The Ordered and the Bordered Society: The Novel Assemblages

Sovereignty is, as Wendy Brown (2010: 52) observes, ‘a peculiar border concept’. Its meaning denotes both supremacy and autonomy; understood as the state’s capability of being ‘a decisive power of rule and as freedom from occupation by another’ (Brown 2010: 52). These two meanings and functions have traditionally belonged to the separate spheres of internal and external security. The role of criminal law and policing has been to preserve the internal security, to establish the sovereign’s supremacy and the moral order of the society, in short to create a well- ordered and disciplined society (Foucault 1977; Simon 2007). The sphere of external security, on the other hand, has traditionally been governed by military security and international relations, as well as border security and immigration law, whose task has been to preserve the state’s territorial integrity and autonomy. Traditionally, border control seeks to maintain clear boundaries between the inside and the outside of the state—the maintenance of a bordered society.

Although inhabiting separate domains, border issues and crime control possess some essential similarities. They share the language of protection and security and, as Juliet Stumpf (2006) observes, both criminal and immigration law traditionally act as ‘gatekeepers of membership’, defining the terms of social inclusion and exclusion. Questions about who belongs, and what kind of rights they deserve, are embedded in penal sanctions as well as in decisions to expel and deny entry. As the intensification of globalization in the past decades has destabilized the established boundaries between internal and external security, between policing and soldiering, and between the domains of immigration and criminal law, the distinction between the two aspects of sovereignty has become increasingly unclear (Andreas and Price 2001; Stumpf 2006; Bigo and Walker 2007). A central argument of this chapter is that the growing mobility and the influx of non-citizens into the territorial domain of the nation state is producing fragmentation and to some extent dissolving the (national) penal domain by mixing elements of the ‘internal’ and the ‘external’, thus creating novel configurations of the penal. Exemplified by the growing foreign populations in European prisons and crime statistics, and various policing strategies directed at non-citizens, (domestic) punishment is becoming increasingly internationalized, taking on the symbolic and practical functions of border control. The project of creating an ‘ordered society’ through penological intervention has thus become increasingly intertwined with the control of the border and the project of creating a ‘bordered society’.

According to Sassen (2008), globalization processes lead to ‘novel assemblages of territory, authority and rights’. While one may justifiably question the novelty of the phenomenon—after all, several contributions in this volume and elsewhere (see, inter alia, Gibney in Chapter 12 and Ugelvik in Chapter 10 of this volume; Melossi 2003) testify to its long historic roots—the concept ofthe assemblage offers a productive insight into the current transformations of the penal domain. Stemming from Deleuze and Guattari’s classic A Thousand Plateaus, the strength of this concept lies in its connotations of instability and difference, and the productive qualities of the two (Marcus and Saka 2006). It introduces ‘a radical notion of multiplicity into phenomena which we traditionally approach as being discretely bounded, structured and stable’ (Haggerty and Ericson 2000: 608), which is how national criminal justice systems have traditionally been perceived and conceived. Sassen (2008) thus outlines a movement from ‘centripetal nation-state articulation’—where one entity, the nation state, aggregates most of territory, authority, and rights—to a ‘centrifugal multiplication of specialized assemblages’, which unsettle existing scalar and normative arrangements. As a concept, an assemblage ‘makes it easier to think about disparate elements with contingent and emergent roles but which ultimately work together’ (Lippert and Pyykkdnen 2012: 1). Itmay therefore be usefully employed to pull together the disparate forms of control, which although heterogeneous, have varied degrees of ‘borderliness’[1] and punitiveness inscribed in them.

How the two elements—‘the bordered’ and ‘the ordered’—come to be put together varies, revealing the complexity of existing control practices, populations, and actors involved in them, and demands concrete empirical investigation. Their juxtaposition can at times form an uneasy allegiance and may even ‘feel wrong’ for the actors involved (see Bosworth, Kaufman, this volume). Nor does the assemblage ofthe ‘bordered’ and the ‘ordered’ need to imply their merger and melting (as the concept of ‘crimmigration’ is at times understood), but rather demands an examination of their constitution in different institutional, national, and historical configurations. Analytically, one of the main advantages of the global assemblage is precisely its concreteness, partiality, and situatedness. As Ong and Collier (2004: 12) argue:

An assemblage is the product of multiple determinations that are not reducible to a single logic. The temporality of an assemblage is emergent. It does not always involve new forms, but forms that are shifting, in formation, or at stake. As a composite concept, the term ‘global assemblage’ suggests inherent tensions: global implies broadly encompassing, seamless, and mobile; assemblage implies heterogeneous, contingent, unstable, partial, and situated.

