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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’ll do my best to explain why, 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 public property within the state’s borders is more properly considered the joint property of the people the state has taxed to realise it. The people with the best ownership claim to this infrastructure are locals who have been subjected to the local state’s taxes in the past.

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 public property in the host country. Under current conditions, immigrants to a country necessarily use the host country’s public property — e.g. roads, airports and public buildings.

Bearing all of the above in mind, imagine a taxed population unanimous in preferring that members of foreign population B not use their property — meaning the 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 public property.

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. Under these circumstances it seems clear that anyone upholding property rights should advocate a restrictive border policy.

Does a more realistic polity justify open borders?

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

The libertarian argument from imperfect restitution

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

  • The local state extract taxes from its subjects, an act of aggression.
  • The local state owes restitution to the taxed.
  • 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 the taxed.
  • Insofar as the state deploys expropriated resources in accordance with the preferences of its subjects, it provides partial restitution to them.
  • A greater degree of fulfilled restitution is preferable to a lesser degree.

Accepting the above premises, libertarians may still consistently prefer that the state adopt a restrictive border policy with respect to population B.

The judgement should hinge on an estimation of which border policy will ultimately maximise the amount of restitution ‘paid’ by the state, to the taxed population

In other words, the libertarian should be estimating which policy would cohere best with the summed preferences of the taxed population, with regard to how their property is used.

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 would result in the highest degree of restitutive justice 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 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.

If anyone out there is using the phrase open borders without also meaning open access to public property, this argument isn’t relevant to these people.

For instance if settlers arrive without setting foot on taxpayer-funded infrastructure 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. It’s important to bear in mind that both open as well as restrictive border policy is likely to result in property rights violations.

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. Though this is a consequentialist objection and doesn’t speak against the validity of the rights-based ‘imperfect restitution’ argument.

Another complicating factor is that the local subjects taxed by the state aren’t usually it’s only victims. At least in cases where the state in question has been prosecuting war overseas, there are likely foreign victims who have at least as urgent a claim to restitution as locals do, and unlike the case of generations-old wrongs where the victims are lost to history, making the issue moot, it’s currently possible in principle to track these people down.

Trying to take account of the preferences of particular groups of foreign victims in any estimation of what policy would be most in accordance with the wishes of those owed restitution makes the accuracy of such an estimation even more doubtful. But for the purposes of this article it’s enough to notice that even taking the broader victim population into account doesn’t automatically deliver the result that open borders proponents want.

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 taxpayers, and starts using ‘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 property seriously — can’t be known a priori and should be weighed by attempting to assess the summed preferences of the taxed.

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.

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