Dear colleague refugee rights advocates, I think you are mistaken in assuming that there’s a common enough basis of ethical beliefs in European societies now so that we only need to do fact-checking and explaining the law again and again. That could be worse than useless.
The anti-refugees discourse exists because populist-nationalists and fascists instrumentalize the issue to propagate their alternative system of moral values and epistemological practices. They would be probably be secretly disappointed if refugees stopped arriving irregularly on mass, because then what would they use as materials for making propaganda?
They keep repeating the same false claims regardless of how many times we’ve explained that they’re not true because they don’t value the objective reality of the human subjects or their issues, but they’re interested in them only to instrumentalize them for normalizing their radically divergent set of values and assumptions through repetition and social entrainment. Or why else do you suppose they just repeat the same half a dozen points for years?
Repeating what the law says won’t convince people unless they also understand historically and ethically why the laws were made that way.
The far-right and our governments now often talk about the law as if it’s just a bunch of technical or procedural obstacles to get around in order to satisfy ‘the’ popular will, so if we don’t explain the moral philosophy underlying the law, we probably won’t convince anyone who doesn’t already believe in it.
Populist-nationalists and fascists use the issue of refugees arriving irregularly on mass as visual materials for feeding into public discourse narratively and terminologically framed in ways designed to propagate their radically anti-democratic, nationalist and authoritarian values. If we react directly to that, without reframing in our moral framing terms, we will effectively direct more public attention into their frames and values.
Fascists are actually being more realistic about how much human beings are motivated politically by moral sentiments versus how much by conscious rational thinking — very little of the latter, secondarily, only if a person’s moral priors motivate them to make an effort to think fairly objectively.
European post-war democratic values and principles emerged in response to the experience of the Holocaust and other war atrocities, most of which were committed by the Nazis and other Axis forces. The people who formed those laws were extremely far from being naive idealists, or too comfortably and safely grown up in liberal democratic societies to really appreciate the efforts that went into creating their conditions, like greenhouse tomato plants too weak to stand up against a wind outside. They had stared into the abyss of human depravity, and come out as ardent defenders of inherent human dignity. They formed our current constitutions in order to defend us from the ideological preparations for war and atrocities ever again.
Three generations have passed since that social experience, so we are collectively forgetting why the laws were formed in the first place enough to allow them to be systematically undermined again. They’re treated as though they are merely technical legal obstacles to achieving what “the” popular will demands, and human rights defenders too often fall into the trap of simply reacting to that on its own terms. Democratic values and principles need defending and culturally reinterpreting from the terms of the post-war generation into the current terms and about current issues.
Omitting ethical reasoning, assuming that we have a secure basis of ethical beliefs held in common is, unfortunately, false now. The ethical foundations of the post-war European order need clearly defending and developing now; aggiornamento profundamente — updating by deepening. The other side are already advancing alternative moral frameworks, mostly only implicitly in public and more explicitly only within their own echo chambers. Provoking people to consciously think about their moral priors, even if they disagree on the particulars, may have indirect benefits systemically to herd immunity against viral disinformation, since manipulative propaganda generally relies on people not thinking too much.
This attempt to communicate and interpret from the legal philosophy of c.75 years ago to current issues probably isn’t in language suitable for a mass audience, but it may be an intermediate step between the c.1950s postwar philosophical and legal texts and the sort of language needed to communicate these ideas effectively at the critically relevant scale now. If you can simplify further, please do, but even if I were to reduce it to 800 words and 12yr old reading age language, I would still not be in any sort of social status position to get access to broadcast media or mass attention.
There are many different ways of thinking about the origins and limits of moral and legal responsibility. The way which is established in our constitutional legal institutions is that human rights obligations are rationally based on the natural reality of inherent human dignity.
Human persons all have an absolutely unpredictable and uncontrollable freedom of being themselves, as persons, in relationships. You can kill a person, but, until they’re dead, you cannot actually stop them standing out freely as a person and expressing themselves, even at the point of a gun. The quality of personhood as such deserves a basic and unconditional respect.
Human dignity exists naturally, prior to any sort of voluntary attribution of rights that may be associated with citizenship or nationality, and therefore so do human rights exist before they were ever expressed and codified in any positive laws. Human rights laws are secondary, representative ideas about the natural reality of human rights. Justice exists before the law.
