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Justifying Resistance to Immigration Law: The Case of Mere Noncompliance

  • Caleb Yong
Abstract

Constitutional democracies unilaterally enact the laws that regulate immigration to their territories. When are would-be migrants to a constitutional democracy morally justified in breaching such laws? Receiving states also typically enact laws that require their existing citizens to participate in the implementation of immigration restrictions. When are the individual citizens of a constitutional democracy morally justified in breaching such laws? In this article, I take up these questions concerning the justifiability of noncompliance with immigration law, focusing on the case of nonviolent—or mere—noncompliance. Dissenting from Javier Hidalgo’s view, I argue that the injustice of an immigration law is insufficient to make mere noncompliance justified. Instead, I contend that only if an immigration law lacks legitimate authority are individuals justified in breaching it, since the subjects of an institution with legitimate authority are under a content-independent moral duty to comply with its rules. I further argue that a constitutional democracy’s regimes of law regulating immigration and requiring its citizens’ participation in implementing these regulations have legitimate authority. Nevertheless, when a particular immigration law is egregiously unjust, its legitimacy is defeated.

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This paper has been greatly improved by the comments and suggestions of Nate Adams, James Christensen, Adam Hosein, David Miller, and Stefan Schlegel. For helpful discussion, I am also grateful to Guy Aitchinson, Benedikt Buechel, Michael Blake, Rahul Sagar, Ayelet Shachar, and audiences at the European University Institute and NYU Abu Dhabi. Research for this article was made possible by a fellowship at the Ethics, Law, and Politics Department of the Max Planck Institute for the Study of Religious and Ethnic Diversity.

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1. Rawls, John, A Theory of Justice (Harvard University Press, 1971) at 108.

2. See Pettit, Philip, On the People’s Terms (Cambridge University Press, 2012) at 136–40.

3. On the official discretion legally open to immigration agents in enforcing immigration law in the US context, and the significance of such discretion in mitigating the effects of unjust immigration laws, see Motomura, Hiroshi, Immigration Outside the Law (Oxford University Press, 2014) at 26.

4. I use the term “citizen” broadly to include settled noncitizen residents who may also be addressed by secondary immigration law. Citizens of a state in this broad sense I will also refer to as “members” of that state.

5. I take violence to be actions that use, or threaten to use, force against others.

6. For an overview of the criteria governing the central case of the justified use of force, namely self-defensive force, see Coons, Christian & Weber, Michael, “The Ethics of Self-Defense: The Current Debate” in Coons, Christian & Weber, Michael, eds, The Ethics of Self-Defense (Oxford University Press, 2016) 1.

7. See McMahan, Jeff, Killing in War (Oxford University Press, 2009) at 43; Stemplowska, Zofia & Swift, Adam, “Dethroning Democratic Legitimacy” in Sobel, David, Vallentyne, Peter & Wall, Steven, eds, Oxford Studies in Political Philosophy, vol. 4 (Oxford University Press, 2018) 3 at 4 n 1 [Stemplowska & Swift, “Dethroning”].

8. In addition to Hidalgo’s account, there are other arguments that indirectly address the justifiability of noncompliance with immigration law by examining whether immigration law has legitimate authority. Notable examples include Wellman, Christopher Heath & Cole, Phillip, Debating the Ethics of Immigration (Oxford University Press, 2011) at ch 1; Grey, Colin, Justice and Authority in Immigration Law (Hart, 2015) at chs 1, 35; Moore, Margaret, A Political Theory of Territory (Oxford University Press, 2015) at ch 9; Miller, David, Strangers in Our Midst (Harvard University Press, 2016) at ch 4.

9. Javier Hidalgo, “The Duty to Disobey Immigration Law” (2016) 3:2 Moral Philosophy & Politics 165 [Hidalgo, “Duty to Disobey”]. Hidalgo specifically claims that citizens are morally required to disobey unjust secondary immigration laws. This is consistent with my formulation that, on his view, disobedience is justified, since all morally required acts are also morally justified.

10. Javier Hidalgo, “Resistance to Unjust Immigration Restrictions” (2015) 23:4 J Political Philosophy 450 [Hidalgo, “Resistance”].

