Danny Frederick’s and my paper “The Liberal Defense of Immigration Control” is still wanting a publisher. That’s the bad news. However, the good news is that even so it was recently referenced and discussed in the online magazine Quillette, one of the leading forums for classical liberal views. Specifically, Sam Kiss (a just-minted academic philosopher) in his essay “Is Liberal Immigration Anti-Democratic?—A Reply to Gadi Taub,” writes the following:
Some accept a fiduciary argument that says we may reconcile liberal rights with restrictionism because one of these rights is the right to strong liberal institutions. Taub hints at this kind of justification when he criticizes immigration to Europe and Israel. The idea is that allowing immigration, particularly immigration from authoritarian, conservative societies, threatens liberal institutions in the long-term. To their credit, the main proponents of the fiduciary argument, Danny Frederick and Mark D. Friedman, admit the evidence they have for believing immigration would weaken liberal institutions is limited. Since immigration restrictions are stringent, extensive restrictions on citizens, the evidence would have to be decisive. This isn’t the only problem with the fiduciary argument. What if institutions only count as strong liberal institutions if they have opened their borders? The reply may be that some features of liberal institutions matter more than others: whatever rights immigration restrictions violate are less important than any they supposedly protect. As immigration restrictions are so similar to restrictions on certain rights almost all liberals accept are basic, we’d have to look to citizenship to explain things here too. And the explanation can’t be circular.
Naturally, I am delighted that the ideas that Danny and I have worked so hard to develop and articulate have received this recognition. I will in due course address the reservations Kiss expresses about the “fiduciary argument,” but since I find the exchange between Taub and Kiss quite thought provoking in its own right, I will enter this discussion in broader terms.
Taub’s essay is written as an objection to the fact–as he sees it–that unelected Israeli elites, consisting of academics, media moguls, NGOs (almost all foreign-funded), and most importantly its Supreme Court, have combined to impose unprecedented levels of immigration on an unwilling domestic population. According to Taub, as a result of illegal immigration over the last decade or so, “Israel now has a substantial community of illegal migrants, mainly from Africa.” They number “about 34,000, not including some 8,000 more children born to immigrant parents in Israel,” and in addition “several thousand” [are likely to have] overstayed their tourist visas.” This is not trivial for a small state already inhabited by nine million citizens, and if enforcement is not tightened this number is likely to greatly expand over time.
Taub asserts that the vast majority of these migrants (80% are able bodied men) are economic migrants, and not true refugees fleeing from a realistic threat of death or serious harm in their home states. He notes that they almost all have traversed other states, where they could have claimed refugee status. In other words, these migrants are uninvited guests, not in Israel in response to job offers, to reunite with family members, etc. The Supreme Court, he says, has frustrated almost all efforts at deportation.
He cites several actual and potential problems arising from this inflow. The migrants commit crimes as a rate “three to four times the national average,” increasing both violent crime and fear of it. They disproportionately use social services. Wages for low-skilled workers are depressed. Finally, “many Israelis fear that granting residence status to illegals will turn the state into a safety valve for the humanitarian crises of a huge poverty-stricken continent. For a country as small as Israel, this is an existential concern.”
Taub’s final point makes clear that he is not defending the merits of Israel’s immigration policy in terms of some expansive interpretation of liberalism, but asserting that liberalism must coexist with other values, namely the right of national self-determination. In this regard it is worth noting that the modern state of Israel was conceived and established, from the publication of Herzl’s The Jewish State in 1896, through the Balfour Declaration of 1917, the 1922 League of Nation’s Mandate, the UN’s General Assembly Resolution 181 (1947), and finally its 1948 Declaration of Independence, as a homeland for the Jewish people.
It is the sole Jewish-majority state, and not coincidentally the only one that grants citizenship as a matter of right, upon application, to all Jews, thereby serving as a refuge of last resort for the world’s most persecuted people. It is surrounded by enemies, and has been forced to fight three all-out wars since its founding, and a number of more limited conflicts. Its security situation is still precarious, and large-scale inflows of persons with no allegiance (or even hostility) to the state could prove fatal.
