Consultas por rango exacto y aproximado

sound only in an oversimplified moral framework. But for the case of liberal democracies with a complex moral character, Wellman’s view does not seem to overcome the standard objection and fails to connect membership rights with claims over borders. However, this does not necessarily mean that freedom of association is not the adequate locus for the justification of putative general exclusionary rights. The view could perhaps be supplemented or developed in a more complete fashion. But, I want to dismiss that possibility at least for liberal democracies.

In these two remaining sections, I want to show that Wellman argues for a prescription applicable to an ideal case. But that ideal case is not compatible with the ideal case of liberal democracies. Either way, Wellman’s case is overall unappealing, because it remains silent on what to do regarding rights of exclusion in our current conditions.

I shall begin with three main assumptions in the hope that these are not too controversial. I start with the pro hominem principle (Condé 2004: 108). This principle states that all law (including international treatises and human rights, but also the rules that ground our institutions) is created for the benefit of human beings. So, all law must be interpreted and applied in a way that best serves and protects human beings, not in the manner that best serves the interests of the state.

This principle adds to our previous discussions about how to understand rights. Previously, in §5 and §13, I invoked specificationism as the appropriate way to make sense of apparent contradictions between general rights. Bundles or sets of rights and incidents make sense once we think about the particular interests they protect. A familiar right, like the right to own my computer, is explained by a set of incidents related to each other by the interest they protect. On the face of it, the analogy between the state’s rights of association and individual rights of association is misleading because it distorts the main purpose of rights expressed in the pro hominem principle. Groups or states have rights, not because of the

personality we may attribute to corporations or political societies, but because there is some interests that are better protected collectively than individually. But ultimately, the best interest of individuals is what explains group-rights.

Secondly, I believe that there is a fundamental distinction between the rights of individuals, of groups and of states. Private associations and states are created with different purposes and as a result they have also different properties. The difference is starker in the case of liberal democracies, due to its moral character (§3). Liberal democracies are pluralist, so they ought not to promote the realization of any particular comprehensive view by means of the exercise of political power. As a result, they cannot protect intimate or expressive interests as private associations and societies often do. What makes the case of state’s rights absolutely different from the case of groups and individuals is that states are not voluntary societies or associations (Hidalgo 2012: 17). As a result, there is a strong presumption against political states, because states exercise political power over people whom, most of the time, have not agreed voluntarily in being subjected to the dominion of the state. Typically it is not permissible for individuals and groups to subject others to their dominion without their consent.

Accounts of legitimacy typically begin with the idea that there is a prima facie case against the authority of the state (Simmons 1999; Christiano 2004; Wellman 2011; Dworkin 2011). According to the majority of these accounts, this presumption can be defeated because the coercion is needed to secure some form of freedom and equality, yet the presumption must be defeated in order to take authority and coercion as morally justified.

Third, I believe the state and its institutions exercise political power (Raz 1998; Christiano 2004). As indicated before (§3), borders as any other governmental institution exercise political power too. As a way of simplification, it can be said that borders exercise power at least in two forms. They allow things and people out and they allow things and

people in. Borders coerce constituents particularly when they limit constituent’s freedom to associate with foreigners and aliens. Borders exercise some kind of political power over outsiders when they prevent them from carrying out their expectative plans and conceptions of the good within the territory they encompass. I will discuss this account of borders in §22.

These assumptions are, to a certain extent, compatible with Wellman’s account. For instance, Wellman agrees that there is a presumptive case against group rights, because within liberalism individual’s interest has a priority (1999: 13-40). Consequently, he also believes there is a strong presumption against the authority of the state (Wellman & Cole 2011: 16). He acknowledges the exercise of political power over would-be migrants when he says, “[…] unless a state is able to exercise authority over the individuals who might migrate, it is in no position to control its future self-determination” (Wellman & Cole 2011: 44). The problem relies on the consequences that Wellman extrapolates from these assumptions.

To me, these assumptions suggest that the morality of borders is deeply related to the problem of legitimacy39 and, thus, strongly limited by typical sovereignty constrains. In the case of liberal democracies, according to their moral character, legitimacy entails restrictions such as democratic citizenship and individual rights, particularly individual rights of association, which include the right to associate with foreign and aliens. To my understanding, this means that the political freedom of associations do not have always priority over individual freedom of association, including the exercise of associational rights with non-nationals. However, from these assumptions Wellman makes a move that I resist: he conflates right of political self- determination with the putative right to close borders and exclude all.

I hope I can show that for liberal democracies Wellman’s manoeuvre is inadequate in two main ways. First, it raises the standard too high. The concept of legitimacy looses normative appeal if only a few countries in the globe manage to get close to it. Second, even if we stick to an ideal, the full compliance case, liberal democracies have additional normative requirements that are not exhausted by Wellman’s account of legitimacy as protection of human rights.

