I have argued that the best way to understand the supposed right to restrict emigration is with reference to the concept of an emergency; restrictions on emigration are permitted, if at all, only as responses to an emergency situation, and must be judged with reference to the ethics of responding to such an emergency. Eszter Kollar argues, against this, that the concept of ‘emergency’ fails to describe the actual situation in low/middle-income countries, in which shortages of medical personnel are long-standing problems; she also argues that there is no need to invoke the concept of an emergency, when we might simply discuss these restrictions with reference to the relative importance of the human goods and interests involved. I argue, against Kollar, that we have no reason to think that an emergency must involve novelty; if the moral stakes are significant enough, we have reason to think of a situation as an emergency, regardless of when that situation began. I argue, too, that we have reason to differentiate between restrictions of liberties undertaken as part of the process of specifying liberal freedoms and emergency restrictions of those liberties defended by liberalism itself. The latter, I suggest, ought to be recognised and defended as a distinct moral category, if only to recognise the continuing moral remainder when a liberal right is temporarily suspended under emergency circumstances. I conclude that a permission to restrict emigration is, if at all, only justifiable as an emergency response to unfavourable circumstances, and ought not to be analysed in the more conventional liberal terms Kollar deploys.
- International Migration of Health Professionals
- Political Philosophy
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Eszter Kollar makes two central claims against my analysis of the emergency justification for restrictions on emigration. The first is that the concept of an emergency applies only to circumstances in which terrible damage is looming—and not to those circumstances in which that damage has already occurred, or in which such damage tends to occur in a regular way. Since shortages of medical personnel are a chronic part of life in low-income societies, we cannot use the concept of an emergency to analyse the ethics of responses to those shortages. This leads to Kollar's second claim: that we can best understand the ethics of restrictions on emigration without making recourse to ideas of emergencies. We can make reference to the ordinary notion that liberty may be rightly restricted for the sake of liberty, or indeed with the thought that liberty might be restricted with reference to other central human goods. No appeal to emergencies is possible, but no such appeal is needed.
I believe Kollar is wrong on both claims. In my view, an emergency is best understood with reference to the stakes involved, not with reference to the novelty or imminence of the threat to those stakes. In the cases I am interested in, the stakes relate to human rights; in particular, to the ability of a society to create the circumstances under which people's rights are protected and defended. This means, for me, that a shortage of medical personnel in low/middle-income societies might indeed count as an emergency, even if that emergency is not a new one. This matters, though, primarily because I think the emergency exception is the right way to think about the ethics here. The emergency justification, most importantly, does not entail lumping together restrictions on emigration with more typical restrictions on freedom such as restrictions on the right to free speech. We might be able to justify restrictions on emigration, I conclude, but we should not do so in the manner Kollar defends.
We can start, then, by looking at Kollar's definition of an emergency. On her view, an emergency involves an ‘imminent threat to a valuable state of affairs’; the intervention must be temporally prior to the damage under consideration. A shortage of medical personnel might exacerbate an emergency, such as a pandemic or natural disaster; it cannot itself constitute that emergency. I am, though, not concerned with the word emergency itself; I am interested in the moral permissions generated by different sorts of situation—and I can see no reason to think that the moral permissions here require the harm under consideration to be merely imminent, instead of already occurrent. To see this, imagine two representative societies facing a shortfall of those goods required for the protection of human rights. In the first, the damage is imminent; unless a given policy is enacted, a serious moral evil will begin, on which important rights will be violated. In the second, the damage has taken place, and that evil has begun; unless that given policy is enacted, the evil will continue. Why should our moral reactions differ in these two cases? In both, the policy can be justified—if it can at all—with reference to the evil that it eliminates, and to the moral importance of those rights that it would protect. If the policy is justified in the first, it seems to be justified in the second. Nothing morally interesting seems to turn on the temporal sequence itself.
