Migration is part of the human condition and is a fundamental fact with which political theory must contend. Where economic or other gradients are sufficiently strong, they create what is essentially an 'irresistible force' for migration. In such cases democratic states find it difficult or impossible to stop illegal immigration, if legal immigration is limited. Yet contemporary debates about immigration invoke the 'immovable ideas' of sovereignty, democracy and nationality in ways which are cut off from these realities and presuppose historically unfounded assumptions about the relationship between states and migrants. Stripping away the myths from both the facts and the values related to migration means that policies have to be judged on their costs and their merits.
A survey in Scientific American of 'The Migrations of Human Populations' declared: 'Human beings have always been migratory'. Palaeolithic humans had already reached every major part of the globe except for Antarctica; it is only by migration that the habitable parts of the globe became fully peopled. The same source suggests that 'migration is generated by significant differences between one area and another'. These differences may lie in the environment, in the technological or other differences leading to inequality between human groups, or in the demographic composition of those groups (so that groups with excessive numbers of young men send them to emigrate, an important factor today driving emigration from the non-EU countries of Mediterranean and eastern Europe into the EU). Global migration is not an optional, accidental or minor process which may be conveniently ignored in thinking about politics. Migration is not marginal or dispensable to politics, even though the terms and drivers of such migration have varied significantly over time.
Today, as in the past, global economic gradients of difference are among the most salient differences motivating migration. Setting aside the cases of refugees and many internally displaced persons, much of current and future global migration is essentially an economic phenomenon, a fact obscured by the narrowly political terms in which it is often debated. Modern societies have indeed two animating principles - the political and the economic -- which correspond to two different and sometimes conflicting bases for belonging to and in a society. The concept of citizenship has in the last hundred years come to depend as much on working as on voting. Indeed working is widely viewed as more of an imperative than voting. And the discipline of the market driving people to work is relied upon at local, national, and global scales. Yet at the global level individual migrants are often criminalised for responding to the economic incentives which the global economy relies upon for its functioning.
In early-modern mercantile states, it was skilled would-be emigrants whose movements were typically restricted, while immigrants were largely welcomed to build up population and wealth. In the last half of the twentieth century, the inverse is true: it is immigrants whose entry is typically restricted or barred, because jobs and welfare are now widely (if sometimes wrongly) assumed to be scarce and zero-sum goods. The result, a catch-22 for would-be immigrants, is captured in the defiant statement of then President of Mexico, Ernesto Lopez Portillo, about illegal Mexican migration to the United States: It is not a crime to look for work, and I refuse to consider it as such.
It follows that wherever there is a strong economic gradient attracting immigration states that are integrated into the global economy are unlikely to be able fully to prevent it, though they have the power to force it into illegal channels by restricting the legal ones. As the International Organization for Migration's 2004 report on 'Migration Trends in Poland' remarks about migration in general, 'As long as the movements are driven by labour related issues, the interior dynamics of migrationwill always take precedence, no matter if the destination state will restrict it or not.' In such circumstances, liberal democratic states are likely to lack not only the ability but also the concerted political will to prevent illegal immigration, since some employers and consumers depend on it and can exert political voice (if sotto voce) in its favour. Non-democratic states may be able to crack down on immigration more ruthlessly, but again, to the extent that they are integrated into the global economy, they will be less able to prevent illegal flows altogether. Indeed, some developed economies have come to depend on black markets in cheap labour in order to compete effectively or keep prices down and shareholder margins up. In such circumstances, policy makers may seek, as Christopher Rudolph says, to 'finesse social insecurities while concurrently maximizing economic gainsby shaping policy to address fears rather than flows'. Such policies proclaim the political right and power to control migration and set up highly visible initiatives to police borders, but meanwhile the flow of immigrants continues.
How should we approach such a conflict between self-conceived political and economic imperatives? One might think that the state's ability to control illegal immigration is like the state's ability to control domestic crime. It is central to the definition of the modern state that it monopolizes the means of legitimate violence and so in principle excludes the possibility of violent crime. Yet no modern state succeeds in preventing violent crime altogether, and this does not impair its legitimacy so long as it maintains some sort of cap on the level of such crime and also succeeds to some degree in punishing its perpetrators. Some governments are able to put up with quite widespread crime waves without losing legitimacy altogether.
But the flaw in the analogy is twofold. Immigration, unlike ordinary domestic crime, has supranational drivers; and to the extent that it is economically valuable to the destination country, it benefits the very state that is theoretically committed to suppressing it. So the idea that states are committed to preventing illegal immigration altogether, must be treated sceptically. It is a claim which states may believe about themselves, and which starry-eyed theorists may also believe, but which is not in fact true.
