John Rawls and the Immigrant

John Rawls and the Immigrant Chandran Kukathas John Rawls was the most eminent political philosopher of the second half of the twentieth century and one who achieved canonical status within the tradition of western political thought for his theory of justice. According to many, he almost single-handedly revived political philosophy as a reputable field, at least among analytical philosophers. A part of the reason for his eminence is the sheer ambition of his undertaking. His first great work, A Theory of Justice, not only drew together in a single study all the major questions with which moral and political theorists had grappled but also deployed a dizzying array of methodological techniques drawn from economics, game theory, sociology, and philosophy, as well as from the history of moral and political thought. The motivation behind Rawls’s enterprise, we now know, was not simply that of a scholar interested in abstract or technical puzzles but rather a genuine concern about matters of morality in a world that had just come out of war, and in a country—the United States—that was in the midst of a civil rights movement that questioned the legitimacy of its fundamental institutions, arising as they had out of a long and bitter history of slavery. Though these topics are not touched upon explicitly in Rawls’s philosophical writings, they were very much at the back of his mind as he tried to craft a theory that he hoped would not merely engage academic philosophers but serve as a foundation for moral and political renewal. Given the context in which Rawls developed his theory, it is perhaps unsurprising that immigration and immigration control do not feature prominently in his writings, or indeed at all until very late in his career. Even then, his most substantial contributions amount to a little over two pages in his Law of Peoples, which appeared in 1999, just three years before his death. There he wrote: ‘There are numerous causes of immigration, I mention several and suggest that they would disappear in the Society of liberal and decent Peoples.’ John Rawls, The Law of Peoples. With the Idea of Public Reason Revisited, Cambridge: Harvard University Press, 1999, 8-9. And yet, immigration was a prominent issue in Europe and North America for all of the twentieth century and became the subject of international treaties (such as the Refugee Convention) as well as a variety of major legislative initiatives in different countries. By the end of the 1900s, immigration was a major political issue, and immigration control was an institutional reality, both domestically and internationally. How could it be that a political philosopher deserving of a commemoration of his birth dwelt so little on a question that is now the subject of near universal debate? Examining this question should throw some light on the nature of Rawls’s theoretical contributions as a political philosopher. It might also reveal the reasons for some of the difficulties his theory confronted, and perhaps the limitations of a certain way of looking at the world. To that extent, it gives us an opportunity to look more critically at contemporary liberal political theorizing in general. Let us begin with a brief account of the elements of Rawls’s political philosophy, taking into consideration both his conclusions and his reasoning. John Rawls was a Christian philosopher in the broadest sense of the term. Though, like many Christians, he suffered a crisis of faith, and wrote all his mature philosophical works without invoking any kind of religious commitment, his thought reveals a distinctively Christian ethic, concerned as it is with the question of how people might live together in community as free and equal individuals, connected with one another not by necessity, or the terms of a bargain struck to assuage the powerful and preserve order, but by a shared understanding of right. To live in such a community—one that is all too likely to be marked by religious and other differences—people would have to grasp the need for mutual toleration, and for this to be possible, they would have to cleave to an understanding of justice. But what is justice? This, as Socrates observed, is not a trivial question, for it amounts to asking nothing less than how one should live. Rawls’s answer to this question came in the form of a book, A Theory of Justice, that revised and extended ideas he developed in a series of papers in the 1950s elaborating an understanding of ‘justice as fairness’. That answer was presented in its most succinct and compendious form as a set of two principles of justice: the first asserting that individual liberty was never to be sacrificed, even for great gain to others, and the second maintaining that social institutions should be arranged to ensure that the least advantaged would find themselves better off than they might be under any alternative arrangement. The second principle — the Difference Principle — was subordinate to the first, which could not be violated even if it meant bringing the second closer to realization. These two principles, Rawls argued, represented the conclusions that would be reached by persons reasoning without knowledge of their own identities (behind a ‘veil of ignorance’), but with full knowledge of the nature of the social world. At the heart of Rawls theory is a certain answer to Socrates’s question. We should live as a community of free and equal individuals. The four concepts invoked here — individuality, freedom, equality, and community — are of critical importance. We