers, and so forth.” (144) The value of such a program, he contends, is that it “allows immigrants to identify with that society more fully and to adopt its national identity as its own.” (144) This national identity, in turn, provides “a resource that can allow a society to solve collective action problems, pursue policies of social justice, and function more effectively as a democracy.” (145)
There are several questions we might raise about this argument. First, it’s unclear whether any formal policy is needed. Many of the desired goals will happen naturally in a free society that doesn’t discriminate against immigrants, merely by the immigrants (and their children) living in the society. If this doesn’t happen, it’s arguably because the society, or its “national identity”, is an exclusive one that doesn’t welcome outsiders. If that is so, then attempts to make immigrants fit into the society are likely to be seen as oppressive by the immigrants. We may here ask why a thinner, more civic notion of membership cannot suffice. This notion would be less likely to brand those who wish to celebrate different holidays, or who favor different authors or artistic traditions as outsiders. Stepping back to Miller’s earlier list – enjoying the same TV programs or films, listing to the same music, or identifying with the same religion as a majority of people in an area – a new problem arises. By this standard, I am a near total outsider from much of the country that I live in. And yet, I am able to engage in social democratic practices. Why should anything different be the case for immigrants? It seems that even very mildly coercive measures here aimed at anything more than a thin, civic notion of membership is likely to be illiberal and oppressive.
Miller sums up his position on the integration of immigrants and how it relates to immigration policy by saying that, “for immigrants to demand a full array of antidiscrimination and equal opportunity measures while reserving the right to isolate themselves from the wider society in cultural enclaves is unacceptable.” (150) At one level this seems correct. Immigrants must be willing to abide by laws, including ones that might make it more difficult to maintain traditional ways of life. In this, they are no different than members of domestic conservative religious groups. (So, girls may not be kept out of school, for example.) But, is there more to say than this? I am not sure. Again, it seems to me that in a country that isn’t dominated by prejudice, and where immigrants are not discriminated against in employment and housing, much of the integration that Miller favors will come about naturally, and that which doesn’t isn’t something that can be enforced, and may not even be desirable.
Many people will be left uncomfortable that some people don’t live in the same ways that the majority does, or that don’t conform to some imagined past. Miller rightly points out that this anxiety need not be based merely on prejudice, but may be a “genuine” fear of cultural dislocation. (164) I worry, however, that Miller hasn’t given enough consideration to the possibility that people may have “genuine” fears that are, nonetheless, groundless or irrational. These fears and beliefs may be sincerely held, but unreasonable. Changes to cultures do happen, and a desire to have cultural change happen at manageable levels is a legitimate concern, but it’s also important to make sure that the concerns are in fact reasonable. Miller does not give enough credit to the worry that even sincerely held beliefs may be mistaken or unreasonable.
What might be done to improve this situation? Miller suggests that we need a “clear policy on immigration that can be set out and defended publicly, with all the relevant data about how the policy is working in the public domain. It should cover the overall numbers being accepted, how different categories of immigrants are treated, the criteria of selection being used, and what is expected of immigrants by way of integration.” (160) In one sense, this goal is already met in the US and probably other countries, where the desired information is available on various government web pages open to the public. The difficulty is that it isn’t clear that, beyond broad generalities, the process can be made “clear” to the general public, any more than can other complex government programs. The US, for example, has dozens of visa categories for permanent or temporary entry. While this information, and the numbers who enter on each category, is publically available, it is also necessarily complex. Immigration lawyers and judges often have a hard time understanding the categories and rules. So, mere publicity isn’t sufficient. It’s likely that the system could be made simpler only by making it much cruder, and unable to serve our purposes as well as the current system does, despite its flaws. Perhaps the gain in public understanding would be worth the trade-off of making most immigration systems vastly cruder than they currently are, but that is at least unclear. A better approach would be to encourage leadership of political parties and the press to more explicitly condemn and counter-act that sort of vulgar prejudice and lies that often confuse and worry the public – the sort of lies found in both the Trump campaign’s claims about the supposed criminality of immigrants, and the campaign for the UK to leave the EU, especially, but not only, by the UKIP.
What else might be done? Miller suggests that strong border enforcement and rapid adjudication of claims will improve societal confidence in immigration policy. (160) This is plausible, and improvements can surely be made, but there are clear limits to gains here, too. In many countries (including the US and the UK) enforcement measures are already very strong, and it’s not clear that they could be made stronger without seriously threatening the civil and even human rights of both citizens and would-be immigrants. Quicker adjudication of claims is desirable, but not if it means that unfair and rushed procedures are used, or that no appeal is possible.
We end, then, on a somewhat down-beat note. Miller has written an important book, one that provides a clear statement of an important prospective. It provides perhaps the best systematic argument for states having the right to set their own immigration policies. Furthermore, by insisting on taking the opinions of the public seriously, Miller leads us to reconsider and reevaluate many views widely held by both theorists of immigration and activists. Yet, the solutions to the problems discussed in the book aren’t clear, and I have tried to give some reason to think that Miller’s preferred solutions aren’t fully plausible. It’s possible that there is no fully satisfactory solution to some of these problems, and we will be left in the end with a degree of ad-hoc balancing. Those seeking to do the weighing of different values, however, would be well served to read Miller’s careful and thoughtful book.
Posted on 8 August 2016
MATTHEW LISTER teaches in the Legal Studies and Business Ethics Department in the Wharton School of Business, University of Pennsylvania. He has published many papers on immigration law and theory, international law, and other issues in legal, political, and applied philosophy.