Accordingly, Taub argues that given Israel’s unique history, purpose, and security situation, its citizens have the right, acting through the political process, to decide for themselves the appropriate balance between open borders and these countervailing considerations. Accordingly, he writes that “liberty without participation in sovereignty robs people of the most crucial right that democratic nation states have endowed them with: taking part in shaping their collective destiny.”
Sam Kiss, in the above-referenced essay, pushes back against Taub on a number of fronts. He rightly criticizes him for not more explicitly acknowledging that the majority may often act unjustly, and that a liberal polity must have institutional safeguards designed to thwart such transgressions. However, I believe this neglect is merely the result of Taub’s focus on national sovereignty, and not his allegiance to any form of crude populism, which is made clear when he writes that: “The sweeping powers of the courts can be said to have turned liberal rights from checks on the democratic process into its replacement: liberal decrees are thus poised to replace–not just limit–legislative powers.”
However, the main thrust of Kiss’s critique is that Taub fails to engage with the notion that a restrictionist immigration policy is inherently illiberal: “The problem is that Taub also seeks to reconcile basic ‘liberal’ rights with restrictionism. Many economists, philosophers, and political scientists deny the two could ever be reconciled.” This prompts Kiss to then provide an excellent overview of the philosophical arguments that have been advanced on both sides of this debate. I will first review this analysis, and then conclude that his riposte to Taub’s main argument is not as effective as he imagines.
Kiss begins his survey of the theoretical considerations that have been advanced in the immigration debate by quoting a passage from Michael Huemer’s influential paper regarding the grave harms inflicted on would-be migrants by robust border controls. Since we address his position in our paper, I will not rehash our analysis here.
Kiss then notes that other philosophers have questioned why the same rights of free association that liberal states grant to their citizens; that is the right to employ, marry, do business with other citizens and so forth, should not also extend to potential migrants. He rightly observes that such restrictions limit the liberty not only of would-be immigrants, but also that of those citizens who wish to associate in various ways with them. And, it is true that Taub does not directly address this point.
However, the facts adduced by him do suggest a potential answer. As noted above, the migrants described in his essay were not invited to enter by individual Israelis, and came illegally. Therefore, they may reasonably be regarded as intruders.
Nor is it unquestionably the case that even those who have found work or formed intimate relationships with Israelis are morally entitled to remain. The reason is that they may impose unacceptable negative externalities on others. An Israeli business owner may derive a financial gain by hiring inexpensive foreign laborers, but if in their off-hours such workers commit violent crimes, they inflict a net harm on society. These considerations sit on top of the claim for national self-determination described above.
Kiss himself implicitly acknowledges the right of a liberal state to preempt individual choice in this area when he chastises Taub for framing the immigration debate in binary terms, i.e. “one says the state may restrict immigration, and the other says the state may not. This is a caricature. Pretty much everyone believes states may exclude known security or public health threats.” But what about those citizens who don’t care about these things or sincerely and reasonably disagree with the state’s assessment? Kiss fails to ask why the state is entitled to override personal autonomy here. Surely, its officials do not have infallible judgment in such cases.
This brings me to Kiss’s reference to our paper. After briefly summarizing its conclusion, he credits us for recognizing that the evidence supporting the claim that extensive migration from illiberal states might erode liberal values in the receiving (liberal) states “is limited.” He then asserts that given the negative impact of immigration controls on the freedom of citizens, in order for a liberal state to adopt them, “the evidence would have to be decisive.”
I’m afraid this isn’t quite right. First, our paper does not purport to assess the gravity of the threat posed by population inflows from “backwards” states. Rather, we cite a number of studies and reports simply to establish that we are not addressing an entirely imaginary problem. Our point is that if such a threat proved real, a liberal state could, consistent with its underlying principles, limit such migration.
More seriously, he is wrong on his evidentiary claim. He is wrong because an anti-restrictionist policy (Kiss’s term for nearly-open borders) potentially violates the equally compelling rights of other citizens. Accordingly, no special burden of proof is appropriate.
