In many countries, governments impose legal duties on citizens regulating their interactions with unauthorized immigrants. It is for example forbidden to provide them with access to employment, housing or transportation, and even sometimes to merely assist them in some way. In France, for example, there has been a lasting debate about the so-called “délit de solidarité” (offense of solidarity) – a law forbidding citizens to bring assistance to illegal immigrants.
Are we, citizens of rich countries, under a moral duty to obey or disobey such laws? Some scholars, convinced that restrictions on immigration are in general unjust, have argued that we have a duty to disobey such laws precisely because they are unjust – because they restrict some fundamental freedoms for example.
Although I share the moral conviction about the right to immigrate, I do not believe that such reasoning is acceptable. If we believe that considering a given law as unjust (or even highly unjust) is a sufficient reason to disobey, shouldn’t we also accept that millionaires deeply convinced of the injustice of a given tax regime can legitimately opt for fiscal evasion? One might believe that restricted immigration is clearly or obviously unjust whereas (heavy) taxation of high incomes isn’t. Yet this just reflects partisan bias. The fact is that both are highly debated and controversial. One cannot affirm that immigration restrictions are objectively wrong whereas heavy taxation is objectively right. This claim might be true, but even if objective moral truths exist, we do not have transparent access to them. Such claims are bound to be highly contested and are thus insufficient to ground acceptable disobedience.
A more salient difference between helping unauthorized immigrants and escaping taxation might be that one action is disinterested (provided that immigrants are not helped in exchange of money) whereas the other is highly interested, which puts its morality in doubt. Yet what about people helping others escaping taxation without financial reward? Shouldn’t we accept that as a legitimate form of civil disobedience if believing in the injustice of a law is sufficient to deny its legitimacy?
The more general worry is that such an approach to democratic legitimacy makes democracy very unstable. It seems that only the winners, the majority, have non-prudential reasons to recognize the authority of a law. Yet we tend to believe that (temporary) losers should also accept democratic decisions, even when they are unfavorable or unjust.
This is the problem that “epistemic proceduralism” (David Estlund) is meant to solve. According to this view, the reason why we should accept democratic decisions even when we view them as unjust is that democracy is considered as a reliable mechanism for making good collective decisions – or at least as the most reliable among the generally acceptable alternatives, which does not mean it is highly reliable. This view differs from “pure proceduralism”, or the idea that democratic decisions are legitimate because the democratic procedure is intrinsically fair. And it differs from “correctness theories”, claiming that a decision is legitimate only if it is just.
We could, however, question the reliability of democratic procedures in matters of immigration law. What makes the epistemic value of democratic decisions (their capacity to lead to right decisions) is the egalitarian inclusion in the decision-making process of those who will be the most affected by the decisions to be made. Yet in matters of immigration law, the most affected are usually not included. And what is more, those participating in the decision-making process often suffer from hostile prejudices against potential immigrants, sometimes pictured as lazy welfare beneficiaries or even potential criminals. From this viewpoint, nationally produced immigration laws are quite likely to be biased against foreigners. The question thus becomes: why should we obey laws that are quite likely to be unjust?
My view is that disobedience in matters of immigration law is legitimate – in particular, in the case of rich citizens of the host country, when it is disinterested. The reason, however, is not that immigration restrictions are unjust (which is a highly contested claim). It is that the decision-making procedure is highly biased, in this domain, and very likely to generate unjust laws (a contested but more generally acceptable claim). So we do not need to assume agreement about our preferred conception of justice to ground a claim to legitimate disobedience.