Philosophical Foundations of Immigration Law

By | September 7, 2019

>>From the Library of
Congress in Washington, D.C.>>Jane Sanchez: Thank you for
joining the Law Library of Congress and the Greater Library this
evening for the 2017 Frederic R. and Molly S. Kellogg Biennial
Lecture on Jurisprudence. My name is Jane Sanchez and
I have the honor of serving as the 25th Law Librarian
of Congress. Ooh, thank you [applause]. Please note that today’s program is
being livestreamed on the Library of Congress’ Facebook
page and YouTube channel, so all remarks including comments and questions will
be captured on video. Also, please take a moment
to silence your cell phones. The Kellogg Biennial Lecture on Jurisprudence is made
possible thanks to the generosity of Mr. Frederic R.
and Molly S. Kellogg who have endowed this
lecture series since 2009. The Kellogg Biennial Lecture on Jurisprudence presents
prominent contributors to international jurisprudence
judged through writings, reputation, broad and continuing influence on
contemporary legal scholarship. Previous Kellogg lecturers have
included Ronald Dworkin, Joseph Raz, Amartya Sen, and Michael Sandel. And I apologize if I’ve
massacred Ms. Sen’s name. Thank you, Mr. and Mrs. Kellogg
for your continued support of this lecture series and
for joining us this evening. We really appreciate your support. [ Applause ] Thanks to you the Library
has had the pleasure of welcoming these eminent
legal scholars to discuss and debate a variety of interesting
legal philosophical topics. This year is no exception. We are delighted that
Professor Jeremy Waldron of New York University School
of Law joins us this evening to address how countries
regulate immigration, specifically if nations have a
right to consider their economic and cultural interests to
shape immigration policy, and more broadly, what historical and legal foundations give nations
the authority to regulate newcomers into the respective countries. At this time I invite
Mr. Kellogg to the stage, who will share more details about
Professor Waldron’s background and his selection to serve
as this year’s speaker for the 2017 Frederic R. and
Molly S. Kellogg Biennial Lecture on Jurisprudence. [ Applause ]>>Frederic R. Kellogg: Greetings. This is the Fifth Biennial Lecture. We’ve now reached our
eighth anniversary. Ronald Dworkin was the
first as Jane Sanchez said. Joseph Raz in 2011 and Amartya Sen
in 2013, Michael Sandel in 2015. And today we are pleased and honored to have Professor Jeremy
Waldron of New York University. Before introducing Jeremy, who Molly
and I first met in England in 2000, I would like to thank the jury
that chose him without knowing that fact — Mark Medish, Don
Wallace, and the Librarian of Congress, Jan Sanchez. We are — Molly and I are insulated
from the selection process. So why do we support a series of law
lectures at the Library of Congress? A big reason is Molly’s 30
years of work in the House of Representatives, that
extraordinary conduit of democracy. She served Representative J.J.
Pickle of Austin, Texas, who, if he were still active,
would be among the first to get things back on
a bipartisan track. So what is the purpose
of endowed lectures? The original purpose in
Protestant and Catholic Europe was to free clerics to devote
more thought to their sermons to win back lost souls
and transform behavior. Our goal is more modest. But here, also, it is to give time
and incentive to legal scholars to think through the
major philosophical issues of our time and of the law. Endowed lectures can
influence the law. The Storrs Lectures at Yale
and the Holmes Lectures at Harvard battled back and
forth during the last century like heavyweight crews. There was learned hands. Holmes lecture in 1958 challenging
use of the U.S. Constitution to override democratically-enacted
legislation. Then Herbert Wexler’s response that judicial review can be
justified by neutral principles. Grant Gilmore’s Storrs lecture,
The Ages of American Law, criticizing Justice Holmes
for causing the age of anxiety or legal realism, the idea that judges just rationalize
any decision they want. And then, of course, H.L.A.
Hart’s profound Holmes lecture, Positivism in the Separation
of Law and Morals. And Ronald Dworkin’s reply
questioning that separation and validating once again judicial
recourse to make moral principle. There’s clearly a progression
of major questions, and it leads to our speaker today. Jeremy Waldron has given the endowed
lectures at both Harvard and Yale, and he has addressed substantive
issues through a command of fundamental theory — basic
human equality, dignity, torture, hate speech, judicial review,
positivism, and not least, legislation, which might be at the
heart of his theoretical program. Last week I was in Cambridge for the
Bicentennial of Harvard Law School, attended by six Justices, including
the Chief, with a day of seminars where much was said about legal
education at Harvard Law School. But not a word about hand, heart,
Dworkin, positivism, principles — the great issues of
the last century. I sat with a young
professor, Jacob Gerson, who said that these
topics are virtually dead at Harvard Law School today. He teaches a course on
legislation, so, of course, I asked, do you cover Jeremy Waldron? Legal positivism claims that law
must be understood from its sources, the leading one of which, of
course, is democratic legislation. But the grand legal theorists
have failed to take that dispute over positivism to its
obvious, crucial, next point — how can and should a view of legislation address
the philosophical issues of the last century? That has been Professor
Waldron’s question. Such Copernican questioning
is typical of Jeremy who takes legal theory back to
the philosophy of John Locke. He is courageous, articulate,
feels deeply about our country, pursues his topics in detail,
able to focus in like a microscope without losing the big picture. He is unafraid to cross
boundaries into political theory and moral philosophy, or to
question settled assumptions. So what was Professor
Gerson’s answer to my question? It was yes, he does cover
Waldron, so there’s hope yet for Harvard [laughter]. I give you Professor Jeremy
Waldon, and remind you that after the lecture there’s
a reception you’re all invited to in the Madison Hall
on the first floor. [ Applause ]>>Jeremy Waldron: Ladies and
gentlemen, thank you very much. I’m reminded by these remarks that
the last time I visited the Library of Congress was to obtain permission
to use an image that they earned of the construction of the Capitol
in the 1860s which I was able to use and grace the copy of
Law and Disagreement
, which was a companion to the
Dignity of Legislation
in 1999. And so I was very proud
of of using that image. And I’m very honored
to be back here today. Thank you, Frederic and Molly,
for sponsoring this lecture. Thank you to the jury
for the invitation. Thank you to Jane Sanchez
for the welcome. It’s a great pleasure to be here. My topic, as you’ve heard,
is immigration, which today, perhaps especially because of
the terrorist attack in New York by somebody who was, like
me, a green card holder, is a pressing issue of public policy
in the United States and elsewhere. But this is the Kellogg Lecture in
Jurisprudence, not public policy. And I want to say just a little bit about the relationship
between the two. Jurisprudence, the philosophy
of law, can be divided into special jurisprudence
and general jurisprudence. General jurisprudence,
which is the kind of work that Ronald Dworkin does and Joseph
Raz did in his lecture before you, is a study of law and
legal systems as such. And the concepts of legal
reasoning that are central to law in the most abstract sense. But jurisprudence can
also be special, and it can be special in two ways. It can be special because it studies
the first principles of the law of a particular legal system or a
particular family of legal systems like the jurisprudence
of the common law or the jurisprudence of Islamic law. Or it can be special because
it studies the first principles of a particular legal topic like
criminal law or the law of torts or, tonight, the law of migration. So I’m going to be looking at
the first principles that help us to make sense of laws that regulate
permit/restrict human movement on the face of the Earth,
movement from society to society, from nation to nation. The inquiry is going to be
analogous to other forms of special jurisprudence. If this were a special jurisprudence
of tort law, we would be diving deep into the waters of tort law to try to examine the foundations
of corrective justice. If it was the special
jurisprudence of contract law, we might be going deep into
the morality of promise-keeping and the basis of economic exchange. We go deep to foundations to
try to get a new perspective and a more pervasive perspective
on a particular department of law. And that’s what I’m going to
be doing with immigration. For criminal law we
might examine the idea of retribution, for example. A foundation approach is different from what my philosophical
colleague sometimes call an applied ethics approach. In applied ethics, one sets out a policy problem
as it currently exists. And one adduces considerations of
value and principle in favor of or against particular
aspects of that policy problem as it’s presented in the
politics of a country. I’m not going to do that,
although the bearing of what I say will be fairly
obvious at various points. Instead of doing applied
ethics of immigration, which is an entirely
honorable enterprise, I do want to take us deeper into
the presuppositions and what we have in mind when we talk about
the regulation of migration. Dr. Kellogg mentioned the
question of the legitimacy of our regulating — that’s the sort
of question that I want to raise. So where should we
look for the foundation of principles of migration law? Certainly we need to examine
the general topic of movement and settlement in the human world,
what I’m going to call a dialectic of movement and settlement. We are a migratory species, but
we are also a settling species — people moving en masse or
individually for reasons of their own from one place
to another, and the response that settled communities might
reasonably make to such movement. What I mostly want to
argue for tonight is that migration has a deep