In contrast with Wellman’s manoeuvre provided my assumptions about the nature of rights, states and borders are in anyway sound, I hope I can raise at least two main objections to Wellman’s exclusionary pattern. First, it seems inappropriate for Wellman to begin with a

prima facie case of state’s freedom of association if the exercise of any form of state’s political power must first defeat the strong presumption against it. Second, even if the presumption

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On the difference of his account with Miller’s liberal nationalism, Wellman adds: “[…] my account focuses on a country’s legitimacy rather than whether its constituents share a common culture. (Wellman & Cole 2011: 52)”.

against political power is rebutted and states gain legitimacy, I hope I can argue that the moral character of liberal democracies makes universal patterns of exclusion impermissible. There might be a prima facie case for control borders, but this control is constrained by requirements of legitimacy and fairness in such a way that there is no prima facie case for universal patterns of exclusion and closed borders.

It is important to note two main traits of Wellman’s case. First, it is a prima facie case that can be overridden by countervailing reasons (Wellman & Cole 2011: 34). Wellman himself emphasises that he’s not arguing for an absolute right for all groups to refuse associations; so all we need is to do, in order to challenge Wellman’s case, is to ask what kind of reasons are sufficient to suspend Wellman’s case, and try to establish under what conditions we may find those reasons.

Second, Wellman is arguing for a deontological right to limit immigration. This means that his case is independent from teleological recommendations about how borders are better organized (Wellman & Cole 2011:46). It is also important to remember two things about the criticisms invoked so far. As we saw, none of them is denying that states have either a political right of self-determination, freedom of association or even the right to control and limit immigration. They simply resist either that freedom of association makes the whole justificatory work or that it entails the kind of right Wellman is grounding.

I have begun with the assumption that borders, as any other institution of the state, exercises political power over insiders and outsiders. Wellman does not say it, but it is natural to assume that borders, as any other institution, are subject to legitimacy constrains. I suspect conditions of legitimacy (even in Wellman’s formulation) may provide the appropriate reasons to suspend Wellman’s case, insofar as individual rights of association are considered human basic rights. It is possible to believe that states have sovereignty, including rights of political self-determination and political rights of association, and still object that those rights have an unrestricted dominion over individual rights of association when exercised with foreigners.

Now recall Wellman’s account of legitimacy. A state is legitimate when it does a good job in protecting and respecting human rights.40 From this, I believe, it is safe to further infer two things. First, it seems the exercise of political power wielded by borders is legitimate if borders respect human rights of would-be migrants (in the same way that the state and

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Legitimacy is a virtue of institutions that issue morally justified authority and coercion; while political obligation, on the other hand, aims to establish when one has a moral duty to obey those institutions. Wellman elsewhere argues that we all have a natural duty to rescue someone in peril, given that fair institutions rescue us from the perils of anarchy, we all have a natural duty to do our fair share to rescue others by means of obeying the law. Wellman then grounds political obligation on a Samaritan duty to obey the law.

borders are required to respect human rights of members in order to be legitimate). But more importantly, if the permissibility of the exercise of the putative right is grounded on the legitimacy of political power, then it follows that it is not morally permissible for an illegitimate state to control borders and exclude potential immigrants. In short, an illegitimate state is not permitted to exercise border control.

Now recall my formulation of the problem of borders (§3). The general problem of borders is to determine what kind of borders liberal democracies ought to have. This raises two particular problems; first, to justify the exclusive control over the administration of borders (problem of legitimacy of borders), and second, to specify how this control ought to be exercised (the problem of fairness of borders). This means that we can distinguish between the entitlement to exercise dominion over borders from the way this entitlement is exercised. While an illegitimate state is not entitled to exercise any border control, a legitimate state may exercise impermissible border control. I fear Wellman is explaining why legitimate states are entitled to some border control, but his case for patterns of exclusion may be suspended by conditions of legitimacy.

Now observe what happens when we confront Wellman’s account with the distinction between entitlements and how entitlements are exercised. Wellman believes that states have political rights of self-determination provided that they are legitimate. Political association is an analytical condition of rights of self-determination (Wellman 2008). A right to be free from unwanted associations is a corollary from associational rights. One could have the liberty, then, to be free of any association at all, so universal patterns of exclusion are permissible if a state is legitimate and has a right to political self-determination. Wellman says that his case for universal patterns of exclusion is straightforward. On closer examination this seems doubtful as legitimacy may pose stringent requirements on state’s rights and even outweighs them. Typically, basic individual rights are understood as limits to state’s sovereignty, and state’s right of association is part of the bundle of sovereignty rights (Simmons 2001: 302).

