Border Coercion and ‘Democratic Legitimacy’: On Abizadeh’s Argument Against Current Regimes of Border Control

Abstract

Arash Abizadeh claims that ‘[a]nyone accepting the democratic theory of political legitimation domestically is thereby committed to rejecting the unilateral domestic right to control state boundaries’. He bases this conclusion on the premise that ‘to be democratically legitimate, a state’s regime of border control must result from political processes in which those subject to it—including foreigners—have a right of democratic participation’. I shall argue that this premise, even if it were correct, does not support the conclusion since ‘democratic legitimacy’ (in Abizadeh’s sense) is morally irrelevant: that something is ‘democratically illegitimate’ in no way suggests, let alone implies, that it is also morally impermissible or contravenes a moral right. I shall consider counter-arguments advanced against this objection by Maxime Lepoutre and Abizadeh himself and argue that they fail. Thus there is no valid democratic argument against border coercion.

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Notes

  1. 1.

    As one commentator notes, the demand for ‘a radical opening of the borders … equals a suspension of democracy’ since ‘our democracies are nation-state democracies’ (Žižek 2016, p. 11). There can be little doubt that Žižek is expressing an understanding of democracy here that is shared by the overwhelming majority of citizens in Western states.

  2. 2.

    Elsewhere Abizadeh also claims that to ‘take it for granted that the collective self possessing a right of democratic self-determination is comprised of the collectivity of individuals contained within a pre-existing (politically or legally defined) boundary’ ‘begs the question’ ‘[w]hen a regime of border control is at issue’ (Abizadeh 2012, pp. 3–4). Apart from it being quite an achievement for conventional democratic theory to be, according to Abizadeh, both incoherent and question-begging, it should be obvious that taking exactly the contrary assumption for granted, as Abizadeh does, is then no less question-begging.

  3. 3.

    Incidentally, neither need border coercion be democratically legitimate in the normal, bounded sense to be permissible (for instance, there can be lesser evil justifications for contravening democratically legitimate laws). It should be noted, however, that claiming that the lack of unbounded democratic legitimacy does nothing to undermine the moral permissibility of border coercion is compatible with the idea that lack of bounded democratic legitimacy does something, or perhaps even a lot, to undermine it. This issue is beyond the scope of the present paper, though.

  4. 4.

    An exception is Celikates (2014, pp. 293–295).

  5. 5.

    The same is true for Cassee (2016, pp. 201–209).

  6. 6.

    Miller (2010, p. 114) provides a similar example, but uses it to make a different point in that context, namely that certain kinds of refusal to let someone in are not coercive.

  7. 7.

    These Germans are subject to the Polish decision and to the Polish military rules of engagement because they threaten Germans with physical sanctions (including death) if they join the invasion force. This is so even if these Germans have no intention to join the forces. (According to Abizadeh [2008, p. 59], even Mexicans who have ‘no intention’ to go to the USA are ‘subject to coercion’ by US immigration laws.)

  8. 8.

    In the same vein, an anonymous reviewer suggests that the counter-examples can be defused by accepting (thereby contradicting Abizadeh’s original premise) that resistance against aggressors need not be justified through democratic authorization and insisting that ‘peaceful immigrants’ are not aggressors. Yet unlawful peaceful immigrants actually are aggressors on some accounts of justified exclusion: they violate a right to exclusion or freedom of association or national self-determination.

  9. 9.

    An anonymous reviewer, relying on the authority of Parfit (2011, ch. 7) claims that there is no lesser evil justification involved here, but rather an ‘evidence-relative defence justification’. Relying on the authority of law and legal scholarship, in turn, I have to disagree: merely evidence-relative ‘justifications’ are only putative justifications, and thus no justifications at all but mere excuses (Fletcher 1978, ch. 10, esp. § 10.1.2; Sangero 2006, section 5.2). Of course, the necessity justification is also not ‘fact-relative’ in Parfit’s sense—but that is not a problem. The account of justification found in Western jurisdictions is a mixed one, and this mixed account is simply not captured by Parfit’s distinctions (so much the worse for those distinctions). Be that as it may, this issue is irrelevant for present purposes; but see Steinhoff (2018, section VII) and ‘Necessity and Lesser Evil Justifications and the Interpretation of “Danger”’, unpublished MS.

  10. 10.

    In fact, Abizadeh (2012, p. 28) agrees that it ‘would be a reductio ad absurdum of [his] argument … if it required democratic polities to commit themselves to the destruction of their existing democratic institutions and/or members’. My point in the previous discussion, of course, is that he can only avoid this reductio ad absurdum by committing the opposite fallacy of a petitio principii.

  11. 11.

    That Abizadeh’s reply to the reader’s worry fails is also noted by Cassee (2016, pp. 205–208).

  12. 12.

    This objection has been raised by an anonymous referee.

  13. 13.

    Contrary to a claim by the same anonymous referee.

  14. 14.

    Both Cassee (2016, pp. 205 and 207) and Saunders (2011, p. 70) use traffic law examples. Such examples, although quite correct, are far too innocuous to make the point with the force it deserves. Moreover, Cassee and Saunders also fail to seize on Abizadeh’s admission discussed here in the main text.

  15. 15.

    See note 6 above.

  16. 16.

    See note 2 above.

  17. 17.

    If someone has another suggestion, I would like to hear it.

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Acknowledgements

The research presented in this paper was supported by a grant from the Research Grants Council of the Hong Kong Special Administrative Region, China (Project No. HKU 17,612,817). I am very grateful for this support. I also thank the participants in the May 2018 workshop on ‘Public Reason’ at the School of Philosophy of Wuhan University for helpful comments on an earlier draft of this paper. I owe special thanks to Elizabeth Hemsley, Wai Tak Choi, and an anonymous referee for very helpful written comments.

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Steinhoff, U. Border Coercion and ‘Democratic Legitimacy’: On Abizadeh’s Argument Against Current Regimes of Border Control. Res Publica 26, 281–292 (2020). https://doi.org/10.1007/s11158-019-09428-1

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Keywords

  • Arash Abizadeh
  • Borders
  • Coercion
  • Democracy
  • Immigration
  • Maxime Lepoutre
  • Permissibility
  • Rights