What is the Right to Exclude Immigrants?

It is normally taken for granted that states have a right to control immigration into their territory. When immigration is raised as a normative issue two questions become salient, one about what the right to exclude is, and one about whether and how it might be justified. This paper considers the first question. The paper starts by noting that standard debates about immigration have not addressed what the right to exclude is. Standard debates about immigration furthermore tend to result either in fairly strong cases for open borders or in denials that considerations of justice apply to immigration at all, which results in state discretion positions. This state of debate is both theoretically unsatisfactory and normatively implausible. The paper therefore explores an alternative approach to the right to exclude immigrants from the perspective of recent debates about the territorial rights of states. The right to exclude claimed by states is analysed and it is shown to differ both conceptually and normatively from rights to impose political authority within a territory. The paper finally indicates how this analysis might broaden the focus of debates about immigration and suggest alternative regimes of migration regulation the possibility of which is obscured by traditional justice approaches.     

Why Are You Betraying Your Class?

Abstract: Social justice concerns us on two counts: One, what is social justice? Two, given that we know the answer to one, then the question is: how can social justice be implemented? Answering the first question requires hitting the right balance between two values: liberty and equality. My concern here, however, is with the second question, the question of implementation rather than with what social justice consists of. I assume that the right balance between liberty and equality is somehow a given. To implement the structural changes that a just society requires calls for a historical agent that can bring about such changes. The working class was a good candidate to be such a historical agent. The working class was suitable for this historical task because it was the class that had the most to gain from a just society and it was a very large class of people. The working class was singled out for this task not for being a particularly virtuous class but by being the class that had the most to gain from a change in the status quo. But the working class is rapidly disappearing; in the developed countries, it has shrunk considerably. Thus, the implementation of social justice is now left without an effective historical agent to carry it through.     

The Illegal Way In and The Moral Way Out

At the heart of the current debate about immigration we find a conflict of convictions. Many people seem to believe that a country has a right to decide who to let in and who to keep out, but quite often they appear equally committed to the view that it is morally wrong to expel someone from within the borders of their country if that would seriously jeopardise the person in question. While the first conviction leads to stricter border controls in an attempt to prevent would-be immigrants from entering the country illegally, the latter conviction ensures that aliens with a legitimate claim on protection will not be removed forcibly. It is not strange, therefore, that the task of pinning down a morally sound immigration policy is such an elusive enterprise.
In this paper I take it for granted that no electorate would be prepared to accept the kind of policy they ought to, and that we in consequence will continue to let in as few immigrants as is currently the case. Given this constraint I argue against two common assumptions concerning a viable immigration policy. First, granted that certain conditions are satisfied, professional smugglers should not face legal sanctions for bringing asylum seekers to a potential host country. Second, countries that limit immigration should not treat people seeking family reunion preferentially or on a par with other immigrants, but rather act so as to maximise the number of refugees allowed to enter.     

How to achieve global justice

In this paper, I argue that even a libertarian ideal of liberty, which initially seems opposed to welfare rights, can be seen to require a right to a basic needs minimum that extends to distant peoples and future generations and is conditional upon the poor doing whatever they reasonably can to meet their own basic needs, including bringing their population growth under control. Given that, as I have argued elsewhere, welfare liberal, socialist, communitarian and feminist political ideals can be easily seen to support this same right to a basic needs minimum, showing how a libertarian ideal of liberty supports the right should go a long way toward solving the problem of what all people, whether near or distant, present or future, deserve, which is the basic problem of global justice.     

The moral limits of Feinberg's liberalism

This essay explores Joel Feinberg's conception of liberalism and the moral limits of the criminal law. Feinberg identifies liberty with the absence of law. He defends a strong liberal presumption against law, except where it is necessary to prevent wrongful harm or offense to others. Drawing on Rawlsian, Marxian, and feminist standpoints, I argue that there are injuries to individual liberty rooted not in law, but in civil society. Against Feinberg, I defend a richer account of liberalism and liberty, linking them to human dignity, and a more positive role for law. Feinberg justifies liberty as an instrumental welfare‐interest, valuable in virtue of the way it serves the individual's ulterior goals. Drawing on the example of racism and civil rights, I argue that the value of equal liberty stems from its social role in constituting persons’ sense of their own worth and dignity. Against Feinberg, I claim that liberty's value is grounded in a shared historical ideal of personhood, not in the individual's goals or desires. Feinberg also links liberalism with an extreme anti‐paternalist position, on which individuals should be at liberty to alienate their very own right of personal autonomy. Drawing on the examples of slavery and drug addiction, I argue against this liberty, and the conception of liberalism and paternalism in Feinberg which leads to it. A liberalism founded upon an ideal of human dignity allows, even requires, a use of law to prevent persons from destroying the very conditions of their own autonomy and dignity.     