importance of its own that may mean that it can’t just be regarded
as an ordinary department of public policy like, I
don’t know, tax reform. Not that there’s anything
wrong with ordinary departments of public policy like tax reform. But this one raises special
issues, and I want to try and get a sense of why it’s special. So even though policy on migration
will start from questions about cost and benefit, and who is harmed,
and who profits from migration, once we start putting some
pressure on those ideas, we’re going to find a whole cascade
of deeper questions opening up. So, here goes. As you know, we here in the
United States are participating in a great national
debate about immigration. We have been for a while. It’s a hot issue in this country,
and under the Trump Administration. Remember my inquiry is special in
the second sense, not the first, so I’m not confining the
discussion to the United States. But it is very important in
the United States, and we — where we use it as a
point of reference. It’s an area of concern for
almost every advanced democracy. It’s an even hotter issue in Europe,
I think, than in the United States. Certainly it’s a more bitter
and rancorous focus of debate, if that can be imagined in Europe. Each country’s debate, each regional
debate, has its peculiarities. Much of the debate in Europe
has been about refugees, but it’s also about the peculiar
arrangements of the Schengen Accords that allow free movement
through most of the countries of
the European Union. Brexit debate in the United
Kingdom involved discussion about the lawful migration
of people from one country to another under EU auspices. In the United States in recent
years we have focused particularly on illegal immigration. And I know the terminology
is a little bit of a problem. Forgive me if my words
are clumsy on this. But immigration that is not
explicitly permitted by the laws. Both how to prevent it by securing
the southern border and what to do about the very large number
of undocumented aliens, adults and children, already
in the United States — 11 million or more living here,
8 million or more working here. Under the present administration,
we are also debating how open or restrictive legal or
documented immigration ought to be going forward. Today there’s been a new debate about diversity-based
immigration policy as opposed to merit-based immigration policy. And President Trump has indicated
that he wants that to be the focus of concern in the coming months. President Trump has said that for
decades the immigration policy of the United States has not been
fair to our people, to our citizens, to the interests of our workers. It’s interesting to watch how even
a brief statement like that opens up a cascade of questions. And that’s how I want
to begin this evening. President Trump is concerned about
the impact of decades of immigration on various interests affected
in the United States — our people, our citizens,
our workers. But are they they only interests
we should be considering? If immigration is regular
public policy, then certainly we should consider
the interests of all those in our country who are likely to be
affected, directly or indirectly, those with whom potential migrants
might compete for low-echelon jobs. Those who profit from the
increased prosperity that results from the invigoration of the
economy through migration and so on. It’s obvious that we ought
to count al those interests, and count them carefully so they’re
not discounted in the aggregate, but we look at the, as
President Trump said, the fairness of the impact of
immigration across a wide array of people at different economic
levels and in different places and faced with different arrays of
opportunity, or lack of opportunity. So we certainly need
to look at all of that. But from a foundational
perspective, what are we to say about the interests of
the migrants themselves? Are they to be counted
in the balance? Are they to be weighed in
the balance if they benefit from coming here, weighed
in the balance against whatever harms there are? And, of course, there’s
always controversy about what harms there are that
immigration inflicts on our workers, our citizens, on Americans. So we have to consider, from
a foundational perspective, whose interests exactly get
counted — the migrants themselves, the benefits that open
migration brings to them, members of their families,
both those who come with them and those who stay behind? Are those benefits properly weighed
in the balance against any harms that immigration causes
to American interests? Or should we set them aside for
the purposes of this debate? We’ve got to try to figure out
a honorable and principled way of answering that question. Should we also consider the impact
of immigration to the United States on the country from which
the immigrants come? Because, obviously, if a large
number of people come from country a to country b, that affects
the labor market in country b, but it also affects the labor
market and the economy in country a. And a former colleague of
mine at Oxford, Paul Collier, has written a remarkable book
on immigration calledExodus,How Migration is Changing
Our World
. And he insists that we must pay
attention to that array of benefits and costs as well as the benefits
and costs both of the inhabitants of the country, the target country,
and the immigrants themselves. So, whose interests is one question. Which interests is another question. For economic interests may not be
the only things to be considered, there are also, people would
say, security interests, and that’s been made
apparent in the last 24 hours. There are cultural interests. These seem particularly
important in Europe where, as one sociologist has observed,
a surge in identity concerns seems to underlie the debate
about immigration. People are worrying that a surge in
identity concerns is likely to lead to more widespread opposition
to immigration and asylum than a decline in confidence
about the economy when the public perceives
that their national culture is somehow threatened. And many feel a strong desire or
can be led to feel a strong desire to defend what they believe
to be their way of life. Is that a legitimate ground
for making public policy? The same sociologist thinks
that people are concerned about the cultural religious
and linguistic distinctiveness of their national community. And they worry that immigration
is weakening the uniqueness and specificity and cohesiveness
of the national community. And I think when you scratch
the surface you’ll find concerns of this kind in the
American debate as well. But the case of the United
States also gives rise to some deeper questions
about cultural community if we think it is threatened
by immigration. What is the shared culture? Is there some thing which
is the shared culture of a large multi-cultural democracy
of 300 million highly diverse and opinionated people
inhabiting a continent? In what sense are modern
democracies, large and diverse as many of them are, in
what sense are they really cultural communities? I spent a few years recently
in England and when challenged on this I would have to listen to English political philosophers
mumbling things about a sense of history and cups of tea
and queueing at bus stops. And some of them would invoke Prime
Minister John Major’s famous bon mot about England “as the country of
long shadows on cricket grounds and warm beer and invincible
green suburbs and dog lovers and pools fillers and as George
Orwell said, ‘Old maids bicycling to holy communion through the
morning mist.'” And it was on the basis of [inaudible]
like this that people who drink cold lager
[laughter] don’t play cricket and wouldn’t be seen dead
going to holy communion claim that they are entitled to
resist the immigrant hoards on cultural grounds. Is culture even the sort of thing
that laws and public policy ought to be in the business of upholding? Consider the most deeply felt
form of cultural solidarity. Namely the shared beliefs
and practices of a religion. Are the practitioners of
a given religion entitled to pressure their political
leaders to drive away those who hold different beliefs and hew
to different practices because, I don’t know, Britain is a
Christian country as people who don’t go to church tend to say. Yeah? It is long and
well-established in our tradition, in this country, that religious
belief and practice are not to be protected in any way by
law, let only by laws that exclude from a given vicinity people
whose faith is different from that of the existing inhabitants. Our view is existing religious
belief in a given area just has to take his chances with
whoever happens to be in that area at any given time. Adherence to a given
faith are not entitled to establish the religious
homogeneity or to preserve the religious
homogeneity of the area where they live by forbidding
heretics or those who follow after other gods from
settling in their vicinity. So a tough question. If we think, as we surely do, that
religion cannot possibly, religious and [inaudible] cannot
possibly be a legitimate ground for respecting immigration, can
we really think that culture is, given that religion matters more in
the lives of the people who have it than culture does in and of itself. President Trump’s Administration
is interested in all aspects of immigration
policy. But has has, as I said, a particular
interest in illegal immigration. And this raises questions about law
and our obligation to obey the law and the obligation of
immigrants to obey the law. And it raises jurisprudential
questions quite quickly about that. Immigration laws have a special
character that they operate in a sort of extra-territorial
manner. Somebody from Mexico who tries
to cross the border or climb over the wall into the
United States is, we say, constrained by an American law
that prohibits him from doing so. But that’s what we say. But it’s not his law. It’s not a Mexican law. Is he actually bound by it? It’s not a law that he has had any
role or representation in making, which means that our usual
account of legal obligation, which tends to be based on things
like consent or the fairness of the political process,
cannot quite establish the grip of American immigration law
on the would-be immigrant. So what obligation do would-be
immigrants have to obey the law of their destination country? Must have some obligation because
