Which Duty Corresponds to the Remedial Right to Immigrate?

• In Event: Immigration and Justified Borders

Abstract

Most political philosophers who defend a state’s right to exclude immigrants couple it with exceptions for those persons claiming a remedial right to immigrate. However, there has been little discussion of the character of the duty that receiving states bear towards those individuals who possess a remedial right to immigrate, apart from is Michael Blake’s argument that receiving states bear only a negative duty of non-coercion towards remedial immigrants who reach their borders. Against Blake, I argue in this paper that receiving state bears a positive duty to invite and transport those meriting a remedial right to immigrate. My argument proceeds in four steps.
First, I argue that the remedial right to immigrate is best understood as an instrumental positive right, as opposed to an intrinsic negative right. It is an instrumental right because the person seeks to move not for the sake of moving itself but to protect another more basic right that remains unfulfilled within the originating state. It is a positive claim right rather than as a negative freedom right because the person seeks that the receiving state not only refrain from coercively preventing entry but also provide certain benefits and protections to the person through its economic and/or coercive institutions in order to remedy the lack of benefits or protections within their originating state.
Second, I distinguish immigration policy itself versus immigration policy enforcement. Even if an immigration policy, such as one that excludes non-remedial immigrants, may be just, its enforcement may remain unjust, if it violates the rights of justly excluded migrants by, for example, separating children from their parents, whose claims for asylum may be weak. Because the justice of enforcement may be independent of the justice of immigration policy itself, I argue that the duty of receiving states towards remedial immigrants should apply primarily to the latter, not the former.
Third, I examine two of Immanuel Kant’s distinctions between types of duties towards others: the distinction between perfect duties (which admit of no exceptions) and imperfect duties (which do admit of exceptions); and the distinction between duties of justice (a subset of perfect duties that can be coercively enforced) versus duties of virtue (which includes all duties that cannot be coercively enforced, be they perfect or imperfect). Although some philosophers suggest that receiving states’ duties of virtue are normatively weaker than their duties of justice, I contend that this is a misreading of Kant’s position. Rather, duties of virtue are merely more flexible but no weaker than duties of justice. Therefore, while duties of justice may constrain how receiving states coercively enforce immigration policy, the policy itself may be subject to demanding perfect and imperfect duties of virtue. Finally, I argue that a receiving state’s duty with respect to remedial immigrants is an imperfect duty of virtue, one which may admit of situational exceptions all the while remaining normatively strong.
Finally, I use the distinctions drawn in the preceding steps to challenge Blake’s argument that receiving states bear only a negative duty not to coercively enforce border restrictions towards remedial immigrants. First and foremost, Blake’s emphasis on a negative duty not to enforce border restrictions limits normative analysis to enforcement only and overlooks immigration policy more broadly. But because non-coercive duties of virtue can be as normatively weighty as coercive duties of justice, immigration policy beyond coercive enforcement can still be normatively subject to strong duties on the part of the receiving state. Second, because remedial immigrants claim a positive right to benefit from a receiving state’s coercive and economic functions, the duty of the receiving state cannot end merely by negatively not coercively enforcing its border restrictions but must extend at minimum to a positive duty of virtue that satisfies the autonomy needs of remedial immigrants. Third, the strength of a remedial immigrant’s positive right claim, and correspondingly the strength of the positive duty of the receiving state to satisfy that claim, depends not on the contingent factor which individuals reach the border of the receiving state but on the actual constraints on autonomy faced by the individual. Indeed, those most meriting a remedial right to immigrate may reside in originating states that are distant from the receiving state and may lack the resources and/or capabilities to reach the border of the receiving state. Thus, a merely negative duty unjustifiably succumbs to the proximity bias (that originating states housing individuals meriting a remedial right to immigrate are proximate to receiving sates capable to taking them in) and the mobility bias (that those individuals most meriting a remedial right to immigrate are able to make the trip to a capable receiving state).

Author

• Michael R. James, Bucknell University