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Thinking About Globalisation, Immigration and Refugees

Interview by Richard Marshall.

The questions that are most interesting are ones about how our duties or obligations change when we have different sorts of interaction with people in different countries, and what this says about our domestic obligations as well. If moving a factory to a poor country will help people who are much less well off than those in the sending country, is that a sufficient reason to do it? If poorer countries are better able to compete in the global market and so become wealthier by taking advantage of labor and safety standards that are close to those that countries like the U.S. had in the mid to late 19th Century, when the U.S. was rapidly industrializing, is this morally problematic?

What can be required of immigrants once they are admitted? In most cases I’d say that we cannot ask any more of them then we ask of citizens – that they be law abiding, and that they try their best to engage in reciprocal fairness. The view is in conflict with arguments from people like David Miller or Noah Pickus (among others), that societies can and should require certain sorts of actions from immigrants.’

There are a few reasons to be wary of temporary labor migration programs. One of them is historical: several countries in Europe, most notably Germany, had temporary labor migration programs in the 50’s-70’s that lead to the creation of a perpetual under-class. These programs involved people coming to work in Germany (and some other countries) who could not become full members. These people, however, lived in the country for longer periods of time – they were “guests” in name only. They went on the have children who were born in Germany, and children who were born to these children, who were non-citizens and did not have full access to membership. This has changed somewhat over time, and the situation is not as bad as it was for a long time, but the most important thing to see, from my perspective, is that this bad result wasn’t because of temporary labor migration programs per se, but because of the racist and otherwise unjust citizenship laws that existed (an still exist, to a much lesser extent) in Germany and some other countries.

Matthew Lister asks philosophical questions about how states deal with changes brought about by globalization. In particular, he is interested in developing normative frameworks in which to analyze immigration, international trade, and, more generally, the international legal system. His current work investigates globalization in the context of limits on discretion in immigration policy. Here he discusses philosophical issues about globalisation, family-based immigration, its relation to freedom of association, the relevance of comparing this kind of immigration to same-sex marriage for Rawlsians, gang-related asylum claims, refugees, whether immigrants should be held to higher standards than non-immigrants, guest workers, the importance of persecution, the role of International Law in all this, climate change refugees, the role of liberal elites and what cracks in their hold over the values of people living in Western democracies auger.

[This and all other images: Neo Rauch]

3:AM: What made you become a philosopher?

Matthew Lister: In my case, there are really two questions here – how did I get interested in doing philosophy, and think I might become a philosopher, and how did I become the sort of philosopher I am, one working on legal and political philosophy, including lots of applied aspects of those. I’ll start with the first one.
I grew up in a fairly working class home. My parents had gone to college, but for very non-academic degrees. (My father was a police officer and my mother a nurse.) I loved to read, had lots of books, enjoyed school, and things like that, but my home, and the city I lived in (Boise, Idaho) were not very “intellectually” focused. My parents were religious, and we talked about issues relating to religion a lot, but not in very sophisticated ways. (I mostly learned to read by reading the Bible with my family in the morning.) In school, I didn’t really know that there was such a thing as philosophy, though I was interested in a lot of questions that I’d later realize were epistemological or metaphysical. My first introduction to philosophy was in an AP European History class in high school, where we read Machiavelli, little bits from Hobbes and Locke, talked about Descartes and Galileo, read Kant’s “What is Enlightenment?”, and used a sort of vulgar Hegelian theory of history to structure the class. But, I didn’t really think about philosophy as its own subject.

When I went to college at Boise State University – it had the advantage of being nearly free for state residents at the time and I didn’t have enough money to go anywhere else – I started out as a chemistry major, thinking I’d be a chemical engineer. I was okay at chemistry, but was quickly becoming bored and the thought of being an engineer was becoming depressing to me. So for a couple of years I just took classes that interested me, including a lot of history classes. In my second year, I took a philosophy of religion class that was being taught by a visitor – my first formal philosophy class. I was rapidly losing my religious faith, and so getting to think rigorously about religion was very bracing. After that, I started taking all of the philosophy classes that I could. BSU had a small philosophy department, but a dedicated group of philosophy majors. The professors were very harsh, but in a way that we all loved – they didn’t put up with bull shitting at all, demanded that people work hard, and were not at all above ridiculing students who didn’t. It wouldn’t fly today, but for us was great. The group of students I was in included six or seven who went on to get advanced degrees in different fields. We were really interested in and had a good time doing philosophy. The department was mostly made up of professors who did more historical work – “contemporary” philosophy for them ended around 1960, I think. So, I had an idiosyncratic view about philosophy. Additionally, before I started taking many philosophy classes, I was heavily influenced by logical positivism, though I didn’t exactly know it.