they are seeking to come here, and voluntarily coming here. That certainly looks like
consent to obey the laws. If they succeed in climbing
over the wall and settling here, working here, and living here, then they will be obligated
to obey our laws. But can the sense of obligation be
projected back into their decision to cross into the country
in the first place? It’s a delicate, it’s
a delicate question. There’s also a question
about what nations owe to each other in this regard. I don’t just mean should
Mexico have to pay for the wall [laughter], right? But countries do have obligations to
one another in regard to migration. They respect each other’s passports. The respect each other’s borders. They participate in securing
each other’s systems. Should we be considering
migration law not just as local, positive law of this community
but as systematic positive law of the whole system of states? Should it be seen as a law in
the world, something justified as a systemic arrangement? The questions we post about — you see, I’m just giving
you a cascade of questions. The questions we pose
about immigration, the questions about borders. But which borders? In the United States we’re
up to our eyes in borders. We have borders of all sorts — city limits, town and county
jurisdictions, state lines, as well as the national borders
of the republic as a whole that distinguish us
from Canada and Mexico. Generally speaking, we
regulate movement only across national borders. Other borders may mark
the application of laws and the jurisdictions of
policing or judicial authorities, but they are not the
site of restrictions on movement even though they
distinguish important politically distinct entities from one another. I originally intended the
title of this lecture to be about the philosophical
foundations of migration law, not just immigration law. And really, that’s still the case. In a large country like the United
States, there is a great deal, always has been, a great deal of
internal migration from one part of this vast country to another. And we wouldn’t these days dream
of treating freedom of movement within the country as a proper topic for legal restriction,
though it used to be. And very occasionally,
even within living memory, there have been attempts
to revive it, as when Los Angles sent police
officers in the era of the Dust Bowl to the California border
to resist the incursions of people from, I don’t
know, Oklahoma. In a scene from the movie,
The Hunt for Red October
, a Russian naval officer
played by the actor Sam Neill, a New Zealand actor — I’m
a New Zealand [inaudible] — a Russian naval officer
player by Sam Neill muses about what he will do if his attempt
to defect from the Soviet Union to the United States
proves successful. His experience has been of
Russian attitudes or movement. He says he’s going to be
a recreational vehicle and drive from state to state. “Do they let you do that,” he
asks his commanding officer. “Oh, yes,” says the commander,
played by Sean Connery. “No papers?” “No papers,” says Sean Connery. State-to-state.” In the 16- and 1700s, the Poor
Law in the United Kingdom used to punish paupers who roamed from
parish to parish in search of work. And it was one of the
signal achievements of Adam Smith’sThe
Wealth of Nations
to argue that there was no economic
justification for this prohibition
on internal movement. In the U.K. you can move
from parish to parish now. You can move from county to county. Even from nation to nation,
as the border between England and Scotland is regarded. Indeed, we now conceptualize
internal movement as a matter of rights. Article 13 of the Universal
Declaration of Human Rights holds that “Everyone has the right to
freedom of movement and residence within the borders of each state,”
meaning each national state, which means that free movement
is emphatically not something to be regulated on the basis of
a calculus of economic interest. It’s removed from that
calculus and held as a matter of principle distinct from it. If it’s a human right, then
internal movement is no more subject to routine economic policy
calculations than a right to marry or a right to freedom of religion. Article 13 further holds
that everyone has the right to leave any country,
including his own. Immigration is not subject
to economic calculus either. Countries have sought
to limit immigration, leaving one’s country in the past. Our Cold War adversaries
did this to their citizens as a matter of security policy. But we regarded it as a matter
of pride in this country, that we rejected that idea and,
again, that everyone has a right to leave their country if they like. So speaking generally, issues of
migration are not treated just like any other issues of
economic or public policy. We do make an exception
for immigration, an exception from the human
rights framework that we use for most migration issues, for
immigration over internal movement. So we’ve got to ask, what
makes it right or permissible to put immigration at the
mercy of economic policy when we leave emigration
and internal free? And that’s why there’s an
issue of legitimacy here. We’ve got to, as it were, see
what distinguishes the one topic from the others. I don’t mean you can’t
distinguish them. I mean we have to ask. To frame the question slightly
differently, we have an issue of legitimacy to confront in
regard to coercive policies that keep people out
— coercive policies. As Joe Carens, who’s a
Canadian political theorist, who’s written a fine book called
The Ethics of Immigration
, which is really applied
ethics rather than philosophical foundations,
but none-the-worse for that — as Joe Carens puts it, “Borders
have guards, and guards have guns. Sovereign states stop people from
entering their territory, stop them. They stop them forcibly. They chase after them and drag
them away from the boundary. They incarcerate them
until they can be deported. And they forcibly remove
them from the country. Now coercion, even the coercion
of law, is never self-justifying. The closest it ever comes
to being self-justifying is when you are coercing a coercer,
as a manual count, with — sort of like a set
— a double negative. And so it adds up to
freedom all over again. But when we coerce immigrants,
we’re not coercing coercers, because the immigrants themselves
normally are not acting coercively. I mean, they’re trying
to get into the country, but they’re not acting coercively. Resistance by the officials of the relevant sovereign is
usually the first introduction of coercion into the situation. And again, I don’t mean that coercive immigration
laws can never be justified. I believe they can. But I do mean we have to
ask and we have to ask why. For example, let’s suppose,
as seems to be the case, that by-and-large immigrants,
even unlawful immigrants, are no more prone to crime than
anyone else in the country. They don’t come here
to steal our stuff or harm our persons or families. Nonetheless, the inhabitants here
would just rather the newcomers didn’t come. Those had that preference. Is that a preference that it’s
appropriate to uphold with steel, just because we would rather
not have these people around? We characterize coercion in relation
to the kind of freedom it restricts. Does it impact some particularly
valuable freedom like freedom of religion, some basic liberty,
something that matters in the way that — in qualitatively in
the way that freedom does. Or is it just undifferentiated
negative freedom like stopping the movement of
an insect or a mouse or a cat from moving from point a to point
b. Is the migrants’ freedom just about the freedom to move physically
from a point south of the border to a point north of the border? Not really. I mean it’s not necessarily
like religious freedom either, but it is something richer. It answers to the human
aspiration not just to physically move but to settle. Not to just physically move
but to make a life for oneself and one’s family in an area. And, again, we have
to — if we are going to justify corrosive immigration
laws, we have to think it’s coercion in relation to that entirely
understandable human aspiration. So, a cascade of questions
presented unsystematically. Forgive me, but it’s just
intended to prime the pump. Let’s move particularly to
the question of legitimacy. We know that people feel much
more strongly about immigration than they do about many
other issues and politics. People feel much more strongly
and righteously about immigration than they do about many of
the issues that affect them in circumstances where immigration
doesn’t really affect them. It arouses strong passions, and those passions are
themselves politically influential. Moreover, it’s become
accepted wisdom that politicians cannot afford
to ignore those strong passions, cannot afford to ignore
the strong feelings that are associated
with immigration policy. So when we ask about the
legitimacy of this body of law, we have to ask not only about
the legitimacy of the work that legislators do on this matter,
but also about the legitimacy of the political pressure
that citizens bring to bear on their legislators to do
something about this matter. This is a democracy and we
bear ultimate responsibility for the laws we pressure
our lawmakers to enact. The philosopher Michael
Walzer suggest in his book,Spheres of Justice, that states
almost by definition have a right and a responsibility to
control their borders. And this is a very common saying. Former Senator Alan Simpson of
Wyoming is famous for having said, “The first duty of a sovereign
nation is to control its borders.” Ronald Reagan is supposed
to have said, “A nation that cannot control its
borders isn’t really a nation.” And there’s version after
version of this saying. There’s a webpage which lists
about 20 or 30 versions of this. It’s a common sentiment. I think we need to think
twice before we repeat it. One reason to think twice
is that the term used in these proposed definitions of
the elemental responsibilities of the state, control its
borders, is ambiguous. Certainly a nation has the
right and responsibility to control its borders against
encroachments by other countries — against their armies, for example. That much is clear. On the other hand,
many of us believe that nations do not have the right
to control the passage of ideas across their borders or
to control the movement of capital across their borders. Maybe they have the right to keep