should live together, in a community of people, but not so closely as to lose our distinctiveness as individual persons; as individual persons we all have equal moral worth and need to recognize each other in this way; and that moral worth is given expression by our freedom as distinct individuals whose identities are not lost by being enfolded into a community conceived as a form of unity that leaves us undifferentiated and each subject to sacrifice in the name of some greater whole. We are individuals, but we cannot live well alone – not merely because we need others to help supply our wants but because we need a community to achieve a completeness that only association with others makes possible. There is one aspect of this answer upon which I would like to focus. This is the idea that a part of the answer to Socrates’s question is that we must live in a community that shares an understanding of justice. Although Rawls was for some time chalenged by communitarian critics of his theory (and of liberalism more broadly) for its prioritizing of the individual, in reality there is in his thought a deep concern with community that is evident in his earliest work, notably his undergraduate dissertation. See A Brief Inquiry into the Meaning of Faith and Sin, edited by Thomas Nagel and Joshua Cohen, with essays by …, Cambridge MA: Harvard University Press, 2009. Even in A Theory of Justice, which drew the sharpest rebukes for its what was regarded as an excessively individualist standpoint, Rawls devoted a considerable amount of attention to the importance of the relationship between individuals and their communities, and indeed to the significance of the relationship among communities. Political society was, for him, a social union of social unions, participation in which was vital for the achievement of a complete life. For such a life to be secured, however, the relationship among persons and among communities had to be governed by justice, and this is why the two principles advanced as an alternative to other possible ethical principles (such as utilitarianism) were vital. Only a society governed by such principles could enjoy the kind of enduring stability and social unity that meant that citizens related to one another not as bargainers seeking an advantage but as equals motivated not by anxiety but by a sense of justice. Such an understanding is the reason that Rawls concerned himself not only with first principles and institutional matters but also (in Part III of A Theory of Justice) with questions of developmental psychology and education. For this vision to be realized, people had to be persons of a particular kind, who thought in a certain way and understood their place in a constitutional political order. As individuals they could choose to withdraw from the world to a certain extent (as, for example, did the Amish) but as communities they could not, for they were obliged to bring up their children as citizens who understood their rights and duties. If necessary, they would have to be compelled to do so, both for their children themselves and for future generations—for the community, and the political order, had an existence not merely in the moment but over time and indeed well into the future. We can now begin to see why the immigrant has no place in this narrative—and in Rawls’s theory. Rawls addresses the question of how one should live — how we can live meaningful lives — from the perspective of a very particular understanding of what a good life must be. There could be a range of ways in which people pursue good lives, which means also a variety of moral and religious commitments that they might embrace, but in the end their success depends on their being a part of a larger whole that is itself stable— and stable because it evinces a kind of unity given by the way in which people relate to one another on the basis of a shared understanding. Not for Rawls, then, the kind of view of our natures and our relations advanced by a thinker such as Thomas Hobbes. According to Hobbes, we should think of political society as if it were the product of a contract among people, driven by fear and suspicion of one another, who choose therefore to establish a structure of authority to maintain peace and secure their persons and property — so that they might then go about their own business without taking much, if any, interest in one another. On this view, justice is simply what the law commands, and the subjects of its authority need to be educated only so that they properly understand the extent of their obligations and the reasons why it is in their interest to comply. In Rawls’s view, people in society need not take an interest in each other’s interests, but they do need to recognize that, at some level, they share a common life and must take responsibility for the institutions that structure it. A politics of indifference is not a feasible option. None of this suggests that a society of this kind will never change or that it cannot grow and be transformed, though to the extent that what is described is an ideal—a realistic utopia, in Rawls’s words—it cannot stray from the ethical fundamentals if it is to endure. Indeed, any society that expects to continue into the future must admit newcomers who enter it as the children of its members, to replace the generations that pass and to reinvigorate and renew the institutions that sustain it. The question of justice is thus an intergenerational one. But the context of justice remains society. What, however, is a society? According to Rawls, we should think of a society as ‘a more or less self-sufficient association of persons who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them. Suppose further that these rules specify a system of cooperation designed to advance the good of those taking part in it. Then, although society is a cooperative venture for mutual advantage, it is typically marked by conflict as well as by an identity of interests.’ A Theory of Justice, Oxford: Oxford University Press, 1971, 4. Rawls offers a similar formulation in Political Liberalism. See footnote 31 above. Note here several critical elements in this understanding of a society. First, it is a ‘cooperative venture’. This means that, whether or not they wish it, members of society are a part of a kind of enterprise—one in whose success they share an interest, even as they might have separate and conflicting interests of their own. Second, it is a ‘system of rules designed to advance the good of those taking part in it’. It serves the good of the participants in the cooperative venture. Third, a society is a ‘more or less self-sufficient’ association of persons. The qualification ‘more or less’ suggests that Rawls does not think of society as a cooperative venture that is closed to the outside world: there must surely be, at the very least, a place for international trade. But the reference to self-sufficiency brings to the fore his conviction that this entity possesses a clear and separate identity—one that distinguishes it from other associations of persons. Though Rawls writes self-consciously as a modern thinker in the liberal tradition, his conception of society, by which he clearly means ‘political society’, has a noteworthy resemblance to Aristotle’s account of the polis (or state, as it is sometimes called in slightly misleading English translation). It is worth taking a closer look at Aristotle’s understanding. In the Politics Aristotle opens with the observation that the polis or state is a kind of association. All associations, he says, aim at some good. Politics I i, 1252a1-7 He goes on to suggest that ‘the association which is the most sovereign of all and embraces all the others aims highest, i.e. at the most sovereign of all good.’ Politics I i, 1252a1-7 This is what the polis amounts to: an association that embraces all other associations in order to achieve the highest good. The first associations are the natural associations between male and female and between master and slave. Politics I ii, 1252a24-39 Out of these two arises the association that is the household, whose purpose is to serve the everyday needs of these original associations. Politics I ii, 1252b9-15 From households emerge villages, which are associations of households for the satisfaction of other than daily purposes, though interestingly Aristotle suggests that the village is really a colony of the household, ruled by the most senior person in the dominant household. The village is almost like an extended family, ruled by the senior male who is in effect a king. Politics I ii, 1252b15-27) The polis is an association of villages. In Aristotle’s understanding, however, the polis is a special form of association. He writes: The complete association, from several villages, is the [polis], which at once reaches the limit of total self-sufficiency, so to say. Whereas it comes into existence for the sake of life, it exists for the sake of the good life. Politics I ii, 1252b27-1253a1 The [polis], on this view, is the end to which all other associations tend. Its purpose or point is the achievement of what is best, which is self-sufficiency. Now the [polis], Aristotle says, is ‘a plurality of some sort’, Politics II ii, 1261a10-22 consisting of persons who differ in type. Like Rawls, he thinks political society is not an alliance of people who are alike but an association of people who are different. It is not something that exhibits the unity of a household. Nonetheless, it is a kind of unity that arises out of the combination of diverse persons and diverse households. The question is, how much unity should political society possess? Aristotle’s answer is that it should possess as much unity as is necessary for self-sufficiency—no more and no less. Politics II ii, 1261a6-15 For example, it needs to be united inasmuch as all the citizens share a common territory, but not so united that they all share each other’s wives, children and possessions. Politics II i, 1260b36-1261a9 (The target of this observation is Plato’s understanding of unity, and his argument for the elimination of the family among rulers in the Republic.) The self-sufficiency in question, here, is the self-sufficiency of the association called the polis. It is the level of association that is most capable of being self-sustaining or self-perpetuating—more so than is an individual on his own, more so than a household, which has a greater capacity for self-sufficiency than an individual. The polis, on this understanding, is the highest form of human association, for it is the only form that is capable of standing on its own. Neither individuals nor households—nor even villages—can sustain themselves without the cooperation of others. The polis, however, can sustain itself without the cooperation of other associations, and has no need of being subsumed by other forms of organization in the way that it subsumes the associations that comprise it. Without wishing to overstate the similarities between Rawls and Aristotle, not least because ancient Greece was a slave society and Aristotle defended it as one that was rightly divided into