By way of analogy, libertarians yield to no one in upholding the stringency of property rights, while simultaneously affirming that owners may not use their property to harm or unreasonably threaten to harm, non-consenting others. Thus, if a land owner’s factory is emitting toxic fumes, we don’t demand that the neighbors provide “decisive” evidence of causation or harm before relief is granted. It would be sufficient to obtain relief for them to show by a preponderance of the evidence that they have suffered material injury from such pollution. I see no reason why policy-makers need employ a more stringent standard.
With respect to Kiss’s inquiry, “What if institutions [I assume he means states] only count as strong liberal institutions [states] if they have opened their borders?”, he offers no reason why this should be so. In our paper we argue that a liberal state is only able to govern those residing within its territory; other states have corresponding obligations to their citizens. Thus, in our view liberal states are only duty bound to maximize the equal freedom of those under their sovereignty.
Kiss might as well ask, “What if states, in order to be regarded as ‘strongly liberal’ must regard the welfare of foreigners as having equal weight as that of citizens.” This would require massive wealth transfers to foreign populations, frequent humanitarian military interventions, and other sacrifices. But no one expects this, because it is understood that liberal democracies do not have the same set of obligations to foreigners as they do to citizens.
Although limits on space preclude a more extended discussion of this issue in our paper, I attribute this differential set of duties to the fact that states claim a monopoly of force only over those residing within their borders. This arrogation of power generates a corresponding duty to ensure the liberal character of that polity, but not others; which explains the “fiduciary” feature of our argument.
Hopefully, it should now be clear why I think that Kiss has failed to undermine Taub’s central claim. Yes, a liberal state will establish and defend a pervasive sphere of individual rule against majority intrusion, but in some instances this is not possible. Given the potential for devastating negative externalities, Israel cannot simply allow immigration levels and composition to be determined by the individual choices of its citizens. It is entitled to regulate migration in light of other legitimate, pressing concerns. I don’t think this makes Israel an illiberal state, but rather one attempting to tailor liberalism to its particular circumstances.
My friend Danny will no doubt have his own thoughts regarding Kiss’s use of our paper, and I would welcome his input.
Sam Kiss says: “Some accept a fiduciary argument that says we may reconcile liberal rights with restrictionism because one of these rights is the right to strong liberal institutions… The idea is that allowing immigration, particularly immigration from authoritarian, conservative societies, threatens liberal institutions in the long-term. To their credit, the main proponents of the fiduciary argument, Danny Frederick and Mark D. Friedman, admit the evidence they have for believing immigration would weaken liberal institutions is limited.”
Mark and I argue that a liberal state has a duty to enforce laws that give its residents the maximum equal freedom to direct their own lives. That says something more specific than that the state’s residents have a right to strong liberal institutions. We offer the plausible hypothesis (given reports in the press and other media) that permitting large-scale immigration from societies that resemble closed societies would reduce the freedom of citizens by exposing them to violence and intimidation. We say that the existing evidence for our hypothesis is anecdotal rather than scientific and we make some proposals for social scientific testing.
Kiss goes on: “Since immigration restrictions are stringent, extensive restrictions on citizens, the evidence would have to be decisive.”
No evidence can be decisive. The most that can be asked is that our hypothesis survives severe testing.
Kiss adds: “This isn’t the only problem with the fiduciary argument. What if institutions only count as strong liberal institutions if they have opened their borders? The reply may be that some features of liberal institutions matter more than others: whatever rights immigration restrictions violate are less important than any they supposedly protect. As immigration restrictions are so similar to restrictions on certain rights almost all liberals accept are basic, we’d have to look to citizenship to explain things here too. And the explanation can’t be circular.”
The main aim of our paper is to defeat the arguments for the claim that “institutions only count as strong liberal institutions if they have opened their borders.” We do that primarily by showing that our hypothesis may be true. If it is true, then a liberal state that enforces substantive immigrations controls need not be violating any rights at all; it is, rather, defending rights. So the issue does not involve trading some rights for some others.
But Kiss is criticising Taub, rather than Mark and me. He should really have made that clearer.
Do you have any comments on my comments, Mark?
Only a quibble. I’m genuinely uncertain to whom Kiss’s question “What if institutions only count as strong liberal institutions if they have opened their borders?” is directed. Neither Taub nor we use the label “fiduciary argument,” so I’m not sure where he gets it. He may have been assuming that we are drawing on the idea I mention in my reply to him, but I’m just guessing.
