Justice, Jurisdiction, and Migration

This chapter introduces the book’s positive account of the right to exclude. It grounds it in the limited and presumptive right to be free from being charged with the defense of another’s basic rights—when those rights are adequately protected in her country of origin. The chapter provides an argument for this jurisdictional ground, while showing that it is consonant with both the structure of international human rights law and consistent with the nature of states as political entities. This ground, moreover, is shown to be incapable of defending the sorts of exclusion found in political practice—which opens up the possibility of using that ground to criticize existing practices. The chapter ends by considering three forms of objection—the objections from expulsion, from reproduction, and from liberty—and shows how the jurisdictional method defended can overcome these concerns.

Justice and the Excluded, Part 2

This chapter engages with arguments provided in defense of a state’s right to exclude. It considers four such arguments. Two of these begin with the consideration of human goods and how they are distributed; arguments from the distribution of territory, and the importance of solidarity, are engaged with here. Two other arguments begin with rights and how these rights might serve to ground the right to exclude. The rights discussed here are the right to property and the right of freedom of association. All of these methods, I argue, have some power, but none places the moral emphasis where it ought to be in the consideration of the right to exclude.

On Mercy in Politics

This chapter offers a provisional account of the virtue of mercy and defends its potential utility for public discourse about migration. It defends, first, the thought that mercy is the proper name for the virtue under consideration. It defends, further, the thought that the appeal to mercy is neither sectarian nor perverse. It offers some reasons, finally, to think that the practice of justice is supported by the practice of mercy; a society in which the virtue of mercy is ignored loses one site at which the moral value of human beings might be reasserted.

Reciprocity, the Undocumented, and Jeb Bush

This chapter examines the morality of an individual person choosing to break the law excluding him. It asks, first, how we might understand the nature of the obligation facing such a person. It defends a particular vision of obligation, on which laws precluding the entry of outsiders do have some presumptive moral force for those outsiders. Nevertheless, the chapter argues, the link between the obligation to obey, and the right to morally condemn the individual who fails in this obligation, cannot always be made out. The chapter therefore defends the thought that Jeb Bush was not inconsistent in demanding both security at the border and compassion for those who evaded that security.

Justice and the Excluded, Part 1

This chapter discusses arguments in favor of the thought that exclusion itself is incompatible with liberal justice; all borders, on this analysis, would be open in a just world. The chapter examines the concept of justice, as given in John Rawls, and then uses this concept to discuss why arguments in favor of open borders won’t work. Four arguments are discussed: the arguments from arbitrariness, from distributive justice, from coherence with existing rights, and from the injustice of coercion. None of these, the chapter concludes, pay adequate attention to the uniquely political nature of the relationship of fellow citizens.

Migration and Mercy

This chapter differentiates between positive and negative forms of mercy, and then applies the virtue of mercy to some aspects of migration policy. It demonstrates that mercy provides a reason to defend migration policies that allow claims of affinity. It can also have a role to play in defending the right to remain for those undocumented migrants who cannot make claims of right to continued residence. It can, finally, also provide some reason to defend the right to spousal unification, by taking the marital relationship not as unique in itself but as a potential site for the operation of the virtue of mercy. The chapter concludes by offering some brief reflections about the future of migration and the continuing relevance of mercy in that future.

People, Places, and Plans

This chapter examines the question of what sorts of particular goods might ground a right to residency in a particular place. It considers three cases: that of affinity with a particular place; that of long-term undocumented residency in that place; and that of romantic partnership with someone from that place. The chapter argues that in none of these cases is it possible to ground a right in justice to residency simply upon the appeal to the person of that residency. In other areas of life, we accept that we are legitimately constrained by the possibilities left open to us by the choices of other agents; from the fact that I have an interest in moving to a particular community, we cannot infer that those already present have any duty to let us in. This discussion, however, demonstrates that the claims of justice and duty might not exhaust the moral concepts that ought to be brought to bear upon questions of migration.

Coercion and Refuge

This chapter defends a particular account of how to understand the international right to refuge. It engages with the 1951 Convention setting up the international refugee regime, and demonstrates how the concept of the refugee found within that Convention might be defended. It does this, however, in the service of defending a two-layer account of the right to refuge. The first layer entails a right to be free from coercive interference with one’s movements; the second layer involves a claim to have others assist one in moving, where that assistance can sometimes involve the use of international coercion.

On Morality and Migration

This chapter argues that the ethical analysis of migration involves not a single question, but several; it encompasses any number of distinct topics, ranging from global distributive justice to the subjective experience of being a migrant. This chapter therefore limits the scope of the book, by identifying its organizing question: may a state ever rightly exclude an unwanted migrant? As a start on this question, the present chapter introduces the assumptions and moral principles which will be assumed to be true in the rest of the book—including, most importantly, the concept of the person with which that analysis will begin.

Choosing and Refusing

This chapter deals with the question of how migrants might be justly selected when no individual migrant has a right to move. It considers three possible bases for differentiation: randomness, identity (including religion and race), and skills. The chapter defends the thought that some forms of preference are unjust, even if no one has an antecedent claim to the good of migration. The chapter concludes with an examination of the difficulties that follow, in the real world, from the application of these ideas. It suggests we might face a tragic dilemma—in which we cannot both do justice now and ensure the perpetuation of justice in the future.