Academic journal article Ethics & International Affairs

The Rights of Irregular Migrants

Academic journal article Ethics & International Affairs

The Rights of Irregular Migrants

Article excerpt

In the contemporary politics of immigration, few issues are more contentious than the question of how democratic states should respond to the presence of people who have settled without official authorization. Too often discussions of this topic go nowhere because the participants adopt radically different starting points and make no effort to understand the perspectives of those with whom they are supposedly engaging. At one extreme are those who flame the issue entirely as a matter of enforcing the law against people who refuse to respect it. From this perspective, states are morally entitled to control the entry of foreigners. The "illegal immigrants" have no standing in the community and no moral basis for making any claims that the state ought to respect. The only important goal of public policy in this area should be to ensure that the state's immigration laws are obeyed. At the other extreme are those who frame the issue entirely in terms of the interests and claims of the migrants. The basic premise here is that the politico-economic system exploits and marginalizes hardworking contributors to the community who happen to lack official documentation. (Some would argue further that the migrants are denied the documentation precisely to make it easier to marginalize and exploit them.) From this perspective, the only morally legitimate policy goal is to find ways to reduce the vulnerability of the "undocumented" and to challenge their official exclusion from the political community. Given such radically opposed starting points, it is perhaps not surprising that the two sides often wind up talking past one another.

In this article I want to try a different approach. My goal is to be reflective rather than polemical, and to use an analytical approach to identify some of the key ethical issues in this area. I do not mean to suggest that I have no substantive point of view. I will argue for a position that recognizes that even people who have settled without official authorization deserve many legal rights. I will try, however, to give a fair hearing to arguments and considerations opposed to the position I defend, and I hope that the way in which I develop my analysis will be seen as a useful way of mapping out the moral issues even by those who disagree with my conclusions.

As one component of this approach, I am going to avoid the terms "illegal immigrants" and "undocumented workers," because each of these terms presupposes too much about the normative conclusions we should reach. If we want to engage in a genuine inquiry, it is important not to prejudice the analysis by adopting terminology that implicitly endorses a particular line of argument. Of course, in this case, like many, there are no neutral terms. Nevertheless, some terms are more laden than others. "Illegal" is one heavily laden term, and "undocumented" is another. To minimize this problem I will use the terms "irregular" and "unauthorized" to describe the migrants and the migration under discussion, though I should acknowledge that there are objections to these terms as well. (1)

In this article I will focus on one central question: In what ways should the legal rights of irregular migrants resemble or differ from the legal rights of migrants who have settled with the permission of the state? Although I am asking questions about legal rights, this is a moral and philosophical inquiry, not a legal one. (2) I will refer occasionally to legal practices, but, at the most fundamental level, I am concerned with what legal rights irregular migrants ought to have, as a matter of democratic morality, not with what legal rights they do have as a matter of fact or ought to have as a matter of constitutional interpretation in a particular state or under international law. Keep in mind also that not all legal rights are grounded in moral rights, although some are. States create and modify legal rights for a variety of reasons, and part of the challenge this essay tries to address is to say whether the rationale behind a particular legal right makes it morally permissible for states to distinguish between irregular migrants and others in allocating that legal right. …

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