Hey guys,
Thanks for responding to my piece.
‘However, the facts adduced by him do suggest a potential answer. As noted above, the migrants described in his essay were not invited to enter by individual Israelis, and came illegally. Therefore, they may reasonably be regarded as intruders.’
(1) How can we be sure they weren’t invited by (any) individual Israelis? Why don’t campaigns for libertarian or liberal immigration restrictions imply invitation? (2) From the point of view of liberal/libertarian moral theory, legality isn’t relevant here.
‘Nor is it unquestionably the case that even those who have found work or formed intimate relationships with Israelis are morally entitled to remain. The reason is that they may impose unacceptable negative externalities on others.’
(3) Does this apply to citizens too?
‘An Israeli business owner may derive a financial gain by hiring inexpensive foreign laborers, but if in their off-hours such workers commit violent crimes, they inflict a net harm on society.’
(4) If we’re going to play the aggregation game, doesn’t the net depend on, for example, the ratio of violent crimes to productive workers? Doesn’t it depend on the kind of violent crime? The evidence must be decisive because the reductions in liberty, for citizens and non-citizens, are so great. It seems you don’t like the word “decisive.” Fair enough. I just meant we have “decisive” evidence for X if we have more reason to believe X than –X, beyond some minimum epistemic threshold. There may be better ways of putting it; I might have used a different one in an academic paper.
‘But what about those citizens who don’t care about these things or sincerely and reasonably disagree with the state’s assessment?’
(5) I’m not convinced disagreements about these two criteria are reasonable.
‘Kiss fails to ask why the state is entitled to override personal autonomy here.’
(6) I accept the usual liberal/libertarian story.
‘First, our paper does not purport to assess the gravity of the threat posed by population inflows from “backwards” states. Rather, we cite a number of studies and reports simply to establish that we are not addressing an entirely imaginary problem. Our point is that if such a threat proved real, a liberal state could, consistent with its underlying principles, limit such migration.’
(7) I think your paper offers an assessment of the gravity of the threat posed by population inflows from “backwards” states, at least an implicit one. I think you concede the evidence is limited when you say most of it is anecdotal and we need to do more (and more rigorous) social science. Again, this isn’t the kind of language I’d use in an academic paper.
‘More seriously, he is wrong on his evidentiary claim. He is wrong because an anti-restrictionist policy (Kiss’s term for nearly-open borders) potentially violates the equally compelling rights of other citizens. Accordingly, no special burden of proof is appropriate. By way of analogy, libertarians yield to no one in upholding the stringency of property rights, while simultaneously affirming that owners may not use their property to harm or unreasonably threaten to harm, non-consenting others. Thus, if a land owner’s factory is emitting toxic fumes, we don’t demand that the neighbours provide “decisive” evidence of causation or harm before relief is granted. It would be sufficient to obtain relief for them to show by a preponderance of the evidence that they have suffered material injury from such pollution. I see no reason why policy-makers need employ a more stringent standard.’
(8) I’m not sure we disagree. We demand we have more reason to believe X (causation and harm re: pollution) than -X (no causation and harm re: pollution.) I think we should apply that standard to immigration restrictions.
‘“What if institutions [I assume he means states] only count as strong liberal institutions [states] if they have opened their borders?”, he offers no reason why this should be so.’
(9) I had 2000 or so words to play with. I don’t think I need to rehash Brennan, Huemer, Hidalgo, Fine, etc here. I get that you disagree.
‘In our paper we argue that a liberal state is only able to govern those residing within its territory; other states have corresponding obligations to their citizens. Thus, in our view liberal states are only duty bound to maximize the equal freedom of those under their sovereignty.’
(10) This is consistent with anti-restrictionism. Immigration restrictions are restrictions on residents’ rights too.
