by Satvinder Singh Juss. Hampshire, England: Ashgate Publishing Ltd., 2006. 350pp. Hardcover. $99.95/£55.00. ISBN: 0754646718.
Reviewed by John S.W. Park, Department of Asian American Studies, University of California at Santa Barbara. Email: jswpark [at] asamst.ucsb.edu.
In the first part of this book, Satvinder Juss tries to show how national restrictions against immigration are deviations from traditional liberal norms, and for most of this volume, Juss argues that fundamentally, these restrictions are also unjust mechanisms through which wealthier nations keep out the poor and displaced beyond their boundaries. Juss tackles a problem that seems to have no political or legal solution, as practically every nation-state now deals with “unwanted” immigrants. Juss focuses on immigration in Europe and Great Britain, but his arguments are addressed to policy-makers and scholars in all liberal nation-states. His work offers moral and legal rationales for a more open system of immigration. Ultimately, though, his reading of liberal norms and his understanding of contemporary immigration rules are less than persuasive.
First, to support his argument that immigration restrictions are aberrations to a system of open migration, Juss cites theorists like Emmerich de Vattel, Hugo Grotius, and Samuel Pufendorf, and he also relies heavily on James Nafziger’s more recent essay on the admission of aliens under international law. Juss concedes that influential theorists like Vattel are problematic. In one of the more infamous Chinese Exclusion Cases, for example, Justice Gray of the United States Supreme Court cited this passage from Vattel’s LAW OF NATIONS (1758): “Every nation has the right to refuse to admit a foreigner into the country, when he cannot enter without putting the nation in evident danger, or doing it a manifest injury. What it owes to itself, the care of its own safety, gives it this right; and in virtue of its natural liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner” (Fong Yue Ting v. US, at 707). Yet Juss insists that “the classical publicists provide no basis for the proposition that a sovereign has an unfettered right to exclude all aliens” (p.14). In particular, Vattel himself mentioned the need for states to offer asylum, as well as the duty of nations to offer “just assistance.”
Vattel is instructive, because his work is an example of how classical, modern, and contemporary liberal theorists have always been confused and contradictory when it comes to international migrations. Liberal theorists might be deeply committed to principles of human equality, as they are manifest in liberal constitutions or in the Universal Declaration of Human Rights, but they have also embraced principles of sovereignty that have justified restrictions against immigration, as well as other forms of discrimination based on ascriptive status. John Locke said in the SECOND TREATISE that one of the [*247] primary functions of a liberal, consent-based commonwealth was to “prevent or redress foreign injuries, and secure the community from inroads and invasion” (Macpherson 1980, §131). (Justice Gray and a majority of his Court argued that Chinese immigration amounted to an “invasion.”) Locke suggested that a liberal commonwealth could deal with everyone outside its boundaries as though they were still in a state of nature. In his other works, Locke was more blunt: foreigners should “depend only on what they bring with them, either their estates or industry, both which are equally profitable to the kingdom” (Goldie 1997, at 324). Those who were “unprofitable” could not claim a right to admission.
Similarly, among contemporary liberal theorists, there is hardly a consensus for open migration. In one of his last works, for example, John Rawls wrote that “people must recognize that they cannot make up for failing to regulate their numbers or to care for their land by conquest in war, or by migrating into another people’s territory without their consent” (Rawls 2001, at 8). These are just two examples of how many influential theorists have defended the right of liberal commonwealths to exclude persons they do not want, irrespective of broader commitments to human equality. Juss does not address these types of arguments, nor does he give reasons for why these arguments are so inconsistent with liberal norms.
In terms of how immigration rules function to exclude poorer immigrants from wealthy countries, Juss spends just one chapter arguing for a more realistic set of rules based on concerns about utility and fairness. “My argument here is that the developed world needs to recognize that there is a market for immigration. Provided it recognizes that fact, it may then move to regulate that market in a way that promotes its own interests, cultivates an intercourse with the less developed world, and is cost effective” (p.67). He notes that skilled workers have moved often from developing countries to developed nations since the postwar era, and that this movement has been critical for several industries in affluent countries.
