Immigration and the Open Society

  • September 28, 2021
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Freedom is “in some way a very ordinary thing, consisting in not being hindered or obstructed in the pursuit of our everyday ends, or watched as we go about our business, or prevented from associating with others.” In his book Immigration and Freedom, Chandran Kukathas draws this idea of freedom “as being at ease” from Pericles’ famous eulogy. The Athenian statesman, according to Thucydides, in claiming the lifestyle of his city as superior to Sparta’s, remarked that Athenians, “far from exercising a jealous surveillance over each other,” do not “even indulge in those injurious looks which cannot fail to be offensive, although they inflict no positive penalty.” Also, Athenians open their city to the world, and never “exclude foreigners from any opportunity of learning or observing, although the eyes of an enemy may occasionally profit by our liberality.”

I have always found that Thucydides passage rather striking. It is rather difficult to picture a modern ruler, even the most liberal one, forcefully arguing that it doesn’t really matter if enemies move around in our country, and even if they spy on our science and the way we manufacture our military devices, because impeding them from doing so would do more harm than good. The ancient world is typically not the best reference to understand freedom (the freedom of the modern, indeed), but Pericles’s speech, a speech that Karl Popper considered the manifesto of the open society, is too good not to be read anachronistically.

The book is both a serious philosophical essay and an argumentative tour de force. Kukathas does not pour erudition over the reader, but helps her with real world stories and historical examples. Those who won’t recognize the names of Will Kymlicka or Robert Nozick will nod at mentions of John Lennon and the movie The Lives of Others. A splendid epilogue challenges us to think what would happen were we to need a visa to fall in love.

The book is as accessible as it is ambitious. It can be read as an attempt to offer a restatement of classical liberalism for our age, using the most politically heated issue of our age—immigration—to reflect upon the nature of the open society. Kukathas’s conclusions will be equally unpopular with contemporary liberals and contemporary conservatives. Though Oakeshottian conservatives, if only they were still around, and 1968-ish, anti-surveillance liberals, also now missing, may find much to their liking in it.

Freedom is indeed at the center of the book. Immigration laws limit the “freedom of citizens and residents insofar as it necessarily restricts what they may do: who they may employ, whom they may teach or enroll, and even whom they may marry.” Kukathas embraces a telling quotation from F.A. Hayek’s The Constitution of Liberty: “The great aim of the struggle for liberty has been equality before the law.” This may explain his reluctance in being considered as advocating “open borders.” That label seems to imply a preference for more immigration, for a higher international mobility of people. That preference may go well with a passion for a more diverse and hence culturally richer society. It could be motivated by economic efficiency: allowing people to move more would help the poor in bettering their lot more than anything else, as the studies by Michael Clemens among others show. Yet this is not what Kukathas is really interested in.

His key argument is as simple as it is powerful: immigration control cannot possibly end at an airport’s security check. Controlling (“governing”) immigration means imposing restrictions upon natives too. They will be less “at ease” in their hiring people or buying things from strangers whose legal status they would not otherwise be interested in knowing. It also means a further increase in red tape and in requiring documents from people, exacerbating an unfortunate trend in contemporary nation states. Kukathas points to a simple and yet often forgotten fact: immigration control means controlling more those who are not immigrants. It means, for example, checking on factories to make sure every worker is documented; to make sure that families are not employing a maid who does not have a regular permit to stay in that country; et cetera.

Advocates of closed borders tend, indeed, to talk about border controls. Their very rhetoric draws a rather simple picture: our community is protected by borders; these borders somehow exist (or can exist); they are not merely imaginary lines (sometimes contested), hence they can be more open or closed, depending on our need for protection. They say they aim at regulating entry to a certain state territory (or supranational area, like Schengen). Yet controlling the border is something more than merely patrolling a street or guarding a fence. It does not mean only tighter controls over people getting in or out of a country: just to keep the list of activities associated with it to a minimum, it includes a commitment “to regulate the terms of admission, including determining the right to work, the length of stay” and “to set the terms of immigration integration” and “to establish enforcement policies to deter or prevent entry as to remove unauthorised or undesired immigrants.”

Quoting Hayek, Kukathas reminds us that liberalism is built upon equality in front of the law. This needs, in turn, not “merely the formal establishment of a principle of equal treatment but a social transformation in which the least fortunate or powerful are protected by the law and can avail themselves of what is needed to secure that protection.” This can be seen as a classical liberal legacy: it is a kind of “equality” which has to do with the removal of privileges and the reduction of the scope of action of the sovereign. Kukathas, who considers the rule of law as much a product of the circumstances which nurture a particular constitution and set of norms as this very set of norms, points out that immigration control is precisely an exercise of discretionality, made all the more acceptable by growing anxieties and fears.

