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Legal pluralism and the production of (un)certainty in lived migration orders
Abstract
This article builds on three of Keebet von Benda-Beckmann’s core concepts, namely, legal pluralism, social security and relational social theory, to reflect on the place of law in lived migration orders, both in the global north and in the global south. To do this, we build on three empirical case studies from our respective fieldsites in Germany, Belgium and the DRC. These cases illustrate how ‘thinking with Keebet’s work’ not only offers useful ‘sensitizing concepts’ for the empirical study of migration law and migration studies more broadly, but also provides a much-needed conceptual vocabulary to speak to and intervene in current debates in more doctrinal legal scholarship on global migration law. With this double aim in mind, we first build on a legal pluralism perspective to show how migration governance can be better understood through the prism of ‘lived migration orders’. We then suggest rethinking state sovereignty, citizenship, and individual human rights in light of historical and newly emerging relational configurations. Finally, we suggest a new avenue for reconceptualizing migration governance beyond rights-based categorizations of migrants by paying more nuanced analytical attention to situations of uncertainty and how they contribute to social (in-)security.
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The fact that migration cases seldom raise any questions under Article 14 of the European Convention on Human Rights (ECHR) is neither inevitable nor justified. This article reaffirms the equality provision as a useful and indeed necessary mechanism for the European Court of Human Rights to deal with such applications. More concretely, we build on our previous work, which identified a legal tool suitable for achieving this reorientation in judicial practice: the principle that we call ‘migratory vulnerability’, once recalibrated away from a group-based approach to a notion of vulnerability as situational and socially induced. In this article, we explain how the principle of migratory vulnerability, even if it does not represent an inherently suspect ground of differentiation, enables us to identify instances of discrimination defined as a measurable disadvantage that is disproportionate or arbitrary and cannot, therefore, be reasonably justified on the basis of the Convention. This presupposes a move away from nationality as a privileged ground in migration-related cases and from the ‘comparator’ test to determine Article 14 ECHR violations, to also encompass situational experiences. We end with two examples that show that this reconceptualization is both workable in practice and of added value, enabling the Court to find violations that presently go undetected.
Focusing on the intersections between bureaucracies of welfare and migration control, this article interrogates how decisions about the future stay of non‐citizens receiving social assistance are made in a relational interplay of different offices and actors in Switzerland. We investigate how relational decision‐making is fundamental in crafting legitimate decisions about the exclusion of “poor others.” Based on ethnographic fieldwork with diverse actors involved in migration control enforcement and welfare policy implementation, this article contributes to understanding how legal regulations turn into social reality. We show that a multitude of actors, including social services, inform and affect migration control‐related decisions. This relationality co‐produces the outcome and legitimacy of the final decision taken by the respective migration office. In turn, the actors’ fields of action, values, and procedures are themselves affected by this relational involvement. The relational character of decision‐making therefore involves an expansion of migration control into other bureaucratic and social fields that co‐construct legitimate decisions concerning the deportation of “poor others” and create the illusion of a “coherent state,” invisibilizing structural inequalities.
We reinvigorate vulnerability theory as a radically ethical device — ethical vulnerability analysis. We bring together fuller vulnerability analysis as theorized by Fineman and Grear in conversation with Levinas and Derrida’s radical vulnerability and the ethics of hospitality to construct a theoretical framework that is firmly anchored in the realities of the everyday that are vulnerability and migration. This novel framework offers a thinking space to subvert approaches to migrants and migration as it compels us to come face-to face with the “other”, which in turn renders the political accountable by her.
We deploy ethical vulnerability analysis to deconstruct the EU’s “migration crisis” and investigate whether the activation of temporary protection for displaced persons from Ukraine signifies a humanizing turn in the EU’s asylum and migration policies. In this regard, we submit that this hospitable moment constitutes an “exception to the rule” rather than a paradigm shift.
The paper addresses the perpetual discontent evoked by the concept of legal pluralism, one which, in turn, brings about incessant efforts to "rethink" it. We suggest that one of the sources of this discontent is the erroneous view that legal pluralism is a theory, and the consequent misguided expectations that it should provide scholars of law and society with causal hypotheses and explanations. We argue that legal pluralism is not a theory but a research perspective, and, as such, is not meant to provide us with explanatory propositions, but rather to increase our awareness of the plurality and inter-relationality of socio-legal spheres and of the implications thereof. We further identify-and briefly discuss-the four core principles of a pluri-legal perspective: plurality, relationality, power, and agency. Taken together, these four premises constitute a manifesto of sorts for a pluri-legal perspective.
