Matthew J. Lister

Political power is always coercive, and is none more so in domestic politics than the criminal law and its associated power to punish. If this power is to be used in a just way, it must be done in a manner that all members of society can accept. This paper is an attempt to work out some normative parameters for an acceptable theory of punishment by examining its institutional role in a just, liberal state. In doing so, this paper treats punishment theory as a topic in political philosophy, as opposed to moral philosophy. In this way, the account differs from most approaches to a theory of punishment, which are based on what we might call “personal morality.” In this paper, I focus on the role that punishment would play as an institutional part of a state governed by just rules and explore how the features of the institution could be justified to the citizens of the state in question.

The topics of refugee protection and family migration have both received significant attention in the philosophical literature. However, until recently, issues at the intersection of these two subjects were rarely discussed. In this entry, we outline and explore some of the most important questions concerning these issues of refugee family unity, separation, and reunification, considering what obligations (if any) states might have to respect and protect the value of family life for refugees in light of the different sorts of situations refugees may be in. In particular, we consider how the family unification rights of resettlement refugees may differ from the rights of first-asylum refugees, and how these issues might be complicated when unaccompanied minors are involved. Along the way, we discuss a number of related questions, such as: why should states respect and protect the unity of refugees’ families? which family members do refugees have rights to reunite with? and, how much weight should the importance of family life have in non-ideal circumstances when places for refugees in safe states are scarce?

Although there is now a large and sophisticated literature on ethical or moral matters relating to family immigration and immigration enforcement, the intersection of these topics has not been greatly explored. This is unfortunate, as particular and difficult normative issues arise in relation to immigration enforcement when applied to children and to families where some members are unauthorized migrants and others are citizens or authorized migrants (“mixed-status” families). This chapter addresses this deficit, explaining some of these special difficulties and providing suggestions as to how they may be addressed. (the file below is a final pre-publication version. Please cite to the published version.)

This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like standard activism), primarily targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination.

Over the last few years, an increasingly sophisticated literature devoted to normative questions arising out of the enforcement of immigration law had developed. In this essay, I consider what sorts of constraints considerations of justice and legitimacy may place on the enforcement of immigration law, even if we assume that states have significant discretion in setting their own immigration policies, and that open borders are not required by justice. I consider constraints placed on state or national governments, constraints on enforcement by substate governments, and constraints on the actions of individuals. I show that there are significant limits on what states may do and what they may require substate governments and individuals to do, in enforcing their immigration laws, but that these constraints are not clearly incompatible with significant state discretion in setting immigration policy. Nonetheless, consideration of justice in enforcement is necessary for any complete normative account of immigration.

Despite marked improvements in rights for LGBTQ persons around the world, significant problems remain.  In many countries, LGBTQ persons face significant discrimination, lack of protection from harm by non-state actors, and persecution from their own governments. This article examines when and why protection under the UN Refugee Convention should be granted to those seeking asylum or refugee status because of maltreatment related to their LGBTQ status. To this end, Part II shows how LGBTQ asylum seekers straightforwardly fit into the definition of a “refugee” set out in the UN Refugee Convention. Subsequent Parts address how to overcome some potential complications arising out of the sorts of harms faced by LGBTQ applicants without significant modifications to the standard refugee definition.  The article then turns to two further areas of practical difficulty for LGBTQ asylum seekers and suggest approaches and reforms to deal with these problems. The first issue involves the interaction between considerations around the family and refugee and asylum law. While the legal protections of the rights of LGBTQ families have improved in many countries, difficulties remain, and even in cases where these rights have been granted by a state, there are often special difficulties faced by LGBTQ asylum seekers.  The article therefore proposes and justifies certain reforms in this area. Finally, the article address questions and concerns about the type of evidence that may be demanded by those adjudicating asylum and refugee cases involving LGBTQ applicants.

In her important book Promoting Justice Across Borders, Lucia Rafanelli offers a detailed account of ‘reform interventions’, seen as ‘any deliberate attempt to promote justice in a foreign society’. Such interventions, she argues, can and should be subject to ethical evaluation, including standards relating to toleration, legitimacy, and collective self-determination. While I am sympathetic to many of Rafanelli's arguments, in this essay I will argue that, for a large number of cases this complex moral machinery is not needed, because the acts in question either are, or could be, morally indifferent when looked at from the perspective of interaction between members of the international community. In particular, I argue that many market or economic interactions between states fall into this morally indifferent zone, and so need not meet the standards set out by Rafanelli to be acceptable.

