Liberalism and the Politics of Legalizing Unauthorized Migrants

Liberalism and the Politics of Legalizing Unauthorized Migrants Fumio Iida Professor of Political Theory, Kobe University CS06.16: Liberalism, Legality and Inequalities in Citizenship (or the Lack of It): Contemporary Critical Perspectives In, 24 th World Congress of Political Science, International Political Science Association, 2016.7.25, Poznan, Poland (work in progress: please do not cite without written permission of the author) 1

Introduction Among the many different issues discussed in the recent literatures on the relations between different ethnic groups, the rights and status of unauthorized migrants definitely constitute one important problem. On the one hand, when multiculturalist theorists such as Taylor and Kymlicka opened up the new era of ethno cultural theory in the late 20 th Centuries, many theorists began to consider the status of unauthorized migrants as one counter example that does not meet the conditions applicable to typical migrants such as national minorities or legal immigrants. 1 On the other hand, with the rise of the illegal migrants and the conflicts related to them since the beginning of the 21 st Century in the non-ideal real worlds, many political theorists are engaged in the debate over whether it is permissible or not to legalize migrants who do not have any formal permission to stay in the recipient country for some reasons or others. The most representative theorists who can be classified into this category are Joseph Carens and Rogers Smith, to name a few 2. Although both of these two camps of theorists have actively discussed many different issues related to ethno-cultural justice, there seems to emerge one curious tendency these days. In spite of the increasing numbers of active discussions of these 1 Charles Taylor and Amy Gutmann, Multiculturalism: Examining the Politics of Recognition (Princeton: Princeton University Press, 1994); Will Kymlicka, Multicultural Citizenship (New York: Oxford University Press, 1995). 2 Joseph H. Carens, The Ethics of Immigration (New York: Oxford University Press, 2013); Rogers Smith Living in a Promise Land? : Mexican Immigration and American Obligations, Perspectives on Politics, 9 (3), September 2011, pp 545-557. 2

two camps, there is only little dialogue between multiculturalists and legalization theorists as to the just policies of legalizing non-documented migrants. Let me clarify my point by elaborating the typical ways in which each group reacts to the other group. On the one hand, it is clear that one important intention of the legalization theory is to point to the limits of multicultural theorists. As is clear from the major formulation by Kymlicka, who is the leading theorist in the multiculturalist camp, multicultural literatures so far have focused on the rights of ethnic groups who succeeded in organizing conspicuous struggles in the recipient country. This tendency is most typically observed in Kymlicka s classification that focuses on the distinction between national minorities and polyethnic groups. One apparent intention of the legalization theorist is to highlight the limits of existing multicultural theories by bringing the less visible minority groups into the discourse. We can safely say that the legalization theory starts from where the multiculturalists failed to theorize. On the other hand, it is important to note that the reverse is not the case. Although legalization theorists intend to respond to some of the issues raised by the multiculturalists, there seems to exist no systematic response from the multiculturalists so far as to how to deal with the issue of legalization. This is quite problematic not only to legalization theorists but also to multiculturalists, given the fact that the major concern among the ethno-cultural literatures has shifted from majority-minority 3

relations to intra-minority relations. As the pioneering work Minorities within Minorities aptly illustrated, one growing concern among ethno-cultural scholars these days is the conflict among different minority groups 3. This implies that theorists need to be aware of the fact that the recognition of one cultural group within governmental policy affects the status of other groups in one way or another. Under this new context, it is important or even obligatory for the multicultural theorists to respond some of the issues and questions raised by the legalization literatures. However, multiculturalists fail to provide any systematic response to the challenges of legalization theorists. What I would do in this paper is to seek for a theory of legalization that suits neatly to the liberal theory of multicultural arguments. What I intend to show is that liberal multiculturalist can deal with the issues of legalization from different moral reasoning and justifications. In short, liberal multiculturalists have the high potential to deal with the status of undocumented migrants and other categories of minority groups in a more consistent and systematic way. My argument will proceed in the following way. First, I will elaborate the major features of legalization theorists by examining the arguments of Joseph Carens, and will contend that legalization theory fails to be sensitive enough to the actual choices 3 Avigail Eisenberg and Jeff Spinner-Halev (eds.), Minorities Within Minorities : Equality, Rights and Diversity (Cambridge University Press, 2005). 4

