CATHOLIC UNIVERSITY OF LEUVEN

INSTITITUTE OF PHILOSOPHY

Course Title: Social and Political Philosophy: Seminar

Course code: W0AN6a

TOPIC:

Discussion on the rights and obligations of the migrant

Presented by:

Horea Mihai

Student Number: s0219770

Course instructor: Crispino Akakpo

January 2012

Migration is a natural act. Current anthropological theories depict man as a migratory being and, apparently, despite millenary civilisation, primitive man’s migratory behaviour, in the attempt to make a better living, remains unchanged. The fundamental difference between primitive man and contemporary man is that, in this age, people have abandoned the purely natural environment and entered  a political one. People are born unclothed and vulnerable, unassisted by any ethical or political norm. What they learn throughout their life can be reduced to a kind of normativity of belief, politics and morals. The political element governs aspects of human life which nature treats indifferently. Therefore, when we talk about man in general, and migration in particular, it is impossible to avoid the status quo. This matter should be treated equivocally and ambivalently: man has a natural right to migrate, which, however, clashes certain political norms. How can this clash between natural rights and political obligations be solved, in the case of migrants? I shall make an attempt to answer this question in the following paragraphs, maintaining the fact that natural rights enjoy a relative pre-eminence and stating, from the very beginning, that in order to find a response it is impossible to give a univocal and uncompromising answer.

I will initially discuss philosophical aspects of the needs and the manner in which they integrate into the problems related to migration, and the way in which these needs generate rights. There, I will attempt certain norms connected to migrant’s status, in the light of my conception of three-level of rights. And finally, I will attempt to briefly apply the previously established norms to a certain contemporary debates regarding the status of the migrant woman.

Philosophical anthropology offers different accounts of the man and his search for consensus, and as long we advocates of pluralism, it might seem a paradoxical enterprise. Yet, agreement is the fundament of a society and remains the all-encompsassing criterion for any functional morality. One tendency consists in harmonizing opposing beliefs, while another is to look for already established agreements. The first may take a long time and be strenuous, the second may demand observations.

In my shy normative elaboration, the individual is central due to his ontological precedence to no matter which kind of social or conventional establishment. However, having in mind the intimate relationship between the society and the individual, my approach is one of temperate personalism. That each individual has a valued personhood is a statement of common sense. Furthermore, the Kantian maxim through which each person should be treated as an end in itself and not as mere means is worth considering.[1] 

These two preliminary ideas seem acceptable because they constitute a reflection on what an individual may conceive and desire from his personhood. Instead of focusing on the differences between utilitarianism and Kant’s maxim, I would rather emphasize teleological aspects in the formation of needs.[2]

Obviating from propaganda, I employed Rawls’ “veil of ignorance” to determine the needs of a human being. Abraham Marslow developed the pyramid of needs[i] by situating at the lower but fundamental level the physiological needs. Despite certain points of contention, his hierarchy of needs will serve as guideline in my personalist approach of the migrant. Thus, on the lowest level stand those needs, which cumulatively satisfied, secure the physical existence of the individual. Although, I imagine the essence of a human being as trialism of interdependence of body, mind and emotion, because of higher dependence on the environment, the physical compound appears to be the most vulnerable. Therefore, the lowest but basic needs are those which institute the fundamental right to live. Rights concerning mind and soul follow on a higher level. Experience has shown that in terms of need, people are able to suspend the emotional and even the rational sides in extreme cases and then be able to resume their activity. However, such suspension of activity in case of the body is indeed possible, but definitive. People have genuine needs for wisdom and love and therefore at higher level people must enjoy rights which protect intellectual and emotional activities.[3] 

As for the secondary (second-level or mid-level) rights, I refer to the rational participation within the universe. In this case the human universe may be reduced to the society in which he lives.  Reason, in this context, is a process of identification of occurrences and understanding of causal relationships. It presupposes an understanding of the formal framework of a society and of its law. Introspection is compensated by even a more outward evaluation of the environment. As I said before, each individual participates in the formation of the universe, therefore, when we think about our anthropic environment, the essence of a society (as human environment) is constituted by the outward activity of each and every member of it. In so far as our actions have a rational basis, we can establish comprehensive communication with our peers. Therefore, our rational being is deeply connected to the rational being of the others. Although, the affiliations on basis of love are possible, the rational side of our being-in-the-world is intimately linked to the others. Without communication and without action a society cannot exist, therefore a group of people cannot subsist as long as its members live through passive states. A person who is not actively involved in the society is not a member of it.

But how does this long introduction rather on philosophical anthropology relates to the social political topic of rights of the migrant?