Ethnographically exploring how German judges in administrative courts of first instance navigate the practical, political, legal and ethical dilemmas of deciding on asylum appeals, this article identifies the oral hearing in asylum adjudication as a site of citizenship struggles in which rights claims by noncitizens undergo subtle transformations through the manner in which procedural rules are interpreted and enacted. Building on observations of asylum appeal hearings, conversations and focus group discussions with judges, I show that practices and sentiments of procedural justice among asylum appeal judges are at the core of these transformations. Hence, I argue for renewed analytical and conceptual attention to citizenship struggles that take place in webs of social relations within the realm of state law and across a graduated set of formal legal statuses for noncitizens.
Building on ethnographic fieldwork in Belgian welfare bureaucracies, this article explores the place of emotions in the administrative treatment of cases—particularly those involving migrants, whose welfare rights are increasingly limited. Welfare offices are responsible for granting social assistance—in the form of medical treatment, material help, or financial benefits—in order to guarantee that those residing in Belgium live in dignified conditions. This article delves into civil servants’ emotional engagement, discourses, and relationship to ‘the state’ and into the way they decide on specific cases based on feelings, administrative guidelines, and instructions from above. It challenges the assumption that street-level bureaucrats’ discretion and daily practices often effectively restrict citizens’ access to public services and shows instead how emotions, professional ethics and values contribute to assessing deservingness, and to the way civil servants ‘do the state’ on a daily basis.
Seemingly mundane bureaucratic papers – such as birth and marriage certificates – are official proof of legal identities and relations to kin, usually issued by the state of origin. For Syrians who have sought asylum in Germany, these documents are necessary during the asylum procedure and beyond, for certain bureaucratic procedures and the recording of crucial life events. Retracing the crafting of these documents in Syria, and their encounter with German bureaucracy, captures the depth of the entanglement between the Syrian and German citizenship regimes, as well as their discrepancies in relation to paperwork and legality. Drawing on ethnographic research with Syrians in Lebanon and in Germany, this article argues that the legal production of legality in Germany can only be achieved through legally ambiguous, if not so-called illegal, practices in Syria.
By highlighting informal strategies and solidarities on the one hand, and protests on the other, current studies of citizenship and illegalized migration describe two main forms of political subjectivities among illegalized migrants: ‘without’ the state or ‘against’ it. In contrast, this article unpacks how migrants make use of state laws and institutions, voice expectations, and pursue their claims using official venues – in short, how they act ‘with’ the state. It builds on ethnographic fieldwork on illegalized migrants’ welfare requests in French-speaking Belgium and the various sets of actors involved in assessing or furthering their cases. Migrants’ discourses and expectations of the welfare office provide insights into their understandings of the state, highlight the crucial role of immigration lawyers in brokering cases, and ultimately allow for a more nuanced reading of the idea that welfare dependency leads to deportability. On a theoretical level, this article contributes to ongoing debates in the study of statehood and in migration studies, showing how procedural fairness can be a central aspect of migrants’ relationship to and expectations of the state, and how migrants’ strategies leading towards inclusion can be formal ones, based on existing state laws and institutions.
Even though a migration-uncertainty nexus has been widely acknowledged, several of its dimensions are strikingly understudied and under-theorised. This special issue contributes to the debate by focussing on migration movements that are linked to an extraordinary degree of uncertainty: refugee and forced migration. This introductory article highlights key points arising from the contributions. The articles look at both the migrants’ perspective and the perspective of local organisations dealing with refugee and forced migration, including the state. The special issue puts into sharper focus the relevance of further theorisation of uncertainty in migration processes at the local level, as it reveals several dimensions of uncertainty, namely as a fundamental experience, a challenge as well as a governing tool. Furthermore, we are able to bring together the micro- and meso-levels and to substantiate our theoretical contribution with ample empirical material.