of both migrated and original residents. Second, I will consider the two possible responses by existing liberal multicultural theories, which I label as individualist and "contractarian, respectively. I contend that both of these versions made some progress in responding to the actual needs and claims of minority groups but fail to provide adequate solution to the case of non-documented migrants as they have no substantial chances to express their will and claims at the time of incorporation in the recipient country. Third, I seek for a possible outline of the alternative liberal theory of legalization, which relies on the reinterpretation of contractarian liberal argument. I conclude that liberals can deal with the issue of legalization more adequately by theorizing the conditions under which minorities and majorities can re-negotiate the terms of incorporation into the recipient society. 1. Carens and the Limits of Social Membership Theory Let me first consider the key features of legalization theory by examining the arguments of its major proponent, Joseph Carens. Carens begins his argument by considering the features and limits of existing theories and practices of migration. According to Carens, most major contemporary democratic states decide the status of a person s citizenship along the principle of birthright citizenship. This principle stipulates that a state can grant citizenship status most typically either on the basis of 5

birth on the state s territory or on the basis of descent from parents. 4 In other words, except the few case of naturalization that requires significant amount of time and energy on the part of the non-citizen members of the society, the most typical and easiest case one can gain citizenship status is when he or she is born as a legal resident of the specific country in question. Carens contends, however, that this principle creates lots of difficult problems regarding the rights and status of the non-legal migrants. The most serious is the case of a person who could not gain citizenship at birth because both of his or her parents chose to remain in the country without legal resident status and without notifying the person in question about the non-legal status of their family for a long time. In such a case, the person in question might have to face with the cruelty of deportation which is likely to destroy his or her most basic moral ties or relationship such as family life or work. In addition, the person in question may not be eligible for most basic state protections such as medical care or pension. The difficulty in such cases, Carens argues, is that the person in question could not gain citizenship at no fault of their own. In order to avoid the cruelty of deportation, the person in question have no other choice but to remain in the non-legal status, which makes his life in the country far 4 Carens, op. cit., p.32. 6

more vulnerable compared with other legal citizens. 5 In order to overcome the limits of birthright citizenship theory, Carens attempts to present his own theory of citizenship, which he labels as social membership. This theory grants citizenship to all those who live within the territorial boundaries of a state because a person s claim to political community deepens over time. 6 Carens proposes that all residents of a democratic state including non-legal ones are entitled to citizenship status once they spend certain threshold period of time in that country. As for the concrete number of years of residence necessary to obtain citizenship status, Carens suggests that five years might be a sufficient figure, but adds that it can be somewhat longer or shorter, depending on the local context of the recipient country. 7 Whatever the concrete institutional arrangement might be, the main point about the idea of social membership is that citizenship status rests on the degree to which a person have established stable network within the recipient community. According to Carens, one decisive upshot of his theory of social membership is that it provides strong justifications for non-citizens to claim rights and protection in accordance with their expected length of stay regardless of their formal legal status. For example, Carens maintains that legal permanent residents, whose residence is 5 Ibid, p. 147-57. 6 Ibid, p. 158. Cf., p. 103. 7 Ibid, p. 151. 7

expected to last for the same period of time as the legal citizens, should be eligible for full set of rights for citizens, including rights necessary for long-term settlement such as security of residence, employment in public sectors, or redistributive rights 8. Likewise, non-legal migrants, who are totally outside the legal protection under the present legal system, might be able to claim certain sets of basic rights necessary to secure minimum condition for work as obligatory in democratic states. 9 In sum, Carens contends that the theory of social membership provides strong moral foundations for a democratic state to legalize non-legalized migrants and to strengthen the status of legal migrants in a comprehensive way. Although this is the outline of Carens theory of legalization, I would like to contend that this theory is subject to three major objections, which can be labeled as the objections of over-generosity, mis-representation, and democratic procedures, respectively. In the remainder of this section, I would like to examine them one by one. 1) Objections of over-generosity This objection starts with the fact that citizenship has two important functions. It argues that citizenship not only guarantees rights and benefits but also imposes certain obligations and duties to the citizens in one country. It argues that the legalization 8 Ibid, pp. 100-8. 9 Ibid, p. 139-43. 8