‘Kiss might as well ask, “What if states, in order to be regarded as ‘strongly liberal’ must regard the welfare of foreigners as having equal weight as that of citizens. This would require massive wealth transfers to foreign populations, frequent humanitarian military interventions, and other sacrifices. But no one expects this, because it is understood that liberal democracies do not have the same set of obligations to foreigners as they do to citizens. ‘
(11) Why would it imply wealth transfers? Liberals needn’t accept wealth transfers between citizens. Are you talking about reparations? Where is the rights violation in declining to intervene abroad, for example? Are you leaning on an account of positive rights? I think we can avoid some of these objections by adopting a prominent liberal/libertarian story that says territory, not constituency, defines the scope of a state’s obligations. It helps explain why a liberal/libertarian state needn’t be a global policeman, say. In your paper, you assert this view (you call it (a)) is incoherent.
‘Yes, a liberal state will establish and defend a pervasive sphere of individual rule against majority intrusion, but in some instances this is not possible.’
(13) A given state may be unable to establish and defend a pervasive sphere of individual rule against majority intrusion. I’m not convinced it’d be a liberal state.
‘Given the potential for devastating negative externalities, Israel cannot simply allow immigration levels and composition to be determined by the individual choices of its citizens.’
(14) Has the threshold been met?
‘No evidence can be decisive. The most that can be asked is that our hypothesis survives severe testing.’
(15) I think this goes back to what “decisive” means.
‘The main aim of our paper is to defeat the arguments for the claim that “institutions only count as strong liberal institutions if they have opened their borders.” We do that primarily by showing that our hypothesis may be true. If it is true, then a liberal state that enforces substantive immigrations controls need not be violating any rights at all; it is, rather, defending rights. So the issue does not involve trading some rights for some others.’
(16) Not sure. Even under the conditions described in your hypothesis, on standard liberal/libertarian accounts what you call ‘just laws’ attenuate some citizen’s associative rights or property rights for the sake of another citizen’s rights or, worse, another citizen’s something-that-isn’t-rights. Prospective immigrants, including innocents, lose out. Residents, including innocents, lose out. Even taxpayers lose out – they lose out even more if the immigration restrictions are fine-grained. There are always trade-offs in (plausible) liberal/libertarian theory. What we want to know is if the trade-offs are permissible, coherent, etc. Suppose we discover certain kinds of marriage between consenting adults leave “society” and free institutions worse off the same ways immigration does in your hypothetical. State X responds by restricting marriages of the relevant kinds. Could we call State X liberal/libertarian, even given its intentions? We may believe it’s just a feature of libertarian/liberal states that they have free marriages and open borders, whatever the consequences. These kinds of trade-offs also suggest, imv, that ‘maximum freedom of each person that is compatible with the equal freedom of all persons’ isn’t the best account of liberal/libertarian theory out there; it may not survive levelling-down objections.
Hi Sam (if I may):
Thanks for the thoughtful comments. My responses are set forth below.
Your (1) and (2): “(1) How can we be sure they weren’t invited by (any) individual Israelis? Why don’t campaigns for libertarian or liberal immigration restrictions imply invitation? (2) From the point of view of liberal/libertarian moral theory, legality isn’t relevant here.”
Based on Taub’s description, it seems certain that the vast majority of those who traveled hundreds of miles to then cross the Sinai dessert, didn’t even know the name of a single Israeli prior to arrival. Factually, no Israeli invited those particular persons to enter. I agree with two. Legality/illegality is relevant only as some evidence of whether most immigrants are invitees or intruders.
Your “implied invitation” question, raises a different issue, I think; that is, in a liberal state can a minority wishing to issue invitations override the will of the majority. As we argue in our paper, under the particular circumstances postulated there, the answer is “no.” I think a comparable argument can be made against open borders in Israel.
(3) “Does this apply to citizens too?” Not sure I understand the question. Citizens and illegal immigrants who commit identical crimes in Israel should receive the same penalty. However, citizens can’t commit the crime of entering illegally; only foreigners can. By hypothesis, the immigration laws we support are just, and illegal immigrants who violate them are deported for that crime. As stated towards the conclusion of our paper, under extreme circumstances in which the liberal character of a society is at stake, drastic measures might be warranted, including I suppose the deportation of those citizens responsible for this danger.