One of my friends was a physics student, one of the smartest people in the school. I wanted to be able to talk with her about physics more than I could, so I picked up Hans Reichenbach’s The Philosophy of Space and Time at a book store and read it very carefully. I didn’t know what logical positivism was at all when I read it, or who Reichenbach was, but I was soon spouting bits to people about coordinative definitions and the like. I read a lot of Wittgenstein on my own. Lots of what I read depended on what was available in the local used book stores. We did have a few professors who were more up to date – Joseph Campbell, now at Washington State, who was a visitor then, and who devoted huge amounts of time philosophy students, and Andrew Cortenz, who started my last year and taught me something about more contemporary epistemology. I decided to go to grad school but knew nothing about programs, and most of the professors there also didn’t . (This was the very early days of the Philosophical Gourmet Report, and it wasn’t well known yet, so information wasn’t easy to get.) Coming from an unknown school with a small, mostly history-based program, I wasn’t a very strong candidate. I was offered a fellowships at SUNY Albany, and decided to go to Albany, thinking I work on philosophy of science and mind, with some history of analytic philosophy and metaphysics thrown in.

At Albany, I learned a lot and had good teachers – in particular Naomi Zack, Rachel Cohon, Ron McClamrock, Bob Howell and Josh Dever. But, I wasn’t happy there – it was a hard place to be a grad student. So, I wrote a MA Thesis on scheme/content dualism and realism in science, and joined the Peace Corps. I’d thought about doing that for a long time, but not being happy at Albany gave me the motivation to do it. I didn’t have a lot of skills normally sought in the Peace Corps, so I told the recruiter I’d go anywhere they sent me. I ended up in Russia, where the second part of the story starts.

I arrived in Russia not knowing what to expect at all, and knowing no Russian when I got there. I couldn’t read or speak to anyone, and spent the first few months learning basic Russian. But, I was already getting very interested in the ways the country was seriously dysfunctional. Soon I went to Ryazan, a provincial city about 200KM South East of Moscow, to teach English and “American Studies” at a university nominally devoted to training future school teachers. It was an exciting experience, and I was more and more curious about the way that the law just didn’t work there. I didn’t know what to think of it. I read lots of philosophy while in Russia, pretty much anything I could get my hands on, but started being interested in legal and political philosophy. Naomi Zack sent me books on feminism and critical theory, and I taught the first class on feminist theory that had been taught at the university I worked at. I read Alec Nove’s excellent The Economics of Feasible Socialism, and it helped me understand many of the lingering features of social life there. I read Ronald Dworkin’s Taking Rights Seriously and Jo Wolff’s Introduction to Political Philosophy, both on the advice of Jon Mandle. I wanted to go back to grad school, and though I was still mostly thinking about doing philosophy of science, I started thinking about political philosophy. I learned about the joint JD/PhD program in law and philosophy at Penn somehow. I was able to get a fee wavier for the LSAT because I was in the Peace Corps (and so had no money) and took it in Moscow. I did very well on the LSAT and was able to get into the program at Penn, and made the switch to legal and political philosophy. My time in the Peace Corps had given me a strong practical impulse, leading me to want to work on a topic that had real importance. Eventually I wrote a dissertation on justice in immigration, finishing it while working as a law clerk on the U.S. Court of International Trade in New York City.

3:AM: You’re philosophical focus couldn’t be more relevant and urgent. Globalisation raises many issues but perhaps we should begin by asking you how you think we best understand the term. So what do take Globalisation to be? Is it useful to think of it as a new Global trading order, or do the issues go broader than that?

ML: I wish that I had a clear answer as to what globalization is. I take a number of issues to be important for our understanding of it, and perhaps especially for the ethical issues that come up in relation to it. These include the increase in international legal and political institutions since the end of the second world work. The World Trade Organization is an important one, but not the only one, of course. We also have an increase in mobility – of migration of various sorts – in the period after the 1950s or 60s. We shouldn’t think this is all new – there have long been periods of large-scale migration – but the time from the great depression – or even a bit earlier – until the end of the 2nd World War was a period of fairly low migration. So, the new change was important. We are still dealing with these issues. The end of colonialism and the various changes that came with that are also important here. For a while it looked like international organizations (like the WTO) or transnational ones (like the EU) would just keep becoming more and more important. We are now seeing what might be a swing against this, though it is perhaps too soon to say for sure.

In any case, from my perspective the questions that are most interesting are ones about how our duties or obligations change when we have different sorts of interaction with people in different countries, and what this says about our domestic obligations as well. If moving a factory to a poor country will help people who are much less well off than those in the sending country, is that a sufficient reason to do it? If poorer countries are better able to compete in the global market and so become wealthier by taking advantage of labor and safety standards that are close to those that countries like the U.S. had in the mid to late 19th Century, when the U.S. was rapidly industrializing, is this morally problematic? If so, on whom does the moral burden fall? When international standards infringe on areas that were traditionally left to domestic decision-making – areas like public health and morals, for example – is this an unacceptable imposition on democratic sovereignty, or a helpful step towards a cosmopolitan legal order? I think these are really hard questions, but I don’t have well worked out answers to all of them, and don’t find any on offer persuasive either.

3:AM: So immigration is a key issue in your work. You’ve written about family based immigration. Could you tell us what you take this to be?

