Association, property, territory: what is at stake in immigration?
It is often claimed that states have territorial rights, and that these rights include the right to exclude people who seek admission to their territory. In this paper I will examine whether the most defensible account of territorial rights can provide support to the right to exclude. I will discuss three types of theories of territorial rights. The first account links the right of states to exclude to the prior right of individuals to freedom of association, which is said to include the right not to associate and to dissociate. The second is a Lockean theory that grounds the territorial rights of states, and hence their right to exclude, in the prior right of individuals to private property in the land that constitutes the territory of the state. I argue that these accounts have independently implausible implications, regardless of their implications for the immigration debate. The third account is a Kantian theory that bases the territorial jurisdiction of states on individuals’ duty to create, sustain and submit themselves to a shared system of law that is a necessary condition of guaranteeing their rights and of discharging their duties towards one another. I will argue that the Kantian account is superior to its current alternatives. However, I also suggest that it cannot ground a broad right to exclude.
Keywords: right to exclude, freedom of association, property, territorial rights
Blake, Michael (2013), “Immigration, Jurisdiction, and Exclusion”, Philosophy and Public Affairs 41 (2): 103-130.
De Groot, Gerard-René –Vink, Maarten P., “Loss of citizenship: Trends and regulations in Europe”, (internet) available at http://eudo-citizenship.eu/docs/loss_paper_updated_14102010.pdf (viewed 23 January, 2017)
Fine, Sarah (2008), “Freedom of Association is not the Answer”, Ethics 120: 338-356.
Herzog, Ben (2011), “Revocation of Citizenship in the United States”, European journal of sociology 52 (1): 77-109.
Miller, David (1997). On Nationality Oxford: Oxford University Press.
Miller, David (2007). National Responsibility and Global Justice. Oxford: Oxford University Press.
Miller, David (2012), “Territorial rights: concept and justification”, Political Studies 60 (2): 252-268.
Nine, Cara (2008) “A Lockean Theory of Territory”, Political Studies 56 (1): 148-165.
Raz, Joseph (1986), The Morality of Freedom. Oxford: Clarendon.
Sandelind, Clara (2015), “Territorial Rights and Open Borders”, Critical Review of International Social and Political Philosophy 18 (5): 487-507.
Simmons, John A. (2001), “On the territorial rights of states”, Noûs 35 (1): 300-326.
Steiner, Hillel (1996), “Territorial Justice,” in Simon Caney, D. George and P. Jones (eds.), National Right, International Obligations, Boulder, Co.: Westview Press, pp. 139-148.
Steiner, Hillel (2008), “May Lockean Doughnuts Have Holes? The Geometry of Territorial Jurisdiction: a Response to Nine”, Political Studies 56 (4): 949-956.
Stilz, Anna (2009), “Why do states have territorial rights?”, International Theory 1 (2): 185-213.
Stilz, Anna (2011), “Nations, States and Territory”, Ethics 121 (3): 572-601.
Walzer, Michael (1983), Spheres of Justice: A Defense of Pluralism and Equality. New York: Basic Books.
Wellman, C. H. (2008), “Immigration and Freedom of Association,” Ethics 119 (1): 109-141.
Ypi, Lea (2014), “A permissive theory of territorial rights”, European Journal of philosophy 22 (2): 288-312.
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