Democratic Theory and Border Coercion

For a defence, see Kay Hailbronner , “Citizenship and Nationhood in Germany,” in Immigration and the Politics of Citizenship in Europe and North America, ed. W. R. Brubaker (Lanham, MD: University Press of America, 1989).

I use the terms “boundaries” and “borders” interchangeably.

Carens , “ Aliens and Citizens,” Review of Politics 49 (1987): 251—73; Carens , “Migration and Morality,” in Free Movement, ed. Brian Barry and Robert E. Goodin (University Park: Pennsylvania State University Press, 1992); cf. Philip Cole , Philosophies of Exclusion ( Edinburgh, UK: Edinburgh University Press, 2000); Howard Chang , “Immigration Policy, Liberal Principles, and the Republican Tradition,” Georgetown Law Journal 85, no. 7 ( 1997): 2105—19; and Peter Schuck , “The Transformation of Immigration Law,” Columbia Law Review 84, no. 1 (1984): 1—90.

See Seyla Benhabib , The Rights of Others (Cambridge , UK: Cambridge University Press, 2004), 7—12; Bas Schotel , “How Political and Legal Theorists Can Change Admission Laws,” Ethics and Economics 4, no. 1 (2006).

See David Owen , “ Resistance in Movement” (Philosophy and Social Sciences Conference, Institute of Philosophy, Prague, Czech Republic, May 2005).

Charles Beitz , Political Equality (Princeton, NJ: Princeton University Press, 1989), 16—17, argues that the most “generic” conception of democracy merely requires citizens' participation in political decision-making, and not their equality or equal participation. My argument is restricted to theories of democracy committed to equality.

See Joseph Raz , The Morality of Freedom (Oxford, UK: Clarendon, 1986), 6—17; cf. Charles Taylor , Philosophy and the Human Sciences (Cambridge: Cambridge University Press, 1985), 219.

Raz , Morality of Freedom , 154—55, 369.

Ibid. , 372—78; cf. Michael Blake, “Distributive Justice, State Coercion, and Autonomy,” Philosophy & Public Affairs 30, no. 3 (2002): 257—96, 268—70.

Raz , Morality of Freedom, 377—78, 410. The fact that coercion always undermines independence is why Grant Lamond is mistaken to say that “particular instances of coercion can leave personal autonomy unscathed” if they leave intact an adequate range of valuable options. Lamond, “The Coerciveness of Law,” Oxford Journal of Legal Studies 20, no. 1 (2000): 39—62, 61.

See the appendix for elaboration and formal definition.

See Blake “ Distributive Justice,” 281—82; and Raz , Morality of Freedom, 156.

The term “hypothetical” does not commit liberalism to factoral deontology. See Thomas Pogge , “What We Can Reasonably Reject,” Philosophical Issues 11 (2001): 118—47, particularly 141.

See Joshua Cohen , “ Deliberation and Democratic Legitimacy,” in The Good Polity, ed. A. Hamlin and Philip Pettit (Oxford, UK: Basil Blackwell, 1989); Jürgen Habermas , Between Facts and Norms (Cambridge, MA: MIT Press , 1996); Seyla Benhabib , “Toward a Deliberative Model of Democratic Legitimacy,” in Democracy and Difference (Princeton, NJ: Princeton University Press, 1996); James Bohman , Public Deliberation (Cambridge, MA: MIT Press, 1996); and Frank Michelman , “How Can the People Ever Make the Laws?” in Deliberative Democracy, ed. James Bohman and William Rehg (Cambridge, MA: MIT Press , 1997).

See Beitz , Political Equality.

Joshua Cohen , “Reflections on Habermas on Democracy ,” Ratio Juris 12, no. 4 (1999): 385—416.

Quentin Skinner , Machiavelli (Oxford, UK: Oxford University Press, 1981), attributes something like the former view to Machiavelli. Frederick Neuhouser , “ Freedom, Dependence, and the General Will,” Philosophical Review 102, no. 3 (1993): 363—95, attributes the second view to Rousseau.

Cole , Philosophies of Exclusion , 184.

Cohen , “ Changing Paradigms of Citizenship and the Exclusiveness of the Demos,” International Sociology 14, no. 3 (1999): 245—68, 250; cf. Benhabib , Rights of Others, 19, 45—47, 219; and Jürgen Habermas , The Postnational Constellation (Cambridge, MA: MIT Press, 2001), 107—9. On the putative tension between liberalism and democracy, see Carl Schmitt , The Crisis of Parliamentary Democracy (Cambridge, MA: MIT Press, 1985) and Chantal Mouffe , The Democratic Paradox ( London: Verso, 2000).

Mouffe , Democratic Paradox , 39.