citizens and other subordinate categories of person in a way Rawls could never contemplate, they hold in common an understanding of political society as bounded by territory and membership and self-sufficient because capable of standing on its own. By this they mean not simply that it is self-sufficient in material goods—indeed, a society might not be so to the extent that it cannot produce on its own all the things its members might want—but rather that it is capable of sustaining a kind of identity now and into the future. Moreover, both Rawls and Aristotle think that society is needed not just for life but for the good life. Households and civil society will not suffice for this—persons need to be a part of something greater to make the good life or a complete life possible. So for Rawls, as it was for Aristotle, a society is not something that comes into existence because individuals choose to form it in order better to pursue their own ends but rather a community that makes possible meaningful lives for persons who can only within it relate to one another as individuals. What makes this difficult, however, is the persistence of differences in the ways in which people understand the ethical ideas that underpin social relations—ideas such as freedom and equality, for example. In the United States, to take the case that exercised Rawls, these differences have been quite stark: the pro-slavery South understood freedom as something to be accorded only to the white population, and equality as something that could not be extended to inferior races. Finding a way of reconciling such differences was, for Rawls, crucial to preserving that which was most needed to enable people to live complete or meaningful lives: community. If this is the way in which one looks at the world, however, it is difficult to see how the figure of the immigrant can be incorporated. To understand why, we need to turn from our focus on Rawls’s theory to a closer examination of the idea of an immigrant—a notion that, while much invoked, remains under-theorised in philosophical as well as public discussions. An assumption that predominates in discussions of immigration is the idea that immigration poses a threat to the host society. This might be because immigrants threaten to outcompete natives in the labour market or because they might, either through sheer force of numbers or because of their refusal to integrate, transform society into something alien—perhaps to the extent that its citizens cease to feel at home in what once was their world. The immigrant is the destroyer of political communities. But what is an immigrant? This is a question that has proven surprisingly elusive. Not everyone who crosses a political boundary is an immigrant, or every tourist, international pilot, tennis star and foreign student would be classified as one. To suggest, as the UN definition does, that an immigrant is someone outside of his or her country of nationality for a year or longer, does not help, since most students who are four-year residents in their host countries are merely sojourners, while seasonal workers (and owners of second homes in France) might spend ten years in twenty in a country they never call home. The matter is further complicated by the possibility of dual nationality, and by the fact that in a superstate such as the European Union, millions are free to move across national boundaries and to live in countries of which they are not nationals without needing a passport or even permission. To go one step further still, the very definition of nationality is something that has never been settled since it has no natural basis but is the outcome of historical and political contingencies that reveal the effects of the interplay of powerful forces more than they represent anything more stable and ethically defensible. Consider, for example, the fact that in the 1930s about 800 million people held British nationality as subjects of an empire that afforded all under its rule freedom of travel across its dominions. Until that, is, successive British governments (both Labour and Conservative) changed all that by stripping colonial subjects in Africa, Asia, and eventually, Canada, Australia and New Zealand, of their British nationality. The arbitrary and political nature of such decisions is perhaps best illustrated by the British Parliament’s determination via the British Nationality Act 1981 that the inhabitants of the Falkland Islands were not British citizens, and its subsequent determination after the Falklands War, via the 1983 Act of the same name, that they were. A not dissimilar story could be told about the United States, which has struggled for two hundred years to determine who was or could become—or remain—an American. For most of its history, neither African nor Native Americans could acquire citizenship. For most of the nineteenth, and in the early twentieth, century women who married foreigners lost their nationality. And Asians — a category invented by American immigration law — could or could not become nationals, depending on whether they were deemed white, or un-deemed white by a subsequent decision of a federal court or by the Supreme Court itself. Americans of Mexican descent, whether they have moved to the United States to acquire citizenship or had citizenship bestowed upon them by the movement of the border after conquest, or birth to now Mexican-American parents, have found themselves the bearers of national identities subject to the vagaries of state and federal politics. In all of this, the struggle has not