track of capital and to keep track of human movements, but
do we necessarily assume that controlling the borders
means controller everything that might be flying from one
side of the border to another? So where in this array of
possible things that might or might not be comprised in the
claim a sovereign nation has a right to control its borders, where
should we locate a putative right to control immigrants? Is that more like a right to
resist other states’ armies? Or is it more like a
movement of capital and ideas? What we need at this stage are
arguments, not definitions. Once upon a time, there was a
philosopher called Henry Sidgwick. Sort of relative Victorian times. He wrote a book calledThe Elementsof Politicswhich
was published in 1897. And Sidgwick entertained —
he didn’t hold, but he set out and entertained an alternative view
to the effect that the business of legal and political
officials, including lawmakers, is to maintain order over
a particular territory, but not in any way to determine
who is to inhabit that territory. Their job is to maintain
order in the well-defined, jurisdictionally well-defined
territory, but not necessarily to determine who is to
inhabit this territory or to restrict the enjoyment
of its natural advantages to any particular portion
of the human race. Sidgwick didn’t endorse that view. He says it represents
a cosmopolitan ideal. I’m going to call it the Sidgwickian
Ideal anyway just for brevity. And I think calling it
cosmopolitan is a bit highfaluting, for the position he maintains
exactly describes the principle of state level government
in the United States, yeah? Indiana has a defined jurisdiction where it maintains
order, provides services. But it’s not the function of the
Indiana legislature to determine who lives within the boundaries,
in the boundaries of Indiana. Whoever chooses to live there
must obey the laws of Indiana, and gets the benefit of the services
of Indiana, whether they were born in South Bend or come from,
I don’t know, Falls Church or Chattanooga, or anywhere else. States, in the sense of Indiana or
Texas, even District of Columbia, are open Sidgwickian associations. They have defined jurisdictional
boundaries, but those boundaries
are not supposed to be barriers to human movement. And we think it’s perfectly
possible — we see it every day — for states to run themselves
on that basis. More abstractly, aspects of the Sidgwickian position are
already implicated in how we think about the tasks of government
at the national level. A government, we know,
has to take the population of its territory more
or less as it finds it. It doesn’t get to determine
the size of the population. And when governments have tried to
determine the size of a population in the way that the Chinese and
the Indian government sometimes do, we have the gravest reservations
about that enterprise. Although it may have
been understandable. The government of the
national territory doesn’t get to determine the size of the
population, at least not directly. If there is an uptick in fertility,
then the government just has to cope with the increase of numbers and
adjust its planning accordingly. If there is a decline in the ratio
of young people to old people, then government policy
just has to deal with that. Suppose the government of some
territory suddenly discovered tens of thousands of people living in
a forested area of that territory who hadn’t previously been counted,
hadn’t previously been encountered, hadn’t ever been noticed, and
now they have been noticed if the forests are part
of that state’s territory. Then again, it just has to
adjust the demographic basis of its policy calculations. And that sense of state is an open
entity that has responsibilities to whoever turns out to be
here, whether it planned to take care of them or not. Again, this doesn’t settle anything
about immigration, but it indicates that there’s an idea of openness
which is present in the background of this debate as well as
the idea of closedness, which we tend to take for granted. And which is it to be —
closedness or openness? Considerations like these show that
immigration issues raise questions about what constitutes
a political community and what political
communities are like. Are they like neighborhoods
where people move in and out of neighborhoods, and we regard with
some abhorrence the use of, say, for example, racial covenants
or religious restrictions to preserve the character
of a neighborhood. Are they like neighborhoods which
are open, well-ordered but open, or are they to be like country
clubs with understood as predefined and exclusive, governed by
associational principles with the right to pick
and choose their members? I think we have to think
about that background issue as we consider the
legitimation of immigration laws. So the communal dimension, how
we think about the community, people here, not just the
government but the community. How we understand the
community, that’s important. Our questions so far have been about the national
government though not really about the government
protecting its own interest but protecting the interests of the
community of which it is a steward. And this suggests that it may be
worth just asking a few foundational questions about immigration
considered quite apart from governments. And even those as a jurisprudence
lecture, quite apart just for the moment from positive law. Let me back up a little bit. I want to back into this by way of
some classic political philosophy. Frederic Kellogg was good enough to
mention my interest in John Locke, about whom I have written more
than any person decently should. John Locke, as you know, wrote
in England in the second half of the 17th century, and he held
the view that most of the powers of government, most of the
legitimate powers of government, were held by government because they
had been delegated to government in the social contract
by individuals who held those powers first. Individuals had the power to punish
offenses against the law of nature when there was no government
in a state of nature. Individuals had the power
of enforcement over the law of nature, and that chaotic. And so they set up a government with
a social contract and transferred that power that they had
individually to be better ordered and better administered by a state,
less chaotically, more principled, less vengeful in its administration. But the idea was that the basis
of the government’s entitlement to do this was its prior
entitlement to natural individuals. By contrast, a state’s power
to impose religious coercion, which was perfectly familiar
to Locke, which is why had had to write his letter
concerning toleration, couldn’t be justified
in that way he thought. Individuals have no right to coerce
each other on matters of religion, since one man’s salvation
or perdition is no prejudice to any other man’s affairs. And, therefore, individuals
have no power of this kind that they could transfer
to their government to maintain a religious
establishment. So which of these is
the better analog to the alleged power to
restrict immigration? Is it a right that people
once had on a state of nature, but which they transferred
to the government for its better administration? Or is it a power like
religious coercion which the people never
could have had anyway. The aim here is not to figure
out what the man, John Locke, thought about immigration. They use a little bit of
locking in structure to see if we can illuminate this topic
from the underneath, as it were. So here’s a thought experiment. Forget about governments
for the moment. Forget about national
borders for a moment. Just think of people
living in a state of nature, but without a government,
without positive law, but nevertheless living
reasonably sociably in villages. They’re gathered together in
a village and they are faced with the prospect of
newcomers coming in to settle in their vicinity. They suddenly wake up one morning and they see some campfires
on the horizon. A wonderful novel by Jim Crace
calledHarvestwhich deals with this scenario in a
medieval, in a medieval village. So people living in a state
of nature, gathered together in a village, faced with the
prospect of newcomers coming to settle in their vicinity. Might the villagers be justified
in driving the newcomers away by shouting threats,
throwing rocks at them, tearing up their encampments,
telling them, “Get off with you; go to some other vicinity”? The imagery evoked here an
unorganized mob driving strangers out is not pleasant,
not intended to be. One of the advantages of the state
of nature thought experiment is that we abandon any sanitized image of a stainless steel legal
system doing the work for us impersonally in our name. It forces us to consider
what the powers that the government are supposed
to have would look like if we had to actually wield those
powers ourselves. I’m conscious that some people are
quite happy to go down to the border and wield those powers themselves. But, in general, what would it be
life if these powers were wielded in the name of a community,
nevermind about borders, if it was just the
defense of a vicinity? If it was just us driving strangers
away, would it feel as rightful and as righteous as it
might appear when done under the auspices of positive law? If the answer is no, then we
have some hard questions to face about what law adds to the situation
apart from a comforting distance between us and the driving
away with an added dollop of impersonal deniability. Let me be clear. There’s no doubt that people in this
thought experiment would be entitled to drive away bandits or
marauders, those who come to prey on their property or their persons. And occasionally, as you
know, rhetoric appropriate to rebuffing marauders is used in
our modern, emphatically nonstate of nature immigration debate. People say illegal
immigrants are rapists or drug dealers or members of M13. People say if they’re prepared
to break our immigration laws, what other laws might they
be tempted to violate? But this rhetoric is not
generally appropriate. In the real world, most would
be immigrants, including most of those whose movement into
our country is restricted. They’re not marauders and
they’re not terrorists. They don’t approach our territory
with the intention of harming us, stealing our stuff, or