See, for example, Charles Taylor , “The Dynamics of Democratic Exclusion ,” Journal of Democracy 9, no. 4 (1998): 143—56.

Whelan , “ Citizenship and Freedom of Movement,” in Open Borders? Closed Societies? ed. Mark Gibney (New York: Greenwood, 1988), 16—17, 28.

Ibid., 28.

Walzer , Spheres of Justice (Oxford: Blackwell , 1983), 62.

On the globalizing implications of the all-affected principle, see Robert E. Goodin , “ Enfranchising All Affected Interests, and Its Alternatives,” Philosophy & Public Affairs 35, no. 1 (2007): 40—68.

For an explanation of why a state's regime of boundary control subjects all foreigners to coercion (and for a formal definition of subjection to coercion), see the appendix. I restrict the argument to coercion, as picked out by the autonomy principle, on methodological grounds, and not because I discount the need to justify the exercise of other forms of political power (e.g., ideological manipulation) that affect people but may not qualify as coercion.

The unbounded demos thesis is neither a properly normative nor empirical thesis. It makes an a priori (conceptual or metaphysical) claim about a constitutive feature of “the demos,” which is a term used in normative democratic theory's principle of legitimation (PL). At its most abstract, PL is: The justification of the exercise of political power is owed to the demos over whom it is exercised. According to the bounded demos thesis, PL is meaningful only if “demos” refers to an institutionally articulated set of persons from which some persons are necessarily excluded. The unbounded demos thesis denies this and claims that “the demos” in PL is properly glossed as “all persons.” For a defence of the claim that giving articulation to a group does not constitutively require (either conceptually or metaphysically) excluding some persons, see Arash Abizadeh , “Does Collective Identity Presuppose an Other?” American Political Science Review 99, no. 1 (2005): 45—60.

Frederick G. Whelan , “ Prologue: Democratic Theory and the Boundary Problem,” in Nomos 25: Liberal Democracy, ed. J. Roland Pennock and John Chapman ( New York: New York University Press, 1983), 22, 40; cf. Robert Dahl , After the Revolution? (New Haven, CT: Yale University Press, 1970), 59—63.

For a critique of this substantialist conception, see Habermas , Between Facts and Norms, 463—90; cf. James Bohman , “ From Demos to Demoi,” Ratio Juris 18, no. 3 (2005): 293—314, 296.

Walzer , Spheres of Justice , 62.

For welfare, see Joseph Carens , “Immigration and the Welfare State ,” in Democracy and the Welfare State, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1988), 222; for culture, see Will Kymlicka , “Territorial Boundaries,” in Boundaries and Justice, ed. David Miller and Sohail Hashmi (Princeton, NJ: Princeton University Press, 2001), 265—66; Carens , “ Migration and Morality,” 37—39; and James Woodward , “Commentary ,” in Free Movement, ed. Brian Barry and Robert E. Goodin (University Park: Pennsylvania State University Press, 1992), 64.

Raz , Morality of Freedom , 369, 369—81.

Raz , Morality of Freedom, 308—10. “Freedom depends on options which depend on rules which constitute those options . . . [which in turn] presuppose shared meanings and common practices.” Joseph Raz , Ethics in the Public Domain, rev. ed. (Oxford, UK: Clarendon, 1995), 176.

cf. Jeff McMahan's discussion of cultural pluralism in “ The Limits of National Partiality,” in The Morality of Nationalism, ed. Robert McKim and Jeff McMahan (New York: Oxford University Press, 1997), 123.

“The distinctiveness of cultures and groups depends upon closure and, without it, cannot be conceived as a stable feature of human life. If this distinctiveness is a value . . . then closure must be permitted somewhere.” Walzer , Spheres of Justice, 39.

One reader has objected that autonomy is here compromised only if a state in fact closes its borders, and not if it merely has the unilateral right to do so. But even if the objection's premise (that autonomy is not compromised by the unilateral right to close borders) were true, it would not salvage the self-determination argument. For the consequence of the pluralist argument is at least to deny citizens the unilateral right to close their borders, which means that, to remain compatible with the pluralist argument, the self-determination argument can at most establish unilateral domestic border “control” in the limited sense of administering a policy over which citizens have little say (because borders must not be closed). This undermines the self-determination argument because its case for unilateral control was grounded in the putative need for the right to close borders; establishing this right to close borders is the point of the self-determination argument. Moreover, the objection's premise is not true. If the autonomy of foreigners limits what citizens can rightly do concerning border policy, from a democratic perspective it is insufficient to have the limit (and the correlative rights of foreigners) respected thanks to the goodness of citizens' hearts. If foreigners have standing in justification, democracy demands a right of participation. If democracy is justified instrumentally, it demands a right of participation as necessary means for safeguarding persons' autonomy (and consequent rights). If it is justified noninstrumentally, it claims that persons are autonomous only insofar as they can see themselves as the authors of their own politically enforced rights and obligations, rather than enjoying them thanks to the pleasure of an enlightened but unaccountable autocrat. (The last point can be theorized in terms of Jürgen Habermas's “co-originality” thesis, which I accept but cannot defend here. The thesis holds that the grounds justifying the liberal principle of “human rights,” which limits how political power can be rightly exercised, are the same grounds that justify the democratic principle of “popular sovereignty,” which mandates rights of political participation.) Habermas , The Inclusion of the Other ( Cambridge, MA: MIT Press, 1998), chap. 10.