The second possible analogy is between illegal immigration and prostitution. Enlightened approaches to prostitution, such as those embodied in recent policy in Italy and Sweden, acknowledge that prostitution is demand-led and prostitutes are responding to that demand. If prostitution is viewed as socially undesirable, therefore, it is politically rational to treat the seeking and purchasing of paid sex as the more significant crime than the providing of it. Sweden accordingly now criminalizes the seeking of paid sex and the paying for it but has decriminalized the offering of it.
This analogy usefully suggests that to the extent that politicians seek to prevent or punish illegal immigration, they should do so by putting heavier penalties on the employers of such labour who create the demand for it than on the desperately poor people who merely respond rationally to that economic demand from a relative position of market weakness. Such a redistribution of penalty could be supplemented by a policy of allowing migrants to remain in the country if they are caught while employed and while having been employed for a certain period of time. But the difficulty with this analogy is again that while the economic activity associated with prostitution is not normally seen as a significant public benefit or desideratum, the economic activity associated with illegal immigration is often a major contribution both to the unofficial and the official economy in multiple sectors. Whereas in many states public policy would prefer to eliminate prostitution if it could, few states want to eradicate the many parts of the agricultural, food, and service industries which may rely on illegal immigrant labour.
The failure of both crime and prostitution as analogies for illegal immigration reveals the latter as a special kind of problem for modern liberal democratic states in the global commercial economy. It is at once a concomitant of the global economic system and an apparent scandal for domestic political ideas. Yet our ability to discuss this predicament - the irresistibility of migration in certain circumstances, and the factors driving actual state responses to it - is distorted by clinging to myths about what the values of sovereignty, democracy and nationality entitle or require us to do. Once we are no longer self-blinded about what these values permit or require in this area, we can avoid some of the self-binding traps which bedevil current policies. When 'irresistible forces meet immovable ideas', the latter must give way.
None of the great theorists of the emerging European state and state order in the 17th and 18th centuries - among them Grotius, Selden, Hobbes, Locke, Pufendorf, Rousseau, and Kant - took immigration to be central to their theories of sovereignty and political obligation. The discussion of political obligation in this tradition seeks to legitimate political authority with reference to each individual and their obligation to obey. That problem is solved by focusing on the individual's binding himself, or having sufficient reason to consider herself bound, through the notion of consent linked to representation or participation. Consent is thus classically conceived in terms of establishing whether an individual who is within a territory consents to the sovereign authority within it. It has nothing to do with whether either the sovereign or the community consent to his or her being included in it.
Far from dictating that states must consent to and control immigration, the classic European account of sovereignty focuses attention rather on the acts and choices of individuals themselves. In fact, this complex of concepts is peculiarly well suited to accommodate immigrants, who according to these theories need only adopt the right self-conception and attitudes, and perform any necessary acts, to acquire the appropriate relationship of membership to a state. The real core of the doctrine of sovereignty is individual consent, not state control, and this means that sovereignty is better understood as a guide to naturalization rather than as a barrier to it. For neither consent nor representation, as operationalised by these thinkers, depends on native birth. Even for Rousseau, who stressed the need of a people to share a common way of life in order to formulate a general will consenting to fundamental legislation, this way of life was a matter of customs, holidays and language rather than a matter of birth or blood.
No more than the philosophers did early-modern rulers rest their claims of sovereignty on the control of immigration. Sovereignty was a matter of dynastic or constitutional claim, independent of the actual composition of the nation. Of course we must distinguish between the grounds of sovereignty and its concomitant powers. Sovereign states have long intervened in migration and assumed their entitlement to do so, an entitlement asserted for example in the United States from 1837 (City of New York v. Miln) and crystallized in 1889 (Chae Chan Ping v. United States) in the Supreme Court's declaration that the power to exclude foreigners is an incident of sovereignty unrestricted by treaties, previous statutes, or constitutional limitations. But while the powers claimed by states may include the right to control immigration, the underlying value of sovereignty and its relationship to the individual does not rest on that right or power. And indeed the motivation of sovereign states to exclude immigrants has historically been a function of policy and changing conceptions of interest and advantage, rather than a deduction from theories of sovereignty.
Michael Walzer's contention that '[a]dmission and exclusion are at the core of communal independence' pictures democratic communities as clubs constantly voting on whether or not to let in new members. But this was not true of the founding model of Western democracy, ancient Athens. While a few foreigners were naturalized each year by a complex procedure of the Assembly, the identity of the demos was largely and publicly treated as being fixed by inheritance. The idea that democratic communities are constantly exercising such deliberation about admission and exclusion is modern rather than ancient, born of the confluence of new state powers and technologies, economic relationships, and conceptions of naturalization and citizenship. But although we now tend to think of democratic states as clubs able to pick and choose whom to let in, this image is at odds with the economic force-field which attracts new residents into all but the most authoritarian states, legally or illegally, whenever certain gradients are sufficiently steep. Once illegal immigrants have integrated into the society in terms of work, education, residence, and social belonging, it becomes both impractical and evidently unjust not to grant them at least a path towards full citizenship. Hence the amnesties which have been periodically granted in the United States, Italy, and elsewhere.