In 2015 Europe’s refugee protection crisis triggered the effective collapse of the world’s most complex regional framework for asylum. A development both unexpected and unexplained by the hierarchical model of European asylum law that tends to dominate the scholarly field. The abandonment among member states of core obligations under international and EU law and the principles of solidarity and good faith is central to this crisis. This dynamic has been in the making since the accession process when EU membership was offered in exchange for transposing international obligations through the EU asylum acquis , collectivizing external border control and shifting refugee ‘responsibility’ to new member states with minimal standards for refugee protection and weak enforcement mechanisms. Yet, the critical feature of this asylum crisis is its development into a European constitutional crisis, impacting freedom of movement, sincere co-operation, democracy, and the rule of law. A hierarchical model of law offers only a partial explanation of this interplay between refugee protection and European governance. A turn to the methodological debates in international law urges the repositioning of the lens of refugee legal scholarship, offering insights into the evolution towards crisis by looking at law from below against the backdrop of law in history, subregional law-making, and shifting power constellations. This process suggests that refugee law scholarship could benefit from widening its methodological canon by visiting its parent field of public international law.
Die reflexive Wende der Migrationsforschung kann als Resultat einer Dezentrierungsbewegung verstanden werden. In ihrer Folge wird Migration als ordnungsgenerierender Teil größerer, teilweise grenzüberschreitender sozialer Zusammenhänge verstanden, innerhalb derer die Bedeutung des Migrationsmerkmals variiert. Reflexivität entsteht durch ein gesteigertes Kontingenzbewusstsein hinsichtlich der theoretisch-methodologischen Perspektiven, die im Rahmen der Migrationsforschung im Prozess der Dezentrierung eingenommen werden können. Sie ermöglicht ein besseres Verständnis der Wissens-und Machtzusammenhänge, durch die Migration als Wissensgegenstand in Erscheinung tritt und regt zur Auseinandersetzungen damit an, was spezifische Perspektiven zu leisten vermögen. In diesem Artikel sollen vor allem die Konsequenzen reflexiver Selbstbeobachtung aus der Migrationforschung heraus für ihre eigene Praxis diskutiert werden.
The European Court of Human Rights has struggled to integrate the lived experience of migrants into the legal reasoning that underlies a determination of human rights violations. This article introduces the concept of migratory vulnerability in an effort to remedy that shortcoming by making an already existing legal principle fit for the daunting task posed by migration cases. The objective is to preserve (and potentially expand) the legal effects of the principle of vulnerability whilst approximating it to the more consistent conception of vulnerability theorists, which would remove some of its ambiguities and negative side effects. Migratory vulnerability describes a cluster of objective, socially induced, and temporary characteristics that affect persons to varying extents and in different forms. It therefore should be conceptualized neither as group membership nor as a purely individual characteristic, but rather determined on a case-by-case basis and in reference to identifiable social processes. Depending on its specific expression, migratory vulnerability may give rise to distinct legal effects such as enlarged scopes of protection, shifts in the burden of proof, procedural and positive obligations, a narrower margin of appreciation, and possibly even the ‘triggering’ of proceedings under Article 14 ECHR.
This article studies criminal justice in the conflict-affected east of the DR Congo, showing that in cases involving serious injury or violent death, people expect the involvement of the state’s justice system despite their doubts about its functioning. The paper uses an ethnographic approach to study how the state, in a context of fragility becomes visible to people in the particular domain of criminal justice. The data show that Congolese justice seekers hardly expect “real legal certainty,” but instead look for outcomes that come closest to their emic ideas about what is just and what is right. To access state justice, it is widely held necessary to have either money or connections with more powerful people. For those without such connections, resort to non-state justice, including popular justice, can be a viable alternative. The empirical data illustrate how a relational approach to the state can help in understanding people’s experiences with and perceptions about the state and their reasons for resorting to state or non-state criminal justice provision. It thereby sheds light on how expectations about access to state justice and a lack of real legal certainty shape the existence of legal pluralism.
References to uncertainty are omnipresent in literature on forced displacement. This article presents a critical interpretative synthesis of literature about uncertainty in refugee situations and explores common assumptions that underlie the narrative of uncertainty. The analysis of the literature shows that uncertainty appears to be inherent to refugee situations. Also, uncertainty is mainly seen as a constraining and abnormal experience. We critically question these assumptions and try to illustrate how they tend to obscure both the processes that render refugee situations uncertain and the varied ways in which uncertainty can be understood and is made sense of by refugees themselves. Finally, we suggest potential areas and directions for future research on uncertainty in refugee situations.