Montesquieu , L'Esprit des lois, book IX, chap. 1.

cf. Whelan , “ Citizenship and Freedom of Movement,” 25. See Walter Berns , “The Case Against World Government ,” in Readings in World Politics, ed. R. A. Goldwin (New York: Oxford University Press, 1959); and, for a critique, Janna Thompson , Justice and World Order (New York: Routledge, 1992), 93—98.

For example, see John Rawls's Millian view that citizens of democracies wish to share a polity with persons with whom they share “common sympathies.” Rawls , The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 24.

This instrumental justification, on efficiency grounds, corresponds to Robert E. Goodin's consequentialist justification for special duties and political borders. See Goodin , “ What Is So Special about Our Fellow Countrymen?” Ethics 98, no. 4 ( 1988): 663—86, 681.

See Robert Dahl , “Can International Organizations be Democratic? ” in Democracy's Edges, ed. Ian Shapiro and Casiano Hacker-Cordón (Cambridge: Cambridge University Press, 1999), 22.

Political liberals have responded to this by demanding that the state remain, in its constitutional essentials, neutral between different conceptions of the good. But, as liberals themselves have increasingly recognized, political institutions cannot be wholly neutral culturally, since they necessarily recognize some particular language(s) as the language of political life. See Will Kymlicka , Multicultural Citizenship (Oxford, UK: Clarendon Press, 1995), 111—15.

The minority-protection argument has affinities with the “recognition argument” that Alan Patten advances to defend separate political jurisdictions, but is stripped of problematic nationalist assumptions about the nature of, and relationships between, identity, culture, and values. See Patten , “Democratic Secession from a Multinational State,” Ethics 112 (April 2002): 558—86. Liberal nationalists such as Kymlicka argue for the existence of borders by claiming that they are necessary instruments for protecting distinct national cultures, which is in turn necessary for autonomy. Kymlicka, Multicultural Citizenship, chap. 5; Kymlicka , “Territorial Boundaries,” 266. As Patten has shown elsewhere, however, this argument only succeeds under quite restricted conditions. Patten , “The Autonomy Argument for Liberal Nationalism,” Nations and Nationalism 5, no. 1 (1999): 1—17. Kymlicka's other arguments— that regulating borders is instrumentally necessary for nation-building, which in turn is necessary for a modern economy, social solidarity, and the mutual understanding and trust necessary for democracy—depend on problematic empirical claims. Kymlicka , “Territorial Boundaries,” 265—66. For a critique of such claims, see Arash Abizadeh , “Does Liberal Democracy Presuppose a Cultural Nation?” American Political Science Review 96, no. 3 ( 2002): 495—509.

On the relation between the two conditions of democratic legitimacy (participation and freedom/equality), see Cohen , “Reflections on Habermas on Democracy .”

For discussion, see Mark Gibney, ed., Open Borders? Closed Societies? (New York: Greenwood Press, 1988); Brian Barry and Robert E. Goodin, eds., Free Movement (University Park: Pennsylvania State University Press, 1992); David Miller and Sohail Hashmi , eds., Boundaries and Justice (Princeton, NJ: Princeton University Press, 2001); and Ethics and Economics 4, no. 1 (2006).

One reader has suggested that this introduces the all-affected principle through the back door. It is true that the autonomy principle is sensitive to interests (i.e., value). But it is nonetheless more restricted than the all-affected principle because this sensitivity is only activated for differentiating amongst those who are already subject to coercion. Having valuable options at stake is not sufficient for the autonomy principle to trigger a demand for justification. One must be subject to coercion.

The fact that border control is recognized by the United Nations as falling under individual states' jurisdiction obviously does not count as delegation in the democratic sense (meeting the participation and equality/freedom conditions) necessary for legitimation.

For preliminary explorations of how cosmopolitan democratic arrangements could be articulated institutionally, see Daniele Archibugi, David Held , and Martin Köhler , eds., Re-Imagining Political Community ( Stanford, CA: Stanford University Press, 1998).

cf. Benhabib , “ Toward a Deliberative Model,” 84.