policy of non-documented migrants would allow those incorporated migrants to enjoy the full benefits associated with citizenship status of the recipient country without paying the cost that other citizens have to pay as an obligation before enjoying the benefits. It concludes that legalization policy is objectionable because it raise issues of free-riding between non-documented migrants and other citizens. One concrete issue that comes out of this type of objection is the status of non-legal migrants within the national welfare provisions. In most advanced democracies where there is a strong tendency for ageing, it is highly controversial whether non-citizens who did not contribute anything to the recipient country are eligible for the welfare benefits of the country or not. Although most countries provide minimum urgent medical care for free for humanitarian concerns, it is highly controversial whether non-citizens can enjoy long term medical care or pensions. It might be argued that legalization policy is objectionable because allows liberal states to grant over-generous status to non-documented citizens without seriously asking for the consensus of the legal citizens who have contributed the financial resources necessary for the welfare provisions. Legalization policy seems to invoke the issue of fairness and moral hazard from legal residents. Against this type of objections, Carens might want to reply by stating that his visions of citizenship rights already incorporates differential treatment among different 9

types of residents and migrants, as we have already discussed in the comparisons between legal permanent resident who enjoy full citizenship status and the non-legal migrants who enjoy only basic rights. However, this reply is still subject to the strongest version of over-generosity objection, in which permanent residents who paid significant cost to in order to enjoy full benefit argue against even the minimum rights based on the very strict self-help principle that asks non-legal migrants to cover their cost of state protections strictly by themselves. In order to provide satisfactory answer, Carens might need to provide a more straightforward reply why self-help principle should be rejected. 2) Objections of misrepresentation The second objection can be labeled as the objection of misrepresentation or distortion of minority claims, which argues that social membership theory misrepresents the actual claims of some certain minority categories. As the discussion so far clearly shows, one important consequence of the legalization theory of social membership lies in to provide justifications for the state assistance and protections for those who are currently not eligible for them. However, the objections of misrepresentation highlights the fact that social membership theory is doing so by running the risk of endorsing unti-democratic paternal decision-making on the part of the state. To be more specific, this objection contends that the most serious problem 10

with social membership theory is that it has the danger to grant rights and status to some categories of residents even against the will of the residents. In order to clarify my points, it would be useful to refer to the case of returnees, which I have discussed in elsewhere. 10 What I mean to refer by the notion of the returnee is the categories of migrants who temporarily stay in the recipient country but will eventually return to their original community. Therefore, if we attempt to translate this notion into the more traditional migration vocabularies, it is a sub-category of guest workers and refugees, although not all guest workers or refugees fall into this category. The main reason why I coined the notion of returnees is that this is the types of migrant groups whose importance has long been underestimated in dominant Western literatures. In most Western multicultural literatures, there is a widespread assumption to expect that most returnees will change their mind and want to stay permanently in the recipient country in the course of their stay. This assumption is most typically expressed by Kymlicka when he says that returnees in the aforementioned sense want, in effect, to be able to follow the immigrant path to integration into the predominant 10 For the detailed analysis of my notion of returnees, see, Fumio Iida, Towards a Liberal Theory of Returnees, Paper presented at the 2011 Annual Meeting of the Western Political Science Association, April 21-23, 2011, San Antonio, Texas. 11