ML: Before I wrote on family immigration very few people doing philosophical or theoretical work on immigration had given it much notice. I was surprised by this, because it’s one of the largest types of legal immigration in most of the world. (In the US, it’s the largest type by far, and in other countries it’s one of the most important.) I wanted to find out what was special about it, and why it should get a special place, if in fact it should. When I gave it some thought, it seemed to me that the most important feature was that it involved not just important rights of would-be immigrants, but also of current citizens, or at least permanent residents. In order to understand how family immigration works, it was necessary to understand that part. I argued, in an early paper, that all states have an obligation to extend a right to current citizens (and probably permanent residents) to bring in at least certain “immediate relatives” – spouses and minor children. The obligation could extend further, I argued, depending on the conception of the family most prevalent in the society, so if the society highly valued the ability of adult children to live near their parents, it should extend the right to bring in adult parents, too, for example. But, this extension beyond the core was not necessarily required of all countries.

3:AM: Why is freedom of association an important consideration here?

ML: Just when I was thinking about the family here, I read Kit Wellman’s important and highly influential paper on immigration and freedom of association. Wellman argued that societies have a right, based in a notion of freedom of association, to essentially close their borders if they wish to do so. While I didn’t, and don’t, fully accept that argument, I was intrigued by it, because I wanted to argue that it was an associational right that grounded the right to family immigration. How could a right to association both justify immigration restrictions, even closed borders, and also a right to bring in one’s family members? I started thinking about freedom of association in the law, and noted how, in many cases, liberal states give more protection to smaller and more intimate associations than to larger and more anonymous ones. This need not imply that the smaller ones are more important in any deep sense, but I do think it shows that, for smaller and more intimate associations, it’s more important that the people involved in them be able to frame them how they wish if these associations are going to do what we want them to do. The family is one of the most intimate associations.

So, I argued, even if freedom of association can justify many significant immigration restrictions, it cannot justify restricting family immigration. This is all the more so when we realize that, typically, for the family to be able to achieve the goods it aims at, it’s necessary for the participants to be able to live close together. Of course, there are cases where this doesn’t happen, but we usually see them as unfortunate or undesirable, usually temporary cases. This is much less the case with other sorts of associations. So, I argued, the same right that Wellman claimed could justify strong immigration restrictions could also justify certain immigration rights, in particular the rights of current members to live with their family. I might note that this is a case where, it seemed to me, knowing something about immigration law and practice was useful. Even though I thought Wellman’s paper was very powerful and in many ways attractive, I was struck by what seemed to me to be a clear anomaly, caused by ignoring the family. Having a background in the law as well as philosophy helped me see this, I think.

3:AM: You argued in 2007 that Rawlsians should agree to compare family based immigration to same-sex couples? Before you take us through the argument can you say something about the situation as it was then regarding same sex couples – were they being systematically excluded from benefits other couples were able to access at the time? Is this largely still the same situation or have things progressed?

ML: Until fairly recently, same-sex couples were in very tough situations in relation to immigration. In the U.S., they faced a double obstacle. (Something like this still exists in many countries.) First, under U.S. immigration law, a marriage is usually valid for immigration purposes if it is valid in the place it is “celebrated”. But, until just a short while ago, same-sex marriages were not valid anywhere, so such couples were already out of luck. But, even when same-sex marriages were recognized in some U.S. States or in other countries, there was another obstacle, the Defense of Marriage Act in the U.S., which prohibited granting federal benefits – understood to include immigration benefits – to same-sex couples. So, at the time I wrote that paper, it was impossible for a same-sex couple to get immigration benefits in the U.S., even if they otherwise fit all of the justifications for granting family-based immigration benefits. Thankfully, this is no longer the case in the U.S., with some successful court challenges and changes in federal policy, same-sex couples are eligible for all of the same immigration benefits now, in the U.S .at least, as are opposite-sex couples. Many other countries, though not all of them, also extend family immigration benefits to same-sex couples, as they ought to. Unfortunately, this isn’t universally accepted. There have been major protests against recognizing same-sex marriage in countries like France, where it is perhaps unexpected, and countries like Russia, where there are pretty vile laws against homosexuality, and even in Australia, where I live now.

(Currently, same-sex couples in some parts of Australia are eligible for more limited immigration benefits than are opposite-sex couples, but in some parts of the country even those are further limited, depending on whether “registration of a de-facto relationship” is possible.) Here in Australia there is a non-binding vote coming up soon on same-sex marriage, and the “anti” side has engaged in some really awful and grossly misleading ads. I think the right side will win here, but it’s still not 100% certain.

3:AM: So what is the argument that would win over the Rawlsians?

ML: In that particular paper – the first paper I published, so I’m not sure I’d still agree with all of it – I didn’t try to argue for a right to same-sex marriage, though I did accept that. Rather, I looked at what I took to be the justification for family-based immigration (which I’ve discussed above) and tried to show how, given that justification, people in the later stages of Rawls’s four-stage development of the “Original Position” would grant family-based immigration rights to same-sex couples. This involved two steps. First, I tried to show that people working on immigration policy would support family-immigration, and that, when they thought about what justified it, they would see that these arguments apply to same-sex couples as well, and that, if they did not know if they would be in a same-sex or an opposite-sex relationship (as people in this stage of the original position still would not), they would not restrict these rights to opposite-sex couples, at least if a few other conditions could be me. So, I next tried to show how those could be met.