As Schotel puts it, “Launch and learn is the proper attitude” of activists in this domain. Schotel , “ How Political and Legal Theorists Can Change Admission Laws,” 8.

For the distinction between successful coercion and coerciveness, see Lamond , “Coerciveness of Law,” 52; and Scott Anderson , “ Coercion,” in Stanford Encyclopedia of Philosophy, 2006, http://plato.stanford.edu/ (accessed April 3, 2007). For an account (which Anderson rightly criticizes) that reduces coercion to “an achievement word” denoting success, see Michael Bayles , “ A Concept of Coercion,” in Coercion: Nomos XIV, ed. J. Roland Pennock and John Chapman (Chicago: Aldine , 1972), 19.

By contrast, Robert Nozick , “Coercion,” in Philosophy, Politics and Society: Fourth Series, ed. Peter Laslett, W. G. Runciman, and Quentin Skinner (Oxford , UK: Basil Blackwell, 1972); and Michael Gorr , “ Toward a Theory of Coercion,” Canadian Journal of Philosophy 16, no. 3 ( 1986): 383—406, restrict their treatment to communicative coercion. For additional reasons for rejecting this restriction, see Anderson , “Coercion,” and Virginia Held, “Coercion and Coercive Offers,” in Coercion: Nomos XIV, ed. J. Roland Pennock and John Chapman (Chicago: Aldine, 1972).

Authorization does not constitute a coercive threat because it does not operate by communicating intentions to the coercee (though it may be accompanied by threats as well). Legally authorizing state agents preemptively to incapacitate a person about to commit murder is distinct from threatening to imprison a murderer after the fact. See Lamond , “ Coerciveness of Law,” 42—43.

As Held rightly argues, in these cases what “changes is not the coercive character of such laws, but the individual's interest in risking or not risking the consequences of violation.” Held , “Coercion and Coercive Offers,” 55.

I have adapted these conditions from Nozick , “Coercion,” 102—6, and Raz , Morality of Freedom , 148—49. Conditions 1—6 roughly correspond to Nozick's conditions 1'; 2' and 7; 3; 6; 4; and 5'; and to Raz's conditions 1; 3 and 4(b); 2; 4(a); 5; and 6; respectively.

I would also defend two other conditions as each sufficient for a threat to be coercive when combined with 1—4 plus N: S2: X leaves Q with an inadequate range of valuable options (and Q would have an adequate range were X avoided). or S3: X eliminates an option that is fundamental to Q's capacity to pursue her personal projects or life plan. S3 captures what Raz calls a choice dictated by “personal needs.” Raz , Morality of Freedom, 152—53.

More formally:

where:

See Arthur Ripstein , “Authority and Coercion,” Philosophy & Public Affairs 32, no. 1 (2004): 2—35.

One reader worries that my definition of being subject to a coercive threat—which is not conditional on the coercee's interest in undertaking the proscribed action—is too broad. The reader worries that the definition's (implausible) implication is that a Nigerian law criminalizing homosexuality in Nigeria subjects to coercion a U.S. citizen and resident with no interest in going to Nigeria, since it threatens him with sanctions should he go to Nigeria and engage in gay sex. This overlooks the difference between laws regulating borders and laws regulating actions within a state and, as such, is a misreading of condition 1 (and the law). It is true that some laws do claim universal jurisdiction and thus subject outsiders to coercive threats; as such, they are analogous to border laws and hence their legitimacy requires justification to outsiders. (The 1996 U.S. Helms—Burton Act threatens non-U.S. companies trading with Cuba; Belgium's 1993 universal jurisdiction law gave Belgian courts jurisdiction over atrocities not involving Belgians and committed outside Belgium.) But such laws are rare; normally, laws (as in the Nigerian example) do not address outsiders. What is distinctive about border laws (and the threats attached to them) is that they are inherently addressed to both insiders and outsiders (regardless of outsiders' interest in undertaking the proscribed action). A border law meets condition 1 vis-à-vis an outsider because the state P communicates its intention, say, to imprison outsider Q (outcome X) if Q undertakes to enter the state (action A). But a law criminalizing homosexuality in Nigeria does not threaten outsider Q if Q undertakes gay sex (action A). There is no question of universal jurisdiction here. To purport to meet condition 1 by equating “action A” with “undertakes to enter Nigeria and then engage in gay sex” is misleading because it conflates two different actions, border-crossing and sex, which are objects of distinct laws. Boundary laws not only address everyone, they are, as it were, prior to other laws: they normally define to whom other laws are addressed by limiting their jurisdictional scope. (The issue that the reader's example actually raises is the kind of democratic rights tourists or migrants ought to have by virtue of being subject to domestic laws— an issue beyond the scope of the present article.)