However, Juss does not discuss at length the particular problems associated with large-scale, unskilled immigration from the developing world into advanced industrial nations. He does not engage, for instance, scholars who have long insisted that these unskilled migrations have had a detrimental effect on the economic fortunes of the least well-off in countries like the United States. Nor does he discuss political debates where politicians and scholars have insisted that the immigration of the poor should be decreased and otherwise heavily controlled, because poorer migrants stress the social welfare and criminal justice systems of advanced industrial nations. Many countries now deport more persons for a larger number of reasons precisely to reduce these costs. Juss might not agree with economists like George Borjas, but Juss’ work would have been more persuasive and well-rounded had he addressed these types of concerns, if either to refute them with his own evidence, or to understand better the political forces that have led to greater restrictions specifically directed [*248] at unskilled workers throughout Europe, Asia, and North America (See e.g., Borjas 1991; 2001).
Instead, Juss focuses most of his concern about poorer immigrants by looking at refugee law and policy. Indeed, about half of his book is concerned with expanding the definition of refugees, and then arguing that more refugees should be admitted into wealthier countries. Many of his observations are uncontroversial: “displaced persons” now lose their homes because of natural disasters, industrial accidents, political instability, and war; the current definition of a “refugee” captures a very small fraction of this displaced population; even “where they are admitted [as refugees], they are expected to return as soon as the situation at home improves” (p.156); and “events in the current decade confirm that the rich countries of the North are not going to accept a proportionately fair share of the world’s refugees today” (p.231). Juss rightly points out that the “the rights of refugees today are embattled and are therefore uncertain and shrinking” (p.219). In short, the need for sanctuary is gigantic, and yet the political will to meet that need through refugee admissions has dwindled.
This has occurred even though wealthier nations, through their military adventures and political and economic policies, have caused much of the displacement throughout the world. Again, Juss makes claims that appear uncontroversial for anyone paying attention to current affairs: “Western intervention through military action is surely responsible to some degree for the ungovernable state of countries like Iraq and Afghanistan. . . The rise in refugees from these countries is something for which the West must bear some responsibility” (p.229). And, Juss points toward this solution: “What is needed . . . is an approach to refugee law that makes connections between refugee law and general immigration rights, and integrates immigration law and refugee law into human rights laws, in the context of more general rights to free movement” (p.239). Later, Juss writes: “If the richer countries really wanted to alleviate hardship, to increase prosperity, and to bring real benefits of globalization to bear on the poorer world, there is no better way to do that than to lift the barriers to control in the developed world. Globalizing the free movement of people across the world would enable vastly more people in the under-developed world to improve themselves and their people” (p.296).
That is the heart of Juss’ argument. “Whether or not borders should be thrown open, in my view the case for an open system of immigration controls is unassailable simply because the concept of closed societies is repugnant to the very idea of international mutuality, communality and solidarity” (p.3). And, “[if] people want to sign the social contract and become full contributing members of a society, they should, where ever possible, be permitted to do so, because this is compatible with the idea of equal moral worth of all individuals” (p.57). In sentences like these, Juss provides articulate statements for persons who agree with him, including me; however, what he does not do is confront counter-arguments to [*249] these positions, counter-arguments that explain better why liberal nation states have not moved in the directions that he or I would like. He tends to be dismissive of these other points of view, saying that they are inconsistent with liberal norms or economically irrational or perhaps just plain racist. They might in fact be all these things, and yet by not taking these positions more seriously, Juss misses many opportunities to show why citizens in liberal states have often been so hostile to persons who are culturally different, poor, or both. In tone and substance, his book reads like a lengthy law review article advocating a particular point of view, and not a balanced account of a complex set of social, political, and legal problems. In other words, his book is not likely to persuade anyone who does not already agree with him.
Borjas, George J. 2001. HEAVEN’S DOOR: IMMIGRATION POLICY AND THE AMERICAN ECONOMY. Princeton: Princeton University Press.
Borjas, George J. 1991. FRIENDS OR STRANGERS: THE IMPACT OF IMMIGRANTS ON THE AMERICAN ECONOMY. New York: Basic Books.
Goldie, Mark (ed). 1997. “For a General Naturalization,” in JOHN LOCKE, POLITICAL ESSAYS. Cambridge: Cambridge University Press.
Macpherson, C.B. (ed). 1980. JOHN LOCKE, SECOND TREATISE. Indianapolis: Hackett Publishing Company
Nafziger, James A. R. 1983. “The General Admission of Aliens under International Law.” 77 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 804-847.
Rawls, John. 2001. THE LAW OF PEOPLES. Cambridge: Harvard University Press.
FONG YUE TING v. US, 149 U.S. 698 (1893).
© Copyright 2007 by the author, John S.W. Park.