Whereas the common view of democracy is that it entails club-like control, a more realistic understanding of the value of democracy in relation to immigration is as implying the value and practices of what I will call democratic inclusion. Democracy conceived as democratic inclusion values the full recognition of all those who have become incorporated into a society through work and residence. Those who are so incorporated deserve the chance to become full citizens, though they should not be coerced to do so. But if this path to citizenship is acknowledged, then the idea that the state maintains full plenary powers of deciding upon admission and exclusion as part of the definition of its democratic identity, becomes untenable.
Walzer's conception of admission and exclusion as key to political membership is not, therefore, a universal or timeless truth about the nature of politics or even democratic politics. The idea that democracy gives states powers to control immigration misleads us (since they cannot actually exercise such powers beyond a limited extent) and also misinforms us by obscuring deeper areas of democratic values. The democratic value of inclusion and the older logic of incorporation by sovereign-constituting consent, in which all living under a reasonably benign regime both can and should (be able to) obligate themselves to it, are better guides to what democracy requires in conditions of economic globalisation and inequality than is the image of a democracy as a club.
Even those who accept that democratic states today cannot operate like private clubs, because there is a limited number of states and people cannot simply start their own, nevertheless often hold that such states are justified in balancing the protection of their national identity and culture against the interests of would-be immigrants. These arguments invoke nationalism as a third value underwriting state authority to control immigration. For example, Oxford philosopher David Miller - one of an influential group of 'liberal nationalists' among political theorists -- accepts that states cannot act like ordinary clubs, since the number of states is limited by territory and international recognition. But he holds that while states must consider the interests of would-be immigrants, they may and should strike a 'balance' between their own important interests in culture and environmental protection, and the interests of immigrants who desire access to such states, who have a 'claim -- if nothing elsea strong desire to enter'. But neither Miller nor other liberal nationalists persuasively explains how to weigh these respective interests. Why should a relatively rich person's cultural identity outweigh a desperately poor person's need to find work? It is far too complacent to assume that in an age marked by 20th century conceptions of human rights as well as the 18th and 19th century inheritance of nationalism, it simply does.
Moreover, we must beware of the ease with which 'national' or 'cultural' identity have in the past been used to justify what we would now see as racist immigration policies. 'Shared culture' was invoked in the United States as grounds for blocking Chinese and Japanese immigration in the 1920s, and again in the 1950s to justify maintaining a system of national quotas which heavily favoured immigration from north-western Europe (the UK, Germany and Ireland in particular) over south-eastern Europe and the rest of the world. And race was blended with an appeal to cultural ideals and to ecological-population considerations in a mixture which might give a liberal nationalist pause, in the U.S. House of Representatives Committee on Immigration and Naturalization report on what became the 1924 permanent quota law:
With the full recognition of the material progress which we owe to the races from southern and eastern Europe, we are conscious that the continued arrival of great numbers tends to upset our balance of population, to depress our standard of living, and to unduly charge our institutions for the care of the socially inadequate. [new paragraph] If immigration [sic] from southern and eastern Europe may enter the United States on a basis of substantial equality with that admitted from the older sources of supply, it is clear that if any appreciable number of immigrants are to be allowed to land upon our shores the balance of racial preponderance must in time pass to those elements of the population who reproduce more rapidly on a lower standard of living than those possessing other ideals (Report to accompany House Resolution 7995, 68th Congress, 13-14)
While no liberal nationalist would contemplate racism in their defence of national public culture, the fact remains that culture has in the past served as a potent surrogate for race. If public culture is admitted as a legitimate interest to be weighed in the 'balance' against the interests of immigrants, there is a real danger that invidious and collectivist considerations will sneak into the scales under its wing. A truly liberal nationalism would concern itself exclusively with the interests of individuals, and would not automatically assume that the interests of those already within the scope of the nation outweigh the interests of those outside it. Even Friedrich von Hayek tartly asserted, 'It is still loyalty to such particular groups as those of occupation or class as well as those of clan, nation, race or religion which is the greatest obstacle to the universal application of rules of just conduct'.
I have argued that we should be sceptical about the myth-making in which sovereignty, democracy, and nationalism are invoked to underwrite state control of immigration. Once we see state concern with immigration not as noble and fundamental, but rather the creature of circumstance and advantage that it is, we may be freed to consider among other things the real costs of the policies that are currently used to try to limit immigration. In other words, if such policies are not required by the very nature of our values, we must focus more closely on their costs.
