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Is an open border policy inherently more libertarian than a restrictive or exclusionary policy? I believe the answer is no, there are important libertarian considerations that count against open borders.

I believe the correct position for libertarians is one I’m calling libertarian border agnosticism. The view that a priori knowledge about what the best border policy for a state would be, with respect to libertarian ideals, is not obtainable. I’ll do my best to explain how I’ve gotten to this conclusion, and then mention a few relevant considerations and objections.

By open border policy, I mean a policy by which a state is permissive about who it allows to enter the territory it controls.

In my view, private property anarchism is the most thoroughgoing expression of libertarianism, so I’ll be talking about why an adherent of this view may coherently prefer a restrictive border policy over a permissive one, under statism. The rest of this article is written from the perspective of private property anarchism and assumes the reader shares this view.

A simple case

When the state bars a foreigner from entering the territory whose borders it police, and is prepared to use violence to enforce that exclusion, is the state initiating aggression against (violating the property rights of) that person? Not necessarily.

The developed public property within the state’s borders is more properly considered the property of the people the state owes restitution to. The people with the best ownership claim to this land and infrastructure are those who have been victims of the state in the past. This group includes taxpayers, foreign civilians killed in bombings (and their heirs), and those the state has punished for victimless crimes.

An inherent quality of being a legal immigrant (as opposed to a person who has just travelled somewhere, or a person with some other legal status) is the legal right to the routine use of developed public property in the host country. Under current conditions, immigrants to a country necessarily use the host country’s developed public property — e.g. roads, airports and public buildings.

Bearing all of the above in mind, imagine a state with only local victims. Imagine too that the victim population is unanimous in preferring that members of foreign population B not use their property —  the developed public property of that territory. In preventing members of population B from crossing the border, the state would plausibly be acting with the permission of those property owners to exclude members of population B from using the local developed public property. In this aspect at least it would be acting as a steward, albeit one prone to predation and abuse.

In this hypothetical even those subjects who would prefer that the state did not exist, would prefer the state to deploy its ill-gotten gains to restrict access rather than allow unrestricted access. In my view, libertarians should advocate a restrictive border policy here.

Does a more realistic polity justify open borders?

A more lifelike scenario is that some members of the victim population are in favour of people from population B using their property, while others don’t want that to happen.

The wishes of the two groups cannot both be satisfied by the state as we know it. By denying entry to population B, the state is committing a rights violation against the part of its victim population who would like to invite members of B onto their property. And by allowing entry to population B (while simultaneously preventing anyone else from physically excluding that population) the state is committing a rights violation against the members of the victim population who would prefer to exclude population B.

In this case the least harmful policy for the local state to impose, with respect to the sanctity of property, might be a restrictive one or a permissive one, depending on the summed preferences of the victim population – and on the respective weights of their claims to restitution.

The libertarian argument from imperfect restitution

For the next part of the discussion here are the premises I’m assuming:

  • The local state commits criminal acts of aggression against many people.
  • Both restrictive and open border policy, when imposed by a state, involves rights violations of different groups.
  • The local state owes restitution to its existing victims (including net tax payers).
  • The local state, qua state, does not necessarily owe any restitution to would-be immigrants.
  • While it exists, the local state, through its policies, is capable of providing partial restitution to its victims.
  • Insofar as the state deploys expropriated resources in accordance with the preferences of its victims, it provides partial restitution to them.
  • It is preferable to maximise the degree of fulfilled restitution while minimising the number and severity degree of new rights violations.

Accepting the above premises, principled libertarians may judge it preferable that a given state adopt a restrictive border policy with respect to a given population.

The libertarian should be estimating which policy would cohere best with the summed preferences of the victim population with regard to how their property is used, while minimising new rights violations.

The point is that given a government theft, taking, or trespass, it is better, other things being equal, for the victims to receive restitution; and more restitution is better than a smaller, insufficient amount. But restitution need not be made only in dollars. It can be made by providing other value or benefits to the victims. One such benefit to me is the ability to use a nice, uncrowded, local pool for a cheap price.

Stephan Kinsella

It’s possible that the policy that best balances providing restitutive justice while minimising new acts of aggression, would be a policy that excluded members of population B from crossing the local state’s borders.

I believe that by this point we’ve established that libertarianism doesn’t require an advocacy of open borders in all cases.

Other considerations

In this article I’m using the phrase open borders as if it were synonymous with open access to developed public property. I feel justified in doing this because in almost all the conversations I’ve experienced on the subject, this is what people seem to have in mind.

This argument is relevant only to the phrase open borders insofar as this phrase refers to open access to developed public property. For instance if new settlers arrive without setting foot on developed public property, and homesteaded some remote piece of land within the state’s borders that no one else had homesteaded previously, then this argument offers no reason to oppose them.

Open borders advocates like Bryan Caplan point out that the state is violating human rights when they prevent an immigrant from entering a country to stay on private property with the consent of the properties owner. This view is compatible with the argument presented above.

A restrictive border policy may require a more powerful government to enforce it than would a more permissive policy. At least from a libertarian perspective, that additional power is likely to lead to future abuse and injustices that would otherwise not have obtained. On the other hand, allowing entry to populations who prefer a more powerful state introduces a trend in the opposite direction if the newcomers, or their descendants with similar views, are eligible to vote.

The imposition of border controls by the state will carry costs that are ultimately borne by the taxed population. Some proportion of this population will prefer for those controls not to be in place. So this additional taxation constitutes an additional degree of rights violations that counts against the option of restrictive border controls.

The sentiments of local victims can be roughly gauged by existing political processes and polls, but trying to take account of the preferences of foreign victims in particular seems, at best, like a very difficult challenge. Estimates of which policy is most in accordance with the wishes of victims are certain to include a large measure of doubt.

All the above difficulties and considerations notwithstanding, we cannot know, a priori, that the best border policy in any locality is open borders, from a libertarian perspective.

Biting the eugenics bullet

In objecting to this line of thinking writers have pointed out that being born is similar to immigrating to a country in many respects. In both cases a newcomer shows up, potentially without the blessing of the majority of the victim population, and starts using developed public property.

If the argument set out above is sound it seems that there is nothing inherent to private property anarchism that says a state-imposed eugenics policy (e.g. People matching a given profile are forbidden from having children) is necessarily less just than the ubiquitous ‘open-procreation’ policy we’re all used to today. As with border policy, the relative desirability of such a policy — at least by the lights of those who take private property rights and restitution seriously — can’t be known a priori and should be weighed by attempting to assess the summed preferences of the victim population.

Criticism

The website OpenBorders.info has a page talking about ‘Collective Property Rights’ arguments against open borders, like this one, and summarises some responses. In my view none of the responses refutes this argument.

Credit

This post owes a good deal to Stephan Kinsella’s 2005 article A Simple Libertarian Argument Against Unrestricted Immigration and Open Borders.

Further reading

Chase Rachels: The Libertarian Case AGAINST Open Borders.

Updated 2017-06-17 to swap references to the ‘taxed population’ to the broader, and more relevant ‘victim population’. Added the qualifying prefix ‘developed’ to all mentions of public property.

Updated 2017-06-24 to introduce the phrase libertarian border agnosticism.

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