ABSTRACT

This dissertation examines the question of immigration from a philosophical 
perspective, in order to transform it into a question that can be morally assessed. 
From the moral starting point of this dissertation, which is rights-based ethics, the 
possible status of the right to Immigrate - a right that is not legally or morally 
recognized today - is examined. Our conclusion is that it is proper to grant 
recognition to the right to immigrate, to the right of the individual to change his 
country of residence and political community, and that this right should enjoy the 
status of a presumption. That is, the burden of justification should be on those who 
desire to deny it or prevent its becoming a reality.

The central philosophical-political question discussed in this dissertation is 
whether the theory of liberal justice allows a country to impose restrictions on 
immigration, and if so - which restrictions. Therefore, this is a theoretical 
discussion of a missing facet of liberal political theory that only recently has 
begun to receive the attention it deserves. Until now, liberalism has assumed as a 
given the existence of the group in general, and of the state in particular, and has 
not objected or inquired about the actual division into groups, its significance and 
justification. The theory of liberal justice deals with the question of which 
conception of internal political division is more just, but not with the state's 
obligations towards those who are not citizens. This focus of liberalism is 
problematic from a theoretical point of view, because liberalism is committed to the 
equal value of human beings. If rights are an accepted political expression of the 
human value that is possessed by everyone, to their basic human interests, a strong 
claim is needed to justify their distribution based on inequality. However, this 
discrimination exists in actuality, when a state accepts obligations to its citizens 
but not to foreigners (whether this is a negative obligation - not to intervene - or 
a positive obligation - to assist in the actualization of rights). On the surface it 
seems that the prevention of immigration contravenes the right of the individual to 
freedom of movement and the basic interest of human beings everywhere to improve 
their standard of living and well-being that is adversely affected as a result of 
this.

Behind this moral and political question lies a basic theoretical quandary. This is 
the tension between equality of people, a value to which liberalism is committed, and 
equality of citizens, which is a norm that exists in actuality. Put in another way, 
this is the tension between neutral universalism and preferential differentiation. 
This is because in their preference of citizens above foreigners, there is a 
deviation from the demand for neutrality and universalism, a demand that is the basis 
of liberalism and practically applied as long as citizens of the state are the topic 
of discussion.

Consequently, the purpose of this dissertation is to provide the theoretical 
supplement necessary to the liberal discourse, so that it can cope appropriately with 
the question of immigration. Today this discourse provides no suitable answer that is 
consistent with the central tenets of political liberalism. The focus on the 
relationship between the individual and his state does not cover the relationship 
among states or between individuals and states that are not theirs. In practice, 
positivism rules in this area which accepts as fact the excessive, far-reaching 
rights of states in all that is connected to control over citizenship. This is the 
presumption of sovereignty. Since immigration is a specific case of duty towards 
those who are not citizens, of the proper attitude towards those who are not members 
in our social organization. After all, coping with this is connected to that same 
political lacuna which has no principle that deals with the demands of people outside 
the society to be accepted to it, or with the question of its rights or obligations 
towards them. However, in practice there are people who want to move from group to 
group, from country to country. This dissertation attempts to formulate an answer to 
the question of what is the appropriate way to relate to their request.

The theoretical starting point of this thesis is the Rawlsian theory of justice, 
considered today the central liberal theory of justice and the most influential one 
on the liberal discourse in general and the political discourse in particular. This 
is an attempt to return to "the big theory," in order to give a basis to the validity 
of the social contract and the institutions of the liberal state. The question of 
justice among nations was not widely discussed by Rawls. He offered his opinion about 
this question only much later, and until today not systematic enough. This 
dissertation will develop and broaden his theory in order to apply it to problems not 
originally dealt with, and will also suggest a creative solution for them.