Of course Wellman does not argue for absolute sovereignty rights, including rights of association. He acknowledges that states may be under heavy duties with people and other nation-states. But, he insist that states can perfectly fulfil these duties without opening their borders by allocating material aid or exporting justice elsewhere (Wellman 2008: 124-130). Presumably, on Wellman’s view, once these duties are adequately addressed, the state strengthens its case for exclusionary rights.

Given the general facts of globalization, interdependence, and lack of justice and legitimacy in the world, it seems rather doubtful that all international duties can in fact be sufficiently addressed without opening borders at some point, as some scholars have challenged (Willcox 2012, Caballero 2013). But I will put this aside, as there is a more basic concern. The problem is that, on closer examination, rights of exclusion, let alone rights of universal exclusion, are not a corollary from political rights of self-determination for two reasons. First, as Javier Hidalgo notes (2012: 16), political self-determination does not entail permissibility of any policy, including border policy. A state may have a right to determine its political structure, constitution, laws and immigration policy, but this does not entail that the result would be permissible. In other words, some exercises of political power by the state may be illegitimate. Similarly, the right of association entitles one to be free from unwanted associations, but this does not preclude the possibility that rights of association and rights for exclusion may be exercised in harmful illegitimate ways.

So, whether or not immigration controls are morally permissible is independent from the right that states may have to exercise them. Note, however, that the exercise of impermissible policies weakens state’s legitimacy; so if the state enacts an impermissible border policy, it weakens its claim to legitimately enacting that policy in the first place. Political rights of self-determination and association only point out who may permissibly exercise border control, but they do not explain how this entitlement ought to be exercised.

Of course Wellman can stipulate, as he does, that he is referring only to the ideal case of legitimate states. Presumably a legitimate state will engage in a legitimate exercise of political power through its law and policy, including border control. So, insofar as borders respect human rights, universal patterns of exclusion will be permitted. This begs the question whether it is all things considered permissible to exclude everyone, provided that the permissibility of border policy needs to invoke other moral considerations apart from the fact that a country has the right to decide about its border control. As with any other policy, permissibility is assessed invoking political values such as equal concern and freedom, or by invoking political virtues such as fairness, justice, or utility. Wellman avoids that problem by merely stipulating that policies of exclusion, and specifically universal patterns of exclusion, are a corollary of political self-determination. But this is false.

Wellman may insist that precisely these political virtues and values are the ones that ground a prima facie case for exclusion. That’s why he invoked freedom of association between members in the first place. The second reason to deny that exclusionary rights are a

corollary from political rights of self-determination tackles this view. Wellman acknowledges that in virtue of the potential of harm they have, in general there is a prima facie case against group rights (Wellman 1999: 13-40) and in particular there is a prima facie case against political power. Wellman says, “Notice that there is a moral presumption against political states because they are by nature coercive institutions. This presumption can be defeated because this coercion is necessary to perform the requisite political functions of protecting basic moral rights” (Wellman & Cole 2011: 316). I believe that a prima facie case against political states counts as a prima facie case against border controls, because as indicated before, borders are basic institutions that exercise political power (§3).

So on closer examination, it seems odd that Wellman begins with a prima facie case of exclusion when there is a prior and more primitive prima facie case against border control, insofar as borders are part of the political power that states wield. At this point Wellman can say, as indicated above, that the prior case against political power may be defeated by legitimate states. Only then a prima facie case of exclusion takes precedence. The problem is that according to him the prior presumption against political states and borders is almost never (if ever) defeated.

Whether or not any of the states that we know of are legitimate is a matter of philosophical controversy (Simmons 1999). On Wellman’s view, there are just a few legitimate states, which may include Sweden, Denmark, Norway, Germany, Canada and New Zealand. Thus, the list of illegitimate or at least non-legitimate states includes the majority of de facto

states in the globe (Altman & Wellman 2009: 3N8). Thus, just those few legitimate states above are permitted to exercise Wellman’s universal patterns of exclusion. It follows that almost no country is permitted in fact to exercise border control. Since the presumption against political power and border control is almost never defeated, then the prima facie case of exclusion almost never (if ever) arises.

Consider the unpalatable consequences of understanding borders under Wellman’s view. If most of states in the world are de facto states and not entitled to border control, it’s difficult to explain how they can be wronged when borders are trespassed (Wellman & Cole 2011: 28). For instance, if Mexican drivers are better off under the dominion of Alabama´s regulation, maybe the state of Alabama can rightfully claim a right to licence all Mexican drivers. If Spain has too many troubles managing its debts, maybe the UK should claim authority over the Spanish treasury, provided that Spaniards would be better off. It is difficult to explain why all these things are wrong if we have to rely on an elevated conception of

legitimacy. Most of Wellman’s argumentative work goes to show that his case is not as easily overridden by egalitarian and libertarian arguments. But Wellman overlooks the fact that his