When Chae Chan Ping, a Chinese national who had worked in California for 12 years, was returning by ship to the USA from a visit home to China, he surely did not realize how significant his trip might be for the history of immigration law. While he was away, a piece of legislation (the Scott Act) had been passed. This law barred him, and thousands of other Chinese immigrants, from entering the USA, even if they held a re-entry certificate. The date was 8 October 1888. The USA had shifted its policy towards Chinese immigration from ârestrictionâ to âexclusionâ (Lew-Williams 2014), a situation that would only change in 1943 (through the Magnuson Act).
The California State Legislature had demanded these laws to actively discriminate against Chinese immigrants in order to stop what it called an âOriental invasionâ, described as âa menace to our civilizationâ.1 Chae Ping fought his case and took it all the way to the US Supreme Court. He was defeated, and the arguments used against his case were explicitly based on racist fears about the consequences of immigration for the country (Carter 2013). For all the harshness and, some would say, injustice of the Supreme Courtâs decision for Chae Ping, and the Chinese Exclusion Act itself, we know now that California ultimately failed to stop âAsianâ immigration. People from China and Japan continued to arrive and work in the USA after the rules had been changed, many entering via the southern border, some fleeing from the Mexican Revolution (Urban 2011). In the early twentieth century, many people from these countries ended up incarcerated in detention centres in Arizona, California, New Mexico, and Texas. One was on Angel Island, San Francisco Bay, described by one immigration official as âwretchedly filthyâ and an âoutrage on our civilizationâ (Daniels 1997: 4â5).
From the vantage point of the twenty-first century, the pattern is one that seems rather familiar. We continue to hear politicians presenting immigration as an existential threat to society; some immigrants arrive only to end up in detention centres. The ideas and rhetoric used to pass and defend US legislation in the late nineteenth century now echo and reverberate around the major industrialized nations we commonly label as âliberal democratic statesâ. In June 2015 the British Prime Minister David Cameron described a âswarmâ2 of immigrants coming from across the Mediterranean that were âmaraudingâ3 towards Britain, according to another government minister. In the same month, Republican presidential candidate Donald Trump warned that âcriminals, drug dealers, rapistsâ4 are crossing the border into the USA.
Despite their divergent migratory histories, a common aim has emerged in countries like the UK and the USA on immigration: to make life as difficult as possible for âunwantedâ newcomers and to create an environment so hostile that it acts as deterrent for others considering the journey. This is a long way from the descriptions that political leaders in those countries have used in the past to describe the welcome people will find there. To what extent has this quest to become inhospitable resulted in a betrayal of those countriesâ liberal values? What does it tell us about the way the state would treat other groups, if they became unwanted? The way that states treat immigrants tells us something essential about the nature of power itselfâimmigration policy can be like a âmagic mirrorâ into the âheart of darknessâ (Johnson 1998).
Political debates over immigration involve many voices. At the same time as some politicians are warning of a âmigrant crisisâ and calling for tougher punishments for those breaking the rules, others focus on the positive benefits of immigration, or the suffering of individuals caught up, and families torn apart by the same system. They criticize the immigration rules as âcallous, irrational, inhumane, and unjustâ,5 and complain about the âstate-sanctioned abuseâ6 happening in immigration detention centres. There is an intense political war on immigration, and campaigners and campaigning groups form part of both sides of this debate. In countries like the UK and the USA, politicians are joined by a growing panoply of civil-society organizations, think tanks, academics, policy experts, journalists, and even celebrities weighing into the political fray; all passionately believing and arguing that we are either too soft or too harsh on immigration and immigrants.
The data on immigration makes it clear that the issue of immigration is not likely to subside from the political agenda. Global population growth means that an increasing number of people are leaving their countries to start new lives as immigrants. Immigration has become a permanent feature of the modern state, and immigrants now form a significant part of populations in countries such as Britain and the USA. The United Nations estimated in 2013 that there were 232 million international immigrants, 50% more than in 1990. Of these, a majority (136 million) were in the developed or industrialized âNorthâ, with 60% of that number originating from a less developed country (UN 2013). Immigration is at an all-time high in the USA, where around 41.3 million, or 13% of the 316 million population, are from other countries (CB 2014). The latest national census conducted in the UK (in 2011) recorded 7.5 million foreign-born residents in the UK, or 11.9% of the 63.2 million population of the countryâa rise of over 50% on the figures gathered by the previous (2001) census (ONS 2012).