The philosophical-political foundation of this dissertation is individualistic 
liberalism, universalist rights-based ethics. Thus the assumption is that the 
individual is the source of the authority, raison d'etre and purpose of the social 
framework. A social existence is a basic interest of the individual, to protect his 
rights to a great extent; but the value of culture (national or other) stems from its 
value to the individual. A society founded on principles of justice recognizes that 
political principles are morally affected. They imply moral considerations and are 
directed by a moral principal or ideal, which presents a goal to political 
institutions, and sets restrictions on its modus operandi. The chief political goal 
is to protect the life of the individual, honor and nurture it. A liberal political 
theory especially does not allow a separation between morality and politics. It 
depends on political morality and draws its legitimacy from it because the individual 
stands at its center. The procedure that this dissertation asks to further is not the 
creation of a new political theory, of world justice and global government, but the 
completion of an existing theory, in order to allow the examination of essential 
questions that are on the agenda. Metaphorically speaking, one could say that I am 
not asking to take upon myself the office of an engineer planning a new world order, 
but the office of a doctor trying to rehabilitate and cure the existing one. It is 
possible that one day there will be a new order of this kind; meanwhile, the division 
into nations is a fact. I am attempting to examine how it is possible to make it more 
just, and which guidelines liberalism can provide us for this purpose. A discussion 
of immigration from the standpoint of the liberal theory of justice will inquire what 
the justification for limiting immigration is, i.e. the existing prerogative of 
states to grant or deny citizenship.  Is it possible to justify this practice on the 
basis of the theory of liberal justice or will it dictate a different policy to us?

The central focus of the dissertation is theoretical. Its purpose is first of all to 
attempt to impose a theoretical order on the subject of discussion, an order that 
will allow a clearer view of the problem being discussed and an enlightened analysis 
of it. Secondly, its purpose is to examine if it is possible to formulate from within 
the theory of liberal justice principles that will help deal with the problem of 
immigration in practice.

The first two chapters of the dissertation constitute an introduction to the 
discussion. The first chapter - "The Moral Status of Citizenship" - examines the 
question of citizenship as the central political concept of immigration policy. 
Despite the fact that immigration and naturalization are not the same thing, in the 
end citizenship is the status that most immigrants aspire to, against which countries 
erect barriers. Beyond the different rights granted by citizenship, it awards those 
who enjoy it a supreme right: the right to determine its own conditions. Thus 
citizens determine the character of their community. In the existing order, the state 
is the main (or the only) supplier of the necessary foundation for maintaining a 
proper existence, and in the conception of liberal rights - the holder of the 
counter-duty for demanding individual rights. Therefore, membership in it - 
citizenship - is the cardinal factor in the individual's standard of living and well-
being. It is necessary to examine the moral status of citizenship in order to see 
clearly the moral implications of granting or denying it, and in order to examine the 
measure of its moral relevance or arbitrariness. The answer to this question is 
important to the suggested solution, as will be seen in Chapter 5.

Chapter 2 - "Immigration and the conflict between rights and duties" - prefaces the 
body of the dissertation with a discussion of the question of the conflict between 
rights and duties in the context of the right to immigration. Typical conflicts in 
the context of immigration are between the right to citizenship and the sovereignty 
of the state; between freedom of movement and the right of the state to limit this 
freedom; and between prima-facie special duties to the inhabitants of our country and 
general duties that we owe our fellow-men. Theoretical concepts examined in this 
context are sovereignty and its relation to the theory of individual rights; 
citizenship as a right and an obligation; and also general ethical concepts such as 
good will, mutual aid and supererogation, and their connection with questions of 
citizenship and immigration. 

The main claim of the dissertation is that there is a close connection between the 
type of criteria for distributing membership and our assessment of it as just and 
fair. In order for immigration policy of a society to be acceptable, it must conform 
to principles of justice and be implemented fairly. As a result, the argument of 
sovereignty - the claim that immigration policy is an internal affair of the state 
and the decision regarding it follows from the right of the state to sovereignty - is 
unacceptable.  This is not only because this right does not necessarily override the 
right of the opposite side, but because the supporters of the argument must provide 
proof that the criteria of this policy are fair, and that the sovereign right of the 
state to set these limits is valid. The significance of this is that the state's 
right to sovereignty stems from the fact that it protects essential human rights. 
Sovereignty is a claim demanding proof and not a presumption.

Chapter 3 - "Do one's countrymen come first?" - delves deeply into the topic that is 
at the center of the discussion of immigration: favoritism versus neutrality. Is it 
possible and in what way to reconcile favoritism towards citizens with the demand of 
liberalism for neutral and impartial policy? Is it possible to justify the claim that 
"members come first"? Alternately, can a contractual policy base rights and duties 
that apply only to the sides of the agreement, when one is discussing a political 
framework? Must justice necessarily be blind? And what is the significance of its 
being otherwise? Liberalism cannot offer a moral justification for limiting 
membership. From within its own theory, with no added assumptions, it cannot justify 
the preference of members over foreigners. If so, what can be the justification of 
the liberal transition from "equality of people" to "equality of citizens"?