society, even though they were not initially admitted as immigrants. 11 (CPP 358) However, things tend to be quite different if we take a different cultural context into account. Take, for example, the case of the Asian cultural context. In most Asian countries, short-term visitors rather than permanent residents constitute the majority of migrated population, and there is a strong tendency that these short-term visitors choose to go back to their original community without requesting permanent residence. Daniel Bell and Nicola Piper made this point clear when they referred to the case of short-term caregivers who came from the Philippines or Indonesia to Hong Kong and Singapore. Although there is not a clear answer as of yet as to the question why Asian migrants tend to follow different path compared with those of the Western counterpart, it is not deniable that there exist significant number of examples in Asian countries that fit neatly to the description of returnees. Contrary to the expectation of the dominant Western literatures on ethno-cultural justice, those Asian workers go back to their home country of their own will. 12 So long as this is the typical description of the ethno-cultural relations in Asian countries, the politics of just returnees surely requires a more serious attention and analysis. Given this conceptualization of the notion of returnees, let us now consider how 11 Will Kymlicka, Contemporary Political Philosophy: An Introduction. 2nd ed. (Oxford: Oxford University Press, 2002), p. 358. 12 Daniel A. Bell and Nicola Piper, Justice for Migrant Workers? The Case of Foreign Domestic Workers in Hong Kong and Singapore, in Will Kymlicka and Baogang He (eds.), Multiculturalism in Asia (Oxford: Oxford University Press, 2005), pp. 203-209. 12

the theory of social membership might deal with this category. So long as the theory of social membership decides the status of migrants solely on the basis of the length of their stay, it seems quite logical for the social membership theorists to grant citizenship status once a specific returnee spent certain threshold time in the recipient country. Indeed, this is the path that Carens seems to follow. Without distinguishing between returnees from temporary migrants who seek for permanent residency, Carens is primarily concerned with the question whether temporary migrants are eligible for short term rights related to work or long-term social rights. 13 Thus, social membership theory invokes the criticism of anti-democratic paternalism. Social membership theory runs the risk of granting citizenship status even when the migrant in question has expressed different choices regarding their status. Some social membership theorists might want to reply to this criticism by stating that the returnees would accept the citizenship status of the recipient country, so long as their citizenship in the original country which is indispensable for their return would not be affected. However, this refutation is subject to further serious questions. First, it is likely that citizenship status in the recipient country might impose new duties and obligations that the returnees would want to refuse. For example, citizenship status might bring higher tax rate or military duties to the returnee category. 13 Carens, op. cit., pp.114-24, 139-157. 13

Second, other things being equal, returnees might still want to reject citizenship status of the recipient country on the ground that it is against the national royalty to his or her home country. Finally, and most importantly, social membership theory makes returnees citizenship status in the original country really vulnerable. If we accept the social membership theory that decides the citizenship status on the basis of their presence in the country, returnees seem to lose their moral grounds for maintaining their citizenship status once they spend some threshold time in foreign countries. Denial of dual citizenship seems to be a logical consequence of social membership theory, which is a totally unacceptable conclusion for the returnees. 3) Objections of democratic procedures The final objection is called objections of democratic procedures because it focuses on the procedural aspects of the democratic politics that is required for the actual introduction and implementation of legalization policies. In addition, this objection emerges out of the reexamination of the concrete issues and problems already discussed under the label of over-generosity and misrepresentation in this section from a different procedural standpoint. As my discussion so far already indicated, even though the legalization policy seems to require drastic political changes in the non-ideal real world, it is not quite clear what are the possible concrete political processes and procedures that make this drastic change really possible. For 14

example, it is not clear whether legalization policy can be introduced solely by bureaucratic orders or discretions not. In addition, it is unclear either whether legalization policy can be a matter of public decision-making process in the legislature. In either case, many political groups or forces with different political orientations and interests are likely to exert influence on the democratic decision-making process regarding the formation and implementation of the legalization policies. Thus, in order to justify his own positions, Carens needs to show the concrete democratic decision-making process and institutions through which undocumented migrants and other majority and minority groups can reach consensus and mutual agreement regarding legalization policies. However, social membership theory did little or no job in terms of its clarification regarding the procedural and institutional aspects of its proposals. In order to see why social membership theory is subject to this objection, it might be useful to examine the notion of democracy that Carens wants to endorse as a moral foundation of his social membership theory. When he first presented his notion of democracy, he clearly admits that the general guiding principle of his notion of democracy is to seek for the consensus of wide range of standpoints and interests by stating that I use the term democratic principles in a very general sense to refer to the broad moral commitment that underlie and justify contemporary political 15

