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Willard Marriott Digital Library LIBERALISM AND BORDERS: FINDING MORAL CONSENSUS IN THE OPEN BORDERS DEBATE by Russell Wayne Askren A dissertation submitted to the faculty of The University of Utah in partial fulfillment of the requirements for the degree of Doctor of Philosophy Department of Philosophy The University of Utah August 2012 Copyright © Russell Wayne Askren 2012 All Rights Reserved The University of Utah Graduate School STATEMENT OF DISSERTATION APPROVAL The dissertation of Russell Wayne Askren has been approved by the following supervisory committee members: Bruce Landesman , Chair June 19, 2012 Date Approved Margaret Battin , Member June 19, 2012 Date Approved Deen Chatterjee , Member June 19, 2012 Date Approved Mark Button , Member June 19, 2012 Date Approved Darrel Moellendorf , Member June 19, 2012 Date Approved and by Stephen Downes , Chair of the Department of Philosophy and by Charles A. Wight, Dean of The Graduate School. ABSTRACT In recent decades liberal political philosophy has debated a significant question: If the basic commitment of liberal political theory is the equal moral standing of all individuals, how do we justify the presence of borders and their control such that individuals receive different consideration and treatment based solely upon their status as members of a particular political community? One position claims that hard borders are unjustifiable; borders must be open as a matter of right and respect for all individuals. At the other end of the spectrum is the position that hard borders are justifiable; borders can be closed as a matter of the right of particular communities to the goods that community creates and the preservation of that community’s unique identity. A third category of arguments considers the problem from the perspective of the nonideal circumstances in the world; opening borders is an appropriate and necessary response to resolving problems of hunger, poverty and violence in the world. I examine several arguments in each of these categories, finding that the arguments offered are problematic in ways which make them less than fully persuasive, even though they explore in valuable ways different aspects of the debate. A second problem is that this moral debate has failed to influence in any meaningful way the ongoing public policy debate related to immigration. To overcome this second problem I utilize a model proposed by Jonathan Wolf and Avner de-Shalit in which philosophically fragmented concepts, which cannot influence policy in their fragmented state, are brought to bear upon policy through the identification of the moral consensus present in the debate. This moral consensus, which represents the central moral concern of the debate, can be effectively applied to the appropriate policy debate. The proposed consensus is based upon the central moral concern of the open borders debate, the effect of immigration control policies upon the well-being of individuals, and argues that states may control their borders constrained by the obligation to give consideration to the effects of control policies and to ameliorate the negative effects of such policies. iv TABLE OF CONTENTS ABSTRACT………………………………………………………………………. iii ACKNOWLEDGEMENTS………………………………………………………. vii Chapters 1. INTRODUCTION……………………………………………………………. 1 Methodological Approach………………………………………………... 5 Chapter Summaries…………………………………………….…………. 5 2. LIBERALISM AND OPEN BORDERS……………………….…………….. 10 The Common Conclusion Argument……………………….…………….. 11 Nozick, Property and Borders…………………………….…………. 13 Rawls, Justice as Fairness and Borders……………….…….……….. 24 Utilitarianism and Open Borders……………………….……………. 33 Other Critiques of Carens…………………………...…….…………. 36 Open Borders and Single Principle Arguments…………….…………….. 39 Freedom of Movement and Open Borders…………….…………….. 39 Freedom of Association and Open Borders.………….………...……. 54 Resource Entitlement and Open Borders……………….……………. 58 Conclusion………………………………………………………………… 67 3. LIBERALISM AND CLOSED BORDERS.………………..….…………….. 69 The Membership Argument………………………………………………. 71 Membership and Walzer’s Theory of Goods………………………… 71 Cole’s Critique of Walzer……………………….…………………… 81 The Problem of Membership as a Dominant Good…….……….…… 93 National Identity and Culture Arguments………………………………… 99 Miller on National Identity and Culture………….………………….. 101 Cole on Liberal Nationalism……………………….………………… 113 Arguments from Single Principles……..…………………………………. 119 Freedom of Association and Closed Borders..…….………………… 119 Conclusion.……………………………………..………………………… 128 4. NONIDEAL ARGUMENTS AND INTERNATIONAL REGIMES.…..…... 131 Nonideal Arguments……………………………………………………… 133 The Question of Aid or Immigration………………………………… 134 Wilcox and the Global Principle of Harm…………………………… 143 International Regimes..