driving us off our land. If they had their way,
they would just be like somebody regularly
moving into the neighborhood, looking to find a place
to rent, and a job, or a basis for starting
up a business. They would be seeking
to involve themselves. They are attracted by the open and
fluid economic networks that live in the vicinity, that
flourish in the vicinity — the market for labor, the
market for property, and so on. They want to make a life for
themselves in our vicinity, not on our property in much the same
way that we make lives for ourselves in this vicinity or that we
might move from one place to another to make a new life. If that is known to be
the newcomer’s aspiration, would we still be entitled
to drive them away? Now your response to this sort of experiment may be
different from mine. And I’m not even going to tell you
what mine is, because my approach in this lecture is to pose
questions, foundational questions, not give you foundational answers. And, anyway, the Locke and Ford
experiment, admiral though it is in my view, is only one
valuable way of getting down to the real basics
and foundations. Here’s another. And it’s more anthropological
in its character. We need to think, way, way in
the background of our arguments about immigration, about the basis
in which human beings have for tens of thousands of years lived and
inhabited this planet of ours. And we need to focus especially on
what I’m going to call the dialectic of movement and settlement. Humans are, and always have
been, migratory animals. Our natural relation to land and territory has always included
wandering as well as settlement. Since our species — this
is all stuff you know — since our species evolved in
Africa, bands of us have moved out across the face of the earth
into other parts of Africa, into the Middle East, and then
into Europe, into Asia, South Asia, into Australia, into the
America’s, first from the Northwest and then later, much
later from the East. Human movement is not a
perverse or unnatural activity. It’s been the basis of our relation
to the planet, and peoples move for subsistence, they move for a
better life, they always have done. They move individually, they
move in small family groups, the move in larger gatherings. So that’s one point. Humans move, humans
migrate, it just happens. But in the dialectic of movement and
settlement, we need to do justice to the other side as well. People move, and people settle. And I don’t want to
give the impression that settlement is always
just a temporary hiatus, a pause while we gather our
strength for the next migration. Migratory humans are
not necessarily nomads. Most of us move in order to settle. I moved from New Zealand
to settle first in Britain and then to settle here. Humans have both the experience
and the expectation of settlement, and not just temporary settlement,
but permanent settlement, conceived as a cherished place
in a framework for settling with a family, for
bringing up children, and whereby children can
bring up their children, and so on through tens,
and maybe hundreds of generations, sometimes
for millennia. Moreover, in this dialectic
of movement and settlement, people and people’s participate in
different and overlapping periods. That’s something. It’s not like musical
chairs where we all move and then we all stop, right? Some are settled for so long that
they have forgotten the dynamics that drew their ancestors
to this place. They’ve forgotten the dynamics
whereby their ancestors came to Maryland from England,
to England from Saxony, to Saxony from Central Europe,
and they’re there from the steps of Anatolia, and so on
back through the millennia. Immemorial settlement can generate
a sort of optical illusion. We describe ourselves as privileged to always have been the
inhabitants of this soil. And we think that privilege
entitles us to rebuff others who
are on the move. And that can make migration seem
unusual, perverse, and threatening. So somewhere way in the background,
not determining any policy outcomes, there needs to be a way of
recovering a sense of what it was like to move in the consciousness
of those in whom longevity of settlement has generated
a sense of settled right. And say that again. There needs to be a way of
recovering a sense of what it was like to move, recovering that
in the consciousness of those in whom longevity of settlement
has induced this feeling of right and righteousness for where we are. I have heard it said that
a foundational account of migration needs to
be rooted in a sense of our common ownership
of the Earth. And I think that’s in large
part a religious idea. Although I think it can be given
nonreligious understanding. For my money, God gave the
world to mankind in common, and we have to figure out territory
and settlement and boundaries from that as our starting
point if we can. It’s important, again. I don’t think using this premise,
God gave the world to mankind in common, settles anything in
the immigration debate except to indicate that our
most basic rights in this matter range more broadly than whatever citizenship rights
we might happen to have or lack. When somebody walks from Chihuahua
to Texas, or sails from Libya across the sea to Italy, he
is, from one perspective, moving from one place where he
has a right to another place where he has no right to be. That’s the [inaudible] view, that’s
the law’s view of the matter. But in some deeper and more
generous vision, he is simply moving on the face of a planet that
is as much his as anybody’s. And so anything we say about
immigration must be said not in denial of that, but in
response, in response to that. Original common ownership
of the Earth. This is an abstraction, and by itself it doesn’t generate
anything conclusive at the level of policy except, maybe,
a sense of humility. But it may do some
work as well in helping to inform a few areas
of public policy. And let me just mention
four or five of them. At the very least, common ownership
of the Earth does foundational work as the basis of our
normative determination that, since we now have a system of
states on the face of the globe, that everyone must have some
place on Earth for them, yeah? That statelessness is an abomination and we should make sure we
play our part in remedying it and not causing it if it happens. Everyone’s entitled
to a place on Earth. It explains the elemental
acknowledgement by many legal systems, including our
own, of the principle of jus soli, which is the right of the soil. A person has a least the
right to be and remain in the place where
he was born, yeah? Immanuel Kant, who’s another one
of my philosophical favorites, identified original common ownership
with the idea, and this is a quote, that, “All human beings have a right to be wherever nature
has placed them,” yeah? At least, they have
at least that right. Common ownership, thirdly, helps us
make sense of the distinctive rights of the refuge, now formalized
in international law. For somebody fleeing from a place
that has become intolerable, there must be at least some
other place on Earth to flee to. There’s nowhere else
that they can go. Maybe original common ownership
helps explain what we’ve already noticed. The presence of human rights
thinking in the migration area, even if it doesn’t go all the
way across from internal movement to immigration to emigration. Nevertheless, migration
as such is an area which we think is important enough to have a human rights
dimension to it. And fifth, common ownership
helps us make sense of very, very ancient traditions of
universal hospitality to strangers. A theme inThe Odyssey,
if you remember your study ofThe Odyssey, a theme
in ancient Jewish tradition, for your were strangers in the Land
of Egypt, a tenet of natural law since Aquinas and Victoria, and a
focus of philosophical attention in the work of thinkers
like Kant again. It doesn’t settle anything,
but we need to have it as a background premise
to humanize [inaudible], and help define the task
that we face in legitimizing and justifying immigration laws. All of these implications
can be construed more or less generally, generously. But if we do want to think
in foundational terms, I think these are some of the
pathways that we need to follow. Well, I’m sorry this
has become so abstract, although with a foundational
lecture, what would you [laughter] expect? That’s the point of
foundational thinking. I want to end by exploring one
possible way of coming up for air, because we’ve been way down in the
depths exploring the foundations of this very ancient formation of
states and borders and restrictions. We’ve been like archeologists
exploring the foundations of a very ancient formation. It’s a point I’ve made a
couple of times already. There may have been a
time when human families or larger groupings moved
on the face of the Earth to find territories for
themselves when no one else was. Territories, hopefully, uninhabited
in the vast wilderness of the world where they could settle and unmolested take
advantage of local resources. In a crowded world we
understand and we know that that can no longer
be the intention. People still move in order to
make a life for themselves, but they move now precisely to
be near existing settlements, to be in vicinity in particular of
the open, fluid, and dense networks of exchange, opportunity, and
well-ordered economic interaction that characterize the life
of a developed country. They move because we have
open, economic networks which offer immense benefits
and opportunities to anyone in the vicinity if
they care to take them. They do not come as predators. They do come to be near existing
habitation and to try to make a life with the others who are
living in that vicinity. So that’s the framework
for the real world. And it’s an interesting question
how we should align this sense of economic openness which makes
a destination so attractive with the idea of an open
Sidgwickian community that I mentioned about
20 minutes ago. Remember I talked about
Henry Sidgwick’s conception of a society whose government
conceives its function as being just to maintain order in the territory, but not to determine
who comes into it. The sort of Indiana model. We could contrast the
second kind of open society in the Sidgwickian sense
with the country club, exclusive club conception
which seems to be its rival. The closed society maintained
