Sarah Fine on the Right to Exclude
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This is Philosophy Bites with me, David Edmonds. And me, Nigel Warburton. This episode of Philosophy Bites was sponsored by the Examining Ethics podcast from the Janet Prindle Institute for Ethics at DePauw University. You can subscribe to Examining Ethics on iTunes or listen to episodes at examiningethics.org. States have borders and they police who comes in.

The ability to determine who's allowed into the country is, on the face of it, a fundamental right of the state. Indeed, around the world, politicians are often under pressure from citizens to tighten immigration control. But do states really have the right to keep people out? It's a widespread assumption, which Sarah Fine of King's College London asks us to question. Sarah Fine, welcome to Philosophy Bites. Thank you very much for having me.

The topic we're going to talk about is the right to exclude. What do you mean by the right to exclude? I'm interested in the question of whether states have something like a moral right to exclude people who want to come in, and in particular non-citizens who want to enter their territory, potentially settle in that territory, and indeed eventually perhaps become citizens of that state. Most people assume that...

states do have that right, they do have some kind of moral authority in saying you can't come in. That's right. I think a lot of people do assume that states have such a right and states certainly act as though they have this right. But there is a question as to whether they really do have such a right. So what might be the grounds for this kind of right? So the way that I look at this particular question is to think about the kind of thing

that the state is. So I look at the idea of a, for example, liberal, national, democratic, territorial state, and I ask whether any of the elements of that conceptual amalgam, either separately or together, might be doing the work to support the idea that this kind of entity has a right to exclude people who want to come in. Just to get this clear, you're suggesting that within

somewhere like the UK or America, we hope, a state that thinks of itself as democratic, as liberal...

certain things might follow from that framework which justify exclusion. That's right. So somebody might say, for example, well, a state just is the kind of thing that needs to have a right to exclude non-members. Or isn't it true that a democratic people has the right to decide who may and may not become a member?

So I'm imagining that I'm coming to a country that I want to enter and I'm told I can't come in. I wouldn't be surprised by that, even if it was a liberal state. I mean, that seems quite a normal state of affairs that the state sets the parameters, sets the criteria by which it determines who should be part of that state. Whether or not you would be surprised...

doesn't seem to be that relevant because somebody in the 18th century might not be that surprised by the institution of slavery, for instance. But the question is, by what right can the state make those kinds of decisions about you? Now, let's say, for example, that the state refused to let you enter, even though your spouse was a citizen of that state.

or the state refused to let you enter, even though, for example, you have some other special claims to enter and perhaps settle and become a member of that state. Then perhaps you'd be a little bit more surprised or a little bit more maybe outraged at the fact that you're not allowed to do those things. So we need to ask, by what right can the state claim to do these kinds of things? And what's the usual answer to that question?

So I think people do tend to use different sorts of arguments connected to the idea of the state itself. So, for instance, somebody might say a state is the kind of entity that needs to have a right to exclude because that's what sovereign states do or it's essential to the functions of states that they're able to exclude.

And then we need to ask whether that's true. Why do we think that that's part of the very concept of the state? So, for example, in previous times, states have claimed other rights that we no longer consider to be part of the very concept of the state. For instance, states have claimed the right to control the exit of their own citizens or states have claimed the right to control roads.

the movement within the state of their own citizens. And those things are now no longer considered to be part of the legitimate package of state rights. So why should we think that the right to exclude is one of those rights that states are able to claim with impunity? Now,

What kinds of things do we think states need to be able to do in order to be states or in order to claim the authority that they claim for themselves? One obvious thing seems to be that states are really there to defend the people subject to their authority in some way. So we might think states have some kind of a right to self-defense.

And that does seem to support the idea that certain forms of exclusion might be permissible under certain circumstances. So if we think that states have a right to defend themselves against, for example, foreign terror threats, then we might think that states have at least a right to keep out those who present themselves as clear threats to the state's security. But that's far

more limited than the idea of a general right to exclude people who want to come in, in accordance with the state's own interests or in accordance with a wide degree of discretion about what states want to do and why.

So are you suggesting that it's almost a sleight of hand going on when people assume that a state must, to be a state, have the right to exclude just about anybody it wants to exclude? Yes, I think that's right. First of all, we shouldn't assume that any right that the state claims for itself at any particular time is essential to the concept of the state, because we know that now states no longer claim some of the rights that they used to claim for themselves.

But also it doesn't look as though it's essential to the very functioning of the state to be able to exclude anyone at any time and any place for any reason. So we can think that states could have the grounds for excluding particular individuals for particular reasons without something like a general right to exclude. Now, if we look at the example of the member states of the European Union,

They've held themselves to some common regulations regarding immigration and they don't have at present the right to exclude other members of European states in the same way that they have rights to exclude third country nationals, for instance.

