The analysis below will, as was the case with the above analysis of the two cosmopolitan perspectives, commence with a more detailed examination of the right to admission, for analogous reasons.61 It is plain that nation-states, on the communitarian perspective, have a
61 Sp ecial attention w ill be g iv en to W a lzer’s account in Spheres o f Justice as th is is the m o st elaborate and sophisticated com m unitarian account o f this particular issu e. T o what extent W alzer has shifted his p osition is o f
general right to regulate immigration in accordance with their particular social meanings, as Hegel tersely put it: “Permission to enter a state or leave it must be given by the state; this then is not a matter which depends on an individual’s arbitrary w ill...” (Hegel 1967: § 75 Additions)62
This is a right that nation-states hold on two grounds. First of all, non-citizens have no independent or universal moral platform from which they could demand admission. This is a simple consequence of the fact that the communitarian rationale is based on the notion that no universal vantage point of justice exists. Thus, all moral claims for admission must be based on the particular nation-state’s internal social understanding of justice. That is, all claims for admission must be made from the inside, as it were.
Secondly, the right to control admission is crucial for nation-states’ ability to maintain themselves as particular political communities. A nation-state perceived as a particular community, upholding the values and the special relationship between its members, cannot survive without the right to control admission: open borders clearly would mean a loss of control over the body politic. The right to entry does not therefore, from a communitarian perspective, hinge on the need or desire of the individual who wishes to enter, but rather depends on that person’s relation to the nation-state that she wishes to be admitted to.
This works much like the decision of a club to accept a person as a member: it is entirely a matter of the club's desire to accept or not accept the applicant. A club has no obligation to non-members, and indeed loses its character as a distinct community if it allows persons to join on terms it does not recognise as its own (Walzer 1983: 31-63; Gibney 2004: 28, 31-32).
In Walzer’s words:
B ut the right to c h o o se an ad m ission s p o licy is m ore basic than any o f these [state rights], for it is not m erely a m atter o f acting in the w orld, ex ercisin g sovereign ty, and pursuing national interests. A t stake here is the shape o f the com m unity that acts in the w orld, e x e r c ise s sovereign ty, and so
no concern here as his account in the Spheres o f Justice sim p ly is used to draw out a coherent com m unitarian perspective on n o n -citizen s’ right to adm ission.
2 It should be noted that this thesis d o es not deal with the right to ex it a state as this right very seldom has been denied n on -citizen s. It is a lso notew orthy that citiz e n s’ as w e ll as n o n -citizen s’ right to leave a state is a w ell established part o f international law that the U .S . and G erm any respect and apply. A rticle 13 o f the U n iversal D eclaration o f H um an R ights stipulates that: “E veryone has the right to freedom o f m ovem ent and resid en ce w ithin the borders o f ea ch state. E veryone has the right to lea v e any country, in clu d in g his o w n , and to return to his country. It is o f note that the D eclaration contains n o equivalent right to im m igrate.
on. A d m ission and ex clu sio n are at the core o f com m unal independence. T h ey su ggest the d eepest m eaning o f self-determ ination. W ithout them , there cou ld not b e any com m u n ities o f ch a ra c te r,
historically stable, on g o in g associations o f m en and w om en w ith so m e sp ecial com m itm ent to one another and som e sp ecial sen se o f their com m on life . (W alzer 1983: 6 1 - 6 2 , em phasis in original)
Nation-states do, however, have obligations, in terms of admission, towards members. A nation-state is the representative of a nation, and as such it has an obligation to protect the nation’s particular social meanings as well as its members. This means that members always have a right to admission, for nation-states’ sovereignty is based on their claim to safeguard a particular way of life for a particular people. That is, the perception of the state as an ethical community intrinsically intertwines the notion of communal membership with the right of admittance (Tamir 1993: 127-137).63 Once again, in Walzer’s words:
Greeks driven from Turkey, Turks from G reece, after the w ars and revolutions o f the early twentieth century, had to b e taken in b y the states that bore their c o lle c tiv e nam es. W hat e lse are such states for? T h ey d on ’t o n ly preside over a p iece o f territory and a random co lle c tio n o f inhabitants; they are also the political exp ression o f a com m on life and (m ost often) o f a national “fam ily” that is n ever entirely en clo sed w ithin their legal boundaries. (W alzer 1983: 4 2 )
It should be noted that the social understanding of who is a member is part of a particular nation’s shared understandings; nations hence retain basic control of admissions, but the fact that it is not legal membership but communal/national membership that bestows rights from the communitarian perspective does create an obligation to admit members who are not citizens. Nations cannot thus, first of all, deny admission to recognised members. More importantly perhaps, nations cannot deny members’ families admission. This follows because communities are stable historical associations where membership is passed from one generation to the next, not ad hoc associations; hence members’ families are ipso facto
members. Parents stand at the very centre of the constitutive social process discussed in the previous chapter; the family hence constitutes the foundation or the core of the nation, and is in this sense prior to the nation.