exclusively for the benefit of its members with a very
scrupulous process of picking and choosing who gets to
be a member of the club. Is that closed and exclusive
conception really how we want to think of modern community — exclusive only for those with
whom we choose to associate? Might not that clubbyness yield
a rather unattractive conception of economy, with markets and
networks tied down to systems, I don’t know, nepotism and
closed privilege rather than open-ended opportunity
and prosperity. Myself, I don’t think
those two senses of openness can be
altogether separated, as though we could maintain
our prosperity and the vigor and flexibility of an open economy
while also maintaining among ourselves politically a sense of
our community as a exclusive club, only for those who happen
to already have rights here. All of this, and particularly
this last comment, makes me worry a little bit. And I want to ask,
finally, why does it feel as though a foundational
account is necessarily biased in this matter, yeah? Why does it feel that it’s sort of
nonmutual and that it’s skeptical? Maybe asking the questions
sounds like a skeptical inquiry and it sounds like by asking
question after question after question I’m inflicting
a death of a thousand cuts on the principle of the legitimacy
of immigration restrictions. Is there some sense that it’s wrong
or disloyal to pose hard questions, to take up abstract perspectives? I don’t know. Is it just me? I should have begun by acknowledging
my own interests in the matter. I am a serial migrant [laughter]. Though born and raised and educated
in New Zealand on the other side of the world, itself a
country of immigration, I have been for almost 30
years a permanent resident of the United States. And in the early 1980s and
also for four recent years in which I held the Chichele
Chair of Political Theory at Oxford I enjoyed similar
status in the United Kingdom. I had like a full house of green
cards [laughter] in my hand. So it’s no surprise that
I should be holding, that I should hold
pro-immigrant views. And perhaps it’s worth my trying
to appreciate how the perspective of someone who has for
decades enjoyed the hospitality of a country other
than his own would find that this affects the
foundational questions that he asks. So I am conscious of that. But I have tried not to make
any particular argument in favor of open borders or
less restrictive laws. Those have been questions, just
a sense of what it’s like to go down to foundational issues, and
how, certainly how disconcerting that might be, but not
intending to prejudge everything. It’s part of the business
of being a philosopher and a juris prude is a
philosopher in certain spirits. Philosophers have to
ask dumb questions. You know, will the sun
come up tomorrow morning? Yes, of course, shut up. Will the principle of
cause and effect fail? [Inaudible] and so on. What’s the basis of morality? Questions that ordinary
people don’t ask, questions that as David Hume said
about his own queries, seem cold and strained and ridiculous, so that
you have to go and play backgammon to try and restore a
little bit of equilibrium. And asking questions about whether
it’s legitimate for a country even to have an immigration policy
does feel a little bit like that. But it’s a way of generating
some perspective on the issue and providing a way, I
believe, of enriching and humanizing the
discourse on this matter. So that’s what I’ve
tried to do this evening. Thank you very much indeed. [ Applause ] Jane, will you call
on people or shall I?>>Jane Sanchez: I’ll
just go [inaudible].>>Jeremy Waldron: Yes. Yes, sir.>>May I — [ Inaudible Speaker ] Well, I thought there
was a — is it on?>>Yes.>>No.>>Yeah, there.>>Is it on?>>No.>>No.>>This is on.>>Yes, it is.>>I gave up math and
science for law. I hope [inaudible]. But I thought it was
a marvelous talk.>>Jeremy Waldron: Thank you.>>And even though you’re an
English-speaking migrant moving through English-speaking countries, I don’t think you had
any bias in particular. My own view. I assume you don’t take
the country club position. But I do have maybe two questions. One is the enormous
growth of population. This is not a Malthusian question. It’s just the sheer
numbers of people moving. And it can lead to crowding,
say, in small countries. So that’s my first point. What do you think about that?>>Jeremy Waldron: Yeah.>>And my second point’s
related to that word “country.” I’m a law professor,
not a philosopher. The only thing I gave
up was philosophy. I thought it was too indeterminant. But I don’t think — most philosophers and juris
prudes do not really focus on the nation-state
system very much. And I’m not talking about borders. I’m sort of talking about loyalties to national sport teams
and things like that. There’s no question that
is a modern phenomenon. I’ve just come back, actually, from
Europe and you’re certainly right. Immigration — I was in
Austria, for example. Immigration’s a much
more heated [inaudible] because it’s a smaller
country, probably deservedly so. But I do think that this
question of population growth and the pressures it creates and
of crowding of certain countries, and this point about
the nation-state system.>>Jeremy Waldron: Yeah. Thank you very much. I think they’re both
hugely important. And apart from some vague
reference to the nation-state system in the middle of the lecture, I didn’t really address
either of them. I do think that ultimately it’s
going to be impossible to come up with a rational approach to
immigration law without thinking about it partly in terms
of the nation-state system. You know, I go from country to
country, and you hand your passport to the officer at the border as
you come into Italy or South Africa or Australia, wherever it is, and he just doesn’t tear
it up and throw it away. And he looks at it
respectfully, he may stamp it, and passes it back to you. We have a system where countries
respect each other in this regard. And certainly whatever arrangements
are made regarding migration are made at the behest of particular
countries with some sense that there is a degree
of solidarity. And I believe for that reason it’s
important for lawyers to be able to raise their eyes
beyond the arrangements of any particular society and think
about the overall system for travel and migration in the world. The crowning point is hugely
important and we would have to ask — nevermind the
calculus of economic interests or even cultural interests, do
we have to be concerned simply about the pressure of movement
of large numbers of people to suddenly transform
the conditions of life? Because, certainly,
that’s how some people in Europe have seen
the refugee crisis. And people worry, not that
there’s any prospect of this, but if the southern border was
open there would be a deluge of people overwhelming the
services of a particular country. So whether the large-scale issue of
crowding and the large-scale issue of movement of very large numbers
of people is an appropriate subject for public policy I think
needs to be answered, and can’t be answered just on
the basis of what I’ve said. I think, with the possible exception
of concerns about school district, of school districts, that
schools sometimes get overwhelmed by numbers, we by-and-large
don’t think about immigration concerns
in those terms. But they are there in the
background, and I think maybe — I mean, the imagery I was giving
you about movement on the face of the Earth asks us to
imagine small bands of people, 1- or 2000 maybe moving out around
the periphery of South Asia and down into Australia and so on. But when we’re dealing with tens of
thousands, hundreds of thousands, maybe millions of people moving, as
we undoubtedly will see in the wake of climate change, then I
think there are serious issues to be raised. And I should have addressed
those had we had unlimited time. Yes, ma’am. Right button beside you.>>Oh, thank you. I’m an immigration reporter. I cover immigration here in
Congress for the last 10 years forHispanic Magazine. I’ve written two books about
it, mainly from the aspect of how immigration laws evolved. But it’s very clear when you look
at it from this point of view that there is a big difference
between migration and immigration. And it seems to me that
you mix the two a lot. And immigration is — it’s a
concern of the nation-state. And it’s a national concern. It isn’t in the Foreign
Relations Committee. Most countries it’s in the
Labor Committee because it has to do with work development. And when we talk about nation
of immigrants, you have to talk about not only what the
immigrants’ interest is coming here, but what the nation-state’s interest
is in welcoming them or not. And they certainly have
the right to do that. So an analogy I like to make is
that of a university, of a popular, wonderful university that’s
people’s dreams to go there. And they will benefit tremendously
and they’re incredibly qualified. And the university would
also benefit from them. But there’s thousands of people. They cannot take all the people. In order to keep the integrity of the university they
have admissions policies. And they get to choose. Everyone gets to apply, but they
— the university gets to choose. And in the interests of the
university and their integrity and their standards and all that. And I think it’s useful rather
than getting political and racist, all that, that to think
of nation-states as having admissions policies. And they change over time. And that’s what I cover. And it’s fascinating. But I don’t think it’s
a religious thing. There isn’t a civil
right to immigration. Immigration’s not a civil right. And it’s not a human right either. In the United Nations
Charter in the Chart of Human Rights it says you have
a human right to leave a country, but no one has a human
right just to come in. And, of course, the basis of
that, not just to come in, but I mean to stay, to settle, and
the basis of that is citizenship. You get — a country gets to decide. And it’s in the first
section of our Constitution that Congress decides
naturalization. So, I mean, from the very
beginning, there is a distinction between citizens and noncitizens. And I don’t think you can
talk about immigration without talking about
a nation-state.>>Jeremy Waldron: I
think all of that is true. It is the case that no matter
how popular California might be, or how popular Indiana
