Democracy and Deportation: Why Membership Matters Most
Democracy and Deportation
Global mobility is made possible by the strict control of territory and social membership. The flow of people across borders is much more regulated and stratified than commonly assumed and has many more negative impacts on migrants than universal human rights principles should allow. Researchers in the emergent field of the criminology of mobility, including many of the contributors to this book, have been at the forefront of identifying these trends, systematically documenting the retraction of rights and the stratification of mobility as they unfold. They have shown how criminal justice tools such as classification and segregation have been used to separate those with free movement from those perceived to be ‘other,’ particularly poorer ethnic minorities, who are increasingly subject to control, containment, expulsion, and, in some cases, crude violations of their human rights to safety and security. The field has highlighted the global reach of these targeted and regressive movements, exposing empirical patterns that undercut the post-war trend towards equality and the expansion of rights. This work has fractured our understanding of what constitutes an ‘open’ or ‘closed’ border demonstrating how borders may be open for some but closed for others, semi-permeable for some and inescapable for others. The field has brought to the surface deep currents that are reshaping our world in ways we might not recognize, understand, or sanction.
What the criminology of mobility has been especially good at is revealing the interconnections between the criminalization process, including its historical roots and contemporary practices, and the field of immigration (Simon 1998; Wacquant 1999; Melossi 2003; Calavita 2005; Aas 2007, 2011a; Bosworth 2008; Zedner
2010; Pickering and Weber, Chapter 5 in this volume; Kaufman, Chapter 9 in this volume). It has productively shown how certain aspects of immigration control have adopted and taken on the practices and language of security, order, and crime control, not eliminating but certainly suppressing a human rights paradigm of mobility. The criminology of mobility has also shown the limits of its own conceptual framework, suggesting that the ‘criminalization of migration’ only takes us so far in understanding the global dynamics ofthese trends (Aas, Chapter 1 in this volume), and perhaps, more importantly, illustrating how criminalization in certain instances would actually improve the status and legal protection of migrants, who in many cases fall outside the real protections of due process that are embedded in criminal law but are absent in administrative law (see Dauvergne 2008; Stumpf, Chapter 3 in this volume; Zedner, Chapter 2 in this volume).
This chapter aims to bring together some of the current thinking about the reasons behind these regressive developments. By building on the literature on mobility and membership (Benhabib 2004; Bosniak 2006; Stumpf2006; Bosworth and Guild 2008; Anderson, Gibney, and Paoletti 2011), it suggests that democracy itself may ultimately be responsible for the convulsions and control of mobility we see today. It is vital to understand from the outset that democracies are inherently exclusionary entities even though we usually think of them as preferred modes of government based on universal principles of equality. But as Seyla Benhabib (2004) explains, democracies are inherently exclusionary because the presumed universal principles apply only to members. Universal principles in theory apply to everyone because we are human; placing limits around them is inconsistent and problematic. She goes on to explain how democracies are exclusionary because they are bounded communities: they are limited and marked by territory and membership. On the inside, members can access equality, rights, and benefits and fulfil their obligations, but on the outside, non-members are on their own, left to grasp at the ideals of equality, justice, freedom, and human dignity. How democratic states handle this fundamental paradox has major consequences for the degree to which they rely on restrictive approaches to mobility and incorporation. Democracies have historically relied on the criminal law, penal sanctioning, and immigration policy to mark membership and justify social inclusion and exclusion (Calavita 2005)—these public policy tools are effective social sorters, classifying, marking, designating, claiming, and refusing membership. As Juliet Stumpf (2006) explains in her seminal piece on the ‘crimmigration crisis’, both immigration and criminal law function as ‘gatekeepers of membership’ in which criminal sanctions often result in segregation within the society while immigration sanctions can result in the separation from the society in a dramatic severing of ties through expulsion. And as Mary Bosworth has argued, the grafting of criminality onto immigrants has not only marked but demeaned non-members as ‘threatening and dangerous’, further justifying their exclusion (Bosworth 2008: 208).
