Matt Duncan @foxxmd
This summer has been, as many others, a time of migrations. The case of the Open Arms, which sailed rudderless across the Mediterranean for weeks with dozens of rescued migrants on board, has been one of the most seen images for many of us. Paradoxically, many of us were also enjoying the blue waters of that very same sea. A nightmare for some, a dream for others.
In Catalonia, it seems reasonable to assume that there is, to some extent, a consensus regarding what needs to be done with immigrant who face great dangers in order to rebuild their lives in better places. Places where they can eat regularly, work, earn some money to lead a more or less dignified life, walk in the streets without fear of being murdered, give an education to their children and, maybe someday, even vote. As I was saying, the consensus seems to lean towards the welcoming of migrants. At least, this is what a massive demonstration (attended by 160,000 – 500,000 people) in Barcelona in February 2017 claimed for, with the slogan “Volem acollir” (which could be translated as “We want to shelter”). Nonetheless, it is also obvious that the governments of the European states are not part of such a consensus. Namely, Spain and Italy have repeatedly refused entry to castaway migrants.
The reason for such rejection is not hard to guess, either: receiving or denying the entrance to a boat full of agonising migrants is “just” a way, maybe the most macabre, of conceiving and exercising state sovereignty. In fact, a condition for the existence of states, maybe the most indispensable, is the existence of territorial borders that they can control. State sovereignty is, first and foremost, territorial sovereignty, that is, the exercise of power (administrative, judicial and political) upon a limited, determined territory. Controlling who does and doesn’t cross the border is the most obvious way that states have to exercise this power on people.
However, it should be mentioned that border controls are not arbitrary. On the contrary, they are built into the rule of law. More specifically, the way through which the state exercises border controls is citizenship: depending on the passport one carries with her, the doors of a given state will be open or closed without any further explanation. Therefore, the question that we should ask is: is it legitimate for states to deny entrance to certain people based on their citizenship? In this article, I will argue that it is not, following one of the contemporary political theorists and political philosophers who has covered the topic in most depth: Joseph Carens .
In one of his first articles on the topic, which has become one of his most influential pieces, “Aliens or Citizens: the Case for Open Borders” (published in 1987), Carens argues that the possibility to migrate without restrictions is an intrinsic element of individual liberty/freedom, as much as religious freedom is . To defend this position, he uses the method of the “veil of ignorance”, created by John Rawls to determine the fairness of moral principles/morality of human actions. This method is applied as follows: let’s imagine that we are thrown into the world with full intellectual capacities, but without knowing anything about our personal circumstances (gender, class, race, social orientation, skills, etc.). We would then be in what Rawls calls the “original position”. Now, let’s imagine that, in this situation, we are asked about the principles that should rule society. Rawls believes that in the original position, people would choose two basic principles: one guaranteeing equal liberties for all, and another one guaranteeing fair equal socio-economic opportunities for all (permitting inequalities in basic goods only if those benefitted the worst off). Moreover, people would want that the first principle superseded the second one, that is, people would prioritise, or give more weight to, the first principle over the second. Let’s finally imagine that the veil of ignorance, which prevented us from knowing our position in the world, is withdrawn. Suddenly we discover that we are rich or poor, heterosexuals or homosexuals, Cristian or Muslim, white or black, very smart or not so much. If we are consistent with our choices while in the original position, the chosen principles will prevent any of these features from interfering with our individual liberties or opportunities, so that we are able to lead the lefe that we want to lead independently of circumstances and attributes that have been assigned to us arbitrarily and randomly .
Carens expands the experiment to include migration, that is, people’s freedom to move across states – even though Rawls had never used it like this at the time of the publication of Carens’ article, because he assumed that in his theory, this method and the derived principles were only applied to a closed society. In the original position, we would wonder; regardless of my economic status and my country of birth (etc.), do I want to be able to freely emigrate and immigrate? The answer would be yes. Leaving one’s country to go live somewhere else is an option that everyone would want to have, for many reasons: employment opportunities, love, religion . Therefore, we would expect that the consensus in the original position, which always considers the circumstances of those who are worse off, would be to defend freedom of movement.
Let’s move to the real world now. It could be argued that migrations, especially if massive, can have negative effects on the freedom of the citizens from the receiving State and can represent serious problems of public order. For Carens, this wouldn’t permit the establishment of a certain level of restriction on migrants, regardless of the circumstances. It would only allow for setting the minimum restrictions necessary for guaranteeing public order. Any other limitation would be unjustifiably restricting the freedom of migrants.
The arguments presented by Carens are based on several assumptions that must be flagged, as they have consequences when determining the illegitimacy of some of the practices of states towards immigration. Firstly, he assumes the “equal moral worth of individuals” , that is, that everyone is equally subject to the requirements imposed by moral principles (e. g. what is forbidden for some is forbidden for all) or that actions are morally right or wrong regardless of who performs them. Secondly, he takes an individualist stance by assuming that the individual precedes the community and, therefore, moral principles must take into consideration people as individuals, not as members of a group . Thirdly, he presupposes liberal democratic values; he defends that we individually and freely sign up to the social contract and that moral laws are aimed at protecting our freedom, but always within the limits of a democratic social contract – that is, as long as our freedom does not pose a threat to fundamental liberal-democratic values.  Finally, he considers that certain features, especially those that are given to us without our active intervention, are morally arbitrary and, therefore, they should not have any role when determining the fairness of moral actions.
With these four assumptions in mind, Joseph Carens’ position regarding open borders undermines some of the foundations of the nation-state, especially the (restrictive) right to citizenship. The two most usual ways of obtaining citizenship rights are, on the one hand, place of birth and, on the other hand, descent (our parents’ citizenship), but these are based on fundamentally arbitrary circumstances and features of people’s lives: no one choses their place of birth nor their parents. Following Carens’ argument, it is morally unjustifiable that such arbitrary factors as the abovementioned have such enduring consequences for the free development of our individual life. Even though Carens concedes that, for practical reasons, these mechanisms may be accepted as ways to obtain citizenship for new-borns, under no circumstance should they prevent different choices when the children become adults . As Carens concludes, “Citizenship in Western liberal democracies is the modern equivalent of feudal privilege” .
 Joseph Carens is Professor of Political Science at the University of Toronto.
 It must be noted that in this article Carens does not advocate for the abolition of the nation-state nor for the free access to citizenship. He restricts himself to providing arguments that indicate that restrictions of the right to citizenship are unjustifiable, if one follows the liberal tradition of the last two centuries. For him, “a need for some restrictions would not justify any level of restrictions whatsoever” (Carens, 1987: 259, 260).
 The article also explores how the case for open borders can be defended with Nozick’s and utilitarian thought, but in this article, I will only focus on Carens’ arguments around Rawlsian theories.
 For the complete theory, see Rawls, J. (1971), A Theory of Justice.
 Carens 1987: 258.
 Carens, 1987: 252.
 Ibídem: 262.
 Ibídem: 252.