Der Sammelband arbeitet den Beitrag von Reflexivität für das Verständnis der Beziehung von Kultur, Gesellschaft und Migration anhand von drei Schwerpunkten heraus: 1. Politiken kultureller Differenz 2. Transnationale Perspektiven 3. Ethnizität und Diversität. Dafür werden Autorinnen und Autoren mit unterschiedlichen disziplinären Hintergründen aus Deutschland, Österreich, der Schweiz und den USA zusammengeführt. Im Zentrum steht die Beziehung zwischen der intellektuellen Krise, welche die bisherigen Grundbegriffe der Integrations- und Migrationsforschung erfasst hat, und der Entwicklung neuer thematischer Zuschnitte, theoretischer Konzepte und Forschungsansätze.
Der Inhalt
· Die reflexive Wende der Migrationsforschung
· Politiken kultureller Differenz
· Transnationale Perspektiven
· Ethnizität und Diversität
Die Zielgruppen
- sozial- und kulturwissenschaftliche MigrationsforscherInnen
- Dozierende
- DoktorandInnen
- fortgeschrittene Studierende
Die Herausgeber
Prof. Dr. Boris Nieswand ist als Juniorprofessor für transnationalen Kulturvergleich und Migration am Institut für Soziologie der Universität Tübingen tätig.
PD Dr. Heike Drotbohm ist Privatdozentin an der Universität Freiburg und vertritt dort derzeit den Lehrstuhl Ethnologie.
While the fact that the implementation of migration policies fails to perfectly manage migration is well known, the actual dynamics of policy implementation have received little attention to date. A serious engagement with this phenomenon requires a move beyond policy texts and political intentions, and towards a ‘migration regime’ perspective that pays attention to the inherent contradictions, conflicts of interest and competing logics within migration control practices. This collection posits a multi-actor perspective that includes state agents, migrants and non-state actors alike and proposes three key factors that require a closer examination: competing institutional logics, discretionary practices and migrants’ agency. Based on original empirical research, the contributions of this collection ‘zoom in’ on specific asymmetrical negotiations over the right to enter or remain in Europe, and focus on the institutional logics and interplay between the different actors involved.
The use of the categories ‘refugee’ and ‘migrant’ to differentiate between those on the move and the legitimacy, or otherwise, of their claims to international protection has featured strongly during Europe’s ‘migration crisis’ and has been used to justify policies of exclusion and containment. Drawing on interviews with 215 people who crossed the Mediterranean to Greece in 2015, our paper challenges this ‘categorical fetishism’, arguing that the dominant categories fail to capture adequately the complex relationship between political, social and economic drivers of migration or their shifting significance for individuals over time and space. As such it builds upon a substantial body of academic literature demonstrating a disjuncture between conceptual and policy categories and the lived experiences of those on the move. However, the paper is also critical of efforts to foreground or privilege ‘refugees’ over ‘migrants’ arguing that this reinforces rather than challenges the dichotomy’s faulty foundations. Rather those concerned about the use of categories to marginalise and exclude should explicitly engage with the politics of bounding, that is to say, the process by which categories are constructed, the purpose they serve and their consequences, in order to denaturalise their use as a mechanism to distinguish, divide and discriminate.
This paper looks at the relationship between personhood and the state by taking a relational perspective both on the concept of personhood and on that of the state, and with a focus on social security. It presents a broad concept of social security. Based on research in the Moluccas of East Indonesia, and among Moluccan migrants in the Netherlands, it is explained how social security shapes personhood in situations in which the state is only a minor contributor, and people depend on mechanisms other than support and care from the state. Finally, it will be explored how long-distance relations of social security are maintained and how the position that respective actors have within these relationships affects notions not only of appropriate care, but also of personhood.
This introduction addresses the ways in which flight and exile create particular types of uncertainty, including both radical and protracted, in people's lives. We argue that the concept of uncertainty, in its meaning of imperfect knowledge and the unpredictability of the future, is
central to studies that theorize conflict-induced displacement, transit, and refugeeness. We start with an exploration of the spatial and temporal aspects of uncertainty in situations of displacement, and within that we discuss how uncertainty functions as a governing mechanism. We then analyze
the ways that refugees and those internally displaced navigate situations of radical and protracted uncertainty. This article and those that follow in this special issue suggest that in our analysis of conflict-induced displacement, we must understand uncertainty rather than certainty as the
norm.
