Failing to Think About Immigration

A case study of academic bias and its consequences

‘If…one thinks but does not learn from others, one is in peril.’

-Confucius

It is normal for academics to have (loud) opinions. Unfortunately, though, as most people now know, these opinions are tending increasingly to cluster together, and thereby become steadily stronger as they travel down the familiar topography of the purity spiral. A consequence is that the scholarly enterprise itself is becoming unmoored from reality because what is produced tends to go almost completely unchallenged by countervailing views - and the results are scholarly works that, sadly, obscure more than they reveal. In summary, in case anybody were in doubt about it: political bias is real and it is A Problem in academia.

A useful case study is provided by a recent symposium organised under the auspices of the American Journal of International Law, probably the leading journal in the field of public international law, at least by reputation, in the world. The symposium, titled ‘Unsettling the Sovereign “Right to Exclude”’, aims to provide a ‘multidisciplinary approach’ that ‘seek[s] to problematize the unqualified nature of state authority over border control’. It brings together eight different authors who each cover a different aspect of that theme, but all of whom (with one partial exception, as we shall see) begin from exactly the same standpoint and come to exactly the same conclusion: in essence that it is important to ‘emancipate the universal human’ (Paz) by contesting the view that sovereign states should have the right to determine who gets to come in.

In short, the argument is for open borders and, ultimately therefore, the death of the nation state as such - with the implicit aim being to delegitimise sovereignty itself through destabilising one of its most central features: deciding who gets to be a citizen and who doesn’t.

It is important at the outset to be scrupulously fair. Immigration is at, or near, the top of the list of most salient issues for electorates across Europe and North America. And it is perfectly normal, then, that academics would have opinions and preconceptions about it. And it is also perfectly normal that this would motivate their research; why would anybody choose to research anything unless they had an interest in it, and since when did anybody lack opinions about the things that they are interested in?

It also goes without saying that there is nothing wrong per se with believing in open borders - or, for that matter, the death of the nation state. To ‘steelman’ the argument, as the saying goes these days, if one agrees that all human beings are of ‘equal moral worth’ (Schmid), as one presumably does, then the fact that people’s life chances are so strongly affected by the circumstances and location of their birth should be troubling. There is a problem with the ‘birth lottery of nationality represent[ing] the structural determinant of global inequality’, as one of the authors puts it (Chetail). And global free movement may, on its face, be a solution. I happen to think it would be a solution that would cause far more problems than it would solve. But I certainly would not suggest that people should not be allowed to voice opinions in favour of it or are behaving mendaciously in doing so.

It also needs to be added that the products of the symposium are not proper academic law journal articles - they are more in the way of glorified blog posts with footnotes. So they are necessarily superficial and a bit discursive - we are talking here about short and relatively breezy comments rather than fully-fledged scholarly works. And, on this point, it is worth pointing out that some authors are cagier than others; Schmid, for example (I earlier alluded to the presence of one slight outlier), grants that ‘self-determining political communities will sometimes have weighty interests in excluding outsiders’, although he goes on to make clear that this would not be consonant with ‘moral equality’ (Schmid).

So, for these reasons, we should be polite about the products of this symposium. But readers will nonetheless have sensed a ‘but’ coming, and now that the interests of fairness have been served, it is important to make clear that it is a big ‘but’: the authors have allowed themselves to get carried away. And this has happened for the simple reason that nobody at any stage in the process, and probably nobody in many years, appears to have subjected their arguments to a genuinely sceptical reading. If they had, they would have pointed out that the picture that the authors paint is not just partial, but almost entirely missing important aspects of the subject of sovereignty that cannot be ignored if one is to actually understand what is really going on.

Let me first, then, summarise the main thrust of the arguments advanced. Obviously each author provides some useful material of their own. But the broad gist of things, repeated again and again, is that while ‘it is accepted everywhere without contestation’ that ‘states have an unfettered sovereign right to control their borders and exclude non-citizens from their territory’, this is actually a ‘radical departure’ from the ‘norm of freedom of movement’ that ‘defined international law’s earlier approach’ (Shachar).

The idea here is that in the late 19th century, the period generally thought to be the dawn of the professionalisation of international law, the emphasis was on free movement of ‘citizens of the world’ (Paz) and immigration control was frowned upon. This, the authors seem to suggest, means that there is nothing essential about states possessing the power to exclude foreigners. And they also draw attention to the fact that while freedom of movement in the 19th century applied in respect of (you’ve guessed it) ‘white, “civilised”, Christian men’ (Shachar), immigration controls themselves (purportedly) were introduced across the world in order to limit the free movement of non-white people - thus associating such controls with racism from the start.

The gambit is pretty clear: the sovereign ‘right to exclude’ is a fairly new and contingent invention without roots, and, in any case, it’s to do with racism. And hence we should not only ‘unsettle’ it, but do away with it altogether. The implication is that this will make the world less racist - immigration control purportedly having originated in, and been indelibly tainted by, white supremacy - and will also return the global order to the presumption of free movement that prevailed in the late 19th century, expanded to include humanity as a whole.

The problem, however, is that this narrative is, to put it mildly, partial. And this has given it an almost ethereal quality; there is nothing tethering it to planet earth. It has thus flown away, and ended up somewhere very odd indeed - a strangely ahistorical world in which events from the past float about in a disconnected way, waiting to be plucked from the air to support or illustrate some position or other without any account being given as to how they fit into a broader unity.

No doubt, in other words, it is true that the ‘right to exclude’ in the sense that we understand it today is a fairly recent invention in the span of human history, and no doubt there was a point in the past where it was used so as to manage and control immigration on the basis of race. But all of this has to be understood in light of other events that happened in a chain of causation, and against a much broader and more complicated historical context.