been primarily, if at all, between nationals and would-be immigrants, for the contest in the matter of immigration has proven to be largely a conflict among nationals themselves. Some nationals want to recognize others as fellow citizens or admit them into their society and other nationals refuse to recognize some among them as nationals at all and are also unwilling to admit into the country people their fellow citizens wish to invite or host. To put the matter in American terms, the dispute has always been about who should be recognized as an American, who can become an American, and who Americans should be free to accept as fellows in the American community. In the nineteenth century, the US federal government struggled to deport people who were recognized by their states and local communities as citizens of good standing, and in the twenty-first century the federal government has met with resistance from states and sanctuary cities that have refused to comply with directives to penalize and remove persons local communities have considered deserving of protection and care rather than expulsion. How should this matter be settled — this dispute or conflict among citizens as to who are to be welcomed into the community, or even counted among their number? Here, Rawls faces a dilemma—one that confronts all Rawlsians and goes to the heart of the way in which he wishes to think about the relations that obtain among persons in political society. Should the decision as to who should be considered to be members of the community be taken by a majority (through some suitable institutional mechanism) or should it be settled by appeal to ethical considerations that are consistent with the equal freedom of the members of society to determine for themselves who to consider their fellows or admit into their midst as friends, collaborators or simply neighbours? To prefer the first option is problematic because it appears to concede that the foundation of society is not justice but power: the claims of those who assert that they or others whom they favour are members of the community are assessed and possibly dismissed by those who by force of numbers or position are able to settle the matter, whatever others think. Those who are expelled, and those who lament such expulsions as tearing away their fellows from their community, have no recourse but to accept the determination. The first principle of justice is of no use to them, any more than is the second. Neither has any purchase on the question of who belongs in the community. Suppose, however, that the matter is viewed differently. Instead of disputes among people as to who is to count as a citizen or national or member of the community being settled by majority decision or political power—as though a society were nothing other than the outcome of bargaining among adversaries, with victory going to the stronger or whoever holds the balance of power—let them be settled by appeal to principle, or principles. Those principles might be principles of justice, such as the first principle defended by Rawls in his theory of justice as fairness. That principle insists upon the priority of liberty: society’s members have weighty, if not inviolable, rights to liberty of conscience, freedom of association, freedom of speech, liberty of the person, and the right to be treated in accordance with the rule of law. Here, then is the dilemma. If the appeal is to justice to settle who is to count as a member of the community, and the first principle assures people of their freedom to associate as well as the right for their claims to be considered under the law, it is hard to see how anyone might be excluded from the political community if someone already recognized as a member of that community asserts the freedom to associate with someone whom others declare to be an outsider. Indeed, if anyone declares himself to be a member of the community on what basis is he to be excluded if justice is the standard by which any determination is made? If, however, the appeal is to the will of the majority—or simply the will of the more powerful, since they will surely be the ones who decide, whether or not they are in the numerical majority—justice ceases to be the consideration that governs relations among members of the community. It is trumped by power. Is there a way out of this dilemma? The most obvious seeming solution is to appeal to history. The identity of the nation or the state or the community is given by its historical reality: the continued existence of a people over a period of time that has brought us to where we are today. There is a United States. There is a United Kingdom. There is a Singapore or an Australia or a China. History supplies the solution that philosophy cannot. Unfortunately, history can do no such thing. History, it is said, is written by the victors. But even were that not so, and indeed this old adage overstates matters since revisionist histories are everywhere, the fact remains that histories are contested, as are the practical implications drawn from them. Unionists maintain that Northern Ireland is a part of the United Kingdom while Republicans say that historically Ireland was one nation, wrongfully divided. China claims that Taiwan no less than Tibet is historically part of a single nation, and rejects the idea that that country is, like all others, an invention. Indonesia appealed to history to claim that the lands that make up Malaysia and parts of the Philippines were really a part of its archipelagic territory. And both India and Pakistan claim Kashmir