Migration, whether voluntary or not, involves the transfer of certain rights, suspension of others and steadily keeping of others. The act of migration terminates the relationship of one individual with his native environment and a change of status takes place from local to alien. Migration removes the link with the ethos of the native civil society and, the migrant loses his citizenship and the rights to cultural membership through absence. Membership presupposes an active state in which one is engaged in the complex relationships of exchange with other members. Upon departure, a migrant ceases to be a member of his native society. However, his fundamental rights cannot be lost because life in itself does not respond to any man-made convention and the creation of human life eludes the powers of a community. Life is a happening, in which human bearers are mere instruments.[4] Hereby, I propose a thought experiment in which we are gone beyond “the veil of ignorance” and imagine, maybe as Rousseau did in the Discourse on Inequality, the man in the state of nature, free from any moral conventions and yet permitted to live by a law that is positioned above any human law.

Thus, through migration an individual remains a dweller of the planet while conserving his fundamental rights. This idea is consistent with actual international legislation on Human Rights, according to which these rights are unalienable and any carrying-off represents an abuse.  

However, if we look at at migration from a social perspective, then the migrant suffers from a loss of rights.  He ceases to be a citizen of his native state and he is not a citizen of any other state.[5]  He remains indeed a dweller of the planet, but by any means not a member of a particular society. As dweller of the planet, he has the right to procure himself the resources necessary to the conservation of his being. However, because of the status quo of social and political organisation, the migrants are in most of the cases prevented from securing their own being through their own means. Accordingly, the state of adoption should create the necessary conditions for each migrant to satisfy his basic needs, or otherwise to supply for him. Thus, any humanitarian principle is bypassed.

The migrant facing a new socio-political environment, in which he may feel alien, has the obligation to submit himself to the social norms of the state of adoption. States should be seen as autonomous entities which function according to own/local laws. Therefore, the migrant cannot import the laws of his native state in the state of adoption. In addition, the adoptive state cannot be responsible for sustaining the migrant beyond the limits of fundamental rights. Whether a migrant should or not have civil rights is a matter of local justice. This is certainly a problematic issue. As long as there is no recognition of a minority by an external group, that minority cannot enjoy social validation except for in its inner part. In a state, if a minority is unrecognized, it is politically inexistent. However, as political creeds are a posteriori to the natural and cultural realities, there is a gap between social and cultural realities and their political representation, and the states are not capable of diminishing this gap. This lack of capacity should not be interpreted as a weakness, but as an unavoidable occurrence. Hence, not all states are ready to offer immediate civil rights to the migrants. Christopher Wellman brings forward another strong reason through which a state can refuse the migrants’ civil rights:

“The first is that legitimate states are entitled to a right of political self-determination. The second point is that freedom of association is an integral component of self-determination. Unless you enjoy freedom of association, you're not entirely self-determining. And third of all, that freedom of association necessarily involves the right not to associate with some others.”[ii]

Since the goal of migration is maintaining or improving personal welfare and state’s goal is, ideally, the welfare of its citizen we may say that the interests of both migrant and state are conjoint. This seems to be a reason strong enough to grant one citizenship. However, citizenship presupposes being active within a civil society and a migrant may find it difficult to spontaneously become a functional member of the civil society. This view, even in contrast with liberal policies, brings us close to Thomas Jefferson and Tocqueville’s theories concerning citizenship, should not be regarded as being subordinated to socialist policies. My desire is rather to express the fact that civil indifference cannot generate membership to a certain society. Even though there may be cases in which an individual does not possess the capabilities to actively participate in a civil society, the fulfilment of certain civil responsibilities maintains its permanence within socialist states, as well as within liberal ones.

For such reason, the granting of citizenship should be delayed. Martha Nussbaum extending the theories of John Rawls and Amartya Sen demands us to look at social-political matters from the point of view of individual capabilities.[iii] I believe this is a common-sense proposal which can be considered when dealing with migrants. The requirements should be properly formulated and linked to the capacities of the migrant. In Flanders there is a desire for rapid civil integration of the migrants and this approach of capabilities is institutionalized. Furthermore, the state obliges a certain group of migrants to participate in programs of language and civil training. Nevertheless, such programmes cannot succeed as long there is resistance on the migrant’s behalf. Again, desire to participate is an important act in acquiring new citizenship. Hereby, we can distinguish the active citizenship, which presupposes the emergence from the personal sphere and requires active involvement in the civil structures of a society, and passive citizenship in which a person is in fact absent or disinterested of the general social welfare.[6] One of the first steps to be undertaken consists of the establishment of rational communication between the migrant and the society and as consequence linguistic agreement should be reached. There are various positions, ranging from a nationalist view that each migrant should unconditionally should feel responsible for speaking the major language of the state of adoption up to more liberal theories, such those of Kymlicka arguing for linguistic and cultural independence. I believe that both extremes are in need of mediation because none of the alternatives is feasible and in harmony with our being. I believe that language is the arch between what I called mid-level rights (secondary rights) and tertiary rights (or cultural rights). As we have seen before, the fundamental rights are linked to pre-conventional necessities, for life is a happening outside the general human will or power. As we move upwards, the secondary rights are formal and conventional being linked to rational principles of necessary living within a society.