This textbook provides a detailed and comprehensive overview of the international legal framework applicable to the movement of persons across borders. The role of international law in this field is complex, and often ambiguous: there is no single source for the international law governing migration. The current framework is scattered throughout a wide array of rules belonging to numerous fields of international law, including refugee law, human rights law, humanitarian law, labour law, trade law, maritime law, criminal law, and consular law. This textbook cuts through this complexity by clearly demonstrating what the current international law is, and assessing how it operates. The book offers a unique and comprehensive overview of this growing field of international migration law. It brings together and critically analyses the disparate norms of treaty law, customary law, and soft law on a broad variety of issues, such as irregular migration, human trafficking, refugee protection, labour migration, non-discrimination, regional free movement schemes, and global migration governance. It also offers a particular focus on specific groups of migrants, namely migrant workers, refugees, smuggled migrants, and victims of human trafficking. It maps the current status of the law governing their movement, providing a thorough critical analysis of the various strands of international law which apply to them, suggesting how the law may continue to develop in the future.
Within the United States, there is a dominant focus on international migration and international migrants' assimilation and integration efforts, along with separate conversations on intersecting structures that marginalize non‐white migrants and citizens. Trafficking and refugee studies are relatively small and distinct fields that mostly remain outside dominant scholarly conversations on migration, especially in sociology. This essay presents one strand of conversation by scholars in the global South who center forced migration and conceptualize all migrants, internal to international, as part of one model. The discussions by the Calcutta Research group open up complex histories, social inequalities, and the need to discard the colonial logics embedded in the study of migration and migrants.
Recent sociological, anthropological, and psychological research points at a shared problem: Are humans separate and autonomous entities, or must they be seen through the lens of extended, permeable, fractured notions of personhood? This paper discusses some crucial implications for the study of law and legal pluralism. Legal orders may differ in the degrees to which personhood is taken as embedded. At the same time, notions of personhood may also be more or less bounded, with particular fields within legal orders also espousing different degrees of personal autonomy. That depends on how political preferences shape specific issues at the time legislation is enacted. All this has implications for conceptualizing and studying legal pluralism. Examples from Indonesia, Thailand, and the Netherlands bring to light some thorny issues that arise when personhood is viewed through the lens of more or less autonomy and social embeddedness. The examples suggest that a relational approach that accounts for varying degrees to which persons are perceived as extended beings deepens the analysis of plural legal orders.
In this presidential address, I argue for the importance of state-created categories and classification systems that determine eligibility for tangible and intangible resources. Through classification systems based on rules and regulations that reflect powerful interests and ideologies, bureaucracies maintain entrenched inequality systems that include, exclude, and neglect. I propose adopting a critical perspective when using formalized categories in our work, which would acknowledge the constructed nature of those categories, their naturalization through everyday practices, and their misalignments with lived experiences. This lens can reveal the systemic structures that engender both enduring patterns of inequality and state classification systems, and reframe questions about the people the state sorts into the categories we use. I end with a brief discussion of the benefits that can accrue from expanding our theoretical repertoires by including knowledge produced in the Global South.
This article explores how vulnerability is understood, appropriated and translated into procedural regulations and actual bureaucratic practices based on two case studies: 1) the reception of asylum seekers in Belgium; and 2) the reception of asylum seekers and provision of aid services in humanitarian operations in Uganda. These two cases demonstrate that ‘vulnerable groups’ and the corresponding procedural and substantial safeguards or protections are often defined flexibly, depending on the resources available to public institutions on the one hand, and specific agency guidelines and definitions of ‘vulnerable’ status on the other. Our ethnographic data show that reception bureaucrats are uncomfortably wedged between their desire to help and their obligation to follow state policies. To reconcile these (sometimes contradictory) obligations, they break administrative guidelines, use their own resources to make up for the shortcomings of their institution, or systematically decline migrants’ requests in the hope of demonstrating the absurdity of current reception policies.