But they haven't stopped being states just because of this current lack of control over those kinds of issues. They remain states. And moreover, the European Union itself hasn't become a state just in virtue of having that kind of control over questions related to immigration.

So are there other reasons that people give for saying that states have some kind of moral authority to exclude people? Yes, so we've talked about the idea of the state itself. Another kind of argument that people offer is something to do with democracy. So they might say, well, democratic people have a right to decide who gets to come into their state and who's going to become a member of that state.

So this might be that you take a vote on it and we don't want certain kinds of people coming in because we don't like their values, say. That's just a consequence of living in a democracy. Yeah, so people might think this is just the sort of thing that democracies get to decide for themselves.

for themselves. And if democracies didn't get to decide these kinds of things for themselves, then we wouldn't call it a democracy. So what's the problem with that? Because that does seem to follow that if you're committed to accepting the values chosen within a democracy, you take whatever majority votes or the majority of the representatives votes amount to. Yeah, so if we think about...

the idea of democracy as rule of the people, the people get to rule themselves, those who are governed get to govern in some sense, then we can see that it looks as though those who are governed ought to have some kinds of rights of participation.

Now, obviously, within recent history, we know of states in which certain people have been excluded from participating, even though they themselves were governed. And so part of the argument in favor of including them was a democratic argument. They're governed, so they also ought to have a right to

to participate. So that tells against, for example, excluding people who are subject to the laws in the same ways as other citizens. And this has been an argument, for example, in favor of enfranchising women and excluded minority groups.

So then we might ask, who are the people who get to make these kinds of decisions about who to include and who to exclude? Well, we already know that democracies can't just decide to exclude certain groups within themselves because then the people who are governed aren't the ones who are governing. So we need to ask, who is governed? Who are the people who get to make this decision? Now, when we look at questions to do with immigration, it looks as though

Some people who are, for instance, outside the borders of the state are also in some sense governed by the immigration rules, by the immigration decisions. Their lives are deeply affected by these kinds of decisions. The laws are, in a sense, directed at them. So we might think of them as governed. And we might think that that gives rise to some participatory rights with respect to these kinds of decisions.

So in other words, what people seem to take for granted when they assume that the democratic people get to decide these things is that we have a clear idea of who the people are and that the people in some sense conforms with our sense of the citizenry. But actually that's questionable, that's quite controversial. I think it's quite controversial to think that, for instance, somebody who's living in Latin America who wants to come into Britain is in

in a sense, part of the group that should be enfranchised in deciding what happens in terms of immigration laws in Britain. You're suggesting something which is moving towards everybody on earth.

having some kind of interest in how each state that they might want to visit or live in sets its own criteria for entry. Well, I think there are good arguments in favour of that kind of position. Let's take another kind of example. Let's assume that Britain decided we're going to start imposing a tax on people.

French citizens living in France, we're just going to start directing these kinds of tax laws at them. And we're not going to give them any voice in this. It's just something that's going to happen. People say, well, this isn't legitimate. You can't just suddenly assume this kind of control over people who are not your citizens and who don't live here.

But isn't that comparable in some sense to what's going on in the immigration case? A state like Britain is deciding to direct some of its laws at people who are not its citizens, namely people who want to come and enter and settle within its state. But let's say you got all the right people and a democratic procedure was carried out. My question is, would a democratic decision be sufficient to ground this morally? So it still might not be sufficient, right?

Because there's still the question of whether or not that group of people has the rights with respect to the space that we're talking about. So let's say, for example, we had a group of people who decided to get together and try to exclude others from a public park.

Well, that looks problematic because they don't have rights over that particular place. So why should they be able to exclude those people? Now, they might be able to exclude them from membership of their group, but can they exclude them from entering and indeed settling in that place?

We've looked at the idea that there's something about the essence of states that allows them to exclude. We've looked at problems with democratic decision-making as the grounds for excluding people. Are there any other arguments that people use to defend acts of exclusion?

Yes, there are a few. So another one would be that just as though individuals have a right to associate or not to associate with other people, so too do states. States also have a right to freedom of association and they don't have to associate with people like immigrants that they don't want to associate with.

Are we suggesting that states are a bit like people and they can choose who they mix with? Or like voluntary associations, for instance. So you might think that states are comparable in some sense to the Boy Scouts. The Boy Scouts don't have to associate with absolutely anybody who wants to associate with them. Or a golf club doesn't have to admit absolutely any member who wants to join. Maybe we want to draw an analogy with states.

A question that we might want to ask is whether this analogy is appropriate. Now, if you get kicked out of one particular golf club or you're not allowed to join one particular golf club, it looks like there are plenty of others that you can become a member of. And actually, even if you weren't able to become a member of any golf club, maybe your life could still go okay. It's not the same with states.