On a third level we have informal rights, which cannot be regulated by rational principles, because they are not coupled to the purely rational side of an individual. Customs, traditions, law of the land are imprinted in the consciousness of one individual simply by being-in-the-world within a particular cultural environment. The relationship between an individual and native culture and ethos has a degree of intimacy which transcends the social and political frontiers. We can impede people from acting according to their local customs, but we will never be able to obstruct their inner attachment to their cultural heritage[7]. Furthermore, such impediments will increase frustration and render an individual or group unhappy. This position is similar with Kymlicka’s view on minority rights.[iv]

Language has a dual function: firstly, it is an instrument of communication between the members of a civil society and, secondly it is intimate token for the history and cultural heritage of an individual or group. Formal regulations which concern the use of language within the civil society can be imposed, but these regulations cannot be active in the private sphere of an individual or group. Therefore, following the principle of linguistic territoriality, the migrant, as long as he desires to become an active citizen and benefit from the rights given by the country must speak the language in use at his arrival. However, in his private life, in the informal and familial interaction with other people he has the liberty of employing the language of his choice. Philippe van Parijs argues that „it must be realistic to expect those who settle in a particular territory to have the courage and humility to learn the territory’s official language”.^[v]

In more general terms, secondary rights or citizenship cannot supervene on cultural rights. Thus, I propose a hierarchy of rights consistent with the pyramid of needs. Having such framework, it would less problematic to deal matters concerning civil rights opposing cultural rights. As long as cultural rights do not clash with secondary or primary rights, the former are to be considered acceptable and legitimate.

In order to explain my comprehension of clash between these levels of rights, I shall refer to certain case studies. At the same time, discussing the following cases is intended to show the way in which my approach can be applied in order to settle certain debates concerning human rights and, at the same time, to represent a conclusive material for the completion of this paper. The illustrated examples concern the status of the migrant woman, and the approach is indifferent to feminist opinions.

The author Susan Moller Olin, in the article “Is Multiculturalism Bad for Women?” raises the issue of polygamy within ethnical groups of African migrants in France. Polygamy is understood by Okin as the breach of women’s dignity, and therefore, rejected. However, if look is cast in the light of my personal approach, the reader will see that polygamy won’t be an express infringement of any of the previously mentioned rights. By all means, if it is forced upon a person, then primary rights, as well as secondary ones, are defied. This leads to the conclusion that polygamy is legitimate if it is consensual.[8] Another discussion which aroused general interest is that of infibulation. If this act is considered acceptable within certain minorities, from a European perspective it represents a barbarian act of transgression of human rights. From my personal perspective, such an act defies the basic rights of a person, and, therefore, such practices should not be tolerated. Hence, a clash appears between a tertiary right, of cultural practice, and a primary one. As I affirmed before, primary rights are fundamental and pre-eminent.

The act of forbidding the hijab in certain institutions seems rather a measure of forced emancipation of Muslim women, than acting according to the fair justice principles. The symbolism of the gesture is a mirroring of their culture, which needs to reach public society. The hijab is worn out of modesty, and the purpose is to allow a woman to be judged for her morals and ideals, instead of her appearance, as our judgement of female presence often tends to be very much influenced by appearance. From my point of view, this does argue against any of the previously mentioned categories of rights and it does not lead to a conflict between primary and cultural rights.  However, if we bring into discussion the topic of infibulation, there is a clean-cut distinction between the two. In the case of infibulation, fundamental rights are infringed. As long as these rights are considered universal, such an act is unacceptable.[9]

Of course, this cannot be considered an all-encompassing theory, and migration theories are not exhaustively treated. My attempt was to establish a personalist basis in the political debates concerning migration. At this moment there are clashes between the laws existent and the real needs of the migrant, which is why I believed this approach to be fundamental.