I then tried to show that extending these rights to same-sex couples did not, despite what had been suggested by Justice Scalia in some court opinions, and explicitly argued by some Catholic legal scholars, involve accepting and promoting a particular contentious conception of the good. That is, I tried to show how the argument was compatible with Political Liberalism, in Rawls’s sense. Finally, I tried to show how this extension could be made without having to formalize same-sex marriage. This was primarily a practical bit – it was a hope that, even if same-sex marriage wasn’t accepted in most states, the federal government could have grounds for extending immigration benefits to such couples – but it also helped show that the argument for granting family immigration rights in general could be implemented using merely formal grounds, that it didn’t require looking into the hearts of the applicants, or measuring the subjective importance of the relationship to them. Even though the basic argument has been, happily, rendered moot, this part has been important for me in arguing about how we should think about the importance of various sorts of immigration benefits.

3:AM: Another related issue you’ve looked at is gang-related asylum claims. So here you have people fleeing their country because of pressure from gangs and so they don’t seem, at first off anyway, to be political asylum seekers. You think it’s helpful to understand their claims according to three categories. So first could you say what these categories are?

ML: The paper you are primarily referring to is another early one, one that grew out of some work I did for the Center for Gender and Refugee Studies at U.C. Hastings Law School, while I was a law student. It’s also probably the least “philosophical” paper I’ve written, largely a matter of seeing how asylum cases based on gang activity can be fit into current U.S. asylum law. But, I think there is a lot in it that’s of philosophical interest, even if the paper itself doesn’t have much philosophy in it. (I’ve returned to some of these more philosophical issues in a more recent paper, one dealing more generally with non-state actors in asylum claims.) In that earlier paper, I didn’t argue for any fundamental changes for asylum law as it’s practiced in the US, but tried to show how certain people fleeing from criminal gangs, at least in certain cases, should fit into the existing law. The categories I set out were female asylum applicants who faced rape, trafficking, or other violence from gang members in their home country; male applicants without former gang membership who feared forced recruitment or other sorts of violence from gangs in their home country; and former gang members or people with gang tattoos who fear being sent back to their home countries. Each scenario faces somewhat different problems fitting into typical slots in asylum law, but I tried to show how they could do so, without making fundamental changes in how asylum law works, at least in the US.

3:AM: Is the point of doing this philosophical work to show how each of the categories fit some of the existing asylum laws?

ML: That particular paper was really directed at immigration practitioners and judges more than people doing philosophical work. I was pleased, though a bit scared, that a fair number of immigration practitioners told me that they consulted it while working on cases of the sort I discussed. It’s nice to have one’s work have some real impact, but it also increased the pressure to get things right! In a more recent paper, which came out in a volume edited by Alex Sager, I’ve tried to provide more philosophical grounding for the claims of the earlier paper, showing how certain sorts of bad acts by non-state actors, such as criminal gangs, fit with the logic of the refugee convention – the basis for US asylum and refugee law. In particular, I argue that when we can see non-state actors as having usurped state power or authority, their actions should be treated by asylum adjudicators as essentially the same as state actors, opening up the potential for an asylum claim.

3:AM: A related issue is that of refugees, which again is a subject both heart-breakingly relevant and urgent. So first of all, let’s look at how think we should understand this term. There are some who argue that we should extend the definition from its traditional definition. Could you begin by saying what this definition is and how and why there are proposals to extend it?

ML: Sure. The UN refugee convention, which is accepted in one form or other by most countries in the world, including the US, defines a refugee as someone who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. Put more simply, according to the most widely accepted definition in both international and US domestic law, to be a refugee, you must be outside of your country of nationality and afraid to return to it because of a well-founded fear of persecution on the basis of one of the so-called “protected grounds”.

The immediate and obvious problem with this definition is that it leaves very many people who are in need – often desperate need – of protection by particular countries or the international community in the cold. For example, people fleeing natural disasters do not fear persecution, and so do not fall under this definition, even though they may be in significantly greater danger to life and limb than many who do fall under it. Furthermore, and highly relevant to current events, at least a significant number of people who flee from the general hardships of war, or of anarchy after the breakdown of the government in a country, do not fall under this definition, as they, too, do not face persecution, or do not face it on the basis of one of the protected grounds. This has, understandably, lead many people to think that the way to best provide help to these people who need it – often quite desperately – is to expand the definition of “refugee”, so that it covers all, or at least more, people who have fled their home countries seeking safety.

3:AM: You disagree with this don’t you? Why?