The national justification that attempts to base our right to prefer our countrymen 
on the affinity that exists between us is too extreme. Even if we acknowledge the 
obligations of affinity, it would be incorrect to draw an analogy between different 
types of affinity. The group and its culture are undoubtedly important, but this does 
not give a basis to special rights of group members. In the context of our 
discussion, this means the denial of a basic foundation for human existence from 
other human beings simply because they are not members of the same national group. 
Another attempt to provide a basis for special political obligations is the contract 
claim, according to which special obligations exist between sides to the contract by 
virtue of the contract itself, in our case, the social arrangement. This claim is 
perfectly acceptable from a liberal standpoint. But liberal-contract attempts to 
justify restrictions on immigration do not give an acceptable answer to an important 
question. To what extent are sides to the contract  - which encompasses most of the 
aspects of the citizen's life and projects critically on his wellbeing - allowed to 
limit the joining of others if they are willing to accept the conditions of the 
contract? 

The chapter deals extensively with communitarian and feminist criticism of neutral, 
impartial liberalism, which promotes blind justice. Its conclusion is that even if it 
demands amendments and elaboration, any alternative theory will be a worse wrong. 
From the standpoint of the theory of justice,  there is not a real replacement for 
neutral impartiality.

The fourth chapter - "Immigration limits: harm arguments" - critically discusses the 
major types of justification for limiting immigration. The common arguments in favor 
of limiting immigration are "harm arguments," whose validity is purported to stem 
from the harm caused to citizens of the state receiving the immigrants. These 
arguments are divided into three types: the argument of public order, the economic 
argument and the cultural argument. The chapter deals with each one of these argument 
types, and points out their limitations as liberal arguments. The argument of public 
order is justified given that the first duty of the state is to protect the well-
being of its citizens, but it is impossible to derive from this the (high) level of 
limitations on immigration that exists in the world today. It is also impossible to 
justify limitations on immigration for economic reasons only. This stems from the 
great amount of uncertainty involved in making decisions on an economic basis 
(immigration is capable of causing real growth as well as being a burden), and also 
because the division of the load among the countries regarding absorption of 
immigrants will dull the blow. The cultural argument is problematic because it is 
impossible to provide a basis for the collective right to culture. The fundamental 
interest in culture does not give a basis to a counter-duty, but only a partial 
obligation. This type of obligation does not exist, for example, towards immigrants, 
at least not entirely. The interest that immigrants who choose to leave their 
majority cultural community have to maintain an established practice that protects 
their culture and gives it meaning does not justify placing a duty on others, and 
therefore it does not become a right.

The fifth chapter - "Guidelines for liberal immigration theory" - attempts to outline 
a theory that will uphold the standards of liberal theory in general and of the 
Rawlsian theory of justice in particular. The principles that make up just 
immigration policy are freedom of movement as a universal right and the absence of 
discrimination in the application of the policy by the receiving country. Any 
conflict between the demands of the immigrants and the rights of the citizens will be 
decided in the same way as any conflict between rights. However, rights violation of 
the citizens of the receiving country, not any collective good, is the only possible 
basis for denying a request for immigration. The chapter deals with the question of 
the relationship between membership and distributive justice, and the moral 
obligation to non-members as it exists and as it should exist. The suggestion is made 
to add to the "veil of ignorance" conditions of Rawls' original position the variable 
of citizenship, in order to ensure the fairness of immigration policy. As is true of 
all fair policy, it should be judged as such from every possible point of view; from 
the viewpoint of those harmed by it in exactly the same way as from the viewpoint of 
those gaining by it. This is the meaning of neutrality and is precisely the 
possibility that is afforded by the original position by means of the veil of 
ignorance it places on all those variables that are not morally relevant, and whose 
being taken into consideration results in discrimination. Citizenship is accidental 
in exactly the same way as ethnic origin, sex, age and religion. The participants in 
the original position would not know if they were members of a given society, 
citizens of the state or foreigners requesting to be accepted to it. In these 
conditions, given the Rawlsian characteristic of the original position, the 
participants will prefer the right to immigrate. 

