Is unauthorized immigration an immoral act? On David Miller’s ‘weak cosmopolitan’ defense of the right to exclude

Abstract

While immigration is attracting increasing attention in political theory, there are as yet, few political theorists who adopt a restrictionist stance. With very few exceptions, the most political theorists have offered so far are pragmatic, not principled, defenses of the right to exclude. Looked at in this light, David Miller’s engagingly thoughtful book is surely a welcome and distinctive addition to the burgeoning literature on immigration. But readers who are looking for a normative counterpart to Joseph Carens’ Ethics of Immigration might be disappointed. In fact, the two books display more similarities than one would expect. Most notably, they share a common methodological ground: both reject top-down approaches, which proceed from abstract normative principles and apply these principles to immigration and integration policies. Yet, Miller’s realism reaches farther, giving greater weight to empirical evidence and focusing on institutions instead of on how individuals should act. This institutional focus is a key-defining feature of Miller’s political philosophy of immigration as distinct from an ethics of immigration. However, as I shall argue in the first part of this paper, Miller does not remain faithful to this distinction. He blames unauthorized migrants for acting ‘unfairly.’ But his criticism of irregular migration lacks a sufficient normative and empirical basis. The second part of the paper deals with the question whether legal coercion gives rise to a right to stay. My focus is in particular on the costs that irregular immigrants must bear when they are forced to go back to their countries of origin. These costs tend to be much higher than one expects.

Keywords:

• David Miller
• freedom of movement
• coercion

Acknowledgements

I would like to thank Christine Strähle for organizing the conference in which this article was originally presented. I am also grateful to the participants of the conference, and especially to David Miller, for a lively and stimulating discussion.

Notes

1. Whether unauthorized migration is a criminal act depends on the specific legal provisions of each country.

2. The example is adapted from The Economist (2007).

3. Hidalgo mentions, for example, the natural duty to support just institutions. According to this, duty migrants should comply with immigration unjust laws because non-compliance would damage just institutions (Hidalgo, 2015, pp. 12, 13). At the same time, it should be added that Hidalgo denies that this duty exists.

4. East European countries are perhaps a good example in this respect. It is currently highly unlikely that these countries would accept more legal immigrants in the complete absence of illegal immigration.

5. See for example Carens (2013, pp. 158–169).

6. See for example Abizadeh (2008).

7. It should be added that Miller rejects also Nagel’s strong link between coercion and distributive justice (cf. Miller, 2009).

8. These migrants may have come voluntarily, but whether it makes sense to regard them as ‘voluntary’ residents is open to doubt (given the ties that migrants develop to the host society).

9. That this is the drift of Miller’s argument confirmed by what he says on irregular immigrants, who have lived in the country for many years and thus ‘acquired an expectation that they will be allowed to remain’ (Miller, 2016, p. 123).

10. Recall that coercion involves the absence of choice, but if immigrants can choose to go back to their countries of origin, then they are not coerced. Implicit to this argument is also the assumption that irregular immigrants are more likely to cope with the costs of forced removal than long-term residents. This can be seen most clearly when Miller argues that the fact that ‘many people either do or would wish to migrate shows that the costs of moving – including the breaking off of many established social ties – are not so high as to form a decisive obstacle’ (p. 124).

11. See Kahneman and Tversky (1979).