It is now widely expected that climate change will be serious enough that a very large number of people will be displaced from their homes because of events relating to or resulting from climate change. Such events may include rising sea levels (and resulting increased salination of ground water), stronger hurricanes and tropical storms, drought, floods, increased and more intense wildfires, and other extreme or (previously) unusual weather events. Although estimates vary widely, it seems very likely that many millions of people—perhaps hundreds of millions if sufficient precautions are not taken—will be forced from their homes by these events related to climate change. In the public imagination, much of the attention has been on ‘climate refugees’, where this is taken to mean people who have crossed borders. However, there is good reason to believe that a very large percentage—probably a significant majority—of displacement resulting from climate change will be, or could be, internal. In this chapter I argue that there are likely to be a large number of cases where internal displacement related to climate change is of international concern, and where, therefore, states have significant moral reasons to provide assistance, either directly to those displaced, or else to the state in which the displacement has taken place. My claim is that internal displacement arising from climate change is of international concern and so grounds a duty of aid by states able to provide it, when this displacement threatens the basic human rights of those displaced, and when the local or domestic government cannot or will not take the necessary steps to meet the needs and protect the rights of those who are displaced. (The uploaded version of this paper is an uncorrected proof. Please cite and refer to the published version.)

As the normative literature on immigration has matured over the last twenty plus years, it’s become increasingly hard to make interesting, plausible, and original claims. Most issues have been discussed, and most plausible positions staked out. Valeria Ottonelli and Tiziana Torresi’s book is, then, a pleasant surprise. In a brisk 173 pages they make important tech- nical contributions and argue for an insightful approach to thinking about some problems relating to migration. I will suggest worries about both their conclusions and the approach, but anyone interested in normative migration theory should read the book.

Corruption is a ubiquitous problem. As Gillian Brock notes early on, it exists to one degree or another in all societies, no matter their stage of development, and is regularly identified by the public as one of the top problems in the world (2–3). Despite its importance and frequency, it hasn’t been a central topic for philoso- phers working on normative moral and political theory. This isn’t to say that it has been ignored, but it has mostly been seen as a specialty topic in areas such as business ethics, criminal law theory focusing on white-collar crime, or certain sub- areas in democratic theory. However, as Brock points out, corruption has particular importance for questions of global justice, given that “corruption plays an enor- mous role in sustaining global injustice and hinders efforts aimed at remedying global deprivations” (17). This comes not only from the sort of large-scale corrup- tion by government officials that starves developing countries of funds needed to provide necessary services but also from more day-to-day corruption in the provi- sion of water, leaving many people without access to clean drinking water; in con- struction, where people must make do with substandard and unsafe buildings; in the provision of education and medical services; and so on. Despite the massive size of the global justice literature, Brock’s book is one of the first—perhaps the first— to focus specifically on corruption in relation to global justice. It would be an im- portant work for this reason alone, but it also has many other virtues which should make it the touchstone of the topic going forward.

In this chapter I focus on two problems facing immigration systems around the world, and Australia in particular. The topics addressed are chosen because each one involves important fundamental rights and because significant improvement in these areas is possible even if each state acts alone, without significant coordination with others. First, I examine refugee programmes, focussing specifically on the ‘two- tier’ refugee programmes pioneered by Australia with the introduction of Temporary Protection Visas by the Howard Government in 1999. Next, I look at recent declines in refugee resettlement schemes from already stingy levels and, in relation to Australia in particular, I show how the tying of resettlement numbers to the number of affirmative asylum claims granted is both wrong- headed and counterproductive. The second area of immigration policy explored is family migration, another area where immigration systems around the world have been moving in the wrong direction, often via less than transparent administrative processes. Australia is no exception. While Australia’s family migration system is reasonably good on its face, in practice there are several factors which make the programme significantly less than satisfactory from the perspective of protecting the basic rights of migrants and, arguably more importantly, citizens. These problems can and should be fixed in straightforward ways, and since doing so would be more just, would have few— if any— significant negative consequences, and in fact would have a number of clear benefits, those changes should be made.

How to respond to unauthorized migration and migrants is one of the most difficult questions in relation to migration theory and policy. In this commentary on Gillian Brock’s discussion of “irregular” migration, I do not attempt to give a fully satisfactory account of how to respond to unauthorized migration, but rather, using Brock’s discussion, try to highlight what I see as the most important difficulties in crafting an acceptable account, and raise some problems with the approach that Brock takes. In thinking about unauthorized migration, both while trying to craft positive policies and while critiquing existing practices, we need to ask if we are most interested in a general account of how to respond to unauthorized migration, one that would apply to the large majority of cases and provide us a default approach, or if we are better served by taking a piecemeal approach, looking at why certain people or certain groups should be exempt from removal, even if they would otherwise be liable to it. In this paper, I will focus primarily on this distinction, and argue that it is at least important to provide an account of the "generic unauthorized".