ML: That’s right – I don’t think that we should expand the definition of “refugee”. First, let me note that that doesn’t mean that I don’t think that states have moral obligations to people in need who are not refugees – they do, and it would be a good idea to work to formalize and regularize these duties to a higher degree than has been done so far. This has been done a bit in various countries, and in the E.U., by means of so-called “subsidiary protection.” In a paper I’m working on now, I try to address the philosophical grounds for such protection. But, What I have tried to argue in a few papers is that refugees are, at least typically, distinctive in important ways. The dangers that they face – persecution on the basis of one of the “protected grounds” – is such that it can really only be plausibly addressed by given them refuge in a safe country, and eventual access to full membership.

This is because the dangers they face are ones that we can’t expect to end relatively quickly, or that can be plausibly addressed with direct assistance (as would be the case with many natural disasters), or with more foreign aid (as would be the case with other dire living circumstances), or with direct intervention into the offending country. Because direct intervention is unlikely to be appropriate, we also cannot expect the danger to end any time soon, making permanent or at least long-term assistance necessary. Now, some who do not fit into the refugee convention definition may also fit this description, but for the most part, those picked out by the refugee convention description face a particular sort of harm that cannot be met in other ways. It seems to me to be important and useful to note this, and provide this group with special protections. This is especially so if, like me, you think that a leveling out of protections for various groups in need of aid is more likely to lead to a leveling down than a leveling up.

3:AM: Immigrants are sometimes discussed as if they need to live to higher standards than the rest of the people in their host society. It’s as if they are expected to owe the hosts something for the privilege of being an immigrant. Do immigrants owe society anything?

ML: We might break this in to two questions, one being about admission standards, and the second being about what we might expect from immigrants after they have been admitted. As to the first question, if we are considering “discretionary” admissions – in particular, if we are not considering refugees or, perhaps, immediate relatives of current citizens, then a fair number of requirements might be put in place. For example, a state might decide to admit only those that it thought would be net economic contributors. An important element in any admission criteria, however, would be that it can be applied formally, without referring to unacceptable grounds, such as race, religion, or national origin. Of course, a state cannot expect that all of its own citizens will be net economic contributors, so why is it reasonable to try to select immigrants on this ground? I would argue that it’s reasonable because, under the hypothesis we are considering, the would-be immigrant already has a minimally acceptable place to live, (her or his native state) and that state has the primary obligation to provide for this person.

In this circumstance, states may be “choosy” about whom they will admit, even if they could not demand the same thing from their own citizens. A harder case here would be in relation to ideological grounds. Can a state make admission decisions contingent on holding certain beliefs about democracy that it could not legitimately require of its own citizens, for example? I feel a lot less certain here. In part this is because I’m skeptical about whether this could be done in a neutral way – I strongly suspect that ethnic, national origin, or religious grounds would be used as proxies in a way that wouldn’t be compatible with liberal principles. In the case of non-discretionary immigrants, the room for selection becomes even tighter, I’d argue. With refugees, there may be some ground for selection for good fit within a scheme of burden-sharing, but not for initial admissions, as that is owed as a matter of right, I have argued. With immediate relatives, the grounds for not allowing admission have to be fairly high, as the right-holder here is the current citizen, not the immigrant.

In some ways a more interesting question is what can be required of immigrants once they are admitted. In most cases I’d say that we cannot ask any more of them then we ask of citizens – that they be law abiding, and that they try their best to engage in reciprocal fairness. The view is in conflict with arguments from people like David Miller or Noah Pickus (among others), that societies can and should require certain sorts of actions from immigrants. This might be things like learning the language to some degree and knowing certain basic facts about the country for a citizenship exam. Miller sometimes seems to want more – he sometimes suggests that immigrants have a moral, if not perhaps a legally enforceable, obligation to take part in what Elizabeth Anderson calls “social integration”. I’m a lot less sure of this. (Certainly, I don’t think it can be legally enforced at all, and I am, because of the sort of philosopher I am, more interested in legal requirements than broader moral ones.) My own thought is that, if the society in question is an open and free one, everything that is reasonably desirable, or at least demandable, here, will happen on its own. Miller, for example, is worried about “immigrant enclaves”, where new immigrants live close together and maintain some aspects of their former society. But, I’d say, it makes good sense for recent immigrants to live close together, for all sorts of reasons. Those communities only become long-standing ghettos or “enclaves” if the larger society is unwelcoming or hostile, it seems to me. If this is right, then requiring more of immigrants seems to me to be unjustified and so itself wrong. Perhaps there is some role for purely formal citizenship requirements (beyond a period of time), but even for that, the case seems weak to me.

3:AM: You’ve also looked at the notion of the ‘guest-worker’. Can you sketch what you mean by this term and then say how they fit into the scheme of things? They seem to be easily denied justice and easily abused because of their status. Should we defend guest worker programs?