institutions and policies throughout North America and Europe. 14 He further notes that democratic principles can be interpreted in many different ways, and they can even conflict with one another. Nevertheless, on a wide range of topics there is no serious disagreement among those who think of themselves as democrats. 15 However, this hope for a wide consensus on many moral issues is a romantic and overoptimistic assumption, as some commentators on Carens are beginning to criticize. 16 This is so especially when we are now witnessing the rise of incommensurable conflicts of interest among many different minority groups, as Eisenberg and Jeff-Spinner aptly pointed out in their work on Minorities within Minorities. 17 To illustrate my points, it would be useful to refer to treatment of family within social membership theory. Within the social membership theory, family has a special moral status, because Carens rejects the policy of deporting non-documented migrants due primarily to the fact that non-documented migrants tend to start valuable family life in the recipient country after spending certain amount of time. However, this means that the liberal state needs to recommend a life with a family as one ideal form of life once they adopt a legalization policy on the bases of social membership theory. This is extremely problematic and controversial from the 14 Carens, op. cit., p.2. 15 Ibid, pp. 2-3. 16 Valeria Ottonelli, Arguments That Backfire, Ethical Perspectives 21, no. 4 (2014), pp584-88. 17 Eisenberg and Spinner-Halev, op.cit. 16

perspective of liberal neutrality and feminist critiques against the romanticization of the family. Given the fact that many women within minority cultures have a hard time to get out of the oppression from their husband, legalization policies should make internal minority oppression far worse by allowing the liberal state to endorse family life as one ideal way of life recognized within public policy. Thus, we need to conclude that Carens needs to provide a more detailed visions of democratic procedures through which citizens and migrants can reach an agreement regarding the terms of incorporation of the migrants into the recipient society. 3 Liberalism and the Limits of Minority Contract Given the limits of social membership theory I have identified so far, I would now like to consider the possible liberal responses to the problem of legalization. In particular, I would like to seek for a liberal theory of cultural justice that defends the rights and interests of non-legal migrants by taking into the will of the migrants into account. To do so, I would first like to examine two possible liberal responses that can be obtained by extending the arguments of within existing liberal discourse. I will label these two theories as individualist liberalism and contractarian liberalism, respectively. I outline the possible theory of legalization of these two versions, and attempt to consider their limits. 17

1) Individualist Liberalism Individualist liberals contend that just treatment of the residents of the political border, including legal and undocumented citizens, can be decided solely on the basis of the individual will of the residents in question. This version demands that all residents should be guaranteed individual freedom of movement at their own will. In addition, this version denies the fact that any groups beyond individuals such as migrant groups or even the recipient society have any moral entity or meaning in determining the just treatment of the residents. In short, this version attempts to leave the formation of the consensus regarding the fair treatment of different categories of residents, including non-documented migrants, entirely to the choice of individual citizens without being committed to the paternalistic tendencies that characterized social membership theory. In what follows, I would like to examine the pros and cons of individualist liberal argument on the issue of legalization policy in reference to the concrete arguments of its major proponent, Chandran Kukathas theory of cultures and liberal society. Let me begin by considering the strength of individualist arguments. Individualist argument could be useful to defend the status of undocumented migrants because it seems to justify universal right for freedom of movement. In Kukathas case, he defends the universal individual freedom to choose its location in reference to the 18