This article marries empirical evidence from the CJEU's asylum practice with the main tenets of Martha Fineman's ‘vulnerability theory’. It uses observations from this union in support of a theoretical and an empirical argument. On the theoretical level, the discussion unfolds to show that the post-identity ‘contextual’ approach which Fineman fosters can supplement the identity-based ‘categorical’ approach that currently anchors various asylum-related procedures in the EU. On the empirical level, it argues that the CJEU's asylum jurisprudence can offer the blueprint for how the theoretical aspiration would play out in practice. Together, the two arguments establish that Fineman's work could help align asylum governance with the asylum seeker's ‘embodied and embedded’ reality in a time when mismatch between the two attracts growing critique. Overall, this work not only contributes to the debate on the theory of vulnerability, but it also expands the application of Fineman's theory as a method for understanding and framing existing case law of the CJEU.
This paper builds on ethnographic fieldwork in Belgian welfare administrations to identify daily practices of resistance among Belgian ‘welfare bureaucrats’ who interrogate the new welfare and immigration law reforms that further restrict migrants’ access to social assistance. The contestation strategies are used to circumvent and sometimes break the formal and informal policy guidelines while still allowing them to perform and remain loyal to the state and to higher principles such as a commitment to the fundamental right to human dignity. Three main contestation strategies are identified: failing to provide certain services to demonstrate the absurdity of certain guidelines, writing reports against the administration and in favour of the user, and encouraging litigation against the federal agencies that employ them. These strategies show Belgian welfare workers’ commitment to providing a form of public service that aligns with their professional ethos rather than enforcing specific government policies.
In Belgium, depending on their immigration status, foreigners may be entitled to different forms of social assistance, ranging from emergency medical care to financial benefits. In a context where residence permits are constantly updated, re-examined or withdrawn by the administration, this article explores the ways in which welfare bureaucrats deal with irregular migrants. Based on ethnographic fieldwork at welfare offices in French-speaking Belgium, this article shows that documentary practices in welfare bureaucracies have the effect of both restricting access to social assistance and aiding irregular migrants in bringing cases against the administration. This article thus also delves into the double-edged relationship of the social workers to the state by focusing on the competing norms and interpretations of law they encounter on a daily basis.
How do legacies of conflict affect choices between state and nonstate legal institutions? This article studies this question in Chechnya, where state law coexists with Sharia and customary law. The author focuses on the effect of conflict-induced disruption of gender hierarchies because the dominant interpretations of religious and customary norms are discriminatory against women. The author finds that women in Chechnya are more likely than men to rely on state law and that this gender gap in legal preferences and behavior is especially large in more-victimized communities. The author infers from this finding that the conflict created the conditions for women in Chechnya to pursue their interests through state law—albeit not without resistance. Women’s legal mobilization has generated a backlash from the Chechen government, which has attempted to reinstate a patriarchal order. The author concludes that conflict may induce legal mobilization among the weak and that gender may become a central cleavage during state-building processes in postconflict environments.
On the books, the inclusiveness of the Italian framework regulating healthcare access for migrants is indisputable. However, we might wonder how access takes shape on the front-line of the healthcare system, particularly in times of increasingly hostile institutional and discursive environments. By focusing on Italian migration and healthcare policies and the practices of health workers during their encounters with migrants in an irregular situation, this contribution analyses how health workers deal with institutional tensions in the field and how these, in turn, shape their narratives and actions. It suggests that individual positioning plays a major role in favouring the adoption of discretional practices of care or control. Nonetheless, practices are also mediated by the wider institutional and discursive landscape, which has been exponentially characterized by a tension between a medical-humanitarian logic that legitimates providing healthcare to vulnerable migrants, and a control-oriented logic targeting immigration and health expenditure.
The article maps out the multilayered legal governance of immigrant street vendors in Barcelona. The case study is used to develop the literature on crimmigration by suggesting better ways to account for the dynamic, asymmetric, and uneven legal intersections at play in immigration governance. Questioning the idea of a merger between immigration law and criminal law that scholars of crimmigration often imply, the article suggests that it is the heterogeneity and distinction between various legal regimes that is most productive and problematic in the governing of immigrants. The article offers the concept of interlegal jurisdictional games as an alternative point of entry to study these dynamics.
This article looks at the interaction between transnational family relationships, on the one hand, and family-related immigration policies, on the other. Taking the conflicting concerns that arose between administrative decision-makers and family members during an attempt to reunite a Cape Verdean family spread across several countries as an example, the questions of what ‘family’ means, what relationships are included and the nature of the relationships involved answered differently by different actors will be shown. The article discusses the way in which the regulation of transnational mobility according to specific categories of eligibility is giving social ties a concrete legal form which can run contrary to the social conventions and conceptions of migrants and their families. The focus is on both the normative categories that have repercussions for the core of the social sphere and on the family practices that react to these categorizations.
