Migration and Human Rights (39): The Democracy Argument Against Open Borders

Usually, arguments against open borders and in favor of varying degrees of immigration restrictions are based on economic or cultural considerations. Often, such arguments can be easily dismissed as prejudiced, chauvinist and selfish, and the data don’t support them anyway. However, a potentially stronger argument against open borders is based on the requirements of democracy. It’s potentially stronger because it goes to the heart of the same liberal values that animate the push for open borders.

Central to the idea of democracy is that those who are governed by laws should have a say in the drafting of the laws. In the words of Jürgen Habermas:

Gültig sind genau die Handlungsnormen, denen alle möglicherweise Betroffenen als Teilnehmer an rationalen Diskursen zustimmen könnten.

People are obligated to obey the laws of government only insofar as they have consented to those laws (or to the power exercised in passing those laws). That’s the whole idea behind self-government.

Now, what would happen to this idea where we to open the borders? It’s claimed that the constant coming and going of people that would result from open borders, would make self-government impossible. People would vote on laws that would not apply to them in the future because they come and go, and other people would not be able to vote on laws that would apply to them because they won’t be here yet. Open borders would mean that people are allowed to decide on things they don’t care about and won’t have a stake in. Self-government would not be possible because the “self” that governs would never match the “self” that is governed.

Another democracy based objection to open borders is a practical one. The effective functioning of democracy requires a common language, since democracy is essentially deliberation. It also requires knowledge of the political system and the political culture, and a feeling for what is achievable and acceptable to the wider community. Open borders inhibit this effective functioning.

There are basically two ways to respond to these arguments. First, the arguments seem to confuse access rights and citizenship rights. It’s correct that citizenship in a democracy should be tied to certain conditions, such as knowledge of the language and permanence of residence, and that citizenship is a necessary condition for most democratic participation. I made that argument here so I won’t repeat it now. Suffice it to say that there are good reasons to distinguish – but not separate – different parts of humanity by way of conditional acquisition of citizenship – with each part hopefully having democratic rights within its own country. However, these reasons don’t, by themselves, justify closed borders. Access rights and citizenship rights are different things.

However, as Michael Walzer has argued, when we decide to allow people in but at the same time deny them citizenship, we run the risk of creating a permanent underclass of disenfranchised non-citizens, who live and work in the country but can’t effectively protect their interests through political participation. Hence, an open border policy should also include a pathway to citizenship. The problem is then to strike the right balance between the need for flexible citizenship and the risks to democratic governance resulting from a notion of citizenship that is too weak.

Secondly, the central idea of democracy – that people governed by laws should have the right to participate in the framing of those laws – can be used to argue in favor of rather than against open borders. A decision by one part of humanity to exclude others from a certain part of the earth’s surface clearly violates this central idea. The potential immigrants who are excluded obviously don’t have a say in this decision, and yet they are governed by it. If they had a say, they would probably carry the day, given their numerical strength.

Some would claim that it’s foolish to allow potential immigrants to participate in such decisions. Would we allow a mob of homeless people, demanding access to our house, to vote, together with us, whether or not they have a right to access? No we wouldn’t, but the analogy is baseless. We do have a legitimate property right to our house (at least most of us do), but the citizens of a country don’t have a similar right to a part of the surface of the earth.

It’s of course an open question how we would practically organize such a common decision. Perhaps we should take the next logical step and institute some kind of federal world democracy. But that’s for another post.

More on open borders here.

Religion and Human Rights (22): The Proper Role of Religion in a Democracy

For me, as an agnostic, the question of the place of religion in a democracy is an important one, although I believe the question would be just as important if I held a religious belief or if I were an atheist. There’s no doubt in my mind that the full protection of human rights and civil liberties for all citizens can be jeopardized by misconceptions about the proper role of religion. Take, for example, the rights of homosexuals, the rights of non-believers or adherents of other religions, women’s rights etc.

At the most basic level, this is a problem of tolerance. We should not impose our beliefs, moral values and practices on others if these others don’t inflict harm, even if we think other people act immorally from the point of view of our religion. And neither should we discriminate people when they act or speak or think in ways that are incompatible with our own beliefs. These two prescriptions are based on the need for respect. We would show disrespect for other people if we were to force them to act according to our own beliefs. And the need for respect is, in turn, based, on the importance of freedom. Other people value their freedom to act according to their own beliefs. Let’s take two examples:

  • A Muslim father may, as long as his daughter is underage, impose certain religiously inspired rules of behavior on this daughter, and he can even hope that the girl internalizes these rules and respects them for the rest of her life. But when the girl reaches adulthood and chooses to live according to her own rules, she will be protected to do so by her human rights and civil liberties, even against the wishes of her father. The proper role of the religious beliefs of the father has reached its limit. The father should tolerate and respect (which doesn’t mean agree with) the choices of his adult daughter, and the laws of the democracy in which they live will enforce this tolerance and the girl’s freedom of choice if necessary.
  • A Catholic human resources manager in the recruitment department of the army of a democratic country, refuses to hire a perfectly qualified candidate because of her homosexuality. Again, this would be a sign of disrespect on the part of the HR manager and the law should intervene.