A Question of Hospitality?
One of the reactions to the increasing number of people dying trying to cross the Mediterranean to reach Europe in 2015 has been to call for âsimple hospitalityâ (Jacobs 2015). Legal scholar Upendra Baxi called for critical migration studies to revisit the idea of hospitality as an alternative to the language of human rights. He argued this could provide a way of overcoming the limitations in the current arrangement of human rightsâa system that, according to him, leaves irregular immigrants in slave-like conditions and in constant fear of detention and deportation (Baxi 2011: 230â231).
Since Derrida (2000) revived the topic through his re-readings of Kant, Levinas, and Heidegger, there has been much written about hospitality as a means of critically exploring the political dilemmas over immigration, and also of developing a progressive alternative to the politics of fear and greed. Discussions about hospitality stretch back to classical literature (Bolchazy 1995), form part of early religious teachings (OâGorman 2007), and played a central part in Immanuel Kantâs project for perpetual peace (Kant 1932 [1795]). More recently, the question of hospitality has become hotly disputed as part of contemporary discussions of immigration policies (Derrida 2000; Rosello 2001; Benhabib 2006; Yegenoglu 2012; Squire and Darling 2013), regional integration (Brown 2014), and international relations (Brown 2010; Baker 2011).
The communitarian tradition within liberal thought argues that states have a right to determine and decide upon hospitality (Walzer 1983: 61â62), and that these common principles should be agreed through historical tradition (Dworkin 1986: 215), but this is rather vagueâit tells us little about the actual principles upon which this hospitality should rest. Is this an unlimited right for states to control admissions and exclude anyone they wish? Some would say yes, and that âlegitimate states are entitled to reject all potential immigrants, even those desperately seeking asylum from tyrannical governmentsâ (Altman and Wellman 2009: 188). Others concede there are certain moral constraints such as the duty of mutual aid and protection of refugees (Walzer 1983: 62).
Immanuel Kant famously argued for a cosmopolitan right to hospitality where states allow all citizens to move freely and exchange goods and ideas (without, as Doyle points out, the obligation to trade [Doyle 1986: 1158]). Kant demanded that the stranger not be treated âas an enemyâ, advising that âso long as he conducts himself peacefully in the place where he may happen to be, he is not to be dealt with in a hostile wayâ, but added that âhe may be turned away, if this can be done without involving his deathâ (Kant 1932 [1795]: Third definitive article). Even Kant was not arguing for unfettered immigration or âno bordersââhis vision of hospitality was limited to the right of visitation (Besuchsrecht), and not the right to reside (Gastrecht).
Following Kantâs ideas, many different contemporary âcosmopolitanismsâ have developed where hospitality is often central to a critique of modern nation states and their treatment of immigrants and refugees (Derrida 2005; Yegenoglu 2012). Kantâs concept, with his system of conditions and limits to the rights of residence for foreign visitors, can thus be seen as one solution to the problem of hospitality. The subversive notion of a universal hospitality remains an important topic of political theory. This is because, as Derrida argued: âthere is no culture or social bond without a principle of hospitality. This principle demands, it even creates the desire for, a welcome without reserve and without calculation, an exposure without limit to whoever arrivesâ (Derrida 2005).
The apparent impossibility of a welcome without limits leaves us with imperfect hospitality: conditional, limited. In practical terms, it means that states are left with having to continually make decisions over the extent and ways in which any welcome is to be offered. The idea of universal hospitality remains essential because the laws of hospitality are reduced to mere âexchangeâ without some gesture or reference towards that which exceeds them (Haddad 2014: 127). For Benhabib, hospitality h...