Several observers have noted the recent proliferation or ‘implosion’ (Squire 2011: 2) of border controls and ID checks within the national territories of Western states, captured in the popular phrase that ‘the border is everywhere’ (Feeley and Simon 1994; Lyon 2005; Policing & Society 2011). While the practices may be conceived first and foremost as administrative, their practical application is, depending on the context, often the responsibility of the police force, which may employ a more or less clear crime-fighting modus. Although administrative in principle, they may be intertwined with various crime-fighting objectives (trafficking in drugs and human beings, counterfeit documents, terrorism, and organized crime), thus revealing various degrees and configurations of the punitive.[2] In these contexts, it may be more productive to speak of these measures as punitive rather than punishment, in order to free them from the conceptual constraints imposed by the existing notions of punishment within the traditional (national) criminal justice institutional arrangements which, by comparison, seem to have a relatively ‘clear’ character in terms of their institutional and legal bases and a clearer sense of purpose. As shown by several chapters in this volume, contemporary penal measures vary according to the extent of immigration-related objectives inscribed in them. In some cases, such as the deportation of foreign offenders, the penal and the bordered are so enmeshed and achieve a level of hybridity which makes it pertinent to ask whether we are witnessing qualitatively distinct forms of control, which might be, paraphrasing Stumpf (2006), described as ‘crimmigration control’. In other cases, traditional penal technologies, when faced with populations of non-citizens and denizens, gain an additional, sharper, exclusionary edge (Ugelvik 2012). In the latter, the defence of the border is essentially transforming the parameters and the moral climate of national, particularly European, penal systems.

What is important at this point is that the element of border control seems to direct traditional penal technologies not only towards various degrees of social control and exclusion, but ultimately towards expulsion from the national territory. Getting unwanted individuals out may thus take priority over punishing them for wrongdoing. Returns have in recent years become an independent and increasingly important measure ofperformance. Although expulsion can be seen as a sub-variety of social exclusion, it has several distinct elements. While sharing long-term exclusionary traits with such measures as life imprisonment and long-term incapacitation, expulsion differs from more customary penal measures in its lack of concern about reintegration to society. Its objective is precisely to banish or ex-capacitate rather than to incapacitate (Westfeldt 2008; Ugelvik 2012; and see Johansen, Chapter 14 in this volume). Whether an administrative ‘removal’ or a more punitive ‘deportation’, its rationality is ban-optic rather than the disciplinary panopticism and biopolitical objectives characteristic of modern penality (Bigo 2006; Aas 2011a). The biopolitical and disciplinary forms of penal control, although displaying great national and historic variety, are nevertheless primarily based on scientific and moral rather than territorial exclusion. They are internally directed, aiming to control populations occupying the state territory (Schinkel 2010). Biopolitics is, as Foucault (2004: 247) put it, the ‘power to make live’, hence the concern with health and the centrality of the narrative of reform and rehabilitation. Expulsion, on the other hand, is characterized by a different logic, which comes closer to Agamben’s notion of zoepolitics and which sees the ban as the original political relation (Agamben 1998; Schinkel 2010; Aas 2011a). Here, the sovereign power is marked by the ‘production of bare life’ and by the ability to expel life from the sphere of legal protection. Rather than multiplying its productivity, banoptic power creates the conditions of precariousness of life, evident in the withdrawal of health care services (Johansen, Chapter 14 in this volume) and in the harrowing numbers of border deaths (Weber and Pickering 2011).

What is of further interest at this point is that the act of expelling is directed towards another geographic locality. It is externally directed towards persons outside the state territory. This external dimension is vital for understanding the changing role of contemporary penality and reveals another essential quality of global assemblages: bringing distant locations into interaction with the national and local. In what follows, this chapter argues that by striving for expulsion the criminal justice domain not only becomes internally fragmented (ie taking in elements of border control), but also enters the external sphere of international relations. By entering the matrix of geopolitical relations, penal technologies lose their internal character and become (even when used domestically) marked by their (northern) geopolitical origin.

  • [1] The term ‘borderliness’ (coined by Sarah Green) emerged as a concept during the development ofthe EastBordNet project. Its meaning denotes ‘what gives something or somewhere the sense ofbeing aborder’ and refers to border as a quality rather than as an object, and more as ongoing activity ratherthan a fixed ‘thing’. See .
  • [2] Oslo Police, for example, created in 2009 a special task force against the open drug sceneconsisting of ordinary police officers and immigration police. Of the 737 individuals arrested in2010, 122 were charged with violation of the Immigration Act, 28 with violation of the PenalCode, and criminal court proceedings were initiated against 17 (for the remaining 214 no chargeswere considered justified). Source: Oslo politidistrikt: ‘Felles innsats mot apne rusmiljoer—statusrap-port pr. 31.12.10’.
 
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