(4) “If we’re going to play the aggregation game, doesn’t the net depend on, for example, the ratio of violent crimes to productive workers? Doesn’t it depend on the kind of violent crime?…” Again, in our paper we consider what the liberal state should do in the face of a very discrete set of facts; that is, if certain types of immigrants pose a grave threat to its essential character. In Israel, crime is only one factor (externality) that the voters might reasonably consider, and not the most crucial one.
(5) & (6) “I’m not convinced disagreements about these two criteria are reasonable.” And, “I accept the usual liberal/libertarian story.”
Not entirely sure what you mean by “two criteria.” You wrote in your Quillette essay that “Pretty much everyone believes states may exclude known security or public health threats.” So, I assume we are talking about these two reasons for exclusion. If so, I can see no reason why people can’t and won’t reasonably disagree about these matters. How much, and what type of risks, should the state be willing to accept in matters of security and public health? Surely, there is room for principled and rational disagreement here, no less than in matters of foreign policy, criminal law, etc. My point is that even a liberal state can only follow one foreign policy, have one code of criminal laws, etc. at any one time. Conversely, each citizen cannot have their own. So too with immigration, as you seem to acknowledge. All we can ask of a liberal state is that it act reasonably, not perfectly. This is why such a state is entitled to prohibit citizens from inviting anyone they wish to come live with them in Tel Aviv or Seattle. Such a license will, in the aggregate, have potentially serious negative repercussions for their fellow citizens.
(7) “I think your paper offers an assessment of the gravity of the threat posed by population inflows from “backwards” states, at least an implicit one…” Well, from my perspective, we are simply engaging in a philosophical game of “if/then.” So, assuming a specific state of affairs, i.e. that unlimited migration from certain countries imperils the host state’s liberal character, what response is required? I don’t believe such a scenario is entirely fanciful, as my reading of the evidence suggests, for example, that anti-Semitism in several Euro states has been exacerbated by inflows from MENA nations. Certainly more testing is required before states implement the proposals we contemplate.
(9) “I had 2000 or so words to play with. I don’t think I need to rehash Brennan, Huemer, Hidalgo, Fine, etc here. I get that you disagree.” In fairness, we don’t just disagree, but offer arguments that rebut these views.
(10) “This is consistent with anti-restrictionism. Immigration restrictions are restrictions on residents’ rights too.” In the hypothetical case we address in our paper, immigration restrictions are required to maximize the equal freedom of those living under their sovereignty of a liberal state. If this were some sort of logical or empirical impossibility, our paper couldn’t get off the ground.
(11) “Why would it imply wealth transfers? Liberals needn’t accept wealth transfers between citizens. Are you talking about reparations? Where is the rights violation in declining to intervene abroad, for example? Are you leaning on an account of positive rights? I think we can avoid some of these objections by adopting a prominent liberal/libertarian story that says territory, not constituency, defines the scope of a state’s obligations. It helps explain why a liberal/libertarian state needn’t be a global policeman, say. In your paper, you assert this view (you call it (a)) is incoherent.”
I fear we may be talking past each other here, so let me try and clarify my (our) position. Most Americans believe that given the choice between using tax dollars to solve murders committed in the US or those committed abroad, we should do the former. Between alleviating dire poverty here or abroad, the former. Protecting US citizens/lawful residents or foreigners from military aggression, the former. It’s not that we don’t care about such harms, but that the set of duties owed by our government to its citizens and lawful residents is different than the set owed to foreigners. I believe this is a pretty conventional view of what is meant by a “liberal state.” Alternative (a) in our paper “seems borderline incoherent” to us because it implies that a liberal state is under no obligation to do anything to alleviate suffering abroad, even it could do so at no cost or a trivial one, such as a public condemnation, the release of certain classified information, a tiny grant of aid, and so on.
(13) “A given state may be unable to establish and defend a pervasive sphere of individual rule against majority intrusion. I’m not convinced it’d be a liberal state.” All I am saying here is that, as noted above, some things must be decided by elected political leaders, as in foreign policy, domestic welfare policy, etc. Should the US withdraw from NATO or double down? We cannot do both. Plausible arguments can be made for both options. I don’t believe that adopting either strategy excludes us from the category of (relatively) liberal states.
