Are migration restrictions illiberal?
Dislodging liberalism from some of its cushioned certainties
Border enforcement and migration restrictions are frequently regarded as paradigmatic manifestations of illiberalism. The principle of free movement across borders occupies such a foundational position within liberal thought that any challenge to it may seem almost sacrilegious. Advocates of open borders conceptualize the right to unconditional free movement as a fundamental human entitlement (see e.g., Carens 2013). Furthermore, they argue that the justificatory burden lies with those who advocate for restricting migration, premised on the broader liberal presumption that any limitation on individual liberties demands robust justification (see e.g., Van der Vossen and Brennan 2018). This perspective echoes much of the public discourse and political rhetoric surrounding liberal and progressive ideals. However, should immigration restrictions be regarded solely as manifestations of illiberalism or right-wing agitation? Or could there be space for a more nuanced—albeit potentially uncomfortable—interpretation?
If you take liberalism seriously, it turns out to be far less straightforward than it might first appear. At its core, liberalism entails the allocation of various liberal rights that inherently impose mutual limitations on one another. Indeed, what many overlook is that liberalism cannot entail unlimited freedom; unrestricted rights and freedoms are inherently incompatible. The very notion of completely unrestricted movement, for example, restricts the liberties of others to move freely, rendering it self-contradictory. Uwe Steinhoff critically examines these complexities in his 2024 book Freedom, Culture, and the Right to Exclude: On the Permissibility and Necessity of Immigration Restrictions. Steinhoff opens by emphasizing the central tension in the implementation of liberalism: the disagreement over which freedoms should be prioritized and which ought to be constrained. For instance, while some may emphasize the primacy of freedom of movement, others may accord greater importance to freedom of association. Freedom of association, understood as the right to affiliate with chosen individuals while excluding those outside such preferences, operates both on an individual and collective level. Steinhoff contends that this principle constitutes the foundation of a liberal and individualistic rationale for migration restrictions and border coercion.
Steinhoff argues that a group's right to freedom of association directly extends to the right of political self-determination. Citizens possess a moral right to decide the criteria by which they grant outsiders membership in their association. Given that different liberal rights inherently limit one another, the self-determination of states emerges as a crucial mechanism for resolving coordination problems that arise from the absence of metaphysically preordained scopes and limits for these rights. This function aligns with a fundamental reason for individuals to associate: engaging in cooperative endeavors and collective action. In contrast to the position of many self-proclaimed liberals, who at times seem to advocate adherence to some form of predetermined liberal truths, it appears more plausible to view majority decisions and democratic processes as the default procedural means for reaching decisions in such contexts. Hence, labeling those who advocate for exclusion or restrictions on freedom of movement based on democratic decisions as 'illiberal' is disingenuous and does little to address the coordination challenges that arise regarding the scope and limits of liberal rights. What is arguably illiberal, however, is to impose decisions over the heads of the demos based on a notion of a 'true liberalism.' Such an approach, in effect, leans toward moral fundamentalism, undermining the democratic principles central to liberal societies.
When conceptualized as an extension of an individual's or group's right to freedom of association, the reasons for excluding others seem prima facie irrelevant. For example, there is widespread consensus that one is entitled to decline a marriage proposal for any reason, whether due to the proposer's physical appearance, ethnicity, religion, or other personal considerations. Similarly, the principle extends to decisions regarding membership in private associations, such as book clubs or similar groups. Admittedly, the reasons behind exclusion can reflect on one's character. Declining a marriage proposal on the basis of someone's race or ethnicity might reflect troubling prejudices, yet it remains within the scope of what is typically regarded as one's legitimate liberal rights.
Proponents of open borders often argue that states differ from other associations in ways that are morally relevant to the issue of exclusion. However, Steinhoff convincingly challenges this claim (Steinhoff 2024, pp. 58–73). More significantly, even if such differences were to exist, they would not necessarily undermine the right to exclude. For example, in response to the argument that membership in states is involuntary, Steinhoff presents a compelling thought experiment. He asks us to imagine a world in which extraterrestrials arrive and declare that they will kill anyone who does not belong to a golf club while also prohibiting the formation of new golf clubs under penalty of death. Steinhoff's argument is decisive:
"Intuitively, New York golf club A is still entitled to exclude members of New York golf club B and of Hong Kong golf club C or Abuja golf club D. Maybe D is not as nice as A, but that was already the case beforehand, and beforehand A did have the right to deny outsiders membership. What has changed now is that you will die if you are not member of a golf club. But then again, the members of D already are members of a golf club (as they were before), so they are safe already."
That said, there are specific limits to how expansive the right to free association—and, by extension, the right to exclude—can reasonably be. For instance, it would not be permissible to deny entry to someone seeking refuge in my private home if that person were severely injured and in urgent need of medical assistance. This principle is readily applicable to individuals seeking to cross national borders under conditions of imminent threat, such as political dissidents or members of persecuted ethnic, religious, or sexual minorities. Excluding such individuals would arguably exceed the moral boundaries of free association and be ethically indefensible.
On the other hand, Steinhoff contends that there can also be particularly compelling reasons to exclude, especially in the context of liberal democracies. Drawing on the argument of legal scholar Wolfgang Böckenförde, a former judge of the German Constitutional Court, that "the liberal secularized state is sustained by resources it cannot create itself," Steinhoff emphasizes that the institutional structures of liberal states depend on a supportive cultural framework to remain viable. In this light, excluding individuals or groups on cultural grounds may not only be justified but also necessary for liberal institutions to protect themselves and their citizens from illiberal and anti-democratic subversion, thereby preserving the foundational principles of democratic governance.
This line of argument aligns with recent discussions championed by
et al., who advocate for what they term 'enlightened tribalism.' While cognizant of the dangers associated with uncritical tribalism, they emphasize that tribalism does not necessarily entail outgroup hostility or an inherent incapacity for intergroup cooperation. Rather, they highlight the significance of tribal attachments, suggesting that these natural inclinations, rooted in evolved human dispositions, can be appreciated as valuable aspects of human sociality rather than deficiencies requiring correction. This form of in-group favoritism, which fosters the preservation and expression of local cultures along with their distinctive modes of communication and cognition, they argue, "can make life meaningful, promote cohesion within groups, and create more sustainable social relations between groups."Overall, appealing to a preordained conception of liberalism that unconditionally prioritizes freedom of movement—irrespective of property rights, territorial claims, or other considerations—renders the case against border coercion and migration restrictions unconvincing. The right to free association emerges as a robust liberty right that significantly limits the scope of unrestricted movement. This principle resonates with intuitive everyday experiences, where individuals or groups freely choose to associate with some while excluding others. It is hard to argue against the idea that these intuitions can be extended to states and their exercise of political self-determination. The case for a right to exclude, while not without limits, appears overwhelmingly compelling and applicable to a wide range of reasons. Admittedly, certain grounds for exclusion may be morally questionable and reflect poorly on the character of those invoking them. However, there are also several highly compelling justifications for exclusion, particularly when it serves to safeguard the foundational principles of liberal democracy, foster social cohesion, and support the preservation and expression of local cultures, all of which play vital roles in promoting social meaning and stability.