In diesem gleichsam einführenden wie programmatischen Beitrag wird die These verfolgt, dass sich in den letzten Jahrzehnten in der Integrations- und Migrationsforschung eine intellektuelle Krise ereignet hat, die vor allem die zentralen Grundbegriffe – Migration, Kultur und Gesellschaft – kritisch hinterfragt. Im Rahmen der daran anknüpfenden „reflexiven Wende“ geht es verstärkt darum, die Wissens- und Bedeutungszusammenhänge zum Thema zu machen, durch die Migration als abgrenzbares Phänomen in Erscheinung tritt. Den Konstruktcharakter wissenschaftlichen Wissens über Migration klarer zu erkennen, führt aber nicht zu einer Abkehr von empirischer Forschung, sondern stimuliert, wie dieser Sammelband zeigt, die Entwicklung neuer thematischer Zuschnitte, theoretischer Konzepte und Forschungsansätze, denen bei aller Pluralität gemein ist, dass sie sich aus den empirischen und intellektuellen Begrenzungen des ehemals dominanten Integrations- und Ungleichheitsparadigmas herausgelöst haben. Sie stehen in diesem Sinne für einen sich immer deutlicher abzeichnenden Paradigmenwechsel der Migrationsforschung.
This article focuses on the gradual expansion of docket control mechanisms in refugee (or asylum) law proceedings in Germany. It shows that granting judges more and more control over their asylum dockets was a central policy tool repeatedly employed by German politicians over the decades in the hope that it would stem the flow of refugees into the courts and ultimately make it easier (and faster) to deport failed claimants. Politicians were much more willing to limit access to asylum appeals than to appeals in general administrative law, illustrating how the pressure to come up with solutions for the flood of asylum applications overcame established norms for maintaining equal access to the courts for all claimants. Surprisingly, the Constitutional Court remained largely unaffected by these efforts except for a paradigm shift that occurred with the amendment of the constitutional asylum provision in 1993. © 2016 The Author Law & Policy
Since the early 1990s, the conditions under which the hundreds of thousand of undocumented immigrant workers from Albania, Poland and other countries have existed have created a major social problem for Greek society. In the period 1990–7, one out of twelve economically active members of Greek society had no civil rights — they were undocumented immigrant workers — whereas in the years 2000–1, half a million immigrants who had a stay and temporary work permit, lived and worked under quite alienating social conditions. These conditions are quite patent to the public eye, intertwined as they are with poverty, discrimination and social segregation in public, urban spaces.
Refugee camps are imbued in the public imagination with assumptions of anarchy, danger and refugee passivity. Governing Refugees: Justice, Order and Legal Pluralism challenges such assumptions, arguing that refugee camps should be recognized as spaces where social capital can not only survive, but thrive. This book examines camp management and the administration of justice in refugee camps on the Thailand-Burma border. Emphasising the work of refugees themselves in coping with and adapting to encampment, it considers themes of agency, sovereignty and legal pluralism in an analysis of local governance and the production of order beyond the state. Governing Refugees will appeal to anyone with relevant interests in law, anthropology and criminology, as well as those working in the area of refugee studies.
This book explores the unintended consequences of compassion in the world of immigration politics. Miriam Ticktin focuses on France and its humanitarian immigration practices to argue that a politics based on care and protection can lead the state to view issues of immigration and asylum through a medical lens. Examining two "regimes of care"-humanitarianism and the movement to stop violence against women-Ticktin asks what it means to permit the sick and sexually violated to cross borders while the impoverished cannot? She demonstrates how in an inhospitable immigration climate, unusual pathologies can become the means to residency papers, making conditions like HIV, cancer, and select experiences of sexual violence into distinct advantages for would-be migrants. Ticktin's analysis also indicts the inequalities forged by global capitalism that drive people to migrate, and the state practices that criminalize the majority of undocumented migrants at the expense of care for the exceptional few.