The idea of inherent human dignity has its history in the Abrahamic family of religious traditions. Abraham’s first recorded spiritual experience came from giving hospitality to three strangers who wandered out of the desert towards his tent, at the oak of Mamre in Lebanon. Deserts, like seas, are spaces of chaos which seem to divide known communities from the unknown. Wandering out of a desert or irregularly crossing a sea are similar in that sense. Through respect for absolute strangers, “Abraham remained standing in the presence of the Lord”. The three global faith communities culturally descended from Abraham share this insight: that God is to be found in the face of the Other, the ultimately incomprehensible, unpredictable, irreducible Other, not just in the temple or in the known or chosen self-similar community. Without a practical community, the idea of ‘God’ becomes an empty proposition, something people argue about to try to create a core to stabilize their sense of identity with, but without respect for strangers it becomes a tribalistic war totem; both are merely idols.
According to Levinas' naturalistic view of how human dignity exists, it is the most basic fact of the human condition, and it means that ethical responsibility is an inescapable aspect of being human. Hannah Arendt and Avishai Margalit would prioritize the idea of human decency in relationships, rather than dignity inherently in persons, but that is just another, arguably more measurable and therefore more enforceable, practical means to the same end.
What is just in relationships and actions can be reasoned about or not, and it can be willingly chosen to act accordingly or not, but the reality of what constitutes a just relationship, and what are just actions in specific relationships between humans, does not depend on reason or will or even conscious recognition; it is real like gravity. This is moral realism.
Voluntary contractual relationships and particular responsibilities due to our previous actions, etc., have their proper places too, but they are secondary to the fundamental reason for all laws - rational ethical response to the dignity of human persons and just ways of relating to them.
According to the founding legal philosophy of post-war European democratic nation-states, the performance of social responsibilities to other human beings ought to be efficiently organised and ultimately guaranteed by state institutions, and inasmuch as they do so it confers legitimacy on the state institutions. That is the idea of Rule of Law or ‘Rechtsstaat’.
So it literally makes no sense logically for a state which is claiming to operate on democratic values to attempt to deny human rights to any human beings, whether they’re citizens or not. There are properly additional citizenship rights in democratic states, such as the right to vote in a particular state, but e.g. the right to freedom from torture is universal and absolutely does not depend on being a citizen of any state.
It is logically and legally invalid for any state to attempt to authoritatively override or deny human rights, as the state’s legitimate authority derives from human rights, not the other way around.
Human rights do not derive from state authority, but positive laws about human rights do. State legitimacy depends on the state’s practice of human rights. A state which does not practically respect human rights delegitimizes itself, but it does not erase human rights. This is not just according to legal conventions, but ultimately this process happens naturally, even independently from any hard and soft institutions, because human consciences are more or less integrated with reason, and reason accesses the same reality, so whenever humans interact and relate freely face to face, certain values emerge, and, based on their experiences of relationships and thinking ethically about them, they will conscientiously judge the state.
The problem with cynicism about the possibility of public authorities ever acting genuinely for public good purposes is that it actually empowers the more untrustworthy ones. To collectively set up public authorities who deserve our trust, we have to believe in the possibility that authority is not always or inevitably used exploitatively or oppressively, before we are willing to invest effort in making it so. The view that state authorities or governments are necessarily or inevitably corrupt gives an easy excuse to the bad ones to remain so and denies political support to the better ones.
It is not necessary to have specialised decision-making powers in order to have a good society, but to exceed about 150 members and to evolve specialised social functions with stable support structures, it is necessary.
Human processes of intellect and conscience are always imperfect and different between individuals, but they empirically access the same objective reality outside all our minds, and then communicate and rationally check on each other, so they naturally tend towards coherence. It is not a state’s authority which primarily confers the coherence of human rights laws, but human consciences do that.
Human rights cannot be divided between ‘us’ the citizens, worthy, pure, useful ones, & ‘them’ the immigrants, undeserving, abject, useless ones, because justice is inherently a common good. Justice only really exists inasmuch as it is in common, not just partially for some and not for others. When we practically deny the human rights of non-citizens or those without a legal residency yet, or anyone, even the worst criminals, we effectively degrade the common good of justice for everyone, including ourselves.
Common goods in Latin are called 'res publica’, public things, hence 'republic' and 'republicans’. Economics tends to lose sight of the fact that there are intrinsic motivations and an inherently in common kind of goods. Majority will if it is unchecked by laws protecting minorities can become fascist, but balancing the democratic principle of majority with the republican principle of common goods results in a stable democracy.