11. I understand justice to assess the substantive moral merits and demerits of social and political institutions, especially in connection with whether these institutions honor various constituencies’ entitlements to resources useful for human flourishing. By contrast, legitimacy assesses when political institutions are morally worthy of practical acceptance and support, even in the face of disagreement about the justice of its decisions. For similar understandings of the broad concept of legitimacy, see Pettit, On The People’s Terms, supra note 2 at 136-40; Buchanan, Allen, The Heart of Human Rights (Oxford University Press, 2013) at ch 5; Allen Buchanan, “Institutional Legitimacy,” supra note 7 at 53.

12. Hidalgo, “Resistance,” supra note 10 at 455, 458. While Hidalgo uses the terms “unjust” and “unjustified” interchangeably in referring to threats of harm, I will use the term “unjust” throughout.

13. Ibid at 456-58. In articulating his view, Hidalgo focuses for illustrative purposes on immigration restrictions that are unjust in virtue of denying admission to would-be migrants who have no prospect of obtaining adequate protection for their human rights without migrating. Nevertheless, he insists that his argument “applies to any unjust immigration restrictions.” Ibid at 454 n 16 [emphasis added].

14. Kolodny, Niko, “Political Rule and Its Discontents” in Sobel, David, Vallentyne, Peter & Wall, Steven, eds, Oxford Studies in Political Philosophy, vol. 2 (Oxford University Press, 2016) at 51.

15. Locke, John, Two Treatises of Government, edited by Laslett, P (Cambridge University Press, 1988) at 2.78, 2.168, 2.241-2.

16. On how authoritative directives give their addressees binding (or peremptory) and content-independent moral reasons, see Hart, HLA, “Commands and Authoritative Legal Reasons” in Essays on Bentham (Clarendon Press, 1982) at 243, 253–56; Raz, Joseph, The Morality of Freedom (Clarendon Press, 1986) at 3537; Shapiro, Scott, “Authority” in Coleman, Jules L, Einar Himma, Kenneth & Shapiro, Scott J, eds, Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2004) at 389; Christiano, Thomas, The Constitution of Equality (Oxford University Press, 2008) at 244.

17. Stemplowska & Swift, “Dethroning,” supra note 7 at 5-7. While Stemplowska and Swift themselves reject the “conventional view,” it is widely accepted. See, for example, Rawls, John, Political Liberalism (Columbia University Press, 1996) at 427–28; Christiano, The Constitution of Equality, supra note 16 at ch 7; Daniel Viehoff, “Democratic Equality and Political Authority” (2014) 42 Philosophy & Public Affairs 337; NP Adams, “In Defense of Content-Independence” (2017) 23:3 Legal Theory 143 at 150.

18. Hidalgo, “Resistance,” supra note 10 at 459-60.

19. Ibid at 460-46.

20. Ibid at 466.

21. To be clear, I do not claim that the legitimate authority of primary immigration law is a form of second-order legitimacy, only that international legitimacy is.

22. Buchanan, Allen, Justice, Legitimacy, and Self-Determination (Oxford University Press, 2004) at 264. See also Altman, Andrew & Wellman, Christopher Heath, A Liberal Theory of International Justice (Oxford University Press, 2009) at 4.

23. Blake, Michael, Justice and Foreign Policy (Oxford University Press, 2013) at 59. To be clear, although Blake holds that states are sometimes owed principled toleration by international society, he himself avoids the notion of international legitimacy because he rejects the binary character of international legitimacy judgments in favor of a more scalar approach. Ibid at 68-69.

24. A state may consent to have its capacity to independently regulate immigration curtailed by, for example, entering into a bilateral or multilateral agreement with other states to reciprocally allow freedom of movement.

25. Rawls, John, The Law of Peoples (Harvard University Press, 1999) at 59-62, 7881.

26. Altman &Wellman, A Liberal Theory of International Justice, supra note 22 at 34.

27. Buchanan, Justice, Legitimacy, and Self-Determination, supra note 22 at ch 6.

28. Tan, Kok-Chor, Toleration, Diversity, and Global Justice (Pennsylvania State University Press, 2000) at ch 4; Blake, Justice and Foreign Policy, supra note 23 at ch 3.

