Abstract
Do states have a right to exclude prospective immigrants as they see fit? According to statists the answer is a qualified yes. For these authors, self-determining political communities have a prima facie right to exclude, which can be overridden by the claims of vulnerable groups such as refugees and children born in the state’s territory. However, there is a concern in the literature that statists have not yet developed a theory that can protect children born in the territory from being excluded from the political community. For if the self-determining political community has the right to decide who should form the self in the first place, then that right should count against both newcomers by immigration and newcomers by birth. Or so the concern goes. In this essay, I defend statism against this line of criticism and provide a liberal justification for the inclusion of children born within the state’s borders. My account leads to some surprising implication for citizenship law, as well as immigration arrangements in the area of asylum and unauthorized immigration.
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Notes
Note that Wellman (2008) believes that states can help refugees without including them as members.
For this distinction, see Simmons (1999).
I am not arguing that it is illegitimate for this child to also hold citizenship in New Zealand. Everything I say here is compatible with the principle of jus sanguinis also being employed by states in order to ensure that if parents were to return to their states of citizenship, they could bring their child without having to apply for a right to family reunification.
Here I use ‘denizens’ to pick out individuals who are long-term legal residents of a state but lack citizenship there.
I thank a reviewer for this example.
At this stage, the statist can add a third ground for inclusion so as to account for such cases. I take it that such ad hoc move would only be acceptable if we lacked a general theory that accounts for all resident children. Later I defend a theory that is neither under-inclusive nor ad hoc.
For a response, see Miller (2010).
This would be true of expressive views that appeal to an interest on the part of the child to enjoy the identity or status of citizen. Such views are likely to overgeneralize as well.
This is compatible with the claim that children can exercise some limited degree of autonomy (Bou-Habib and Olsaretti 2015).
This definition is based on Seana Valentine Shiffrin’s definition of paternalism. Shiffrin (2000) believes that paternalism in the case of adults is problematic whether or not the agent believes correctly that she has a superior ability to track the interests of the person she acts paternalistically towards. Note that it is important to make a distinction between effective and ineffective paternalism, since the latter seems to lack a justification even in the case of children.
All liberal theories that accept paternalism for children face a problem of demarcation between childhood and adulthood. See Anderson and Claassen (2012).
It is true that in some rare cases bystanders would be required to bear moderate costs so as to further a child’s interest if they could do so without setting back her other interests and imposing unreasonable costs on others. It is also true that some extended family members would develop such intimate loving relationships with children that they too would be uniquely capable of advancing their good. This raises the problem of parental proliferation. Although I lack the space to engage with it here, let me gesture towards two potential responses that are compatible with the other claims of the paper. One response is to argue that there are thresholds of loving dispositions, competency and intimacy, such that any one who reaches them, becomes a parent. This would of course lead to radical implications for the institution of the family. Another response is to argue for an additional principle such that the first parent or parents have a right to decide who else can parent. This response is intuitive, but there is an important challenge in explaining why being first matters.
For the challenge that the family poses for justice, see Munoz-Dardé (1999).
For the notion of a modally demanding value, see Pettit (2015).
This has important implications for children with special needs who can only lead good lives when their care givers make sacrifices that go well beyond the demands of morality (Ferracioli 2014).
For a discussion on the relationship between citizenship and welfare rights, see Carens (2013: Ch5).
There is of course a general challenge of explaining the source of presumptive moral obligations, and to accurately specify their content. With regard to the source of presumptive obligations, one possibility is that they are not actually grounded in deep moral facts but rather in a social convention whereby an agent X gets assigned a responsibility R iff (1) there is an important moral obligation to be discharged at T1, (2) no agent qualifies for bearing that responsibility at T1, and (3) X is likely to qualify for R at T2. With regard to the content of presumptive obligations, one possibility is that they require X to act as if they already had R until they find themselves in a position where they can permissibly transfer it to another agent, or until the responsibility ceases to be presumptive and becomes actual. I am aware that more needs to be said on this general question, but for my purposes it suffices to accept that presumptive moral responsibilities exist, that they can be transferred under some conditions, and that they in some way track the future position of a moral agent. I thank a reviewer for raising this concern and for suggesting the role of conventions in explaining the paternalistic responsibility of states at the time of birth.
One implication of my argument is that children who move around the world and spend some relevant time (i.e., 12 months or more) in each state will have multiple citizenships. I remain agnostic on whether adults can automatically keep their multiple citizenships, or whether they need to show that there is still a “relevant” connection between them and the state. It is also important to emphasise that jus paternus does not justify a form of ‘kindership’ whereby children can only keep their citizenship until the age of majority since this would fail to advance those interests of the child that require stability and long-term planning.
It is also important to recognize that jus paternus will, at times, give rise to perverse incentives in the form of parents using their child to acquire residency or citizenship rights in a liberal state. The point to stress is that although the demands of justice can at times give rise to regrettable outcomes, we must try and address such outcomes without turning our back on justice.
This means that someone could disagree with me about which children have a right to immigrate, whilst still agreeing with me that it is the paternalistic relationship between child and state that grounds the child’s right to citizenship.
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Acknowledgements
For excellent comments and suggestions, I would like to thank Christian Barry, Ryan Cox, Dan Halliday, Eszter Kollar, R. J. Leland, Serena Olsaretti, Kim Rubenstein, Ana Tanasoca, Rosa Terlazzo and two anonymous reviewers for Phil Studies. I would also like to thank audiences at the University of Sydney, University of Leiden, ANU, Goethe University of Frankfurt, Central European University, Pompeu Fabra and the University of Melbourne. Special thanks to the Philosophy Program at the ANU for providing me with a great environment to write this piece in 2016, and the Netherlands Organization for Scientific Research for financially supporting my research via a VENI grant (275-20-148).
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Ferracioli, L. Citizenship for children: By soil, by blood, or by paternalism?. Philos Stud 175, 2859–2877 (2018). https://doi.org/10.1007/s11098-017-0985-3
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DOI: https://doi.org/10.1007/s11098-017-0985-3