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[1] I expressed my desire for an unbiased view of the man. I believe that both my claims are not a matter of biased morality but of agreement. Each ibndividual looks towards of the accomplishment of his own good. Our actions are directed towards the accomplishment of a certain good and whether that good is

[2] It has been observed that every action is resulted from motivation and it is directed towards attaining some good. The incentive for such teleological movement appears to be the need. Metaphysically, the need is the temporally occurring tension between two moment-states of pleasure. Thus, the good must be correlated to pleasure, without any hierarchical distinction between the two, for the pleasure without the good is mere passion with a debilitating effect on reason, while the good without the pleasure is subservient to moral imperatives, belittling the immanent value of human feeling. In other words, what is sound to the mind, must be enjoyable for the soul, and must not expose one to great physical stress.

[3] In addition to this trialism of human being, I must draw attention to the ontological dependence on the environment in a human being lives. We are not isolated from the environment, we are open entities and this openness is immanent. We participate in the Universe and we are sourced by it. Therefore, although otherness may forever be unknown, it is impossible to deny our being-in-the-world. As contingent beings we are shaped by the environment,  and, when the environment is too aggressive, we are no longer shaped, but rather chopped into, and, unless terribly pugnacious, we may end up with multiple amputations of our individuality, frustrated and unhappy. It is therefore important to ascertain the importance of human emotion too. Emotions are not disposable and benefit of what I call tertiary (or third level) rights. These rights focus on a sort of intimacy which cannot be regulated throughout pure rational principles and from this point of view they will benefit of a greater level of independence. We are able to physically adapt to the geo-climatic environment. Due to these adaptations we have certain traits. People living on high altitude have an increased number of haemoglobine cells in their blood, for instance. Human races did not appear due to arbitrary or accidental genetic changes, but as a long process of adaptation within a specific environment.

[4] Our parents may participate in our creation, however they could not participate in the conceivement of life. This leads me to another conclusion that killing or torture is an outrageous rebellion against being. Furthermore, even death penalty is an agression on being. Nevertheless, the homicide is a social reality and the retribution of such act should be re-assignement of ethos and social ban.

[5] Indeed, the actual regulation on such matters is very distinct than my view, however we can ascertain that a person who is not present in a civil society, bears, at most honorifically, a citizenship status.

[6] We cannot consider people spending most of their lives in front of TV’s watching soap operas, or busy solely with domestic activities real or active citizens. The result of one citizen’s action must have an impact within the society.

[7] The cultural heritage of an individual or group is of an ambivalent nature because it reflects both moral and political norms, as wells as natural phenomena of the geographical area in which the individual originates. Therefore, limiting the sphere of cultural manifestation of an individual is impossible solely on a rational level. In this regard, related to the aspects which are foreign to the legislator’s consciousness, either tolerance or intolerance can be applied. Consequently, the cultural rights of a migrant which transcend the borders of the basic rights, may be treated with intolerance.

[8] A debate on polygamy would lead to a too high digression for this paper, but, if we regard things through a natural perspective, people are not monogamous. Monogamy appears as  norm of political foundation of family. However, considering the dynamics of the relationships between individual, we cannot talk about a natural monogamous behavior. Moreover, both in Belgium and The Netherlands, there have been debates about regulating polygamous relationships, not as a wish to guarantee certain cultural rights of minorities, but as a demand of certain nationals. For instance, in 2005, in Rosendal, three persons managed to establish a legal contract of cohabitation (Reformatorisch Dagblad, Ewout van der Staaij, „Huwelijk wordt steeds verder opgerekt”, 23-09-2005). At present, both in Flanders and Holland, there are groups belonging to the national majority which are supportive of  “polyamory”.

[9] If a consensus has been reached as far as infibulation is concerned, the issue of scarves is still under debate. It is very interesting how a piece of cloth can generate such a volume of debates. It seems that some of the smallest problems can generate the biggest headaches. However, in the second case, when dealing with such issues the categorical imperative is inescapable, and since we cannot apply any kind of mutilation to our citizens, infibulation does contravene the Human Rights creed, but it is also an ethical infringement, whereas headscarves are mere accessories with a statement. Certain people wear crucifixes, others wear caps, berets and hats. Even the Queen of England is seen wearing a scarf, and nobody talks about her prostration under a male dominion.

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[i] Abraham Maslow - Theory of Motivation (1943). Internet source. http://emotionalliteracyeducation.com/abraham-maslow-theory-human-motivation.shtml

[ii] Christopher Wellman, Christian Barry, Matt Peterson - The Arbitrary Morality of Immigration and Citizenship, Public Ethics Media, November 3, 2009

[iii] Martha Nusbaum , Women and human development. The capability approach (New York: Cambridge University Press, 2000) 4- 11

[iv] Multicultural citizenship, Will Kymlicka,  (New York: Oxford University Press, 1995) pg. 76 - 81

[v] Philippe Van Parijs - Linguistic justice for Europe, Belgium and the world, Lectures for the XXIst century  (Leuven: Universitaire Pers Leuven, 2008)