Immigration and Freedom

by Chandran Kukathas

John Rawls, in describing the ideal society, asserts that it would be one in which immigration would have no place—for in an ideal world, why would anyone move?

We have tended to view immigration from a perspective of a very particular kind: from the perspective of nationality. This model is of a world of independent nation states, made up of individuals many of whom (primarily from poorer regions) wish to move for motives that reflect their own individual or national circumstances, and whose movement is and must be managed by those states that would otherwise struggle to deal with an uncontrolled influx of people. Yet this model is seriously flawed because it assumes that the different variables in play are independent when in reality they are deeply interconnected. Borders, statuses, and rights are all equally changeable and have changed with startling frequency because the fact of immigration actually reflects not so much the separateness of people across the world but their continual interaction and their embeddedness in shared historical circumstances as well as shared political and institutional realities.

But the fact remains that employers, both in principle and in practice, can face civil and criminal penalties for nothing more remarkable than offering work to a job-seeker—albeit a job-seeker who is disapproved of by some section of the national population.

There are other side-effects worth noting. In the UK, given the gender pay gap, the financial threshold to qualify to sponsor a spouse or partner makes it harder for women to sponsor would-be immigrant husbands than for husbands to sponsor wives, reinforcing women’s dependency on men even as official policy declares its aim to be gender neutral and to discourage the importation of inegalitarian gender values.92 To the extent that policy also aims to discourage immigration from countries in which arranged or non-voluntary marriage is normal, the penalty of deportation for immigrant spouses who divorce has the perverse consequences of, at once, encouraging people to stay in bad marriages, and strengthening the hand of abusive non-immigrant partners (predominantly men).

Questionable though these reasons for surveillance might be, however, they do also reveal something significant about the process of immigration management by the state and its agencies. This is the importance of controlling not only movement but also the narrative of immigration management. The story that has to be told is that immigration control is needed to protect the population, who are bound together by a shared identity, from threats posed by outsiders. The population ought therefore to be fearful of potential harm to them individually and to the society more generally. Those who are the source of harm are people whose actions are not law-abiding, and whose actions or even status are ‘illegal’. The narrative relies upon creating a hierarchy of acceptable people, while presenting the agencies of the state as operating with nothing but the interests of the population in mind, and in accordance with the values the community itself embraces—for it is the legitimate representative of the community. The idea that private security companies, IT providers, government agencies, and political leaders might have interests of their own that shape immigration management is not, and cannot be, a part of that narrative.

It seems unlikely that we will find a society all of whose members are perfectly equal along any, let alone most, of a number of dimensions: income, wealth, leisure, health, longevity, or happiness. Yet it is no less unlikely that we will find people who are truly equal before the law in a society marked by overwhelming inequalities along all other standards. The struggle for legal equality requires for its success 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. In this regard, equality is vital for freedom, for if the less well-off are unable to protect their interests—or defend their persons—against the privileged, then freedom can be little more than an advantage of power and not a condition enjoyed by all inhabitants of a society. The crucial question here, of course, is: which equalities matter?

Yet once one understands the nature of immigration control, and the difficulties that accompany the management of immigration in general, it becomes less obvious that the problem is one of enforcement failure. On the contrary, it is the rule of law that tends to check and moderate attempts to control immigration, and more extensive or energetic efforts of immigration control that tend to weaken and perhaps undermine the rule of law.

Even in societies that are marked by strong anti-immigrant sentiment, there are large numbers of people whose general outlook cares little for such control, and whose particular interests are better served by their interaction with outsiders or foreigners. As the evidence of continued immigration, and the participation of immigrants in the workforce as well a society more generally, suggests, there are more than enough people ready to welcome foreigners to make moving—with or without authorization—worthwhile. Law that looks to prohibit this runs the risk of being ignored or broken, and of falling into disrepute. The rule of law cannot be sustained if the laws themselves have no practical legitimacy.

Immigration control is a danger to equality because its pursuit threatens to undermine the egalitarian ethos of a free society, as well as to distort its institutions and ultimately make the sustaining of equality before the law attainable only inadequately, if at all. There are several reasons for this. Most obviously, immigration controls emphasize the importance of the differences among people, with a view to justifying the treatment of some more favourably than others. First, it means distinguishing insiders or natives from outsiders or foreigners—with a view to privileging the former over the latter. Second, it means distinguishing among foreigners, for immigration control invariably turns into selective immigration that prefers some kinds of people to others. Third, it means distinguishing among the citizens or residents of one’s own society, and privileging some among their number over others. No less importantly, immigration controls encourage the development of institutions, both within government and in civil society more generally, that distinguish among people on the basis of their nationality, and the traits that make some persons likely to be granted the freedom to immigrate. Immigration controls encourage or give succour to those elements in society that look to protect the privileged standing of some sections of society.