This matters, though, because Kollar wants the emergency justification to be eliminated for restrictions on emigration—leaving only the thought that such restrictions might be justified with more ordinary forms of restrictions on liberty. On Kollar's analysis, we might simply balance the importance of the restriction of liberty with the importance of what it is that restriction would provide for us. John Rawls, famously, allows liberty to be restricted for the sake of liberty itself; he also allows liberty to be temporarily restricted in low/middle-income societies, until those societies are able to develop institutions capable of administering liberal justice. Why can we not, then, similarly regard restrictions on emigration as justified restrictions on liberty? Having this discussion would bring our analysis of medical emigration within the moral usual sorts of discussion we already have about acceptable limits on rights.
The answer—for me—is that we must differentiate between restrictions that are undertaken as part of liberal justice and restrictions of the rights granted by liberal justice—and that this distinction seems difficult to maintain on Kollar's analysis. The liberty of political speech, for instance, might be rightly limited with reference to the political liberties themselves, such as time-and-place restrictions on what can be said where. (Eg, picture a 5 min limit on speeches at Speaker's Corner, so that all might have a turn). Those restrictions are not deviations from liberalism; they are, instead, part of how liberalism is lived. Something more is needed, though, to acknowledge that a given action is, itself, a direct instantiation of a right granted by liberalism, and yet to assert that we are allowed to suspend the right to that action. (Picture here a restriction on the promulgation of particular political viewpoints during wartime). A different sort of threat seems to be needed to justify this second category of restriction. In my view—following Rawls—the threat must be existential: the liberal society that is in danger of falling into barbarism has a limited permission to suspend certain liberal rights, if that is the only way of responding to the evil in question.i This sort of permission, though, seems similar to any imagined permission granted to a low/middle-income society to temporarily prevent emigration: both societies ought to be understood as seeking emergency exceptions to liberal rights that remain in force, and justifying restrictions to those rights with reference to the society that will be possible only because of those restrictions.ii
Why, though, does this matter, given that Kollar and I both admit (in theory, if not in practice) that bad enough circumstances can legitimate a suspension of the right to emigrate? There are, I think, at least two reasons. The first is that the emergency exception necessarily announces itself as temporary; the emergency exception says—what we propose to do can only justify itself through the creation of a world in which restrictions of this sort of thing are not necessary. That marks out restrictions on emigration from such ordinary restrictions on free speech as time-and-place restrictions. The latter will be part of any well-functioning society; the former, we may rightly hope, are not, and we admit their necessity only with reluctance and in the hope that they do not last long. This leads to the second reason: the emergency exception maintains the sense that what is being done is, in a very real sense, a wrong—a permissible wrong, under the circumstances, but wrong nonetheless. This sense of wrongness is not present with all restrictions on human freedom; there is no moral remainder, as it were, when we insist that people must let others take a turn at Speaker's Corner. I believe there is such a remainder, though, when we conscript people into the army, or suspend their rights to free political speech during wartime, or prevent them from emigrating. I am not sure how this remainder is to be understood politically—although I have often thought that those whose rights are suspended, even for very good reasons, are entitled to apologies, if nothing else. Nonetheless, I believe we are right to try to get the moral story here correctly, and I believe an account that differentiates between emergencies and the ordinary life of a liberal politics is more likely to do the job. I am, in sum, in disagreement with Kollar's analysis of emigration—but I am exceptionally grateful to her, both for the power of her ideas and for the chance to have a continuing discussion on these important topics.
Competing interests None declared.
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↵i Rawls's discussion of the ‘supreme emergency exemption’ makes the case that the response to the Nazi regime was a case in which the destruction of the liberal project was a live possibility. Acts of conscription—along with otherwise impermissible wartime policies—were legitimate restrictions of liberty only because of this.1
↵ii Rawls seems to agree; he notes that ‘the priority rules this ordering suggests [i.e., the priority of liberty] are to be applied to nonideal cases as well… [I]t does have to be shown that as the general conception of justice is followed social conditions are eventually brought about under which a lesser than equal liberty would no longer be accepted. Unequal liberty is then no longer justified.’2