Employers seeking to control employee behavior outside of working hours is nothing new. However, recent developments have extended efforts to control employee behavior into new areas, with new significance. Employers seek to control legal behavior by employees outside of working hours, to have significant influence over employee’s health-related behavior, and to monitor and control employee’s social media, even when this behavior has nothing to do with the workplace. In this article, I draw on the work of political theorists Jon Elster, Gerald Gaus and Michael Walzer, and privacy scholars Daniel Solove and Anita Allen, to show what is wrong with this extension of employer control of employee’s outside of work behavior. I argue that there are ethical limits on the controls that employers may put on their employees’ out of work behavior, and that many of these limits should be enshrined into legal protections which would prevent employers from conditioning employment on the regulations criticized. (Please note that the version of this paper on SSRN is a pre-publication version. Please cite and refer to the published version when possible.)

For several years Michael Blake has been among the most important contributors to the philosophical literature on immigration. This book is therefore greatly anticipated, and develops a number of fruitful arguments. Although I will argue that the account is unsuccessful or incomplete at key points, it’s clearly an important work of relevance to those working on immigration, as well as to political philosophers more generally. In particular, Blake provides powerful arguments against the claim that “open borders” are required by liberal principles of justice, develops his own “jurisdictional” account justifying immigration restrictions and the acceptable limits to these restrictions, and, in the most interesting and novel part of the book, discusses the role of virtues and values other than justice in relation to immigration policy, focusing specifically on the virtue of mercy. This last section of the book has potential for starting a rewarding line of research for political philosophers working on many topics, not just immigration.

In his _Natural Law and the Nature of Law_, Jonathan Crowe has written an important and interesting book, one that should be read by people interested in jurisprudence, ethics, and political philosophy. Its distinctive strength is in the way Crowe shows how much can be done within a natural law framework that does not assume a theological background. A distinctive feature of Crowe's approach to natural law, one that distinguishes it from other well-known approaches, is its argument that only a minimal state, if any state at all, is required by or even compatible with natural law. It is this claim that I focus on in this paper. I show that these anti-state arguments do not work, and that a much more robust, largely state-like, type of political society is necessary if the requirements of natural law that Crowe accepts are to be met. In doing this, I also draw some related conclusions about the proper understanding and reach of the common good. In arguing for this conclusion I do not attack Crowe's general approach, but rather make what I hope to be an internal critique of the argument. If I am successful in this, then there will be reason for people who are sympathetic to the overall project to reject some of Crowe’s sub-conclusions, even if they wish to remain working in the natural law tradition overall. And, there will be reason to accept that something like the modern state will be necessary - at least for some time and for people like us - if we are to live good lives.

A Significant percentage of the people outside their country of citizenship or residence who are unable to meet their basic needs on their own, and need international protection, do not fall under the definition set out in the UN Refugee Convention. This has led many - both academic commentators and activists - to call for a new, expanded refugee definition, preferably backed up by a new, binding, international convention. In earlier work I have resisted this call, arguing that there is good reason to pick out a sub-stet of those in need of international aid - a set that largely, if not completely, corresponds to those picked out by the Refugee Convention - for special benefit and protection. However, even if Convention refugees are in some ways special, we are left with the question of what, if anything, is owed to those in need of aid who are not Convention refugees. In this chapter, I set out philosophical foundations for so-called complementary protection, and show how this may and should apply to people in need of international aid who are not Convention refugees.

It is a common charge that treaties, perhaps especially recent treaties relating to economic activity, provide unreasonable restrictions on the sovereignty of the state parties. While this charge has been made most forcefully by smaller states, it is sometimes raised with justification by larger states or state-like bodies such as the E.U. as well. When a tribunal judging a dispute on an economic treaty tells a state that it may no longer make decisions such as to accept or reject genetically modified foods, allow internet gambling, or produce generic drugs for domestic consumption, the citizens of the state may rightfully think they have lost important aspects of sovereignty to bodies that do not have legitimate authority to govern. This, in turn, makes negotiating treaties, despite their obvious value, much harder than it otherwise would be, leading to decreased cooperation and the forgoing of potentially significant gain. In this paper, I argue that by importing certain ideas from contract theory to the interpretation of treaties, these worries may be significantly reduced. Contracts have the seemingly paradoxical ability to increase the autonomy of the signers by allowing them to bind themselves to perform certain future actions. But, the ability of contracts to perform this function would be greatly reduced if the only possible remedy for breach were specific performance. Yet, an analogous approach to treaties is common among many important theorists of international law, who demand the equivalence of specific performance in the case of treaties. I will show how importing ideas from contract law can help ensure that treaties, especially economic treaties, are sovereignty-enhancing for states in a way that is similar to the way that contracts may be autonomy-enhancing for individuals, and will show that importing these elements from contract law will strengthen, not undermine, the legitimacy and fairness of international law. (Please download the full paper from SSRN at the link on this page)