Barriers to immigration, “though cast as general laws,” are in many cases “crafted so as to apply to specific classes of people.” Nor do they provide a space for the weakest and poorest in society to avail themselves of what is needed to be protected by the law. They are also threatening to the core idea of the rule of law, that is: the need for mere rules of the game which do not have a teleological purpose and do not pursue a given goal, but consist in agreed-upon procedures allowing individuals to pursue their own plans. In particular, they pose a strong burden on businesses and families, to prove they are not dealing with “illegal” immigrants. Kukathas knows that “Economic control is not merely control of a sector of human life which can be separated from the rest; it is the control of the means for all our ends.” Control has cost, to begin with “the costs borne by the regulated and monitored firms, institutions and organisations which have not only to comply with regulations but also to demonstrate that they have endeavoured to do so.”

“The modern developed state has evolved to the point where it has subsumed and absorbed much of society.” That reality we see every day, “in the state’s capacity to monitor every law-abiding citizen (and most others as well) and regulate every group or association within its borders.” Kukathas does not mince words. Immigration regulation and control is but a part of a wider trend towards increased securitisation of our lives. European governments are hypocritical in claiming that “by deterring smugglers they are preventing deaths at sea,” because “the reason so many take to boats is to escape circumstances so grim that they are willing to risk their lives.” He even points out that the claim that “mass surveillance must be extended for the increased convenience of travellers should also be taken with a grain of salt.” The idea that government acts benevolently is met with robust skepticism. Some states and political groups may argue that they favour controlling immigration, for the sake of enabling it in an orderly fashion. Kukathas advises us to be on our watch, “particularly when security is invoked as a justification for restrictions on freedom of any kind, since it is the oldest and most widely invoked reason offered for controlling human beings.”

In the eyes of many, the strongest argument against freedom of movement for people is culture. Immigration risks endangering the delicate equilibrium of societies as they are and the rapid and uncontrolled influx of newcomers may weaken them culturally. Kukathas enjoys bringing together, as champions of the same argument, Enoch Powell, who was ultimately ostracised by his Conservative Party for his views on the matter, and progressive economist Paul Collier. There is little which distinguishes the arguments of one and the other. Actually, Western societies—though their cultural and political establishment will disdain the comparison—are approaching a kind of revised “Powellism,” being highly critical of the possibility of successfully integrating immigrants into the delicate texture of the social fabric.

To the issue of identity, Kukathas devotes his preceding book, The Liberal Archipelago (2003). The orthographical metaphor suggests benign neglect towards groups and communities which want to pursue their values and identity in a communitarian dimension. The idea of government imposing a uniform, top-down identity—no matter how secular or allegedly open-minded—is at odds, for Kukathas, with a serious understanding of freedom.

Likewise, in Immigration and Freedom he contends that “If the advocates of immigration restriction wish to do so on the basis of a thin conception of the cultural distinctiveness of national identity—one which sees that identity as given by little more than a shared language and commitment to democratic institutions—the tendency of immigrants to assimilate suggests there’s little reason to limit either the numbers or source of people coming to settle.” But if they rely on a thick notion of national identity, then they almost invariably end up in “some form of racial, ethnic, religious or broadly cultural profiling,” which is at odds with the already rather “mixed” nature of contemporary Western countries.

Nationalists think the world is naturally divided into nations, each of which ought to be a state. This world of nation states is a world of members: members of this or that nation state. But we are born people, not “members” of this or that nation state. Instead a nationalist outlook proclaims that “those who do not belong may have some rights, but not the same rights or as many rights as those who do.” This is more problematic than it seems, as “belonging” to a certain place comes in degrees: even within the boundaries of nation states, you do have internal migrations and a certain degree of differences. Who really belongs to a place? Those who are born in it? Those who share some common cultural trait? Those who speak the same language? Whatever your choice is, you have entered a tricky game, particularly insofar as the need to draw a line that distinguishes between insiders and outsiders may become a fundamental political goal, so strong as to overcome the maintenance of rule of law institutions.

Attempts to limit immigration tend to assume that an entire country is like a “home,” or a “family,” an analogy which should strengthen the need for insiders to keep others out. But the analogy is weak, as couples sometimes go through divorce, people change partners, and some families just break up. Real world families are certainly valuable and happen to be the situation in which we all come to this world, but they are imperfect. That’s the reason why few of us would endorse the idea of marriages mandatorily arranged by parents for their kids. Why would we be happier with state paternalism deciding how society should be formed?