two major forms of liberal societies or associations. His first refers to a relatively simple case, in which all the communities or associations within society are themselves tolerant of difference or dissent. In such a case, a society can be called liberal when it is made up of similarly liberal associations. 18 However, Kukathas also refers to a more complex case, in which a society composed of illiberal associations becomes liberal by guaranteeing each individual citizen the freedom of movement to exit from the illiberal associations. In such a case, a society can be liberal only when the dissenters were not obliged to remain in associations which refused to tolerate them. He maintains that the possibility of individual exit from illiberal communities or associations is another requirement for realizing liberal society as it makes liberal society possible under the illiberal communal background. 19 Kukathas further explores the value of free movement in liberal society by showing its moral connection to the value of liberty of conscience. He defines the notion of the liberty of conscience as not being forced to act in ways people consider wrong, 20 and argues that it is the most important source of human 18 Kukathas, The Liberal Archipelago, pp.24-5. My account on Kukathas and Kymlicka in this section rely heavily on my previous arguments in, Iida, op. cit. 19 Ibid., p.25. 20 Ibid. 19

motivation. 21 Even though conscience does not always overrule[s] or overcome[s] other motives such as self-interest or affection, it counts as the most important source of human motivation in the sense that only a conscientious act makes us distinctively human. 22 Kukathas contends that the freedom of movement and hence the right to exit are indispensable for securing this liberty of conscience. He argues that the liberty of conscience is secured only when people are not forced to live in ways they think wrong or to participate in practices which they cannot abide. When two parties or associations have deep disagreements, the only way to secure liberty of conscience is to allow neither of them to compel the other to remain in association on its terms by securing the right to exit. 23 So long as individualist liberals present this defense of free movement as a universal rule applicable to all human beings, this theory seems to be quite useful to defend the rights and status of the undocumented migrated population who moved into the recipient country at their own will. However, it is important to note that the individualist liberal arguments have its own limits from the standpoint of legalization policy. Although individualist liberal argument succeeds in avoiding the risk of 21 Ibid., p.48. 22 Ibid. 23 Ibid., p.95. 20

paternal intervention that characterized social membership theory, it fails to provide moral justification for the use of state power over any individuals within the state boundary by allowing all those individuals to make shifting involvements and commitments to the state. In other words, this version fails to justify even the minimum state power necessary to protect the individuals within its territory. Kukathas himself reveals this difficulty when he presents his unique notion of society, which he labels as the archipelago view of the society. He presents this view as a critique against the regular liberal view of the sovereign state, which characterizes the state with its solid unity and absolute supreme power over its territories. The upshot of the sovereign state model is to regard the state as a constant and fixed entity. In the sovereign state model, the state exercises absolute supreme power over its territories and can achieve strong unity by controlling subordinate communities, associations, and individuals. 24 Kukathas maintains, by contrast, that political society is better understood as an archipelago, an area of sea containing many small islands, whereby several different communities or jurisdictions operate and compete with each other in a sea of mutual toleration. 25 According to the archipelago view, the state is not 24 Ibid., pp.20-21. According to Kukathas, the sovereign state model often resorts to the metaphor of the body politic to refer to this solid unitary image of the state, which is in sharp contrast to his own image of the archipelago. 25 Ibid., p.22. 21

equipped with any political power strong enough to control subordinate smaller communities or associations. Rather, the state is less clearly bounded in the sense that subordinate communities and associations are marked by movement within those bounds, and movement across fuzzy boundaries. 26 Likewise, the relationship between the state and the individual is far more loose and fluid within this alternative model. Kukathas argues that the state can no longer exercise regulatory power over the individual to the degree that it allows its citizens to make shifting involvements and commitments to the state. He makes this point explicit when he states as follows: a society is a liberal one if individuals are at liberty to reject the authority of one association in order to place themselves under the authority of another; and to the extent that individuals are at liberty to repudiate the authority of the wider society in placing themselves under the authority of some other association. 27 2) Contractarian Liberalism Contractarian liberalism stats from where individualist liberals failed. First, this version attempts to assign certain sets of rights and status to different categories of 26 Ibid. 27 Ibid., p.25. 22