Progress in Reconciliation: Evidence from the Right and the Left

For a number of years now I have argued for a reconciliation of contemporary conceptions of justice. I have argued that a libertarian conception of justice with its ideal of liberty, a welfare liberal conception of justice with its ideal of fairness, a socialist conception of justice with its ideal of equality, a communitarian conception of justice with its ideal of the common good, and a feminist conception of justice with its ideal of androgyny can all be seen to support the same practical requirements, specifically the practical requirements that are usually associated with a welfare liberal conception of justice, namely, a right to welfare and a right to equal opportunity. Since most people endorse one or another of these conceptions of justice, to reach agreement in practice it should suffice to show them that all these conceptions support the same practical requirements of a right to welfare and a right to equal opportunity.     

"Two Concepts of Liberty" Through African Eyes

In "Two Concepts of Liberty" Berlin notes the protean nature of the word "freedom" and then systematically proceeds to narrow its range of meanings. In the process, Berlin eliminates much of what most people, in everyday communication, regard as freedom, believing that this is in the best interest of intellectual clarity. As he puts it:
[N]othing is gained by a confusion of terms. To avoid glaring inequality or widespread misery I am ready to sacrifice some, or all, of my freedom: I may do so willingly and freely: but it is freedom that I am giving up for the sake of justice or equality or the love of my fellow men. I should be guilt-stricken, and rightly so, if I were not, in some circumstances, ready to make this sacrifice. But a sacrifice is not an increase in what is being sacrificed, namely freedom, however great the moral need or the compensation for it. Everything is what it is: liberty is liberty, not equality or fairness or justice or culture, or human happiness or a quiet conscience. (Emphasis added).
Berlin's other, perhaps overarching, aim is to show how inattention to the specificity of the meanings of concepts might have potentially dangerous political repercussions. He implicitly argues that the intellectuals who promoted the idea of positive freedom as opposed to that of negative freedom contributed to the emergence of totalitarianism and fascism in Europe.     

A JEWISH CONCEPTION OF HUMAN DIGNITY

This paper depicts the meanings of human dignity as they unfold and evolve in the Bible and the Halakhah. I posit that three distinct features of a Jewish conception of human dignity can be identified in contrast to core characteristics of a liberal conception of human dignity. First, the original source of human dignity is not intrinsic to the human being but extrinsic, namely in God. Second, it is argued that the “dignity of the people” has precedence over personal autonomy and liberty, which are core liberal pillars. The third characteristic pertains to the potential conflict between personal autonomy and liberty, and God's commandments. The theoretical analysis of human dignity is then examined in light of several Supreme Court decisions in Israel during the 1990s. I illustrate that Jewish religious and secular‐liberal conceptions pull in different directions in the rulings of liberal and religious Justices in Israel.     

The principle of liberty and legal representation of posterity

This paper considers a guardianship model for the legal representation of future generations. According to this model, national and international courts should be given the competence to appoint guardians for future generations, if agents who care about the welfare of posterity apply for the creation of a guardianship in relation to a dispute that can be resolved by the application of law. This reform would grant guardians of future people legal standing or locus standi before courts, that is, the right to bring an action before a court of law for adjudication. Although the guardianship model faces several difficult theoretical and practical problems pertaining to the representation of different near and distant future generations, it is argued that this model – and certain other legal norms intended to protect future basic needs – can be justified on the basis of the principle of liberty.     