(14) “Has the threshold been met?” Not sure exactly what you’re asking here. As quoted above, you said, “Pretty much everyone believes states may exclude known security or public health threats.” This seems to imply that the authority to define who constitutes a “known security threat” rests with the state, and not the nine million Israelis, acting individually. In my OP I explained why I believe Taub is correct to hold that given its size, population density, history, and security needs, Israel is entitled to be more restrictive than other liberal democracies.
Thanks for the comments, Sam.
Mark and I have differing views and differing approaches. But our views converge on various topics, which enabled our joint authorship of the paper on immigration. Once issues arising out of the paper are discussed, however, Mark and I are liable to diverge. For that reason, and also because I have very limited time at the moment, I will not comment directly on (1) – (14), above, only on (15) and (16).
No evidence can be decisive because even the best of our theories may, for all we can ever know, end up being replaced by a better one. That is so in a priori matters as well as in empirical ones. Recall what Russell said about his paradox: “from premises which all logicians of no matter what school had accepted ever since the time of Aristotle, contradictions could be deduced” (‘My Philosophical Development,’ p. 58).
The best available theory is the one that stands up to criticism (including empirical testing, where possible) better than its currently available rivals. That has nothing to do with reasons for belief, nor with whether a theory is better than its negation. When I speak of a theory’s rivals I mean theories that contradict it and that offer solutions to some of the same problems. We do not get such a rival to Newton’s theory by simply placing ‘It is not the case that’ in front of Newton’s ‘Principia.’
The aims of our paper are limited. First, to show the invalidity of the arguments intended (by open borders advocates) to demonstrate that substantive immigration control is inconsistent with liberalism. Our conclusion on that point is that, if liberal immigration control is inconsistent, it has not yet been shown. Second, we try to show that the proposition that there is a liberal state that imposes substantive controls on immigration may be true.
You object: “Even under the conditions described in your hypothesis, on standard liberal/libertarian accounts what you call ‘just laws’ attenuate some citizen’s associative rights or property rights for the sake of another citizen’s rights or, worse, another citizen’s something-that-isn’t-rights.”
That is not so. Just laws do not attenuate persons’ rights; they mark where one person’s right ends and another’s begins. My right to swing a bat stops at your right not to be attacked. Your right to play loud music stops at my right to get some sleep at night. When you or the police prevent me from crushing your skull with my bat, I am not having my right to swing my bat violated. In the case of immigration, we argue (briefly, admittedly) that the state has the right and the duty to secure maximum freedom for the people within its jurisdiction. If there are some types of immigrant whose admission to the territory would reduce the freedom of the people currently residing there, the state has the right and the duty to exclude them. Those types of immigrant have no right to enter; by preventing them from entering (or ejecting them if they do enter), the state does not violate their rights. Other types of immigrant do have the right to enter and the state has no right to exclude them.
Yes, the excluded immigrants lose out, just as you lose out if you are prevented from keeping me awake all night by playing death metal at volume. But lots of people lose out when other people exercise their rights. Someone who introduces an innovative new product to the market acts within his rights even though he wipes out the profits of the producers of rival products now rendered obsolete. A person who loses out does not thereby have his rights violated.
You say: “There are always trade-offs in (plausible) liberal/libertarian theory. What we want to know is if the trade-offs are permissible, coherent, etc.” We agree.
You ask: “Suppose we discover certain kinds of marriage between consenting adults leave ‘society’ and free institutions worse off the same ways immigration does in your hypothetical. State X responds by restricting marriages of the relevant kinds. Could we call State X liberal/libertarian, even given its intentions?”
Yes. But it is hard to envisage how a type of marriage could undermine the freedom of other people. There is no difficulty in conceiving how some types of intolerant and thuggish immigrant could undermine the freedom of other people. Prima facie, it seems to be happening in Europe.
An incidental point: the state’s intentions are irrelevant; what matters is its actions and their impact on overall freedom in the society.
You say: “These kinds of trade-offs also suggest, imv, that ‘maximum freedom of each person that is compatible with the equal freedom of all persons’ isn’t the best account of liberal/libertarian theory out there; it may not survive levelling-down objections.”
I agree. I think Mark does, too. The idea needs spelling out in more detail. But there is only so much you can do in a 10k-word paper.