But the problem goes beyond the level of relations between citizens. The question about the proper place and role of religion in a democracy isn’t limited to the problem of how we treat each other in our daily lives, how we treat our wives and children, our gay or “infidel” neighbors or employees etc. In a democracy, the people translate their beliefs in legislation and government policy. Hence we should ask to what extent people can use their religious beliefs as the basis or reason for legislation.

Here I take a nuanced position between the two extremes: between a complete lack of restrictions on the role of religion in democratic legislation, and a complete exclusion of religion from democratic legislation. So the question becomes one of degree: to what extent can religion be the basis of law? When is it allowed, and when is it no longer allowed for religious reasons to be the reasons for government coercion?

I think that the problem arises when the legal coercion resulting from religious reasons violates the human rights and civil liberties of individuals, and that any religiously inspired legislation that stops short of such violations is acceptable. Some would say that even legal coercion based on religious reasons that doesn’t violate the rights of individuals is reprehensible, but I don’t agree. An argument in favor of this more restrictive approach could go as follows. Legislation based on religion automatically implies disrespect for people of other religions and for non-believers, since the religious reasons used as a basis for this legislation are likely to be exclusive to a particular religion. Only religious reasons which are sufficiently vague so as not to be exclusive to one religion can then be acceptable religious reasons for legislation. An example: charity can be an acceptable religious reason for legislation, because it’s not a reason that is exclusive to one religion, perhaps not even to religion as such. Laws regarding the sabbath, on the contrary, would not be an acceptable reason for legislation, even if it produces legislation that doesn’t violate anyone’s rights. Or the argument could be that only a law that is supported at the same time by religious reasons and non-religious reasons is acceptable, and that laws that are supported only by religious reasons are unacceptable, even if they don’t violate anyone’s rights.

I think that goes too far. Disrespect should be avoided, but I don’t see why the avoidance of disrespect should automatically override legitimate religious concerns. It’s not even clear to me that there’s necessarily disrespect involved in the use of exclusive religious reasons as a basis for legislation. It’s certainly not the case that such legislation necessarily means forcing one religion on people of other faiths or of no faith. If that would be the case, we would have legislation that violates the rights of individuals (namely the freedom of religion). And that would violate my own rule stated above.

However, legislation that is based on exclusive religious reasons does involve coercing people on the basis of a doctrine that they don’t accept. But, again, if this coercion doesn’t result in rights violations I can’t see what would be wrong with it. Laws by definition force people to do things they don’t accept or to abstain from doing things that are essential to them. I don’t see why there should be laws in any other case.

To summarize, religious people can advocate and – if they are in the majority – implement laws on the basis of their own, exclusive religious reasons, as long as the human rights and civil liberties of all are respected. A religiously inspired law banning same-sex marriage would therefore not be acceptable; a law instituting a religious holiday on the contrary would be acceptable. In the words of Habermas:

The liberal state must not transform the requisite institutional separation of religion and politics into an undue mental and psychological burden for those of its citizens who follow a faith. (source)

On the other hand, religious people should also refrain from imposing a burden on the rights of their fellow citizens.

Some would say that even my rule is too restrictive on religion. For religious people, religion is not only a personal and private conviction but also the law of humanity. Forcing them to forsake the legal implementation of their religious views means taking away their identity, forcing them to be what they don’t want to be. Their religious beliefs are political beliefs and always trump opposing political beliefs. It’s intolerable for them to be forced not to implement their beliefs by way of legislation, or to submit to political decisions that are not based on their religious reasons. It’s indeed a good question: can religious people really accept democracy, given that God cannot be in the minority and God’s commands are absolute and trump opposing majority decisions? Democracy seems to be unacceptable from a religious point of view. However, catering to this view would mean forfeiting democracy, majority rule, the free choice of others, respect for others, freedom of religion, and human rights, and replacing all this by absolute theocracy. I don’t think that’s a price many are willing to pay, and not even many religious people as I argued here.