Global mobility has exposed the contradictions of democracy (Benhabib 2004). Since the 1990s in Europe, for example, the massive influx of new members has strained traditional channels of incorporation and exposed the legacies of differential treatment for non-members. It has exposed the fissures in the very foundation of these societies. Some democracies handle these cracks better than others, while some cannot or are unwilling to cope with the new social reality (especially in the face of growing economic crisis and restructuring). I argue that it is the structural contradictions of democracy that create the conditions conducive to deportation. European democracies unable or unwilling to apply full rights and protections to non-members, particularly to racial and ethnic minorities within and without the European Union, increasingly turn to more coercive measures to resolve this tension. By literally casting out non-members, European governments simultaneously reassert the primacy of national belonging and national sovereignty and weaken international and transnational claims and protections. As David Garland (1996) has shown in the field of crime control, increased penalization is an effective way for states to reassert political authority under threat. Bosworth and Guild (2008) have shown that border control may be functioning in similar ways.
I suggest that the reassertion ofnational belonging and membership may be even more central to mobility control, working in line with Bridget Anderson, Matthew Gibney, and Emanuela Paoletti (2011). They explain how deportation, despite its repressive character, is actually constitutive of the formal and normative boundaries of citizenship and membership in nation states. In order to be recognized as a rights-bearer, it is vital to belong to a particular place, to claim membership in a political community. This axiom is as relevant today as it was when Hannah Arendt (2009 ) captured this dilemma in the aftermath of the Second World War, over half a century ago. What is more, there is no universal right to residency, anywhere. Even in the European Union, only people working in another EU Member State and their family members have a right to reside in that country: residency is conditional and not fundamental (European Commission 2012). This absence of migrants’ rights to settlement further compounds the precariousness of mobility for certain social groups as they face even steeper barriers to membership through which rights are accessed and recognized. As Thomas Ugelvik explains (Chapter 10 in this volume) the return of the nineteenth-century principle of ‘less eligibility’, especially in the affluent welfare states of Northern Europe, has made it even more difficult for poorer migrants to cross these barriers, as they now face a double burden of demonstrating economic viability and moral worthiness to access membership (also see Di Giorgi 2010). For those other than global elites, the transnational principles of cosmopolitanism (see Soysal 1994; Hudson 2008; Aas 2011b) and the protection of international human rights norms have been threatened by the proliferation of detention centres, border camps, transit zones, forced deportation, and lives lost at sea.
Democracy may be central to our understanding of mobility control but it has been sidelined by criminology’s traditional reliance on global capitalism, particularly neo-liberalism, and postcolonial racism as key explanatory factors (see Barker 2012). These concerns are not misplaced but they may be interfering with our ability to develop a deeper structural analysis through which economic and racial dynamics are filtered and made meaningful. Although deportation can function to maintain a flexible, disciplined, and exploitable labour force in some places under certain conditions (De Genova 2010; Di Giorgi 2010; Hansen 2010), the practice itself would not be possible without the elaborate system of nation states and territorial sovereignty (Cornelisse 2010). There must be somewhere for outcasts to go on a map of the world already known, divided, and fixed. The historical development of democracies depended on the fusing of sovereignty, population, and territory in order to establish legitimacy as a new form of governance (Halfmann 2000). Likewise, while deportation can maintain racial hierarchies by regulating and refusing entry to poorer people of colour from the Global South, blocking or limiting access to membership, work, or welfare in the Global North (Fekete 2005; Weber and Bowling 2008; Fekete and Webber 2010), racism itself is more nationalized than global or uniform. The constricted mobility of the Roma all across Europe has very little to do with the racial dynamics between the Global North and South. The Romani people are EU citizens and still subject to social marginalization, including deportation from other EU Member States. Contrariwise, Silicon Valley is happily awash with migrants and money from South East Asia. Who counts as ‘other’ is heavily dependent on national experience, socioeconomic status, cultural specificity, and the particular conditions ofmembership and incorporation that are shaped by varying democratic institutions and practices. A civic conception of national belonging based on political subjectivity (exemplified but not fully realized in France or the United States) nevertheless processes and interprets racial and ethnic identities differently than an ethnocultural view of national belonging based on shared experience, culture, and blood (Brubaker 1992), or in democracies where national belonging is based on a mosaic of multiculturalism, as in Canada (Banting 2000; Koopmans et al 2005).