Those costs include the arbitrariness of the attempt to control flows which remain fundamentally beyond control, arbitrariness which severely damages the human security of migrant workers and inhibits their choices and opportunities. Enforcement and deportation are relatively haphazard and chancy events, and they are often identified concomitant to other offences. The mass questioning of Arab men in the United States after September 11, 2001, for example, led to a large number of deportations on the grounds of minor immigration violations which would not have been discovered otherwise. Such an arbitrary regime increases the insecurity under which illegal migrants live, making them vulnerable to the politically-motivated occasional crackdown, or the vengeful fellow employee. Such 'unwritten rules' of when deportation is actually likely to occur are not consonant with the spirit of the rule of law, although they may comply with its letter.
Costs also arise from policies which are counterproductive. For example, if restrictions are tightened, migrants will tend to stay longer on their first trip abroad, or to settle permanently rather than seasonally, contrary to the preferences they would have had had they been more confident of their ability to return. The European Commission's 8 February 2006 report on the comparative impact of workers from the enlarged EU in states where their entrance has been restricted and those where it has not, states that even trade unions in most EU countries accept that 'restrictions on legal work actually lead to a proliferation of undocumented work, bogus self-employed work, and fictitious service provision and sub-contracting'. The unions and other social partners of the EU call for a lifting of restrictions on labour immigration from the new EU states 'in order to create a level playing field', recognising that banning legal immigration only encourages black market labour and tax evasion while doing little to stem the actual tide of labour immigration where strong economic demand exists. The same has been found for Mexican immigration to the United States, where 'the unintended consequences of border enforcement included a growth in permanent settlement replacing seasonal, circular migration; and a black market for Mexican labor concurrent with lowering of wages for legal U.S. residents', as Kristof Tamas, Mapping Study on International Migration, reported in 2003.
In sum, once freed from illusions about either the power or the values underwriting state attempts to control illegal immigration, we may come to agree with Steven Friedman that 'current forms of control [of migration] are a greater threat to human rights and democracy than the presence of immigrants'.
'irrestistible forces meet immovable ideas': this phrase is owed to Lant Pritchett, 'The Future of Migration: Irresistible Forces Meet Immovable Ideas', a paper presented at The Future of Globalization: Explorations in Light of the Recent Turbulence conference, Yale University, October 2003.
Scientific American: Kingsley Davis, 'The Migrations of Human Populations', Scientific American, vol. 231 (1974)
International Organization for Migration: Izabela Korys, 'Migration Trends in Poland', vol. III of Migration Trends in Selected Applicant Countries, 2004, p.5
Lopez Portillo: Michael S. Teitelbaum, 'Right versus Right: Immigration and Refugee Policy in the United States', Foreign Affairs 59 (1980), p.46
Christopher Rudolph: his Security and the Political Economy of International Migration, Institute of Governmental Studies, Berkeley, 2002, p.36, emphasis original.
David Miller: his 'Immigration: the Case for Limits', in Christopher Wellman (ed.) Contemporary Debates in Applied Ethics, Blackwell, Oxford, 2005
Friedrich von Hayek: his Law, Legislation and Liberty, vol. 2: The Mirage of Social Justice, Routledge and Kegan Paul, London, Melbourne and Henley, 1982, p.148
European Commission Report on the Functioning of the Transitional Arrangements set out in the 2003 Accession Treaty (period 1 May 2004-30 April 2006) , released on 8 February 2006, section 3.11
Kristof Tamas: his Mapping Study on International Migration, Institute for Futures Studies, Stockholm, 2003, with reference to drawing on D.S. Massey, J. Durand, and N.J. Malone, Beyond Smoke and Mirrors: Mexican Immigration in an Era of Economic Integration, Russell Sage Foundation, New York, 2002
Steven Friedman (a remark made originally with reference only to migration into South Africa): his 'Migration Policy, Human Rights and the Constitution', Briefing Paper to Green Paper Task Team on International Migration, p.7, as quoted in Jonathan Crush, 'Introduction: Immigration, Human Rights and the Constitution', in Crush ed. Beyond Control: Immigration and Human Rights in a Democratic South Africa, IDASA and Queens University Canada, Cape Town, 1998, p.3
Jane Caplan and John Torpey, eds., Documenting Individual Identity: The Development of State Practices in the Modern World, Princeton University Press, Princeton and London, 2001
Rainer Bauböck, ed., From Aliens to Citizens: Redefining the Status of Immigrants in Europe, Avebury, Aldershot, 1994
Robert Holzmann and Rainer Münz, Challenges and Opportunities of International Migration for the EU, Its Member States, Neighboring Countries and Regions: A Policy Note, Institute for Futures Studies, Stockholm, 2004
Richard Tuck, Philosophy and Government, 1572-1651, Cambridge University Press, Cambridge, 1993
Tomas Hammar, Democracy and the Nation State: Aliens, Denizens and Citizens in a World of International Migration, Avebury, Aldershot, 1990
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