The sixth chapter - "The Law of Return" - tries to anchor the general theoretical 
discussion in concrete political reality, by means of a critical analysis of Israeli 
immigration law - the Law of Return - in light of these suppositions. Generally, 
criticism of this law is refuted by appealing to the argument of sovereignty, that 
claims that every state is sovereign to set its limits on immigration as it sees fit. 
The conclusions of this dissertation differ from this. The Israeli Law of Return does 
not conform to the conditions that were formulated in the present work for just 
immigration laws: it is not universal and is discriminatory on the basis of origin, 
an unchangeable inborn quality. The Law of Return discriminates not only between 
potential immigrants, but also between Jewish and non-Jewish citizens of the State of 
Israel. With the exception of the sections in the citizenship laws that allow asylum 
to any Jew persecuted because of being  Jewish - an expression of the State of 
Israel's being the Jewish homeland - the principles of liberal justice demand the 
total repealing of the Law of Return. It represents an immigration law that cannot be 
defended or justified in the framework of the theory of liberal justice.

The philosophical significance of the position presented here is in the form of 
transition of presumption - from the sovereignty presumption of the state to the 
presumption of the individual's right of immigration. Today it is presumed that the 
state has a sovereignty presumption that allows it to decide whom to accept and whom 
to reject, and that the petitioners must substantiate their request for acceptance. 
The immigration presumption establishes that the rights of all individuals make them 
eligible for acceptance in all countries and places the obligation to substantiate 
refusal and provide acceptable reasons for it on the state - as determined by the 
principles of justice and fairness. This is a consistent transition to the 
theoretical framework of the discussion - individualistic, rights-based liberalism - 
in which the rights of the individual have precedence over collective aims. The 
sovereign right of the state is no more than a right deriving from the rights of 
individuals, and only violating individuals' rights can constitute the basis for 
limiting the rights of other individuals. If there is a conflict of interests, the 
conflicting interests will be weighed one against the other, but it is irrelevant if 
they are rights of members or foreigners.

This does not mean totally open borders. It is acceptable to limit the right of 
immigration in the same way that it is possible to limit every other right. However, 
as in the case of limiting any right, it must be substantiated and justified, since 
it is an exception to a presumption. That is, it must be consistent with general 
principles of justice and express fairness. From this standpoint, the policy 
suggested here is significantly different from the situation today, according to 
which the state is granted the virtually unlimited right to prevent the entrance of 
anyone it does not wish to absorb, without the need to justify this.

The suggested policy will not necessarily cause an uncontrollable influx of 
immigrants. With a suitable separate policy for refugees and an apportionment of the 
duty of aid and intervention among states, the threat represented by immigration will 
lessen considerably, both economically and culturally. This will be simply because 
the number of immigrants will be much smaller when the major (economic) reasons for 
immigration disappear. Most people prefer to avoid the great hardships accompanying 
immigration if they are able to improve their standard of living and well- being in 
another way. In addition, an international arrangement distributing the burden of 
immigration among countries will diminish the number of those actually demanding 
entry to a particular state. It will be easier to cope with the remaining numbers 
effectively and more difficult to escape from the moral obligation to accept them.

How can all this be reconciled with the idea of the nation state? Political 
liberalism is a point of view relating to the public domain, which guides us in 
determining public life in the state and it does not take a position regarding the 
good conception of its citizens. The claim that the nation state must be neutral 
towards the national group would be far-reaching according to the starting point of 
this dissertation, which regards the nation state as given. National bias, which is 
imprinted in the nation state by virtue of its existence, allows it to open its gates 
to the persecuted of the national group, but not to give preference (when special 
parameters are not activated) to members of the national group in the matter of 
immigration laws. In all other areas national affiliation will be interpreted as 
culture. The immigration presumption of an individual from any national group 
obligates the state to accept him; the only acceptable counter-arguments are claims 
of rights, not arguments for the welfare or general goods of the society. This 
presumption places the obligation of justifying rejection on the state, and good 
reasons for it must be offered which endure the test of justice and fairness.           
              












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