Let us set aside for reasons of space the fact that the sovereign ‘right to exclude’ is not limited to instances in which Western powers excluded black or brown foreigners on the basis of racism, but in fact is frequent feature the human experience at least since it became possible to physically control borders - the total exclusion of foreigners from Japan for 200 years during the Edo period, the prohibition of even tourist visits to Bhutan until the 1970s, and the closure of Paraguay’s borders in the first half of the 19th century so as to forge a national Guarani identity being obvious examples that spring to mind.

And let’s also set aside the obvious point that, before it became possible to physically control borders, flows of human migration were extremely politically, economically, and socially disruptive, and an issue which rulers have naturally therefore tried to respond to politically throughout human history - as anybody who knows anything about, say, the Roman Empire or medieval China or the Bantu Expansion or the westwards movement of American government across the continent will attest.

And let’s also set aside the fact that immigration control in the modern era, particularly with respect to refugees and asylum, cannot be understood without making mention of the fact that the modern system of international migration law was created as a result of the huge population flows taking place within Europe in the aftermath of the Second World War, and that it is deeply peculiar that in a symposium purporting to ‘unsettle’ sovereign control over borders not one paper even mentions the Second World War on a single occasion that I can identify.

Let’s instead focus on two aspects of more recent history which are completely absent from the telling of the authors of the ‘Right to Exclude’ symposium, but without which the modern system of immigration control cannot be understood.

The first of these is the creation and expansion of the welfare state. For, whatever may have been the case with respect to the rights of ‘white, “civilised”, Christian men’ to roam about as they saw fit in the 19th century (I’m not sure my own ancestors knew much about the existence of this right), the roaming in question took place at a time when being a citizen of a Western State bore with it very little in the way of entitlements or obligations beyond being granted the protection of the law and the duty to abide by it. It was a time, in other words, when the fact that an additional person may have appeared within the physical territory of a State meant essentially nothing with respect to the public coffers.

But over the course of the 20th century, as you no doubt are well aware, this position very rapidly changed as the infrastructure of the modern welfare state was created and then extended and extended and extended. Indeed, to illustrate, it is now the case in the UK that over half of individuals are ‘net recipients’ in the sense of receiving more in benefits than they pay in taxes (53.8% of people fell into this category in FY2022, according to the Office for National Statistics). And, as a consequence of this, the way in which society came to conceive of welfare also changed; a very strong and devoutly believed myth emerged over the course of the period, within which benefit entitlements came to be construed as a kind of social glue that bound together the national community at least partly on the basis of a shared history and commitment to that community.

The sovereign ‘right to exclude’ therefore has to be understood against a background of a total transformation in what it means to be a citizen of a State or to have ‘settled’ status within it - because to have such a status means to become entitled to the extraordinarily generous welfare provision that developed, modern welfare States dole out to whoever meets a range of (not very stringent) requirements. Mass migration therefore poses a thoroughgoing and foundational problematisation of the entire model of the welfare State, partly because of the practical consequences of adding hundreds of thousands if not millions to the population each year (53.8% of whom can be expected, all else being equal, to be net recipients - at least in the UK) but partly also because it discombobulates the psychological, almost spiritual justification which is given to that model in Western societies: recent immigrants are, rightly or wrongly, construed as being not at face value committed to the national community in the same way as are the long-settled population.

And the second aspect of the story that is overlooked concerns that strange ‘d’ word that I mentioned earlier on. Whatever one says about the ‘equal moral worth’ of any and all human individuals (let me be clear: I believe in this equal moral worth), it is indisputably true that, across the world, whenever voters are given the opportunity to voice their opinion at the ballot box about mass migration, they express the view that they want less of it - and that they especially want much less of the illegal or ‘undocumented’ version.

This may be morally justified or not; it may derive from racism or not; it may be understandable or deplorable; one does not need to express a view either way to recognise that it is reality. And this means that to speak in favour of ‘unsettling’ the sovereign ‘right to exclude’ necessarily means to speak against the settled will of electorates throughout the world. And it also means that the discussion is taking place against a background of deep dissatisfaction - indeed, incipient political crisis - concerning the failure of elected leaders to properly give effect to what voters clearly want them to do.

That the contributors to the symposium fail to mention either of these issues - the growth of the welfare state and democratic opposition to mass migration - can only I think be attributed to the fact that academics increasingly do not hear reasoned arguments that challenge their views about such matters, and therefore simply are not required to really think as hard as they otherwise should. The immediate consequence is weak scholarship. But the longer term consequences are worse: scholarship that, as I earlier put it, obscures more than it reveals.

This AJIL symposium is a case in point. The world is crying out for academics to do two things. The first of these is to grapple properly with what sovereignty really means in the 21st century as the old assumptions regarding sovereign independence and equality fray - and not least with respect to the question of borders and the so-called ‘right to exclude’. And the second is to understand and properly theorise the relationship between democracy and the nation state as that relationship finds itself increasingly subject to challenge. The idea that international legal scholars are getting together to insinuate that opposition to open borders and defence of national democracy is racist not only runs counter to, but actively undermines those objectives. This is - I choose my words carefully - not good enough. But it is where much contemporary academic scholarship has gone.

What is true with regard to the subject matter of this post is true across the piece. Bring up an issue, any issue, about which people care: the economy, the size of the state, immigration, the relationship between the sexes, matters of discrimination and equality, the environment (I could go on) - and you will find that academics are either not talking about it, or are talking about it in so one-sided a way as to be actively damaging. A course correction, then, is long overdue - not because there is a culture war that needs to be fought and won, but because there are serious issues at stake which require serious thought, and academics should be providing it. And they aren’t.