…………………………………………………… 152 The Global Agreement on the Movements of People..……………… 153 The New International Regime for the Orderly Movements of People...…………………………………… 166 Conclusion.……………………………………..………………………… 174 5. MORAL CONSENSUS IN THE OPEN BORDERS DEBATE.…………….. 177 Developing Moral Consensus.…….……………..….…………………… 179 Consensus in the Open Borders Debate.…………….…………………… 185 Identifying the Consensus…………...……………………………… 185 The State in the Consensus..…………...…………………………… 187 Rights and Constraints in the Consensus.…………...……………… 193 Individual and State Interests..…………...………………………… 198 Determining Negative Effects.…………...………………………… 204 Conclusion……………………………………..………………………… 208 6. CONCLUSION.……………………………………..…………………….… 211 SELECTED BIBLIOGRAPHY..………………………..…………………….… 217 vi ACKNOWLEDGEMENTS My philosophical interests are driven by the commitment that philosophy should change the way we live our lives. This pragmatic commitment has caused me no end of trouble. I owe deep thanks to Bruce Landesman for his unfailing support and guidance as I learned how to be both philosophical and practical at the same time. The success of this thesis and my completion of the program are in no small way due to his support. I hope it has not been this task that has sent him into retirement. I wish him well. I owe similar support to Darrel Moellendorf, of San Diego State University, who has supported me since I decided to turn my life upside down by leaving the comfortable world of business and turn to academia. Darrel has been supportive of my work since the very beginning, including participating in this thesis, which is above and beyond the call of duty. Through this process he has become a good friend. To the other members of my committee, Peggy Battin, Deen Chatterjee and Mark Button I owe varying levels of thanks for their support to this thesis and to other aspects of my academic career and interests, both in the classroom and outside. They have each taught me much and provided interesting and useful guidance during the program. I would also like to think Douglas G. Adler, M.D., Associate Professor of Gastroenterology and Hepatology, Department of Medicine, School of Medicine at the University of Utah. Dr. Adler has not only helped me to stay healthy during my studies, but amazingly always remembers to ask about the progress of the dissertation. Dr. Adler – It’s done! I often joke that I am living life backwards, pursuing goals that are usually pursued by people half my age. So I must thank my family for their many sacrifices along the way. My wife, Lynn Conger, joined me partway through this journey. Marrying a manager in the software industry in idyllic San Diego, she has without hesitation supported me as I have pursued new endeavors that have taken us far from home. She has been supportive, encouraging and borne far more of the duties at home for our family than she should have needed to do. Our children, Simon, Rowan and Naomi, have also given up much time with their father, especially over the last ten months. They do not fully understand what I am doing, but they sacrifice anyway. There will be more time to play now. I promise. viii CHAPTER 1 INTRODUCTION Since the first human left the Olduvai Gorge, humans have been on the move. Whether pushed from a place by hunger, disease, war or natural disaster, or pulled to a place by better weather, better resources, or better opportunities, people have migrated from old places to new places, sometimes in hope of a better life and other times without any choice. For most of history, when people have moved they did so without regard for the invisible lines we call borders. Since the initiation of the Peace of Westphalia in the mid-seventeenth century, international law has recognized the state rights of political sovereignty and territorial integrity. Countries had the right to control their borders, but none did except in the case of war. State control of borders, especially as regards controlling the movement of people across them, is a recent phenomenon. Passports were created during the First World War and formal state policies are only a few decades older. Migrating peoples have often clashed with the established population, but the clash with state authority is a recent problem. Immigration policies developed to control borders and those who would move across them often lead to difficult decisions with ugly results. People die in ship holds and in deserts trying to reach the Promised Land. When they make it, they are often not allowed to stay. France deports thousands of Roma, Israel hundreds of Arabs and the United States thousands of Mexicans, splitting families,