groups, including returnees. Second, this version attempts to justify these systems of rights by showing the possibility of contractarian agreement between the majority and minority groups within the recipient country. In short, this version attempts to defend different cultural groups by showing the possible path towards contractarian agreement on group-specific rights among the majority and minority members of the recipient country. I would now like to outline the possible form of this version in reference to the concrete arguments of its major proponent, Will Kymlicka s discourse. Kymlicka seems to reveal his commitment to the contractarian model when he first presented the famous distinction between national minorities and permanent legal immigrants. He maintains that these two categories can be distinguished on the basis of rights assigned to each as a result of mutual agreement between each group and the majority of the recipient country at the time of their incorporation. On the one hand, Kymlicka characterizes his notion of national minority by its original intention to reject assimilation into the predominant society. So long as national minorities are characterized by their relative autonomy and independence before incorporation, they are granted the strong rights to maintain their own language or to secure territorial concentration. Kymlicka makes this point clear when he defines the notion of national minority as a historical community, more or less institutionally 23

complete, occupying a given territory or homeland, sharing a distinct language and culture. 28 In other words, the original agreement regarding the just treatment of national minorities when they are incorporated is to secure their previously self-governing, territorially concentrated cultures as much as possible, which Kymlicka labels as the demand to maintain societal culture. 29 On the other hand, Kymlicka argues that the permanent legal immigrant is characterized by its original willingness and agreement to assimilate as much as possible into the recipient society. He points out that permanent immigrants differ from national minorities first and foremost in terms of their original demands regarding territory. Permanent immigrants totally lack the demand for territorial concentration, since they do not have any past experience to occupy homelands. 30 In addition, they differ significantly in terms of their original claims regarding language, as the immigrants agree to use the majority language of the recipient society. Kymlicka argues that the commitment to ensuring a common language has been a constant feature of the history of immigration policy. 31 Therefore, he summarizes the original agreement regarding the just treatment of immigrant groups as follows: 28 Kymlicka, Multicultural Citizenship, pp. 11. 29 Ibid., pp.8, 18. 30 Ibid., pp.14. 31 Ibid., pp.15. 24

They typically wish to integrate into the larger society, and to be accepted as full members of it. While they often seek greater recognition of their ethnic identity, their aim is not to become a separate and self-governing nation alongside the larger society, but to modify the institutions and laws of the predominant society to make them more accommodating of cultural difference. 32 Given the outline of Kymlicka s arguments is sound, let us now consider how this squares with the issues of legalization. First, it is clear from my discussion that Kymlicka is committed to the version of contractarian liberal defense of minority rights. On the one hand, he attempts to assign different sets of rights and status to different categories of groups. On the other hand, he also attempts to justify these systems of rights by showing the possibility of contractarian agreement on this system between the majority and minority groups within the recipient country. Therefore, we can safely argue that Kymlicka s defense of the right of national minorities and permanent legal immigrant is a version of contractarian liberal arguments of minority rights. Second, this does not mean that Kymlicka s entire defense on multicultural 32 Ibid., pp.11. 25

rights avoids any criticisms at all, especially when it is applied to the case of returnees. In sum, Kymlicka s arguments raise serious problems when it is applied to minority groups other than national minorities and legal permanent residents. Let me clarify my points by examining the details of Kymlicka s concrete arguments on returnees. Kymlicka s main discussions regarding the status of returnees can be found in his arguments on metics category, by which he meant to refer to the migrants without permanent resident status who did not arrive under an immigration policy which gives them the right to become citizens after a relatively short period of time. 33 Kymlicka further clarifies his notion of metics by presenting two concrete subcategories. The first subcategory is labeled as irregular migrants, and can be defined as those who entered the country illegally or overstayed their visa. The second subcategory is labeled as temporary migrants, and can be described as those who entered as refugees seeking temporary protection or as guest-workers. 34 Whereas the former refers to those who totally lack formal legal status, the latter refers to those who have at least temporary formal status. Kymlicka s category of temporary migrants clearly fits to the description of returnees in this paper, so long as they express the will to go back to the original country in the long run. One astonishing aspect of Kymlicka s argument is the way in which he deals 33 Kymlicka, Contemporary Political Philosophy 2 nd ed., p. 353. 34 Ibid., p. 357. 26

