Policy Innovations Digital Magazine (2006-2016): Commentary: The Capabilities Approach and Collective Ownership of the Earth

Often, immigration debates are conducted solely from the standpoint of "what is best for us," the presumption being that immigration policies must be justifiable only to those who already live in the respective country. Alas, reflection on the justifiability of immigration policies to those excluded becomes ever more important in a politically and economically interconnected world. I will briefly sketch two approaches to the normative reflection on immigration—namely, the idea that restrictive immigration policies are problematic because they are hampering the development of human capabilities, as well as the idea that such policies are problematic because they are at odds with the fact that our planet belongs to humanity collectively. On both proposals, less restrictive immigration policies are not merely demanded as one possible way of aiding the poor, but would be required as such.

It turns out that both of these approaches can be treated within the same framework, the grounds-of-justice framework, which generally allows us to focus on the idea that states must also be justified to those who do not belong to them. Specifically as far as immigration is concerned, this framework allows us to take account of competing claims that arise from legitimate demands to entry vis-à-vis legitimate demands of those who are already in the country.

Immigration barriers severely restrict human freedom. One way of explicating that idea and embedding it into a larger context is in terms of the capabilities approach, originally developed by Amartya Sen and Martha Nussbaum. The capabilities view has been presented both as a theory of the "currency" or "distribuendum" of justice—the sort of thing in terms of which we formulate principles of distributive justice—as well as a theory of development. On this view, development is a process of expanding freedoms, and thus of people's ability to choose one type of life over others. Development thus understood requires the removal of major sources of unfreedom: poverty as well as tyranny, poor economic prospects as well as systematic social deprivation, neglect of public services as well as overly intrusive state activity.

On this view, then, there is moral value in expanding the range of people's choices. Nussbaum has offered an actual list of capabilities she considers central for a life lived with dignity. "Being able to move freely from place to place" is one instantiation of "bodily integrity," which appears on Nussbaum's list. This creates a presumption in favor of permitting mobility as long as it does not illegitimately affect the freedom of others. Yet immigration policies create winner and losers in the country of destination, especially on labor markets. If, say, an influx of immigrants makes wages for low-skilled workers decline, as some argue, those workers' capabilities arguably will decline. So states have to weigh obligations to their citizens vis-à-vis possible obligations to would-be immigrants (as well as possibly other people abroad affected by immigration policies).

To introduce the second way of supporting the view that immigration policies are subject to moral constraints, consider a thought experiment. Suppose by some accident the population of the United States shrinks to two, but they can exercise control over access to the country through electronic border surveillance. Nothing changes elsewhere. Presumably these two should allow for immigration because they grossly underuse the territory under their control. So how many people occupy what share of resources and space matters for assessing immigration policy. This standpoint is most plausibly accounted for by the stance that humanity as such has a collective ownership claim to the Earth.

While the idea that humanity collectively owns the earth has played little role in recent political thought, it was central to seventeenth century political philosophy. In the seventeenth century, European expansionism came into its own, and theorists confronted questions of global reach they had not previously encountered. The seventeenth century also saw a decline in religious unity among the politically relevant European parties (this being an age of religious wars), from which, however, basic statements of the Old Testament were excluded. According to the Book of Genesis, God gave the Earth to humankind in common. Many questions could be addressed through an interpretation of that gift, such as concerns about the possibility of owning the sea and the conditions under which territory could legitimately be claimed. Philosophers like Hugo Grotius and John Locke saw questions of collective ownership as central to their work.

Like the present age, the seventeenth century was a period of globalization, so it is not too surprising that a standpoint that offered guidance for normative questions then should offer it again now. In an age that is increasingly confronted not only with questions of global reach (immigration, human rights) but also with questions that have an impact on our planet (climate change), we ought to give humanity's collective claims to this planet a proper place in moral theorizing. A non-theological revitalization of the standpoint of collective ownership is available, and this approach is already present in international law anyway, where for about 40 years the term "common heritage of mankind" has been applied to the high seas, the ocean floor, Antarctica, and outer space. An account of humanity's collective claims to the planet we jointly inhabit also makes clear why immigration policies are subject to moral constraints beyond what is required for a justification to those already in the country.

We can explore both of these ways of explicating why moral constraints apply to immigration in a unified framework, the grounds-of-justice approach. That approach offers a particular way of thinking about how principles of distributive justice apply. Typically, philosophical accounts think of principles of distributive justice as applying either only to states, or else as applying globally, either to all human beings in virtue of being human, or to all persons because they are subject to the global political and economic order. By way of contrast, the grounds-of-justice approach offers an intermediate position according to which there are a number of different considerations and conditions (the grounds of justice) based on which the distribution of certain goods must be justifiable to a range of people (those in the scope of the relevant principles). Principles that apply to these grounds are respectively principles of distributive justice. Among these grounds we find shared membership in a state, shared subjection to a global trade system, shared humanity, and collective ownership of the Earth.