The border is an area where the rule of law has often found difficulty taking root, existing as law-free zones characterized by largely unbounded legal and administrative discretion. In his important new book, The Rule of Law in the Real World, Paul Gowder deftly combines historical examples, formal models, legal analysis, and philosophical theory to provide a novel and compelling account of the rule of law. In this paper I consider whether the account Gowder offers can provide the tools needed to bring the border under the rule of law. I argue that on Gowder’s account, there are two ways in which we might try to extend the rule of law to the border.The first is to look at concrete connections that current citizens or members of the political community have with non-citizens. Just as the interests of current citizens give them strong reasons to coordinate to establish the rule of law in their own community, so may the interests of current members in connections with nonmembers give them reason to work to extend the rule of law to the border. These interests can include family ties, other forms of personal relationships, offers of employment, intellectual connections, and others. Some of these connections already serve to give greater legal protections, including protections from arbitrary decision-making, to some non-citizens, and the general trend, I argue, can and should be further strengthened The second method for extending the rule of law to the border involves appealing to certain universal norms so as to build a sense of community that stretches beyond borders. While these norms are not as robust or well established as domestic law, and therefore are unlikely to extend all of the protections of the rule of law to all people at the border, they can, I argues, be a basis for working against the worst arbitrary actions by border officials. I conclude by considering the vexed dispute about providing “amnesty” for unauthorized immigrants in the United States and other countries. I argues that Gowder’s account of the amnesty provided to supporters of the oligarchic coups in ancient Athens provides a model for thinking about when and how amnesties for unauthorized migrants can be done without offending the rule of law, thereby making them more palatable to current citizens. (Please download this paper for free from SSRN on the link provided on this page)

This paper proposes a novel use of tax policy to address one of the most pressing issues arising from economic globalization and international migration, that of “brain drain” – in particular, the migration of certain skilled and highly trained or educated professionals from less and least developed countries to wealthy “western” countries. This problem is perhaps most pressing in relation to doctors, nurses, and other medical professionals, but exists also for teachers, lawyers, economists, engineers, and other highly skilled or trained professionals. While there have been other proposals in the past to use tax policy to address brain drain (most famously versions of the so-called “Bhagwati Tax”, a form of exit tax), in this paper I provide an account of and justification for using tax credits, modeled loosely on the foreign tax credits U.S. citizens receive in certain situations for taxes paid in other countries. My proposal avoids several of the pitfalls of other methods of using tax policy to ameliorate the harms of brain drain, as it does not subject people from the developing world to potentially onerous double taxation, and does not depend on sophisticated tax collection capabilities within developing countries, capabilities which are often lacking. Additionally, my proposal also leads to fewer morally problematic restrictions on the liberty of citizens of less and least developed countries than do non-taxed based alternative proposals, such as temporary bans on migration. While the proposal cannot hope to completely solve the problems that arise in relation to brain drain – no approach can do this – it does provide a straightforward way to ameliorate the problems that arise from it without placing significant financial or liberty burdens on already less advantaged people from the developing world. (This paper may be downloaded for free from the link to my SSRN page below)

In this short paper I hope to use some ideas drawn from the theory and practice of civil disobedience to address one of the most difficult questions in immigration theory, one rarely addressed by philosophers or other theorists working on the topic: How should we respond to people who violate immigration law? I will start with what I take to be the easiest case for my approach—that of so-called “Dreamers”—unauthorized immigrants in the US who were brought to this country while still children (often as infants) and who have spent the majority of their lives in the US. Members of this group have engaged in wide-scale protests, making the civil disobedience paradigm all the more plausible. I will then move on to the case of unauthorized immigrants who have engaged in protests, but who do not fall into the “Dreamer” category. Finally, I will consider whether thinking about immigration law violations from the perspective of civil disobedience—and the proper response to that—can help us think about immigration enforcement more generally.