Furthermore, we should note that debates over immigration are at their core debates about national belonging and national identity (Anderson etal 2011, emphasis added). The rise of neo-nationalism across Europe and the surge of welfare-nationalism in Northern Europe are direct responses to conflicts over the very conceptions of national belonging and national identity: they are conflicts about membership, who is worthy to fulfil the obligations of citizenship, and who is worthy to gain access to the social investment state. In Northern Europe, the stakes are high and the barriers steep. There is no doubt that global economic conditions and long-term racial dynamics are critical to understanding the stratification and control of mobility. However, all of these forces clash and must grapple with the resilience of the nation state and the lure of democracies as prime destinations and prime structural forces in determining the rights and mobility of migrants even as these relationships are being remade by globalization.
This chapter examines three major structural features of democracies that restrict and stratify mobility, features that in some cases undermine human rights (for review, see Dembour and Kelly 2011). By drawing upon key analytical dimensions that have been identified by scholars in such divergent fields as international relations, migration law, political theory, social theory, and criminology, the chapter then aims to bring out their application and relevance for the criminology of mobility. Specifically, it analyses:
- (1) the nation state form of sovereignty, with emphasis on democracy and territorial sovereignty;
- (2) the paradox of democracy as a bounded community based on universal principles, with emphasis on differential treatment;
- (3) the persistence of racialized hierarchies and ethno-cultural membership (discussed in the Roma case).
The nation state form, the paradox of democracy, and racialized hierarchies are problematic for all democracies, but how each democracy deals with these inconsistencies tends to vary by the particular institutional and cultural context. Criminalization is often called upon to resolve these tensions, but rather than alleviating inconsistencies the reliance on state coercion tends to reaffirm the steep barriers to belonging. ‘This is a flawed solution to the problem of order’, note Leanne Weber and Benjamin Bowling (2008: 360). I refer to general patterns but use concrete examples to illustrate how these structural features are manifest in empirical cases.
In the last section, I then turn to a specific case of deportation of Roma in Sweden to highlight what is at stake when democracies rely on coercive forms of power to restrict mobility. As a relatively egalitarian welfare state with a tradition of a human rights approach to mobility, Sweden, with its inclusionary mechanisms firmly in place, is an unlikely place to see such regressive approaches to mobility and, as such, it represents a critical case to understand the scale and depth of the phenomenon; it allows for strategic and analytical leverage into the problem (see Flyvjerg 2011: 307). The case highlights some of the neo-nationalistic pressures rather than neo-liberalism or distant global forces that have resulted in the forced deprivation and eventual removal of those who are perceived not to belong or who are deemed unworthy (Khosravi 2009; Johansen, Chapter 14 in this volume; Ugelvik, Chapter 10 in this volume).
One case may seem innocuous or anomalous, but when we consider the sheer weight of examples presented in this book and their collective impact, we can see how mobility control is burning a hole in our societies, weakening democratic values, violating human rights, and undermining international law. In its most extreme outcome, this pattern of regressive mobility control, particularly in the forms of camps, detention centres, extra-territorial border control, refusal of entry in international waters, and deportation, creates a legal limbo, or no-man’s-land. This state ofbeing is beyond the law’s protection but subject to its repressive force, what Leanne Weber and Sharon Pickering (2011) have identified as a frontier zone, a wilful gap between national sovereignty and international law, and what Giorgio Agamben (1998) has named bare life, when human beings are banned from human society and all that remains is their total subjection to sovereign power. This is a clear and present danger to our societies.
-  I am indebted to Katja Aas and Mary Bosworth for their editorial might and critical interventions.Special thanks to David Nelken and the participants at the Borders of Punishment Workshop forhelpful feedback. Research for this project was partially funded by the National Science FoundationLaw and Social Science Program, US and Stockholm University Linneas Center for Integration Studies (SULCIS).