ML: Guest-workers (or, as I’d rather say, temporary labor migrants) are a topic in immigration that brings up a lot of heat. I’d include within the category anyone who has a visa for a limited period of time and that is tied to holding a job. (I might note that I am, currently, a guest-worker or temporary labor migrant: my visa in Australia, where I work now, is good for two years, and only good so long as I work for a my current employer. This is not actually an unusual position for academics working in countries other than their own.) There are a few reasons to be wary of temporary labor migration programs. One of them is historical: several countries in Europe, most notably Germany, had temporary labor migration programs in the 50’s-70’s that lead to the creation of a perpetual under-class. These programs involved people coming to work in Germany (and some other countries) who could not become full members. These people, however, lived in the country for longer periods of time – they were “guests” in name only. They went on the have children who were born in Germany, and children who were born to these children, who were non-citizens and did not have full access to membership. This has changed somewhat over time, and the situation is not as bad as it was for a long time, but the most important thing to see, from my perspective, is that this bad result wasn’t because of temporary labor migration programs per se, but because of the racist and otherwise unjust citizenship laws that existed (an still exist, to a much lesser extent) in Germany and some other countries. In these cases, the target of our criticism ought to be these racists and bad citizenship laws, not temporary labor migration programs.

A better reason to be wary of temporary labor migration programs is that they have the potential, especially as they are often put in place, to subject those involved in them to exploitation by employers. When work is very important to a person, as it often is for a temporary labor migrant, employers have a lot of power. (This is more clearly so for low-skilled or less advantaged employees, though not only for them.) This power is increased greatly if it is very hard for employees to change jobs. But, it is a feature of many temporary labor migration programs that a visa – and so the right to be in the country – is tied to working for a particular employer. (This is so for my job, for example, though the practical impact is less for me than for some others.) However, this power imbalance can be reduced or eliminated by allowing visa portability for temporary labor migrants. That is, visas could be granted on the basis of having a job, but not have the visa tied to a particular employer. (This would fit nicely with work on labor mobility by scholars like Orly Lobel, as well.)

Finally, temporary labor migrants who stay in a particular state for long periods of time will inevitably develop the same sorts of ties to the state and its members that justify permanent residence. So, it is necessary that states that want to treat temporary labor migrants fairly either limit their stay to relatively short periods (even though this will have some efficiency losses) or else have a system to “regularize” these migrants after a period of time – probably something like 5 years, though the exact period of time isn’t something that philosophy can answer. If these protections – just citizenship laws, visa portability, and either real time limits or access to full membership (or a mix) are put in place, then temporary labor migration programs can be just. This is good, because there are good reasons on the side of both migrants and admitting states to favor such programs.

3:AM: Why do you think that the importance of persecution is shallow and pragmatic rather than deep and fundamental when thinking about refugee protection? It seems a little non-intuitive. And how does your view support the claim that harms amounting to persecution by non-state actors may ground an asylum claim, at least in some cases, both when the state is unwilling and when it is unable to protect its members? Does this link up with your thinking around non-state actors persecuting people that you discussed earlier in relation to gangs?

ML: This returns to some topics I discussed briefly above. I’ve defended largely keeping with the UN Refugee Convention definition of a refugee, which puts the idea of persecution at its core. But, in a recent paper, I’ve tried to show that this is a pragmatic matter rather than a deep link. What is special about persecution (especially but not only by state actors) on the basis of a “protected ground” is that it’s the sort of harm to a person that we can expect to be long-lasting and hard to overcome. When a harm is a well-established one, one with a predictable result, it makes good sense to give it a salient place in the law. But, this is only because it would be a waste of time and otherwise problematic to consider cases falling under this heading more deeply, and not because they are special in some intrinsic sense. (We would be more likely to go wrong by looking at cases meeting the refugee convention more deeply than we would be to go right, I think, and the “costs” of getting things wrong are much higher for the would-be refugee than for the admitting state.) It’s therefore reasonable to treat people who meet the refugee definition in a categorical way. But, that doesn’t mean that some others might not also fall under the “logic” of the refugee definition. They might need protection of the same character as those who face persecution do. If they do, then we ought to be willing to extend the same sort of protection to them that we do to so-called “convention” refugees. My own thought is that this larger group is smaller than some others would suggest. But, it does likely include at least some people fleeing environmental harms, for example.

Let’s turn to non-state actors. In many cases, people who fear harm from non-state actors can, and should, seek protection from the police or other government agencies in their home country, rather than seeking asylum. In some cases, however, this isn’t plausible. I’ve tried to argue that, in particular, it’s not plausible in two types of cases: where the non-state actors have usurped power from the government in question, and where the government has, effectively, delegated power to some part of society. The first case comes up most clearly in situations where a rebel group or the like has taken over and effectively controls a part of a country. In such cases, we should treat a threat of a harm from the rebel group in the same way as we would a harm or threatened harm from the government, because it has the same impact on those threatened. A good example of this would be people threatened by the FARC in the parts of Colombia where the FARC had power before the recent peace agreement. But, I’ve tried to show, this case can also apply to criminal groups like those that operate in some Central American countries. When that’s so, a threat of harm from those groups should be treated the same as threat from the state, given the extent that these groups have usurped power from the state.