The Natural Rights Basis of Aristotelian Education

It is commonplace to speak of education as a right. Yet it has been seldom defended as a natural right. Natural rights are pre-social, while education is social intrinsically. This analysis attempts to show how Aristotle’s concept of education can be conceived as a natural and necessary process to fulfill individual autonomy. In this sense it approaches Locke’s conception of a natural right. To the degree that it succeeds, the firmest possible basis for education in modern constitutionally premised social order is established. It will stand on a par with life, liberty and property and will be equally resistant to tyrannical inroads of either government or majoritarian politics. Moreover, it will refocus society on its absolute duty to treat its citizens justly, that is, will full regard for their inalienable rights.     

罗尔斯“分配的正义观”与诺齐克“持有的正义观”对照研究

分配正当性的根据是什么 ?人的基本权利与平等的要件如何分配才是符合正义的 ?罗尔斯和诺齐克从两个向度上对此作了深入研究。罗尔斯从平等的权利出发 ,主张用“公平正义的两个原则”来取代功利主义 ,认为除非有充足理由证明应当不平等 ,否则就应当平等。并要求依据“公平的正义原则”分配公共资源和自由体系 ;诺齐克从人的不可剥夺的权利出发 ,认为除非有充足理由证明应当平等 ,否则就应当不平等 ,通过“资格”理论确立“持有”的正当性。在功利主义、财产权、国家的作用、自由平等、分配模式和社会稳定的意义等方面 ,罗尔斯与诺齐克的观点也各有契合与对立。     

Is it "every man's right to have babies if he wants them"? Male pregnancy and the limits of reproductive liberty

Since the 1980s, a number of medical researchers have suggested that in the future it might be possible for men to become pregnant. Given the role played by the right to reproductive liberty in other debates about reproductive technologies, it will be extremely difficult to deny that this right extends to include male pregnancy. However, this constitutes a reductio ad absurdum of the idea of reproductive liberty. One therefore would be well advised to look again at the extent of this purported right in other contexts in which it is deployed.     

Constructing the stereotype of immigrants' criminality: Accounts of fear and risk in talk about immigration to Greece

This paper explores the discursive construction of immigrants' criminality in interview accounts obtained by a sample of Greek people in Thessaloniki (Northern Greece). Analysis, which adopts a discursive approach to stereotypes and category construction, indicates that fear and insecurity on the part of Greek people are represented as a sine qua non consequence of immigration to Greece. Two different lines of argument are used to account for the arousal of fear. According to the first, fear constitutes a corollary of a widespread stereotypical representation of immigrants as criminals. The stereotype of immigrants' criminality is considered to be ill‐warranted and it is attributed to the media or to other unspecified people. According to another, more regularly used, line of argument, however, fear is predicated upon the sordid living conditions of immigrants in Greece which make the probability of them being involved in illegal acts particularly high. In this case, fear is seen to derive from a ‘rational estimate’ of the probability of immigrant's involvement in criminal acts. Nested within the discourse of ‘risk’ the stereotypical image of immigrants' criminality is sustained and used to account for the need to protect the ‘ingroup’ from ‘immigrant groups’ through immigration control and surveillance. Copyright © 2011 John Wiley & Sons, Ltd.     

The secularisation of Scotland

The history of religion in Scotland is interesting for the light it casts on the links between secularisation and secularism. The creation of secular social institutions was not the work of secularists but was an unanticipated result of Protestant schisms originally intended to purify the dominant religion so as to justify its imposition. The diversity thus created forced the growth of a secular public sphere. It also prevented a coherent nativist response to Irish Catholic immigration and thus encouraged Catholic integration. Over the twentieth century, Scotland changed from being a country in which most people had some association with organised religion into one in which the population divided radically into small groups of religious people and a majority who had no association at all with organised religion. Neither the new religions of the 1960s, nor New Age spirituality, nor the charismatic movement have made any significant inroads. Prospects for the conversion of the non-religious seem remote, when religion is now carried primarily by demographically or ethnically distinct populations.     

自主选择偏好：表现、机制与应用

自主选择偏好指当面临自主选择或委托他人选择时, 人们总是偏好自主选择, 即使为此付出代价也在所不惜。自主选择偏好可能有过度自信、控制幻觉和模糊厌恶的原因, 但更多可能源于自主选择本身承载了某种内在价值。奖赏系统(纹状体、内侧前额叶)的神经活动是其关键的神经基础, 同时自主选择也受认知调控系统的调节。未来研究应在社会情景下揭示自主选择偏好的作用机制和调控因素, 并探索它在群体间的平衡机制, 以增进个体幸福和群体利益。     

Citizenship for children: By soil,by blood,or by paternalism?