to be their own. While histories are being written, boundaries and people move and communities are continuously reshaped by the actions of elites as well as the masses, both within existing nations and beyond—for all too often, countries come into existence less by their own efforts than by the actions of their neighbours or of greater powers. Nations or states are, among other things, sites of contestation, and the matters contested include the country’s history and its cultural identity, the justice or the practicality of its laws, and indeed its very legitimacy. In living societies, nothing is ever permanently settled. How is one to theorise about this? The theory one constructs depends on one purposes. In the case of John Rawls, the theorist had a very particular purpose, as we noted at the outset. That was to answer the question of how we should live for what he took to be a very particular community of people. And he concluded that if that the people who comprised that particular ‘we’ were to live complete and meaningful lives, they had to live under laws governed by principles of justice they could all abide, and indeed embrace because they reconciled them to their shared fate as a people. For such a theory to cohere, however, the society—the ‘we’—in question could not be one that was itself contested and unstable, continually reshaped by the movement of people and the shifting of boundaries. In such a theory, the immigrant cannot be a significant element in the community whose nature is being described. The immigrant, unless he remains on the fringes, destabilizes the theory. For the Rawlsian theory to be plausible, its subject matter must remain fixed. Thus Rawls said quite candidly that his theory of political liberalism assumes a closed society. And further explains that as a description of a ‘realistic utopia’ it imagines a world in the future that is settled and stable—and just—enough that no one would wish to move, for the motivations to do so in an era without wars or famines or injustice would vanish. Rawls’s theory of justice has no room for the immigrant. This is not because he is indifferent to the fates of those who are forced to move, or unsympathetic to those with reasons for moving. It is rather because the theory cannot accommodate the reality of a world that is continuously transforming, and in which people are everywhere on the move, recreating the world as they do. Rawls says, in The Law of Peoples, that his theorising takes the form of imagining a realistic utopia, for while he wishes to advance a theory of justice that sees it as more than simply the outcome of bargaining among contending interests, he does not want to present one that is not alive to the nature of politics, and the reality of international society. And yet, what he supplies, in the end, makes a number of assumption which are hard to credit as realistic at all. The crucial assumption is that there could one day exist a world in which no one cared to move because the sources of discontent that prompt immigration – injustice, tyranny, poverty – were no longer anywhere to be found. Leave to one side the possibility that people might wish to move for quite different reasons: curiosity, opportunity, restlessness, love… one could go on. Should one seriously theorise on the assumption that one day there might be a world that is so stable that political conflicts—both internal and external—disappeared, that boundaries were nowhere contested, that political ambition did not provoke conflicts to serve the ends of one set of elites or another, and all peoples were so securely nestled within political borders that matched or accommodated their ethnic, religious, linguistic or cultural identities that there was no longing for reform? If such assumptions strike you as plausible, John Rawls has a theory for you. But I leave with you with this reflection. This year, 1921, marks the centenary of two births: John Rawls and the Republic of Ireland, which came into existence with the partition of the island as six counties remained a part of the reconstituted United Kingdom of Great Britain and Northern Ireland. One hundred years later, the status of the two parts of Ireland remains unsettled, with renewed calls for unification, and much hand-wringing over whether to draw an EU-mandated boundary in the Irish sea or on Irish soil. Bear in mind that for the past century is has also been the case that parts of Ireland have had a territorial status that has remained unsettled and contested. Meanwhile, a little further north, there are murmurings of discontent in Scotland, where the issue of independence remains alive—perhaps unsurprisingly, since the relationship between the two ‘countries’ has been fraught with difficulty for 800 years. (In the years of the American Revolution the British army struggled in part because its soldiers were reluctant to shoot at Americans, whom they regarded as fellow Englishmen. The English solved this particular problem by enlisting British soldiers from Scotland, who had no such qualms.) Can we really imagine a world in which all such conflicts will have been resolved? Or even tamed? If we cannot, as I think we can’t, we need a different way of thinking about political society – once which declines to assume that it is a stable formation that possesses a unity born of self-sufficiency, and recognizes that humans move, quarrel, and reconstitute themselves and their environments as they go. Such a theory would have a place for the immigrant, for the people who are themselves looking for a place. 1