may be, we wouldn’t dream of regulating movement now –>>No.>>Jeremy Waldron: — from there, even though it might
lead to overcrowding. Yes, as internal migration.>>They’re still part
of the United States.>>Jeremy Waldron: They’re part of
the United States, but nevertheless, it’s the State of California
that’s responsible for administering its
school system and the State of California is responsible
for administering it.>>You’re talking [inaudible]
a very [inaudible].>>Jeremy Waldron: Yes, right. So that we have to think what
makes the nation-state and movement across that border are different. What’s involved? Because we do think that
movement into and out of California is a
matter of human rights. Secondly, on the issue
of universities, we would think it were a
problem, it would be a problem if there were just one of these
highly attractive universities, and everybody had to either
sink or be admitted and swim. What we find is, of course, we
have a thousand or more colleges and universities set out across
the country, an array of them. Some better, some worse. But at every level
a echelon of them. And I think our view about the
university analogy, which I respect. That’s a good analogy. A view about that analogy
would be different if it were made more conformable
to the situation of migration.>>In the same window there’s
many countries if you don’t get into the United States,
if you don’t — unaccepted through an
immigration visa or a temporary. There’s other nation-states. You have a Plan B. You don’t
have the right to come in. You don’t get a right
to storm the dorms, take the courses, and
demand a degree.>>Jeremy Waldron: Yeah. No, that’s exactly right. That’s exactly right. We have to think that
through I mean. And part of what was
going on in here — it wasn’t really a confusion
of migration and immigration because there were — you
mightn’t have heard it, but they were carefully
distinguished at various stages. They were put in the same
paragraph precisely in order to disconcert us a little bit, yeah, in order to disconcert
our sense that, of course, we know that immigration
is different. And someone says, well,
how is it different? Well, it’s about citizenship. But exactly what is a
community of citizens? Is it like a club or is it — and so we have to pose the
hard questions anyway even if they do disconcert the terms
and topics we normally deal in. Yeah.>>Thank you.>>Professor Merritt. Build on this question particularly. I’d like to push you
a little further. Thanking you for this
very, very lucid lecture. I actually think the citizenship
question’s quite important. And I would take it
back to your state of nature analogy,
the harvest analogy.>>Jeremy Waldron: Yeah.>>One group sees the —
suddenly wakes up in the morning and finds another group
possibly encroaching. The real question is not whether
the other group can be nearby. It seems to me the question you’re
asking is whether the other group is entitled to join, to join, to
enter the group that’s already located somewhere.>>Jeremy Waldron: Sure.>>And that is a question of
the difference between travel as migration, residency,
and citizenship. And I just wonder whether you
see any foundationally valid distinctions among those categories.>>Jeremy Waldron: Right. Citizenship’s going to be important. It’s probably unlikely that it’s
going to be a foundational category, but it’s going to be important,
I think, for the reasons that you both have stated. So let’s think a little bit
about the harvest analogy, the Jim Crace or John Locke analogy. So people come into the vicinity. I’m assuming they come into
the vicinity to have dealings with the people there as well as
to make whatever life they can in whatever land they can
legitimately start plowing and cultivating. So they may even want
to buy some stuff. They may want to engage in
some economic transactions. They may want to join in,
which is not at all the same as becoming a member, because it’s
not clear what membership means in the context of this idea. So joining in the activities
just means taking advantage of the openness that’s
already established. You know, that there
are marketplaces.>>Well, there — many economists
will argue that the trade, which is what you’re describing,
isn’t a substitute for migration. If you allow people to trade, you actually remove the
incentive for migration.>>Jeremy Waldron: Yeah. That sounds absolutely right. And so it certainly
needs to be dealt with. But, certainly, we have to put
a question mark over the idea of joining so long as we remain within the four corners
of the Lochean question. Then we have to ask ourselves,
since we eventually want to get to the notion of joining, what
it’s based on and what sort of association we are imagining. And if it’s an association
whose closedness is definitive in the conception of citizenship
and the definition of citizenship, then the only point I was
pressing on is we’d have to think a little bit
about the impact of that on the overall atmosphere
of the economy as well. But I appreciate the very — it
occurred to me as I was writing this that there really ought to be a
few pages on citizenship as such because the main, the
main right of citizenship, the most distinctive right
of citizenship is the right to remain in the country. Many countries allow
noncitizens to vote. Many countries, including this
one, give citizens the benefit of almost all — noncitizens
the benefit of almost all — all
non-voting rights. But the main benefit
the citizens have is under no circumstances
can they be deported or have their citizenship
stripped from them. Please.>>We give a green card. It’s called a Permanent
Legal Residence. You have permanency there. It’s the immigrant, the person on
the Permanent Legal Residency gets to choose, gets to decide if
they’re going to be a citizen. There’s no requirement
to be a citizen. They can be here the
rest of their lives –>>Jeremy Waldron:
No, that’s not true.>>– with a green card.>>Jeremy Waldron: There’s supposed to be a normative path
to citizenship. I remember once coming through –>>Only [inaudible] lively.>>Jeremy Waldron: Sure.>>That’s why they say it’s a path.>>Jeremy Waldron: Right.>>But it’s still up
to the individual that they’re going to do it or not.>>Jeremy Waldron: Right.>>Most of them, most people
with green cards never do apply.>>I was coming through the
barrier once at the immigration, maybe in Los Angeles, and there
was an elderly officer dealing with my — [inaudible] before
it was done by machine. And he said, “Green
Card holder since 1987. What’s the matter? Don’t you want to be a citizen?” And it was a sweet question. And there is some doctrine on this
which holds that states are entitled to confine certain roles like,
say, school teacher or something like that, to citizens, and
to preclude green card holders because green card holders have made
a choice not to become citizens. And it’s actually a
normative trajectory. Yes, sir.>>Thank you. I wonder if you could discuss the
reaction to this type of philosophy in terms of historical
experience of different states. Can you generalize what types of
states have allowed open borders? When in history? And under what type of
leadership conditions? And when have more closed and
restrictive rules been applied?>>Jeremy Waldron: Thank you. So many people would say that
the present regime of closed and guarded borders and
passports as a prerequisite for movement only really emerged around the time of
the First World War. And that until then borders
were relatively open, although they could be closed for
police reasons at various times. Certainly in the Ancient World, although there were some ferociously
self-protective societies. A city like Athens would
be open to a large number of foreigners to come and settle. They wouldn’t have rights to
participate in the democracy, but they — Aristotle
was an example. A Macedonian who came to settle in. But I don’t want to draw
anything normative from that because the conditions
were different and the political systems were
more like what we would call cities than might what we would
call nation-states. I think it’s a very, very
interesting question to ask about what were the pressures
that led to the development of national immigration policy. In this country, I’m
told, and somebody will — I think you’ll be able to help me. [ Inaudible Speaker ]>>There’s national
immigration laws from the 1880s.>>Jeremy Waldron: It
was the Anti-Chinese.>>Well, yeah [inaudible].>>Jeremy Waldron: Yeah. That’s right. But until then, it was
sometimes the responsibility of the individual states –>>That’s right.>>Jeremy Waldron: — to administer
control at their ports and — which didn’t mean that internal
movement was restricted. But states which were near national
boundaries would administer those. So we do start getting, you
know, Chinese Exclusion Acts and so on — 1890’s, 1880’s.>>But before that the states — and
states got to give the citizenship.>>Jeremy Waldron: Yeah.>>They got to decide who was
going to be a citizen [inaudible].>>Jeremy Waldron: So what would
be really interesting would be to tract not just the particular
panics that might lead to something like the Chinese Exclusion Act,
but whatever one could salvage from the diva philosophy that
began under changing circumstances to inform and affect the history. I’m not an historian, but I think that would be an entirely
respectable — I’m sure you’ve — absolutely. Yes, sir. We need a microphone.>>I could just speak
really loud [inaudible].>>I’ll get [inaudible].>>Hello.>>Jeremy Waldron: Yeah.>>Professor, thanks
for making it out here. I’m really interested in your notion of citizenship, political
citizenship. And I was getting the sense that as
you were talking you have this sense of we are all migrants in
the larger historical sense. So there’s this fluidity
about citizenship. How do you make sense of that in
a trans-historical perspective?>>Jeremy Waldron: Yeah.>>I mean, it’s — how do you
make sense of that through time?>>Jeremy Waldron: Yeah. So what I wanted to insist is that although we are
all migratory animals, and our ancestors have all
been movers from time to time, we move in order to settle. And we settle in the
aftermath of movement, often for extraordinary long
periods, periods which — before the time of writing
and Facebook and whatnot, periods that begin to
become opaque to us. So, for example, in my country