In some ways what I call “delegation” cases are more interesting. These involve situations where the state effectively gives one part of society authority over another, and will not reliably interfere. Common examples include the power of parents – especially but not only fathers – over unmarried female children in many parts of the world, and of husbands over wives. In these cases, we see abuse of girls and women where this is seen as something that is not the state’s business. The state treats this as a private matter, effectively delegating authority to these (typically male) family members, and refusing to extend its protection to those in need. In such cases, I’ve argued, we can see the abuse coming from family members as playing the same role as abuse coming from the state in more traditional refugee cases because the state has essentially delegated its power to the family member.

3:AM: It seems obvious that in the context of globalization International Law is very important. You’ve written about Allen Buchanon’s recommendation that IL needs to be more empirically informed than it has been so far and that there must be a greater emphasis on the role of institutions. Can you sketch what he’s saying and then say why you don’t think empiricism and institutions are going to be enough?

ML: Buchanon’s work on international law has been some of the most important philosophical work on the topic. Two features that he’s noted, and that I agree with, are that philosophical work on international law (or really, any topic, I’d say) has to be informed by the practice of those doing first-order work in the area, and that we should pay careful attention to the role of institutions when thinking about international law. (So, for example, if we want to argue that some proposed rule should be a rule of international law, we need to think carefully about how it can be instantiated – about what sorts of institutions would be needed to make the law effective, and whether they are both possible and desirable on their own. A lot of philosophical work on international law doesn’t do this.) My (modest and internal) criticism of Buchanan on these topics is that I don’t think he follows his own precepts as well as he should.

For example, if we want to understand how human rights work (to take the topic of Buchanan’s recent important book), it’s not enough to look at the words of the treaties on their own – we have to look at state practice, and in particular, we need to look at the practice of including reservations in treaties – something that’s not talked about at all in that book, but that is essential for understanding how human rights law works in practice. So, if we, like Buchanan, think that “international human rights practice” forms the “heart of human rights”, then we had better think about reservations to treaties. Similarly with institutions, we need to not just posit that some new institution could bring about a desired change to the international legal order, but think carefully and seriously about whether the institution is itself plausible or likely. Often times, the proposed institution is not any more plausible, it seems to me, than states just doing what is desired on their own. That may not always be so, but we need arguments here. Merely proposing a new institution, without giving some argument as to why it is plausible, isn’t enough for people who want to make a real impact on improving the international legal order.

3:AM: Climate change refugees are likely to be a huge issue in the future if things continue as they are. How should we handle these refugees and do we need to extend the definition of refugees in this case?

ML: Lots of people will be displaced by climate change. Many (arguably) already have. But, first, we should note that very many of those displaced will be able to stay within their home country. From a legal or theoretical perspective, such people are not properly refugees, even if they are often called such in popular speech. (So, for example, if increased hurricanes and rising sea level lead most people to abandon Miami, those people can and should move somewhere else in the U.S., and so won’t be “refugees” in the relevant sense.) But, some people who will have to flee their homes won’t be able to remain within their home country, or won’t be able to return there within a reasonably short period of time. The people in this situation who have received the most attention are the residents of so-called “sinking islands” – places like Tuvalu, the Maldives, and so on, though other situations are possible as well. People fleeing such situations are not “convention” refugees, because they are not fleeing persecution on the basis of a protected ground. But, I have tried to argue, the basic logic that underlies the refugee convention – that people who face danger in the home states that make it impossible or unreasonable for them to safely stay in that state, and that can reasonably be expected to be of indefinite duration, should be given access to membership (eventually full membership) in a safe new state, applies in these cases, too. So, this group of people fleeing climate change (though not all people doing so) ought to be given protection equivalent to that of convention refugees, as they fit within the same basic logic. Whether the best way to do this is to make a new refugee convention or definition, I am not sure – designing institutions is hard, and not something philosophers are particularly likely to be well suited to do! But, it would be highly desirable to find some mechanism to help those who will be in this situation, as it is, alas, completely predictable now.

3:AM: What do you say to those who say that the constraints placed on acceptable immigration are constraints based on the beliefs of only a minority liberal elite?

ML: The idea here is that, in the academic literature on immigration, the notion that a state could legitimately place restrictions on immigration based on race or religion has been very widely rejected – nearly everyone has accepted that, if restrictions on immigration are acceptable, they have to be “neutral” limits. This has been widely accepted even by theorists like David Miller or Michael Walzer who think that very low immigration is okay, and that, once admitted, states may put a lot of pressure on immigrants to assimilate in some ways. (Oddly, a major exception to this claim comes from Joseph Carens, the founding father, so to speak, of the “open borders” position. In an old but much cited paper, he argued that states like Japan could restrict nearly all immigration to protect their culture. I never understood how this fit with his other views, and most people have ignored it, though maybe we should have given it more attention.)

The worry here is that, with the rise of anti-immigrant views in many countries in “the West” recently, this academic consensus might turn out to be not at all widely shared among the general population of supposedly liberal democratic states – it might turn out to be an elite view that, say, race or religious based immigration restrictions are wrong. Of course, that a position is widely held among the population doesn’t mean that it’s right. It’s hard for academics – even engaged ones – to know what to do about the practical problem here, but we should realize that there is one. One thing that is reasonable, though, is accepting that most people don’t hold an “open borders” position, and so any argument for open borders is going to come into heavy conflict with a commitment to democracy. I think it’s worth thinking hard and carefully about which immigration related rights are ones that ought to trump democratic decision making. I think that many people working on immigration haven’t given this as much care as they should.