29. Michael Doyle, “Kant, Liberal Legacies, and Foreign Affairs” (1983) 12:3 Philosophy & Public Affairs 203.

30. Hidalgo, “Resistance,” supra note 10 at 467.

31. For the idea that what distinguishes refugees is their need for surrogate or substitute protection, see Canada (Attorney General) v Ward [1993] 2 SCR 689; Hathaway, James & Foster, Michelle, The Law of Refugee Status, 2nd ed (Cambridge University Press, 2014) at 184-85, 287–94. For similar conceptions of refugeehood, see Gibney, Matthew, The Ethics and Politics of Asylum (Cambridge University Press, 2004) at 79; Owen, David, “In Loco Civitatis” in Fine, Sarah & Ypi, Lea, eds, Migration in Political Theory (Oxford University Press, 2016) at 276–80.

32. Carens, Joseph, The Ethics of Immigration (Oxford University Press, 2013) at ch 11; see Kieran Oberman, “Immigration as a Human Right”, supra note 31.

33. Unfortunately, I lack the space here to defend internationalism as an account of global justice. Prominent defenses are offered in Miller, David, National Responsibility and Global Justice (Oxford University Press, 2007); Andrea Sangiovanni, “Global Justice, Reciprocity, and the State” (2007) 35:1 Philosophy & Public Affairs 3 at 6-7; Altman & Wellman, A Liberal Theory of International Justice, supra note 22 at ch 6; Matthias Risse, On Global Justice (Princeton University Press, 2012) at 48-53; Blake, Justice and Foreign Policy, supra note 23 at chs 1 and 4.

34. I develop this argument at greater length in Caleb Yong, “Immigration Rights and the Justification of Immigration Restrictions” (2017) 48:4 J Social Philosophy 461. For a similar argument, see Adam Hosein, “Immigration and Freedom of Movement” (2013) 6:1 Ethics and Global Politics 25.

35. See Matthew Lister, “Immigration, Association, and the Family” (2010) 29 Law & Phil 717; Yong, Caleb, “Caring Relationships and Family Migration Schemes” in Sager, A, ed, The Ethics and Politics of Immigration (Rowman & Littlefield, 2016).

36. Cf Michael Walzer, Spheres of Justice: a Defence of Pluralism and Equality (Basic Books, 1983) at ch 2; Moore, Political Theory of Territory, supra note 8 at 199-200.

37. Walzer, Michael, Thinking Politically (Yale University Press, 2007) at chs 1213.

38. See, for example, Blake, Justice and Foreign Policy, supra note 23 at 59-67; Stilz, Anna, “The Value of Self-Determination”, supra note 14; Sarah Song, “Why Does the State Have the Right to Control Immigration?” in Knight, Jack, ed, Immigration, Emigration, and Migration: NOMOS LVII (New York University Press, 2017) 3 at 3537.

39. See generally Walzer, Spheres of Justice, supra note 36; Wellman & Cole, Debating the Ethics of Immigration, supra note 8 at 40-41; Miller, Strangers in our Midst, supra note 8 at 62-63; Moore, Political Theory of Territory, supra note 8 at 197.

40. Bas van der Vossen, “Immigration and Self-Determination” (2015) 14:3 Politics, Philosophy & Economics 270 at 278-85.

41. Hidalgo, “Duty to Disobey,” supra note 9 at 169-70.

42. Ibid at 170-72.

43. Ibid at 172-75.

44. Ibid at 179-83.

45. See for example John Rawls, “The Idea of Public Reason Revisited” (1997) 64:3 U Chicago L Rev 765; Waldron, Jeremy, Law and Disagreement (Oxford University Press, 1999); Estlund, David, Democratic Authority (Princeton University Press, 2008); Christiano, , Constitution of Equality, supra note 16 at chs 6–7; Niko Kolodny, “Rule Over None II: Social Equality and the Justification of Democracy” (2014) 42:4 Philosophy & Public Affairs 287; Viehoff, “Democratic Equality and Political Authority”, supra note 17.