Once selection is the name of the game, differentiation, classification, and comparison follow. No less importantly, once distinctions are made they have to be sustained, either by explicit defence of the categories created, or by more subtle means like using proxies for distinctions that cannot be drawn in the open. Immigration control—through immigration law and immigration enforcement—has contributed substantially to the creation of racial categories. It would be going too far to suggest that it is the only source of racial differentiation,55 but its significance should not be underestimated.

The economic advantages forgone by immigration controls should not, however, be measured only by the immediate losses sustained by those unable to find workers, or the unemployment that might result from enterprises having to close altogether because deprived of access to particular kinds of expertise, or even by the gains that failed to materialize for those who might otherwise have benefited from more or better or cheaper goods that could have been produced. The greater loss still is the forgone product of the extension of the market in the broadest sense—the market here understood as that process in which individuals and groups compete, collaborate and cooperate, and in so doing discover new things.118 When women began to enter the labour market in large numbers, twentieth-century western democracies saw a decline in national wage levels, even though women were more poorly paid because of restrictive legislation and discrimination by employers as well because of differences in experience and skill. The gains to society, however, were considerable not merely because of rising family incomes or any increases in national wealth but because everyone could now gain from the expansion of the pool of talent and imagination. The loss incurred by controlling and limiting immigration is not simply a loss of cheap, or even of skilled, labour but a loss of creative energy. One important indicator of this is the predominance of immigrants among the entrepreneurs who set up new and h...

To begin with, it is not obvious what it means, or to what extent it would be desirable, for anyone to be able to decide who to invite in and who to turn away at the door. Perhaps if one were the sole occupant of an apartment it would be a good thing to have complete authority to decide who may enter—granting that allowances might be made for fire-fighters, who should not have to wait for an owner’s permission when the building is burning. If, however, the apartment is occupied by a couple, things might go better if each had some discretion to admit guests as they pleased—though it would be considerate of one to consult the other in special cases, and a bad idea for either to let a room to a tenant or host an in-law without warning. Should the apartment be occupied by a group of people, life would go a little better if each had some discretion to decide who might visit, without needing always to seek authorization from the rest of the group: it would be a less than harmonious household if each had a veto on every entry or even if a majority vote were needed to issue any invitation. This would hold more strongly still if the home in question were not an apartment but a condominium. If the entire body of owners and renters had to be consulted before anyone could visit or stay, or before a cleaner or baby-sitter could be employed, that housing complex would be a less attractive place for many; and given human nature, it is highly likely that such a requirement would be breach...

Imagine now, however, that such restrictions were proposed by a neighbourhood, whose residents asserted: this is our home and we ought to have a say—and indeed, a veto—on who may or may not enter. Is this the point at which my freedom to invite in whomsoever I choose trumps your freedom to tell me who may or may not enter ‘our home’—turning your right to veto my choices into a duty to mind your own business? If not, perhaps that point comes when the ‘home’ in question is the suburb, or the county, or the city, or the province. The further we get from the single-occupant apartment model, the less plausible does the idea of each person having a veto (or even a say) on who enters a home become—provided, that is, that we value a certain kind of freedom.

Families come in many shapes and sizes. When the family means, say, two parents and their children, the decision to increase its size, whether naturally or by adoption, is a matter for the members—or perhaps the adults alone. But when the family includes in-laws, aunts and uncles, and distant cousins, it is not evident that anyone’s decision to procreate or adopt is a matter in which Grandma should have a say, let alone a veto—and Uncle Fester’s views are perhaps best ignored.3 Matters are further complicated when one considers that families also grow when parents divorce and re-marry, or when adult children acquire partners—often acting unilaterally to bring into the fold outsiders who may not always find their new relatives entirely welcoming. Even nuclear families range in character from the Karenins to the Simpsons to the Brady Bunch to the Addamses. Extended families could be as different (or alike) as the Kennedys and the Corleones. For thinking about immigration control, the family analogy might be even less promising than the metaphor of a country as a kind of home.

