Na'ama Carmi
How come that the freedom of movement, as a basic human right, is recognized inside the state but not between states?
How come that equality and justice are to be kept only between citizens, disregarding inequality between citizens of different states?
And why is it that the Israeli High Court of Justice, in its recent ruling re the "Katzir case", declared that a special key to enter "the house" (i.e., the state of Israel) is given to Jewish people, by means of the Law or Return?
All these questions indicate a lacuna in the liberal political theory, namely, the fact that until recently, it considered only questions of justice inside a given group, and didn't concern itself in the question how was this group constituted, and how can new members join the group. Theories of distributive justice dealt with the just criteria to distribute goods and rights between members only. The first to indicate that the first good a group is distributing is the membership itself, was Michael Walzer, in his book "Spheres of Justice". But after raising this important issue, Walzer actually accepted the prerogative of the state to decide whom to accept and whom to reject.
Phrasing the question in theoretical terms, we are indicating here a tension between equality of people, to which liberalism is committed, and equality of citizens, which is the norm that exists in reality. What I am actually saying is that the Liberal theory of justice needs a supplement, so it can deal properly with the question of immigration, which is, actually, a private case of the general question of our moral duty to non-members.
The only right that is recognized internationally today, is the right to emigrate from every country, and the right to return to one's own country. Except for the cases of refugees and stateless persons, there is no duty applied on a state to accept immigrants. But what meaning is there to the right to leave, to emigrate, when the individual has nowhere to go? If we cannot talk, in the existing discourse, on a right in the legal sense, can we talk about this right in the moral sense? I believe we can, and I would like to outline this theoretical project, this is to say, sketching a liberal theory of immigration, and then say a few words on the Israeli case.
One has only to follow the theoretical assumptions of Liberalism itself, in order to see that the immigration policy that is dictated from these principles is not the one implemented today; that practice deviates from theory. The two main tenets of Liberalism are Universality and Equality. Based on the first tenet, Liberalism cannot offer a moral justification for limiting membership. Based on the second tenet, it cannot justify the preference of members over foreigners. This, at least, cannot be done from within its own theory, with no added assumptions. Put it in positive terms, Liberalism demands that the rights will be applied universally, and that no discrimination will be implemented when coming to limit these rights. From a rights-based liberal point of view, then, one cannot prefer the young and the healthy to the old and the sick, when considering applicants to enter the sate. Such limitations can be based, according to the internal logic of the liberal theory itself, only on violating other rights, namely, the existent members' rights. The sovereignty right of the state, which nowadays serve as an alleged basis for limiting immigration, is derivative of the citizens' rights, that was given to the state as their representative and as the corresponding duty holder. According to a rights-based theory of justice, no collective good can serve as a basis to limit individual rights; only other individual rights can. And in this sense, there is no difference between the right to immigrate and any other rights that can conflict between themselves.
The right to immigrate
Given what has been said until now, one can base the right to immigrate on at least 3 reasons:
1) According to the liberal theory, the state is the largest rights agent. The state might not be the most important frame from the individual's point of view, but it has enormous importance on one's life level and well-being, being obliged to supplement the individual a huge scope of rights and goods.
2) There is no sufficient basis for limiting the freedom of movement between states, and doing so violates the principles of universality and equality, demanded from the liberal theory.
3) One shouldn't mix between the frame that enables rights implementation (i.e., the state), and between the source of their validity or justification. Only the individual is the source of these rights, and only violation of the individual's rights can justify limitation of other's rights. The state cannot count less the interests of applicants to be accepted just because they are foreigners or decide that only members count morally.
Putting citizenship under the 'Veil of Ignorence'
Anchoring this right in the liberal theory of justice will be done by using one of its frequent and famous procedures which embodies the demand of neutrality. In his Theory of Justice, John Rawls specifies this demand by an imagined "Original Position", in which all participants are beyond a 'veil of ignorance'. This means they do not know any particular fact about themselves: they do not know their age, their sex, their health condition, their economic status, and so on. Now they are asked to choose general principles of justice that will guide their society, such that when this 'veil of ignorance' will be removed, they will find them fair whatever real conditions apply to them. This procedure insures, then, a neutral process to reach a fair policy; one that will 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.
And in any moment in real life, we can check whether a certain policy, institute or law are just, by trying to imagine would we stand for it in the Original Position, when we don't know if it will favor us or discriminate us.
My suggestion is to put citizenship under the 'veil of ignorance', in order to ensure the fairness of immigration policy. The veil of ignorance is hiding, actually, all non-relevant facts, morally speaking; those facts that being taken into consideration results in discrimination. Citizenship is accidental in exactly the same way as ethnic origin, sex, age and religion. Lets assume, then, that the participants in the Original Position would not know if they were citizens of the state to which they're choosing the justice principles, or foreigners requesting to be accepted to it. Under these conditions, given the Rawlsian characteristic of the Original Position and deciding under circumstances of non-certainty, the participants will prefer the right to immigrate.
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. This is because denying a right demands stronger reasons than giving a right. In a rights-based theory, In order to deny the right that was based as a justified claim, like the right to immigrate, one has to bring evidences and reasons. This means the right holder has presumption. Secondly, general right trumps local freedoms or contractual rights. The right to immigrate seeks to implement freedom of movement as a basic right, while the prima-facie right of the other side is nothing but demand (of the existing citizens) to be preferred over the one who is not a citizen. This explains why the right to immigrate might trump the rights of the citizens in concrete cases, not because of its status as presumption.
The immigration presumption establishes that the rights of all individuals make them eligible for acceptance in all countries, and 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.
The Israeli case: The Law of Return
Coming now to look on the Israeli case - on which I will say only few words, as the principle have been already established - What can we infer from the argument regarding immigration policy, when coming to discuss the Israeli case of immigration, mainly the Law of Return?
This law does not conform to the conditions that were formulated in this paper for just immigration laws: it is not universal and discriminates 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, and discrimination between existing citizens cannot be justified even in the existing implementation of liberalism. With the exception of the sections in the citizenship laws that might allow asylum to any Jew persecuted because of being Jewish - 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.
Tel Aviv University
Paper given in Ben-Gurion University, 13.3.2000