The world is made up of states and you need to be a member of one of these states. Life is terrible if you don't have a state that claims you as its member, if you're a stateless person. So the stakes are far higher.

Moreover, with respect to freedom of association, it looks as though one of the reasons why we respect the rights of particular associations to decide with whom they wish to associate is because we're respecting the decisions of the members of the group to associate together in the first place. Now, that's not true of states. Again, states aren't voluntary associations. We don't choose to be members of them. Most of us are just

born there and we have to be members of a given state and the state claims authority over us. So we can really try to pick apart this analogy and ask whether it's a suitable one or not. You mentioned that there are other justifications that people use to exclude people from a state.

Another kind of argument that people use is that states have a right to protect the national cultures within their territories and that immigration may pose a threat to that kind of role. And where it does, states ought to have the right to exclude. Well, that sounds not unreasonable to me, particularly if you have a small state and huge immigration, there would be a change certainly in national culture.

Yeah, so that's bringing in questions about nationality and national identity. Some people say, well, states have a right to protect the national culture or the national cultures within their territories. But it's quite a tricky issue. So for one thing, national cultures aren't set in stone. They're constantly changing, and they have to change in order to survive over time. For another thing, it's questionable how far any state has evolved

a national culture that stretches from border to border. So for instance, many states are multinational states that have a number of these kinds of national cultures. Another question might be, what if the national culture has various other kinds of issues that are perhaps exclusionary, that perhaps don't represent many of the members within it, perhaps

cultural minorities or other kind of historically disadvantaged minorities might feel alienated from that particular national culture. So what exactly is the particular connection between the state and national culture or national cultures?

It's clear that a lot of people are invested in the national culture or cultures of their states and that it's very important to many people to try to maintain those cultures and don't wish them to change at least at too fast a pace. So they have an interest in seeing those national cultures protected in some way. But similarly, the individuals who wish to migrate have

have a significant interest in being able to do so. So why would we assume that the interests in preserving any particular national culture, or at least protecting that national culture over time, outweigh the interests of those who wish to migrate to the society in question?

Well, I doubt if most people do a kind of balanced calculation of costs and benefits in that respect, that people are much more tribal in their reactions to threats to what they perceive as their cultural identity. I think that's right, but we have to look at the interests in play here. So, for instance...

People have various interests in maintaining the health and vibrancy of their religious community. But do we think that gives them a right to claim that states should step in to protect those kinds of communities on their behalf and indeed exclude people in the name of protecting those kinds of

religious communities. So what is it about national cultures and national communities in particular that give people this kind of claim? There are lots of things that people think are important. Why is this a special one? Why is this the kind of thing that seems to outweigh the interests of others in entering and settling within the state? Those people who argue that we need to preserve our cultural identity and the only way to do that is to exclude some people who want to come into our state are

Are you saying that those people are misguided in a sense in assuming that cultural identity is more important than the interests of the people who want to come in? Yes, I think you can't just assume that. You'd have to make an argument for it. One kind of argument might be, well...

National culture is very important for the kinds of things that liberal democracies do. Maybe it has instrumental value, it helps democracies to flourish, or it fosters the kind of social solidarity necessary for certain programs of social justice, for instance. So that's the kind of argument that people might make. But then we might ask, well, which kinds of national cultures do that?

Maybe some do. Maybe others don't. So are we making this argument only with respect to the kinds of national cultures and groups and communities that have those kinds of effects? Or are we talking about national cultures in general? Now, presumably, there are some kinds of national cultures which don't have those kinds of effects. Perhaps they encourage rugged individualism.

or perhaps they're anti-democratic in tone. So that's not a reason for supporting those. In other words, we need an argument as to why we should prioritise the interests in promoting a particular kind of national culture over the interests of people who want to come in. We can't just assume that it takes priority. So to summarise where we've got to, it seems to me that you've examined most of the plausible candidates'

on which people attempt to ground their arguments for excluding people from the state and all of them have got problems associated with them. Are you suggesting then that most people who argue in this area haven't really thought things through properly, that within liberal democracies there aren't particularly good grounds for exclusion on the whole? There are plenty of philosophers who have given a lot of thought to this and who do seek to defend the idea that states have a right to exclude. But

As I've tried to show, I think a number of these arguments have significant problems. In public discourse, I think there needs to be a lot more attention to the assumption that states have a right to exclude. And I think once we subject that assumption to critical scrutiny, it's not nearly as obvious as it might seem.

Sarah Fine, thank you very much. Thank you, Nigel. This episode of Philosophy Bites was sponsored by the Examining Ethics podcast from the Janet Pringle Institute of Ethics at DePauw University. You can subscribe to Examining Ethics on iTunes or listen to episodes at examiningethics.org.