3:AM: And broadening from that, do you think that we’re seeing a real threat to many of the constraints the western democracies have held to since the second world war because the political elites have not managed to embed the beliefs in rule of law, human rights etc in anything but a superficial way? And do you think the cracks that are beginning to show (In the election of a deranged man like Trump, for example) are fatal?

ML: It’s important to remember that Trump lost the popular vote in the U.S. by around three million votes, and is pretty unpopular now. He was able to get into power in the U.S. because of a malfunction of political institutions – most clearly, the Electoral College, but also others. Better designed institutions would have, most likely, protected us from him. But, that said, if a very significant percentage of people in the U.S. (and the U.K., and France, and Austria, and Poland, and Hungary, and Australia, and so on) were not ready to support deeply illiberal politicians, than the poorly designed institutions wouldn’t have been able to do their bad work. That said, really liberal immigration policies have been more of an exception than a rule for most of recent history. Many countries have had explicitly racist immigration policies (or citizenship policies) until relatively recently. So, more just and liberal views have been relatively weakly entrenched, I fear. The inability in the U.S. to adequately protected even very sympathetic groups such as the so-called “Dreamers” – people who came to the U.S. without authorization at a young age, and who have since grown up and lived most of their lives in the U.S. – is a clear example. I wish I felt more optimistic about this than I do. It will be very hard to put anti-immigrant and xenophobic genies back in the bottle, so to speak. Doing so will take efforts to improve both institutions and public culture. It won’t be easy, even if Trump, May, and others are defeated.

3:AM: And finally, for the readers of 3:AM, are there five books you could recommend that will take us further into your philosophical world?

1. Wittgenstein, The Blue and Brown Books. Reading Wittgenstein as an undergrad, and later, greatly changed my approach to philosophy, even though I am not a “Wittgensteinian” in the way that’s usually understood in philosophy. I read a lot of him, but this is perhaps the book that made the most impact. The general idea, “Don’t think, look!” (which, I think, is actually from the Philosophical Investigations, and not this text) is one I try to follow – too many philosophers spend their time thinking about what must be the case without looking at what is the case, at how things work, and thinking about why. This seems like a mistake to me.

2. Alec Nove, The Economics of Feasible Socialism. This isn’t a philosophy book, but reading it (when I was in the Peace Corps in Russia) was like a revelation to me. I saw, from reading it, how different types of economic and political arrangements could have really wide-spread and deep impacts on how people lived their lives, even when they didn’t understand this directly. (A modest and somewhat trivial example: after reading the book, I understood something that had seemed deeply puzzling to me: why, given the small size of a typical Soviet or post-Soviet apartment, did Russians have such large, bulky, furniture? It had seemed deeply irrational to me. After reading the book, it was completely clear.) It also made me realize that, while I was a social democrat, I wasn’t, and would not want to be, a “socialist” in any deep sense – one that rejected the use of markets or insisted on the common ownership of the means of production. That was an important thing to know.

3. John Rawls, Political Liberalism. To my mind, one of the most important questions in political philosophy is how the state should respond to the diversity of political views and conceptions of the good that naturally arise within a free society. Rawls’s account here, while not perfect, is still the most important sustained attempt to answer that question. It’s a question that most people working on ethics and political philosophy still have not fully grasped the importance of, but that seems to me to be absolutely central.

4. Thomas Hobbes, Leviathan. It’s a really weird book! But, what I find most useful in it is the relentless focus on how ethics and politics is about figuring out how we can best live together, and not something else. Many others have picked up this idea. (I think it’s a core idea in Rawls, and it’s been developed in different ways by people like David Gauthier and Thomas Scanlan.) But here we get, if not the first, then at least the first really sustained attempt to work out a system of ethics that sees it, at its core, as trying to figure out something about people – how we can live together – and not something else. That’s the only approach to ethics that seems at all interesting, attractive, or even plausible to me, even if, of course, I reject lots of Hobbes’s own answers. (Let me also put in a plug for the amazing recent Russian movie, Leviathan – a great work on its own terms, but which also does a terrific job of capturing both the Hobbesian and the Book of Job references.)

5. Anna Stilz, Liberal Loyalty: Freedom, Obligation, and the State. Annie Stilz is one of the best “younger” political philosophers working these days, so there is lots to like in this book, but the part that I most admire, and would like to be able to follow in my own work, is her seamless intertwining of the history of political philosophy and current topics. The greats of the history of philosophy are, at least typically, “great” because they had really important insights. But, if we don’t just want to be scholars, we have to figure out how to use and apply their insights. Stilz’s book is, among other things, a really excellent example of that.

Richard Marshall is still biding his time.

Buy his new book here or his first book here to keep him biding!

First published in 3:AM Magazine: Saturday, November 4th, 2017.