in New Zealand, which was — unless you [inaudible] — the
most recently-settled landmass in the world settled probably about
a thousand years ago by the people who are now described as
its indigenous inhabitants. That thousand years has sufficed to efface most collective
memory of the migrations. And such memory as there is
is [inaudible] compromised with some sense, some mythology
of having been immemorially there. So we have to understand, I think,
the psychology of settlement, the psychology of settlement
for 10/15/20 generations, and thinking about how
that affects the mentality. And I didn’t want — I mean, I
did want to do justice to that, although I think it generates a
certain optical illusion regarding the fact of movement. It can make movement appear
to be a fearsome and unnatural and threatening thing because
one moves in order to settle. And one fears that if one
allows settlement to be open to newcomers this will undermine
settlement, which was the point of moving in the first place.>>So are you saying that
citizenship is almost based, in a sense, on our ability to
recognize collective memory? In a sense it’s economy to that. So if we take a cost — idea of
census [inaudible] will be applied if not just space [inaudible]
through time. I mean, we can’t demand all
people to try to simulate, come up with that thought
experiment. But how does one go about conceiving
of citizenship in that case?>>Jeremy Waldron: Right. It’s one of the hardest things that
people have found philosophically. There’s a wonderful discussion
of it, as you may know, at the very beginning of Book
Three ofAristotle’s Politics, where he says, “How do
we define citizenship? How do we define a citizen?” And sometimes he’s
defining it functionally. A citizen is somebody who can take
turns in ruling and being ruled. And sometimes he defines it as it
were in terms of qualifications. A citizen is a person whose
parents were citizens. And sometimes he’s moving
back and forth between them, because this is the beginning
of thinking about citizenship. The other thing that we need
to bear in mind, and again, it makes us a little bit humble,
is that even though citizenship as a notion goes way, way
back in that spurt, for us, in our relatively recent
history over the last 500 years, citizenship has been
massively associated with subjection, you know? So one is a British
subject before we begin to talk about British citizens. And a British subject is a person
who owes allegiance to an overlord or overlady, and citizen
is built up out of that, which makes it a little bit less
attractive in the scheme of things.>>I’m sorry.>>Jeremy Waldron: Ma’am, please.>>Thank you, Professor. I found your lecture
very enlightening. I’m not an American. I’m what I think you would
call a documented alien. But temporarily working
in this country. And I’m glad you brought up
the example of school districts because I think that the example
is not as exceptional as you think. I think a lot of the resistance in
Western societies to migration has to do exactly with the
same series or arguments. That is, the fear that the newcomers
will not contribute to the society, the existing people, the
existing population live in, and that the redistribution of
the wealth which is taking place in that given area will cause
disproportionate advantages for newcomers. I’m not saying I condone this,
but I’m saying it is an argument, and it is going far
beyond the nation-state. If you look at Europe,
where I’m from — I like to consider myself not
as a citizen of a nation-state, but as a European citizen. We have decided in Europe to
put certain things together, to open up our borders, but to
integrate our economies, and also, to a certain extent
and ever far-reaching, to integrate certain
social benefits, educational systems, and so forth. And that is why we have now at
our borders also the development of a common migration policy. And the second argument,
or the second thing I would like to raise is the following. There is also a fear that certain
newcomers, and this is tied to culture, this is tied to
religion, to other things, we’ll have a harder time to
accept the fundamental values on which our societies,
plural, are founded. And if people start thinking like
that, there’s certainly a lot of more arguments,
then we can, of course, and we should, reason
in the abstract. But we should not just tell
those people they are wrong. We should take that into account. And I’m also a former politician. We should deal with it. Thank you.>>Jeremy Waldron: Thank
you very much, indeed. Quite the points that
I think are important. I mentioned a book by Paul Collier
calledExodus, which was — he’s an economist at Oxford. And it’s a very, very
sophisticated study. And on your second point, one of the things he reckons
is, nevermind about culture. Nevermind about economy. There’s just something called
the model in each society, which is a model of how one
lives and betters oneself and how one brings up a
family and works and so on. And the concern is that
the basic model or way of life may be compromised. Not now the recipes and the dancers
and the costumes or the culture and that thing, or the myths,
but just the basic model of life and livelihood in the community. And that the models are not equally
distributed among the societies. And, of course, migrants leave
one society and go to another because of the dysfunctionality
sometimes of the model of livelihood in the society that they have left. And Collier, perhaps more than me, is worried about the transportation
of one model to another. On the first point, there’s so
much to be said about the issue of redistribution and
disproportionality. And I don’t think — I’m not
as skeptical as some people are about the necessity
for a certain sense of preestablished solidarity before
you can have a redistributive social system. People sometimes worry about that in
the context of the European Union. Others worry about it in relation
to the issue of migration. It seems to me that a lot of
redistribution, certainly a lot of social services, are provided in the United States
by individual states. And those individual
states work with them. They run their school districts
irrespective of their inability to control who crosses their state
lines and who crosses their borders. So sometimes we need a very special
explanation of why we get panicked about crossings of national borders
in relation to school districts. Whereas we’re not panicked at all
about crossings of state lines in regard to school
districts which tells me that legitimate though
the concern is, there is something else
going on in this issue.>>Thank you.>>[Inaudible] officer. My name’s [inaudible]. We’re talking about
[inaudible] about the human right that I think there’s a
distinction whether a person is equally protected. And that’s like in the
United States Constitution. I just wonder, is there
real [inaudible]? You call it profession. Or is there some good studies that
will tell you their real [inaudible] and not equal protection at all. So, for instance, whether
Constitution or right is say you are protected
for all your belongings, your home, your property, and your [inaudible]. You [inaudible] litigation. So is there any such things and then when we [inaudible] consider
what is seriously, what it is, some kind of documentary or study or research say there is
really good protection. There’s no bias. There’s no improper processing of
complaint or procedures or record or tampering or document destruction
or anything on this [inaudible]. If you are citizen but if
they take away your green card or take away your citizenship
or records. So basically you are nothing.>>Jeremy Waldron: Thank you.>>So we are [inaudible] studies.>>Jeremy Waldron: No. It’s interesting, isn’t it,
because we have the aspiration to equal protection, and
I’ll say a little bit about what is equal protection
[inaudible] in a moment. We have an aspiration
to equal protection, but every political community
falls short of its aspirations. And this one is no exception. Equal protection was originally
set up to deal with issues of race, but it’s now into certainly
much, much broader sense. But even with regard to the
racial core of equal protection, this country, like many other
countries, has seen a gap between the aspiration
and the reality. Now that’s the first point. The second point is
about the aspiration. And equal protection in the United
States’ Constitutional Scheme is equal protection of persons, not
equal protection of citizens. No person shall be denied the
equal protection of the law. So it applies to me,
it applies to you if you’re a citizen
of the United States. It even, in many respects,
applies to undocumented aliens who may not be denied,
say, police protection, or the protection of the laws. So, at the level of the aspiration,
the Constitutional rights connoted by equal protection, maybe with the
exception of the vote and the right to remain, are entirely
equal as opposed to — as regards different categories
or our right to be here. But the reality, as you’ve
indicated, falls far short of that, and not just on the citizenship
dimension, but even with regard to people whose right to
citizenship here is indubitable. Oh there’s been massive
failures of equal protection, but we work as hard as we can
to remedy those through law.>>But it’s broken. The [inaudible] regardless.>>Jeremy Waldron: Certainly the –>>The school district and
other places broken [inaudible].>>Jeremy Waldron: They are indeed. And so there’s no guarantee
that it’s — you know, that the inequality
is getting less and less. Once you have a failure
of the aspiration, the failure can get worse or
the failure can get better. But good-hearted people are
trying to work on it as well as — as well as undermining it.>>Not so effectively.>>Jeremy Waldron:
Not so effectively. But it would be a pity
to use that as a way of discrediting the aspiration.>>Jane Sanchez: At this
point, if everyone can agree, I think we should all move down to
the Madison Hall and perhaps if some of you still would like to talk
to the Professor and he’s still with us, you’re welcome
to talk to him.>>Jeremy Waldron: I’ll be
here and I’ll have a glass of wine in my hand [applause]. Thank you very much indeed.>>This has been a presentation
of the Library of Congress. Visit us at

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