A nation is hence like a family in two senses. One, members have moral obligations to people they have not chosen or explicitly consented to be associated with. (This is also partly why nationality is constitutive.) Two, national membership is inherited and passed from parents to
their offspring (Walzer 1983: 41, 62; Meilaender 2001: 157, 179-183; Gibney 2004: 26; Miller 1995: 23-24).64 The fact that it is membership in the community, and not the universal right to an autonomous sphere, that engenders the right to admission for family members means that only members have a right to have their families admitted. That is, this right does not extend to non-members who are long-term residents.
The fact that the nation only has obligations towards members means that refugees who are non-members have no right to admission. A nation is simply free to admit refugees or not, as it sees fit. In Walzer’s words:
O n ce again, com m u n ities m ust have boundaries; and h o w ev er these are determ ined w ith regard to territory and resources, they depend with regard to population on a sen se o f relatedness and m utuality. R efu g ees m ust appeal to that sense. O ne w ish es them success; but in particular ca ses, w ith reference to a particular state, they m ay w ell have n o right to b e su cc essfu l. (W alzer 1983: 5 0 )
Walzer argues that a nation’s right to deny refugees admission does not include the right to deport asylum seekers who have been able to reach the shores of a safe nation-state (Walzer 1983: 51). Walzer offers one instrumental argument for this exception: the number of refugees that are able to file for asylum inside a given state is smaller than the total number of refugees, which makes the problem more manageable (Walzer 1983: 50-51).
This argument carries little weight on its own. After all, this holds true for any (arbitrary) divisions of a given population. The key question is that of whether the distinction between refugees on the inside and refugees on the outside is a morally relevant distinction. Walzer tries to argue for such a difference by appealing to the distinction between direct harm and passive harm, and argues that to expel asylum seekers who have entered a given state would involve actively harming helpless individuals whereas denying them entry would not (Walzer
1983: 50-51).
This argument hardly holds water. First of all, the premise that other refugees are not actively harmed clearly only holds if the refugees make no unsuccessful attempt to cross the border. To shoot unarmed refugees as they try to pass a state’s border clearly involves as much direct
64 The ex a ct sc o p e o f w h o is a fa m ily m em ber m ust be decided by the sp ecific so cia l understandings o f what constitutes a fa m ily in a given nation-state.
harm to innocent people as deporting refugees who face certain death in the receiving country. Second, this distinction between passive and active harm (a version of the act-omission distinction) cannot carry the weight of this argument, for two reasons. One, the act-omission distinction suffers from the inherent weaknesses of basing a key normative claim on a normatively void distinction; to omit to act, when one has the ability to act, is as much a moral choice as to choose to act (Singer 1988: 119-120). Two, and most importantly here, there is no need, and indeed no ground, from a communitarian perspective, to differentiate between non-members who are physically inside the community and non-members who are outside the community.
A community’s right to decide over non-citizens’ survival must depend on social/cultural - not physical - location, from a communitarian perspective. That is, mere physical presence cannot engender universal rights that people on the other side of the fence lack (Miller 1995:
139). Indeed, Walzer himself seems to hesitate:
W h y m ark o ff the lucky or the aggressive, w h o have som eh ow m anaged to m ake their w ay across our borders, from all others? O nce again, I d on ’t have an adequate answ er to these questions. (W a lzer 1983: 5 1)
Walzer’s argument hence appears to be inconsistent, and he offers no clear argument for why certain refugees enjoy universal protection (Gibney 2004: 34). The reason for belabouring this point is that it has an important general implication in that it demonstrates that Walzer’s (and other communitarian thinkers’) attempt to ad hoc insert universal cosmopolitan constraints on particular communities are incompatible with the communitarian perspective; and this also has implications for the political rights and naturalisation realms. Nation-states have a right to exercise national sovereignty according to their particular social meanings from a communitarian perspective; this means that no universal obligations based on non-members’ perceived needs exist. That is, non-citizens have no right to admission, or anything else, regardless of the severity of their predicament.
This follows because from the communitarian perspective, moral obligations are not perceived of as universal and individual, but particular and inter-communal. The important point here is that from the communitarian perspective, communities can only be criticised from the inside. Any attempt to argue that non-citizens have a universal right to equality or to be afforded certain rights collapses under pressure from the communitarian rationale’s
epistemological starting point.65 The fact that members of many communities feel that non members should not have the same rights as members, or that communities must be partial to their members, simply settles the issue from a communitarian perspective (Doppelt 1978: 15; Carens 2000: 24-28, 33, 37).