Although increasingly debated in public, scholarly discourses on care remain frag- mented. This is not only due to the scientific division of labor, but also to different national research traditions as well as to categories that link predefined relations to specific practices. In this article I set out to establish care practices as vital elements of social organization in order to overcome commonplace dichotomies such as private-public, good–bad, modern–traditional, and micro–macro. In order to facilitate making care a central element of anthropological theory, I revisit diverse theoretical frameworks from Marxism and feminism to disability, social security and humanitarianism studies. With the decline of Marxist anthropology, the awareness it once raised regarding `public' aspects of care has virtually vanished. Today practices of care are mostly discussed in kinship debates, with the result that the importance of care for other social relations is underestimated. Finally, I propose a processual conceptualization of care with a focus on practices that can enhance our understanding of the links and overlaps between relationships that are usually analysed within distinct spheres of social life, such as economics and politics.
I first went, as a student, into the field (Zululand, 1938) without the benefit of a clear theory of investigation of customary law. Llewellyn and Hoebel's Cheyenne Way (1941) had not yet appeared; and years later, when I ended my field-work among some Rhodesian Shona tribes (1952), Hoebel's classic The Law of Primitive Man , which further elaborated the theoretical angle of this kind of inquiry (1954: Ch. 1-4) had yet to be published. I did not, however, course entirely haphazardly through this field. I was trained in (mainly African) ethnography and (Roman Dutch) law, had learnt to read the decisions and interpretations of (South African) European courts on “native law and custom” with some critical reservation, and had found in works like Schapera's Handbook of Tswana Law and Custom (1938) — probably still the best of its kind as regards Africa — a suitable, systematic frame for the pursuit of my inquiries and the exposition of my findings. Moreover, my home background had acquainted me with some of the work and aims of Dutch scholars on Indonesian adatlaw who, inspired by the great jurist Van Vollenhoven, then seemed to be leading the field with their efforts to arrange the rich variety of Indonesian folk law and practice into a coherent system with a distinctly indigenous imprint. Van Vollenhoven's early and repeated insistence upon the need “het oostersche oostersch te zien ” (to perceive that which is oriental through oriental eyes), instead of seeking to fit Indonesian concepts into the familiar categories and analytical schemas of Western jurisprudence, had obvious application also to the African field.
This article addresses the question of how to theorize the relation between uncertainty and governmentality with regard to displacement and its consequences. It explores the experiences of asylum seekers in Turkey and the bureaucratic processes of refugee status determination, local
dispersal, and third country resettlement, illustrating two main points throughout. First, 'protracted uncertainty', characterized by indefinite waiting, limited knowledge, and unpredictable legal status, is a central element of the experience of being an asylum seeker in Turkey. Second, this
uncertainty serves to demobilize, contain, and criminalize asylum seekers through the production of protracted uncertainty, which in turn is normalized as a necessity of bureaucracy and/or security. The article invites readers to question the governmentalities of asylum and border regimes
that not only discipline refugees' everyday movements but also determine the uncertainty of 'refugeeness'.
In January 2001, 800 undocumented immigrants (mostly from Pakistan, Bangladesh, India, Morocco and sub-Saharan Africa) staged sit-ins (encierros) at 10 churches for 47 days in the city of Barcelona. At the same time, other coordinated protests took place in other parts of Spain (Madrid, Valencia, Almeria, Murcia). The objective was clear: to resist the immigration law that discriminated, criminalized and condemned undocumented immigrants to an unlawful status. After three months of encierros, massive demonstrations and even hunger strikes, the Spanish Government was forced to negotiate the agreement of 8th March, and to open an extraordinary regularization process. During those three months of struggle, the resistance was shaped among different legal orders: human rights, transnational law, state immigration law, customary law from the immigrants’ origin, (religious) natural law and insurgent law. This paper aims to observe how the interaction of these different legal orders was used to achieve legal change and, ultimately, another way of constructing citizenship.
This article explores everyday interactions with the British welfare state at a moment when it is attempting to shift and transform its funding regimes. Based on a study of two London legal services providers, it draws attention to a set of actors poised between local state officers
and citizens: the advisers who carry out the work of translation, helping people to actualize their rights and, at the same time, forcing disparate state agencies to work together. Advice and government services providers are increasingly part of the same system, yet advisers' work runs counter
to the state's aims when formal legal process is used to challenge unfair legislation. The article reveals that ever more complex, vague, and idiosyncratic interconnections between state, business, and the third sector are emerging in the field of public services.