Arguments against immigration based on “self-determination,” the cornerstone of nationalism, raise the question: “What is the self whose self-determination is a matter of concern?” The answer is far from clear, also because the important loyalties sometimes are not associated with the nation state (who “owns” the borders) but rather with smaller groups and institutions within its boundaries.

But even if we assume a complete identity between the groups that matter, encompassing society and government, Kukathas points out that “societies do not control their economic welfare; or, for that matter, their political destinies.” Michael Oakeshott distinguished between civic and enterprise association, the first being associated with the rule of law and the idea that people get together to follow some rules of the game, so to say, which keep them at liberty to choose their own path, the latter consisting in human beings coming together with a specific goal and pursuing it. The rule of law requires an understanding of society as a civic association but nationalism is perhaps the political doctrine which makes the most of the concept of a society made up with people who share a project.

Yet the “will of the people” is not at all clearly ascertained in democratic elections, which are typically won with roughly speaking 30% of the votes and more often than not thanks to campaigns which focus on contingent issues, very far from being the determination of the social self. Society’s mind changes continuously, as do societies themselves. “Any particular “we” that comes into existence will be an assemblage of sorts, but it is an accident that should not be invested with too much significance.”

Immigration and Freedom confronts the idea that the world is made of members by talking about individuals. Kukathas supplements his theoretical argument with cases of real world individuals harassed by government agencies, often indeed “without regard for basic human rights or even simple decency.” These cases speak for how immigration policy and the need to cope with “irregulars” can justify a wide array of policy action. In real world bureaucracies, “the pressure to meet immigration targets, or be ‘tough’ on immigration, also inevitably gives rise to hasty action animated more by internal administrative imperatives than zealous attention to natural justice.”

Kukathas’ book was written before Covid-19, but it is all the more relevant now. The way in which the pandemic has been managed makes his argument even more cogent. On the one hand, nation states have protected their “members” by making it impossible for non-members to join them. The borders were sealed, as foreigners were not seen as depriving natives of economic opportunities or wanna-be welfare queens (ideas which were disputed at least by part of the electorate) but as vectors of contagion (an idea which was at least implicitly endorsed even by the scientific community).

Sealed borders included those that nobody ever thought to seal before, like the one between the United States and Canada or newly invented “internal borders,” like the ones between Italian regions or French departments during the lockdown, when people (either natives or recently migrated) could not leave their city of residence. Yet that was not enough: people’s freedom to move was restricted even within their municipalities and, with the stroke of a pen, some activities (like running) were deemed illegal while others (going to the grocery) were allowed. Norms may have been “general” on paper but in fact they were not, as they discriminated against individuals depending on their habits and wills. The superior goal was the preservation of public health (the health of the members of a community) but it was put in place at the expense of individual liberty and the rule of law. It is not by chance that this happened in the states and societies Kukathas describes all through his book and that are so sensitive to immigration control: nation states which enjoy a greater than ever ability to monitor and control their citizens and whose bureaucracy can develop and enforce a complicated set of norms and require ever newer documents.

Greater social control in our societies, however, cannot be achieved only by law. Kukathas reminds us of the paradox of obedience: why do the vast majority of people obey, even though their rulers and their army are but a tiny fraction of them? Because of opinion or, to use a more contemporary word, because of consensus. “To be effective, control must not be resisted but embraced—if not by everyone, then at least by enough that those who are reluctant to accept it are too indifferent or fearful to put up a fight.”

Freedom comes in degrees, Kukathas reminds us, and has a subjective component, which can’t help but be influenced by the circumstances. This happens precisely because freedom is a concrete thing. It means to be as at ease as possible in your own undertakings, but it also ought to confront particular situations. In the Ottoman Empire “millet” system, different communities absorbed by the empire had no right to secede but were left “free to govern themselves and individuals were free to come and go.” This was perhaps not ideal, but better than being barred from all the occupations as happened at times with the Jews in the Middle Ages in Europe. But this also means that freedom is, as Kukathas points out by quoting Foucault, a practice and hence somewhat path dependent. Our political decisions today contribute to the understanding of freedom we’ll have tomorrow, and that is true both for immigration control and pandemic management. Once people get used to their lives being intruded upon in a certain way, it is more difficult to reclaim the liberty whose habit they forgot. We are the most adaptable species on the planet, which is good news but not always.

Reprinted from The Library of Economics and Liberty

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