Do states have a right to exclude prospective immigrants as they see fit? According to statists the answer is a qualified yes. For these authors, self-determining political communities have a prima facie right to exclude, which can be overridden by the claims of vulnerable groups such as refugees and children born in the state’s territory. However, there is a concern in the literature that statists have not yet developed a theory that can protect children born in the territory from being excluded from the political community. For if the self-determining political community has the right to decide who should form the self in the first place, then that right should count against both newcomers by immigration and newcomers by birth. Or so the concern goes. In this essay, I defend statism against this line of criticism and provide a liberal justification for the inclusion of children born within the state’s borders. My account leads to some surprising implication for citizenship law, as well as immigration arrangements in the area of asylum and unauthorized immigration.     

Rotting with their rights on: why the criteria for ending commitment or restraint of liberty need not be the same as the criteria for initiating commitment or restraint of liberty, and how the restraint may sometimes justifiably continue after its prerequisites are no longer satisfied

That coerced treatment must end when the criteria for initiating coerced treatment cease to apply appears to be universally accepted by courts and commentators.2 Moreover, the consensus appears to be justified by a steel-trap argument. If coercion is justified only when the patient is mentally ill and incapable, because then the patient lacks autonomous capacities, or lacks practical reasoning abilities that undercut autonomous capacities, then these justifications have no force when the patient either is not mentally ill or is capable. A parallel claim holds for civil commitment. This received wisdom, or in = out thesis, rests upon a conceptual confusion: a failure to distinguish the criteria for initiation of intervention, those for cessation of intervention, and the purpose of the commitment or coerced treatment. If the criteria for commitment were mental illness and dangerousness, and the criteria for release were the same, then the purpose of commitment would be to restore persons to the point where they are either just barely not mentally ill, or just barely not dangerous. That is a silly and self-defeating purpose for that large class of patients who, because of lack of insight, or otherwise, do not become treatment compliant until they are substantially healthier than being barely not mentally ill or barely not dangerous. It sets them up to become revolving-door patients. The purpose of commitment is rather to maximize the patient's mental health, and minimize her dangerousness without unduly burdening her liberty. If society is going to violate a patient's liberty, it should do so in a way that will resolve the problem that justified the restriction on liberty in the first place, so long as the restriction of liberty is not too great in relation to the expected gains from the intervention. The criteria for releasing a patient from commitment are in this way responsive to the purpose of the commitment. For some revolving-door patients, this entails that the criteria for their release from commitment should be stricter than the criteria for initiating commitment in the first place. The criteria for release from commitment for revolving-door patients should be that the criteria for initiation for commitment is not met plus it being more likely than not that the patient will be treatment compliant after release, assuming the additional restriction on liberty is less than the gains from the additional restraint, and the restriction is not unduly burdensome. Spelling this out, the criteria for release should be either not mentally ill, or else not dangerous, or capable, and more likely than not to be treatment compliant after release. For those patients for whom such a test is overly optimistic, we might substitute that there is a reasonable probability of treatment compliance after release, or that the probability of treatment compliance has been enhanced. These criteria are to be thought of as rough and ready rules of thumb, and not as analytically precise tests.     

Science, metaphysics and method

While there are many examples of metaphysical theorising being heuristically and intellectually important in the progress of scientific knowledge, many people wonder how metaphysics not closely informed and inspired by empirical science could lead to rival or even supplementary knowledge about the world. This paper assesses the merits of a popular defence of the a priori methodology of metaphysics that goes as follows. The first task of the metaphysician, like the scientist, is to construct a hypothesis that accounts for the phenomena in question. It is then argued that among the possible metaphysical theories, the empirical evidence underdetermines the right one, just as the empirical evidence underdetermines the right scientific theory. In the latter case it is widely agreed that we must break the underdetermination by appeal to theoretical virtues, and this is just what should be and largely is done in metaphysics. This is part of a more general line of argument that defends metaphysics on the basis of its alleged continuity with highly theoretical science. In what follows metaphysics and theoretical science are compared in order to see whether the above style of defence of a priori metaphysics is successful.