De facto authorities (the most neutral, descriptive term for 'governments’) that claim to be legitimate representative states sometimes make a performance of arbitrarily overriding or making exceptions from human rights laws, in order to publicly normalise arbitrary exceptionalism for their own authority. Arbitrariness and exception from the law are characteristic features of authoritarian regimes, not democracies. Arbitrary and irrational laws are supposed to be struck down as invalid and unlawful by the judicial branch in democratically constituted societies.
‘Democratic’ states do not only operate ‘democratic’ majority voting procedures, but base all their actions and policies on democratic values, as recognised in e.g. the Preamble to the European Convention on Human Rights, the founding treaty of the Council of Europe, formed after WW2, or in Article 2 of the Treaty on the Functioning of the EU, namely “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities [...] in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail” - a majority elected government acting against these values is not ‘democratic’.
Procedural laws properly exist in order to apply substantive laws based on human rights. That means legal procedures or ‘technicalities’ can never validly, legally, be used to obstruct or deny human rights, but they often are used actually to erode the social fact of laws about human rights. The rational purpose of all legal procedures is to ensure that human rights are practiced consistently and different kinds of rights or the rights of different people are balanced fairly without any arbitrary privilege or discrimination whoever may be affected.
The procedural rules for admissibility, i.e. determining which state is responsible for processing an asylum application, and the procedural rules for regularly crossing state territorial borders, have legitimate, ethically rational purposes, when then they’re being interpreted and applied properly, but currently are widely being abused in order to legitimise denial of human rights. There is a performance of ‘legality’ about this, because it involves legal technical procedures, but inasmuch as the procedures are being selectively interpreted and applied so as to seemingly legitimise grave violations of fundamental human rights, it is not lawful.
Positive legal commitments are also partly based on the ethical ideas of reciprocity and contractual agreements. Those are good reasons for observing specific legal provisions until and unless they have been modified in a constitutionally valid way, but the obligations which are established in international human rights legal treaties do not exist only because they have been agreed between state authorities or are societal conventions, but also, and more fundamentally, because they reflect the reality of human personhood and just ways of responding to and relating with other persons.
Democratic values are not just a cultural accident or dependent on their culturally particular forms, but such values emerge naturally whenever human beings relate to each other face to face and without any arbitrary authority or decision-making power which is unrelated or disproportionate to genuine knowledge or skill specialism and freely invested trust coercing them to act according to unjust norms. In other words, democratic states emerge from free civil society, insofar as civil society or social actions performed for intrinsic human motives, not for profit or due to any coercion, are not repressed by de facto authorities.
The most reliable measure of how much a state is genuinely democratic is not whether it performs elections periodically, because those can be too easily falsified or managed to produce the authorities' desired outcome, but to what extent the state supports, does not unduly interfere with and positively enables to be more free, mutual aid activities by people spontaneously organising themselves, independently from state authority and market constraints.
Mutual aid interactions, and the kind of egalitarian and cooperative relationships that arise from them, will always produce social values that tend to demand more democratic goods. If a state wishes to perform "democracy" but manage it so that people don’t demand better and more public goods or threaten to limit or overthrow economic exploitation by oppressive authorities, they can always find ways to repress or fail to support civil society, and, vice versa, a genuine democratic state sees itself and acts as support services for free civil society.
Majority based democratic procedures tend to produce collective decision-making and representative authorities which operate according to democratic values, but the procedures can be turned into tools to undo the social fabric of civil relationships and values. When ‘democracy’ is conceived of and measured as merely majority election procedures it is far too easy to subvert, but when the procedures are kept ordered to supporting democratic values, its stable.
Thinking about moral and legal responsibilities in terms of a just response to human dignity essentially does not set any limits on our responsibilities. It is a universalist ethic. There’s an old saying about holding universal responsibilities with limited capacities to act: “you are not obligated to complete the work, but neither are you free to abandon it”. A just share of responsibility would be realistically and reasonably proportionate to the scale of human needs now and to our capacity relative to other people and states to resettle refugees.
Currently, we are doing far less than a realistic and reasonable fair share of global human responsibilities, considering the scale of refugees’ needs now and our capacity relative to other nation-states to ensure their rights. We could have prevented so many people becoming forcibly displaced, but we chose to not intervene before it was too late. Resenting the tiny bit of responsibility we cannot avoid now and trying to blame it on the people in need of help is unjust and absurd behaviour.