Political philosophy since Thomas Hobbes has sought to justify the state to those respectively subject to it. Until recently there was little interest in justifying the state to those respectively excluded. The grounds-of-justice standpoint allows us to integrate this task and to do so explicitly in terms of actual principles of distributive justice, rather than more discretionary duties of charity, that states must abide by to be so justifiable. Shared membership in a state is a ground of justice. But, for instance, involvement with the global trade system also creates a range of duties, and shared subjection to that system, too, is a ground of justice. Climate change also generates obligations, which can be seen as arising because collective ownership of the Earth is a ground of justice. There are some additional grounds of justice, but we need not pursue this matter in any more detail now.

Being a ground of justice, collective ownership gives rise to a particular way of thinking about how much immigration a given state ought to permit. Moreover, the grounds-of-justice approach as a whole can then be understood as articulating the legitimate restrictions on human freedom generally and the ability to move freely from place to place specifically. It is in this way that we can develop both of the considerations that show why moral constraints apply to immigration in a unified framework, namely the grounds-of-justice approach.

The key is that if people are using more than their proportionate share of the collectively owned planet, they should allow for immigration. Otherwise, they can resist demands for immigration. For a suitable understanding of what counts as a proportionate share, we have to include not merely size of land, but resources like minerals and water, and quality of location captured by range of biophysical factors. The goal is to evaluate overall usefulness for human activities of three-dimensional spaces rather than two-dimensional surfaces. At least on a pragmatic level, we need to allow for comparisons of sets of such factors, which is most straightforwardly accomplished by a one-dimensional measure, like aggregated world-market value. For any state S, this measure would deliver an index VS, namely, the value of collectively owned resources under S's jurisdiction. To assess the extent to which S's territory is used, one would divide VS by the number PS of people in S. So VS/PS is the per capita use rate of commonly owned resources in S. Needed is a measure that considers the stock of resources that takes into account how straightforwardly it could be transformed into a flow if desired, rather than measure only of the current flow of resources. The territory of S is relatively underused if VS/PS is bigger than the average of these values across states (in which case the average person uses a resource bundle of higher value than the average person in the average country). The territory of S is relatively overused if this value is under average.

If VS/PS is above average (underused), co-owners elsewhere have a pro tanto claim to immigration. Underuse creates immigration pressure. Since we are talking about rights entailed by common ownership of the Earth, their satisfaction would have to assume the specific shape of allowing for immigration. Conceivably there could be agreement that people who underuse territory make payments (say, aid) to others. However, underusers cannot pay off others if those others would prefer to exercise their right to immigrate. Note that the idea behind collective ownership of the Earth is to address the claim that human beings have to resources and spaces vis-à-vis each other. Moral considerations regarding animals or the value of nature can be integrated into this approach. The same is true for the claims of future generations. Therefore, ownership here should not be understood as entitling the current generation to wanton destruction but instead as generating fiduciary duties.

One may object that biophysical factors can be assessed without accounting for (normalizing out) human activities such as technology, cultural organization, etc. Indeed, commonly owned resources improved by technology (such as the Dutch polders and dikes) should be counted among common property when technology has become readily available. The relevant technology could (and in due course would) have been provided by others. Entities for which external resources have been mere enablers should not be so counted—artifacts, ideas, and economic, political, and social practices. Some arbitrariness in drawing this line is inevitable. Note also that common ownership matters to immigration not because immigrants are generally motivated by access to resources or spaces, but because it makes clear why we cannot decide questions of immigration merely in terms of what is best for a given country. This approach would not track preferences, and preferences generally do not generate claims of justice.

To some extent, countries will be able to exercise some discretion in admissions. For instance, a country with a strong social system that is underusing its territory would be within its rights to choose people with professional credentials, and a country with demographic problems would want to choose young applicants or those deemed likely to have several children. Yet the common-ownership standpoint also puts constraints on discretion. Other things being equal, applicants from countries that are overusing their resources have priority. Immigration policy should also take into account a duty of aid.

The empirical work needed for such a measure of overall usefulness of three-dimensional spaces for human purposes has not yet been calculated. Overall, much work remains to transform these ideas into a workable, globally coordinated immigration policy. But at least at the conceptual level, we can say that the grounds-of-justice approach allows us to take account of competing claims that arise from legitimate demands to entry vis-à-vis legitimate demands of those who are already in the country. Thinking of collective ownership of the Earth as a ground of justice allows us to formulate an idea of proportionate use of parts of this collectively owned planet and link legitimate demands to immigrate to that idea. Additional demands to immigrate can be rebutted if indeed countries proportionately use their share of these collectively owned resources and satisfy the additional obligations of justice that can be formulated within the grounds-of-justice approach.