with the rights and status of returnee categories such as his temporary migrants. Contrary to his formal definition, Kymlicka proceeds with the assumption that returnees would not go back to the original community. He expects that not only temporary migrants in particular but also metics in general tend to choose to remain in the recipient country. Kymlicka notes that the most basic claim of metics is to regularize their status as permanent residents, and to gain access to citizenship, and concludes that metics want, in effect, to be able to follow the immigrant path to integration into the predominant society, even though they were not initially admitted as immigrants. 35 It is clear that Kymlicka s contractarian liberal arguments provide powerful moral accounts of the rights of minority groups by suggesting the possible agreement between majorities and minorities within the recipient country. However, the serious problem with his argument is that minorities are allowed to express their interest and claims only at once when he or she is incorporated into the recipient country. Therefore, Kymlicka s contractarian arguments on minority fit most neatly when they are applied to cases such as national minorities or permanent legal immigrants, as these two categories tend to hold relatively solid visions and claims at the time of incorporation and stick to them over time. Kymlicka s contractarianism tends to lead 35 Ibid., p. 358. 27

to arbitrary and ambiguous conclusions on the rights of returnees, whose essential claims may sift over time. What is worse, Kymlicka s contractarianism had to decide the cases of irregular migrants totally arbitrary, because irregular migrants are deprived of the chance to express their will at all in the formal decision making process in the recipient country. 4 Conclusions: Towards a Liberal Theory of Legalization In order to conclude my discussion, let me reformulate the complex relationship between liberal theory and the problem of legalization. As my discussion so far suggests, contrary to the presumption of the legalization theorists, it is not adequate to say that liberal theorists are not able to deal with the problem of legalization. Rather, it is quite likely that liberal theorists can provide one of the most sophisticated answers to the problem of legalization for several reasons. For one thing, liberal theory is likely to overcome the limits of social membership theory by taking the will and claims of the migrants into account when defending the rights of migrants. For another thing, liberal theory is likely to provide stronger moral basis for the rights of minorities by employing contractarian justifications for state interventions necessary for the defense of minority rights. However, it is important note that the existing liberal arguments are subject to 28

some objections. The most serious objection is that liberal theory cannot adequately deal with the rights of minorities who either fail to express their will at the time of incorporation or fail to stick to their original will over time. One possible avenue to solve this problem is to seek for the place of re-negotiation within contractarian liberal arguments. In other words, if contractarian liberalism has a room to admit the possibility that people can sometimes re-negotiate their own terms of incorporation into the recipient society, liberal theorist can deal with the problem of legalization more adequately. My preliminary expectation is that this is a promising avenue worth pursuing further. This is because John Rawls, who is a most prominent defender of liberal contractarianism, seems to suggest this possibility when he defends the liberal value of civil disobedience. In section 57 of the Theory of Justice, Rawls clearly states that under certain conditions his version of liberalism is perfectly compatible with the idea of civil disobedience, which allows minorities to act against the law that registers the mutual agreement between majority and minority of the society. He contends that civil disobedience can be perfectly justifiable under the condition that existing law imposes significant harms and injustices on minorities and alternative ways of resistance against majorities all did not work. 36 It is clear that these statements can be easily 36 John Rawls, A Theory of Justice: Revised Edition (Cambridge, Ma. The Belknap Press of Harvard University Press, 1999.) pp.326 ff. 29

reinterpreted as the contractarian defense of the re-negotiation under certain conditions. Once certain conditions are met, contractarians such as Rawls does not disclose the idea to re-negotiate the contract between majorities and minorities. Rather, Rawlsian liberal seems to insist that majorities have the moral obligation to re-negotiate with the minorities in order to correct the injustice of the existing social order. Given this revised understanding of the nature of contractarian liberal arguments, a promising project for liberal multicultural theorist would be to clarify the conditions under which minorities can ask for a re-negotiation of their terms of incorporation into the recipient society. When contractarians succeed it, liberal theory of legalization will take a more concrete shape. 30