A people, it appears, must have a history if it is to be a people, and a state must have both if it is to count as a legitimate construction, and be recognized by everyone as such. No less importantly, at least in the eyes of some, what history has wrought creates obligations that bind future generations, who owe something to their ancestors—not just a debt of gratitude for their earlier efforts but also a duty to continue their work and preserve the edifice their forebears have bequeathed. Out of history’s sound and fury comes a message: continue this work of generations, today and into the future. And the message looks all the more peremptory when it comes with the reminder that sacrifices have been made, blood has been spilt, and that the present sleeps under the shade of a tree watered by the sorrows of the past and nourished by the bodies of the dead.

Thomas Jefferson might have wanted the tree of liberty regularly ‘watered by the blood of patriots’, but it surely also thrives on a generous sprinkling from the veins of people who would rather mind their own business.

A society is not an ongoing scheme of social cooperation. Social cooperation is ongoing, and it takes place within and across and among societies.65 Indeed, societies form and reform within networks of cooperation.

In the end, there is just no such thing as the ‘will of the people’, though the advocates of self-determination often write as though there were, and as if the state is somehow the embodiment of a collective intention. Consider the claim that the state is a historical project extending across generations. While it is true enough that states, like all human institutions, are the product of human action and interaction, they are hardly the fruit of the efforts of generations of people who could meaningfully be described as engaged, consciously or otherwise, in a shared project. To the extent that any persons are so engaged, they are members of small political elites who have fostered institutional changes for a mixture of motives, from personal ambition to financial interest to ideological fervour. The vast majority of people are carried along by events, occasionally co-opted to facilitate changes when popular support is needed, but as often simply left with no choice but to go along with the outcomes that result from the triumph of one elite or another, or the compromises contending elites strike.

A person is free to the extent that she is able to pursue her ends unimpeded by others; she is freer the greater the range of opportunities she has to act and the greater the value attached to the opportunities she has; and her freedom is of value to her to the extent that she feels free. A person is also freer the more secure she is in the possession of her freedom—if she is not uncertain as to whether her freedom is about to be lost. To be free a person must feel free. A person who does not feel free at all attaches no value to the opportunities she has to act and is unfree. A society is free to the extent that those who live within it (members and non-members alike) are able to pursue their ends unimpeded by others; it is more free the greater the range of opportunities they have to act and the greater the value attached to the opportunities they have; and their freedom is of value to them to the extent that they feel free. The less secure they are in the possession of their freedom, and the more unsure they are of whether that freedom is about to be lost, the less free is their society. A society is unfree if those who live within it attach no value to the opportunities they have and do not feel free.

Freedom according to this view has four dimensions: scope, value, sense, and resilience. Scope refers to the range or number of opportunities an individual has to act unimpeded. Value refers to the worth of those opportunities, which can vary from the trivial (wiggling one’s fingers) to the substantial (travelling where one wishes).45 Sense refers to the individual’s subjective appreciation or perception of her freedom (that is, to whether she feels free). Resilience refers to the likelihood that the freedom defined along the other dimensions will continue to exist into the future (which means that people living in fear, or with yet to be fulfilled threats to their freedom, or under arbitrary rule, are less free if there is a low probability of their freedom remaining as extensive as before).

Our freedom can be compromised, then, in either of two general ways: by actions or arrangements that impede our capacity to pursue the ends we value, or by actions or arrangements that shape or direct our thinking to accustom us to those restrictions or limitations that might otherwise have been sources of resentment. We therefore become less free when others, whether acting individually and deliberately or operating indirectly and collectively through institutions, limit or restrict us by imposing practical impediments that prevent our pursuit of ends we consider important or by prohibiting us (with the aid of promised sanctions in the event of a failure to comply) from pursuing those ends. We also become less free when others, whether acting directly, or indirectly through institutions, work to accustom us to our circumstances so that we are disinclined to view any absence of freedom as a loss.

Should we wish to regard freedom as something that has some value, however, and consider that a reduction of freedom might be a loss, a different understanding is required. But such an understanding must then depend upon judgments about what ends count as worthwhile or what kinds of constraints are unacceptable. So, what is it that matters and makes for an unfree way of being? The temptation at this point is usually to look for that one decisive element that supplies the key to the problem—to find that freedom is, perhaps, a matter of being self-directing, or not subject to domination by others, or not being coerced, or being independent, or not forced to accept someone else’s arbitrary exercise of power. Such reductionist strategies are unsatisfying, however, because they seek a simplicity that is at odds with the more complex story that needs to be told to explain what it is to be, and what is undesirable—and indeed, unlovely—about living as, an unfree being. Moreover, they place all the emphasis on the obstacles or impediments to action and so pay insufficient attention to the subjective dimension of freedom.