Family ties play a particular and distinctive role in immigration policy. Essentially every country allows ‘family-based immigration’ of some sorts, and family ties may have significant importance in many other areas of immigration policy as well, grounding ‘derivative’ rights to asylum, providing access to citizenship and other benefits at accelerated rates, and serving as a shield from the danger of removal or deportation. Furthermore, status as a child may provide certain benefits to irregular migrants or others without proper immigration standing that is not available to adults. Despite the fact that these benefits are extremely widespread, the justification for them remains less than fully clear, and the extent of the benefits required by considerations of justice (as opposed to expediency or other policy considerations) is debated. While essentially all states recognize at least some of these rights, a significant number of them wish to reduce, rescind, or place significant conditions on them. The role of the family in immigration policy, then, stands in need of further clarification. In this paper I attempt to provide the needed clarification and justification. I discuss first questions about family unification or formation, focusing in particular on how broad a right must be provided by states wishing to have a just immigration policy, and on whether this right violates norms of liberal neutrality. I then discuss the family in relation to refugee and asylum policy, considering both when family ties should be given weight in refugee protection decision and when harm to a family member should, on its own, be able to be grounds for applying for refugee protection. I turn next to the question of when, and to what extent, family ties should be able to serve as a “shield” to removal or deportation, and finish with a discussion of the special rights of and obligations to children in immigration settings.

Temporary labor migration programs have been among the most controversial topics in discussions of immigration reform. They have been opposed by many, perhaps most, academics writing on immigration, by immigration reform activists, and by organized labor. This opposition has not been without some good reasons, as many historical temporary labor migration programs have led to significant injustice and abuse. However, in this paper I argue that a well-crafted temporary labor migration program is both compatible with liberal principles of justice and likely to be an important part of a sensible immigration policy for the near future, at least. I show how the many injustices and high potential for abuse of earlier programs may be avoided. I also show good reason to favor a well-crafted temporary labor migration program over either the more likely alternative outcome of officially tight borders (which would almost certainly maintain our current dependence on large-scale unauthorized immigration) and the much less likely option of nearly open borders. As increased labor migration of all sorts is an intrinsic part of increased economic globalization, it is especially important to craft guidelines for just temporary labor migration programs if we are to both gain the advantages of globalization and protect the rights of workers.

For many years now Allen Buchanan has been one of the most important theorists working on the philosophy of human rights, producing a large number of papers and two books significantly devoted to the topic. In the work under consideration in this symposium, Buchanan breaks new ground by examining what he claims to be the “heart” of international human rights practice – the international legal human rights (“ILHR”) system, subjecting it to moral and philosophical analysis and criticism. Buchanan's book was the subject of an author meets critics session sponsored by the APA Committee on Law and Philosophy at the 2015 Pacific APA Meeting. The following paper introduces the resulting special issue of the journal, _Law and Philosophy_, summarizing Buchanan's important contribution and criticisms by William Talbot, Brooke Ackerley, Erin Kelly, and Mathias Risse, as well as Buchanan's replies.

Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan's recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I review Buchanan's new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to Buchanan's argument that the philosophy of international law must be more empirically informed than it has been so far, and also to his claim that greater emphasis must be placed on the role of institutions. While these are important claims, I show that Buchanan often does not take the first far enough, and that appealing to institutions cannot do as much as Buchanan hopes or needs if his substantive conclusions are to be correct.

The debate over the use of genetically-modified (GM) crops is one where the heat to light ratio is often quite low. Both proponents and opponents of GM crops often resort more to rhetoric than argument. This paper attempts to use Philip Kitcher’s idea of a “well-ordered science” to bring coherence to the debate. While I cannot, of course, here decide when and where, if at all, GM crops should be used I do show how Kitcher’s approach provides a useful framework in which to evaluate the desirability of using GM crops. At the least Kitcher’s approach allows us to see that the current state of research in to, and use of, GM crops is very far from the ideal of a well-ordered science and gives us a goal to work towards if we wish to achieve a more well-ordered agricultural policy.

Many international law scholars have begun to argue that the modern world is experiencing a "decline of citizenship," and that citizenship is no longer an important normative category. On the contrary, this paper argues that citizenship remains an important category and, consequently, one that implicates considerations of justice. I articulate and defend a "civic" notion of citizenship, one based explicitly on political values rather than shared demographic features like nationality, race, or culture. I use this premise to argue that a just citizenship policy requires some form of both the jus soli (citizenship based on location of birth) and the jus sanguinis (citizenship based on "blood" or descent) approaches to citizenship acquisition. In the course of this argument I show why arguments made by Peter Schuck, Rogers Smith, Peter Spiro, Linda Bosniak, and Ayelet Shachar, among others, against this view, are mistaken. This justice-based approach to citizenship also has significant implications for naturalization law and policy. First, I argue that it requires open and easy naturalization and show why the use of naturalization policy to foster national identification is wrong. Second, I demonstrate that if naturalization is easy and open, some rules limiting certain social benefits and privileges to citizens may be compatible with justice, thereby providing a foundation for future discussions of alienage law.