It seems intuitively correct – perhaps even obvious – that if we think of the nation-state as the institution of a democratic people, then states have the ‘right to exclude’. That is, states have a moral right to stop would-be immigrants from entering because a self-determining people have the right to decide on their own membership practices. Yet states often act without securing the will of the people, and we do not normally think that this compromises the independence of the citizens. Think, for instance, of decisions like diplomatic appointments, strategic military deployments, or complex fiscal policies. These are all routine decisions that shape the future of the country, but citizens are excluded from the decision-making process.
This is puzzling, because if states can act without being directed by citizens and without compromising self-determination, then self-determination cannot be a claim about states being directed by the will of citizens. If this is correct, then the self-determination justification for the right to exclude is doubtful because self-determination does not require that citizens determine state policies. As I argue in a recent article, this includes immigration policies.
To see how states can make legitimate decisions without citizen input, consider two different kinds of groups: a Jane Austin book club and a large company that we will call Agency Airlines. When the book club decides to read Pride and Prejudice, we understand that the individual members of the book club intend that they will read Pride and Prejudice. We explain the book club’s intentionality – its ability to form intentions – in reference to the individual members’ intentionality, because that is how the group makes decisions. For simplicity let us call this kind of group a ‘thin group-agent’. The decisions of thin group-agents are entirely explained by considering the prevailing decisions of members.
Now imagine that Agency Airlines decides that Premium Passengers can upgrade to Business Class at half price. We would not normally think that Agency Airlines had asked all of its employees and shareholders for their agreement on this decision. This is because company decisions are typically made by officeholders who are authorised to form intentions on behalf of the company. Let us call this kind of group a ‘thick group-agent’. The decisions of thick group-agents are explained by the formal decision-making structure of the organisation, and the role that stakeholders play in the decision-making process is to fill offices. Importantly, the authority to make decisions resides with the office, not with the officeholder. Hence, when a CEO leaves a company, they are no longer authorised to make decisions for the company.
According to my argument, states are thick group-agents. Their decisions and actions are explained in reference to the decisions and actions of particular officeholders who are authorised to form intentions on behalf of the state. If states were thin group-agents, then it would be impossible for them to do anything other than what citizens decided. But if it is possible for states to act without being directed by the will of the people, then state intentionality cannot be explained by citizen intentionality.
This has implications for what we think about self-determination. Many political theorists think of self-determination as a peoples’ right to determine its own laws, practices, culture, language and much more. It is a central concern for Indigenous peoples seeking recognition of their sovereignty and traditional land rights, nations undergoing decolonisation, or even secessionist movements demanding political independence.
According to S. James Anaya, this is what we might call constitutive self-determination. It describes the desire of a people to create their own political structures. In group-agency terms, a group that seeks constitutive self-determination is a thin group-agent. In order to secure the kind of group-level agreement required for a coherent claim of sovereignty, it is necessary that the members are in agreement about the group’s intentions.
Once a people have achieved freedom from external domination through constitutive self-determination, their gaze turns inwards to secure what Anaya calls ongoing self-determination. Here the interests at stake are freedom and equality, which require the formation of the kinds of decision-making structures we see in thick group-agents. This is essential because if the state’s institutions are subject to control by popular will, then the state will be what John Stuart Mill called a ‘tyranny of the majority’. But if they are controlled by a ruling elite, then the people cannot see themselves as free and equal. It is only when the decision-making authority of the state resides in offices, and officeholders are selected by democratic practices, that citizens can see themselves as free from internal domination and equal with the officeholders who (temporarily) exercise the authority of the state.
Now, you may be wondering what all of this has to do with the state’s right to exclude. Well, the self-determination justification holds that a state has the right to exclude because its citizens have the right to exclude. This justification assumes that states are thin group-agents, and that citizens direct the state on issues like membership. But although nations might be thin group-agents, nation-states are not. States can and do make all kinds of decisions – including immigration decisions – without so much as asking citizens what they think. And because citizen preferences are not decisive in state intentionality, we need not think that the self-determination of citizens has been compromised so long as they continue to enjoy freedom and equality with one another. Hence, state immigration decisions are not necessarily citizen immigration decisions, and so the self-determination justification for exclusion is unconvincing.
Of course, this does not mean that states do not have the right to exclude at all. The important point from the analysis offered here is that whatever right to exclude states have, it is not explained by the self-determination of citizens because state intentionality is not mere citizen intentionality.