46. The claim here is not that there is no conclusive duty to comply with particular laws that violate or facilitate the violation of human rights, but the more general claim that any institution or legal regime that systematically violates or facilitates the violation of human rights must lack legitimate authority altogether.

47. See Hidalgo, “Duty to Disobey”, supra note 9 at 166-69, 179-80, 182-83.

48. Something like this view is expressed in Michael Quinlan, “Ethics in the Public Service” (1993) 6:4 Governance: An Int’l J Policy and Administration 538.

49. See Applbaum, Arthur Isak, Ethics for Adversaries (Princeton University Press, 1999) at ch 4.

50. Many justified breaches of law take this form: they are morally justified or permissible but their motivation comes from other considerations. See Raz, Joseph, The Authority of Law (Oxford University Press, 1979) at 263.

51. Brownlee, Kimberley, Conscience and Conviction (Oxford University Press, 2012) at 2729. Other terms that have been applied to principled noncompliance that is noncommunicative and nonpolitical are conscientious objection, conscientious refusal, and conscientious evasion. See Raz, Authority of Law, supra note 50 at 263-64, 276; Rawls, A Theory of Justice, supra note 1 at 368-69.

52. Raz, Authority of Law, supra note 50 at 264.

53. Brownlee, Conscience and Conviction, supra note 51 at 29.

54. Rawls, A Theory of Justice, supra note 1 at 246. On the natural duty of justice, see ibid at 115, 334. See also the “communicative principle of conscientiousness” in Brownlee, Conscience and Conviction, supra note 51 at 29.

55. This account of civil disobedience I take to be broadly compatible with both what William Scheuerman calls the “liberal model” and the “democratic model” of civil disobedience (Civil Disobedience (Polity, 2018) at chs 2-3).

56. William Scheuerman, “Recent Theories of Civil Disobedience: An Anti-Legal Turn?” (2015) 23:4 J Political Philosophy 427 at 440.

57. Rawls, A Theory of Justice, supra note 1 at 364-67; Robin Celikates, “Democratizing Civil Disobedience” (2016) 42:10 Philosophy and Social Criticism 953 at 985-86.

58. Rawls, John, Justice as Fairness: A Restatement (Harvard University Press, 2001) at 40.

59. Rawls, A Theory of Justice, supra note 1 at 382-84. See also Jürgen Habermas, “Civil Disobedience: Litmus Test for the Democratic Constitutional State” (1985) 30 Berkeley Journal of Sociology 95 at 103-05.

60. See Javier Hidalgo, “The Case for the International Governance of Immigration” (2016) 8:1 Int’l Theory 140 at 144-54. Although states’ independent political control over immigration to their territories is vulnerable to these epistemic biases, I doubt that the moral risks associated with these biases are serious enough to wholly undermine the legitimate authority of constitutional democracies’ unilaterally enacted regimes of immigration law.

61. Raz, Authority of Law, supra note 50 at 262.

62. Applbaum, Ethics for Adversaries, supra note 49 at 69-70. These bad systemic effects may well be the result of unwarranted reactions by the public; nonetheless, they should be taken into account in nonideal political action.

63. Here I follow Rawls, A Theory of Justice, supra note 1 at 373.

64. On the significance of expected effectiveness in nonideal political action, see Rawls, Law of Peoples, supra note 25 at 89. Contrary to Rawls’s earlier suggestion that those who undertake expectably counterproductive acts of civil disobedience are merely “acting unwisely,” my claim is that their acts are morally unjustified (Rawls, A Theory of Justice, supra note 1 at 376).

This paper has been greatly improved by the comments and suggestions of Nate Adams, James Christensen, Adam Hosein, David Miller, and Stefan Schlegel. For helpful discussion, I am also grateful to Guy Aitchinson, Benedikt Buechel, Michael Blake, Rahul Sagar, Ayelet Shachar, and audiences at the European University Institute and NYU Abu Dhabi. Research for this article was made possible by a fellowship at the Ethics, Law, and Politics Department of the Max Planck Institute for the Study of Religious and Ethnic Diversity.

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