Abstract
This chapter lays out a broader framework for understanding the process of crimmigration—the merging of immigration and criminal law. It discusses alternative concepts and approaches to understanding what crimmigration law is or “serves for” and how it functions, such as Täterstrafrecht, Feindstrafrecht, inversion of law, counter-law, double state. Drawing on Hannah Arendt’s analysis of the functioning of law concerning refugees, and on Ernst Fraenkel’s theorem of the “double state” the chapter shows how crimmigration “law”—with its increasing “regulation” and “over-legislation” of migration—creates two parallel legal regimes for two different kinds of populations. All this leads, the article proposes, to a more general transformation of the state, the practice of law, and equality principle. They radically change their characters, not solely in the context of migration.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Arendt (1994a, p. 5).
- 2.
Arendt (1986, pp. 8 and 295).
- 3.
Ibid., pp. 295–296.
- 4.
Ibid., pp. 281 and 296. I have dealt with this issue elsewhere (Jalušič 2017) while trying to show how today’s “migration management” has to maintain the picture of a passive and “innocent” refugee in order to pursue depoliticized solutions.
- 5.
See Malkki (1995, p. 4).
- 6.
Researchers are describing an enormous increase of both criminal and immigration legislation, a development also connected with anti-drug and anti-terrorist legislative. Cf. Hussain (2007), Roach (2011), García Hernández (2015) and Arnold (2018). The term “hyper-legality” was used to describe the strategy of increasing ad hoc production of administrative and other rules that were used to justify the securitization and over-policing of migration, and above all, expulsion and detention. See Hussain (2007, p. 740ff); and Arnold (2018).
- 7.
See García Hernández in this volume.
- 8.
- 9.
See Stumpf (2006).
- 10.
- 11.
Stumpf (2006).
- 12.
Provera (2015, p. i).
- 13.
- 14.
Côté-Boucher (2015, p. 82).
- 15.
Ibid.
- 16.
Provera (2015).
- 17.
Parkin (2013, p. 6).
- 18.
Vazquez (2016, p. 1097).
- 19.
- 20.
- 21.
Provera (2015, p. 3), maintains that compared to the US, “criminalization in a European context embraces a much broader understanding which has included ‘repressive action of police forces, and then of judicial proceedings’ because a person has ‘contravened to [sic] one or more norms of the administrative, civil or criminal code’, as well as discourse, the use of immigration detention and, importantly, is inclusive of the criminalization of those persons acting in solidarity with irregular migrants”.
- 22.
- 23.
- 24.
Provera (2015, p. 29).
- 25.
- 26.
- 27.
See Hussain (2007, p. 749).
- 28.
Voss and Bloemraad (2011), Provera (2015), Cantat (2015).
- 29.
- 30.
Vasquez (2016).
- 31.
Parkin (2013, p. 6).
- 32.
Bigo (2004, p. 85).
- 33.
As already mentioned, there is no relationship between an increase in crime rates and migration, so the use of administrative detention to help identify, control and return undesirable migrants faster is not efficient, since the time of detention is prolonged for good (Broeders 2010). Strict border control and punitive attitudes, which are intended to discourage undesired migrants to risk the journey, only diverts their routes (Sampson 2015), and the crimmigration measures that should generate “security” of the “autochtonous” populations in general do not give such results (Carling and Hernández-Carretero 2011). Instead, they enable profit to newly-established corporations and prison systems, which are dealing with surveillance and surveillance techniques (Flynn 2016).
- 34.
Sklansky (2012).
- 35.
See also Provera (2015).
- 36.
Zedner (2013, p. 11).
- 37.
Ibid.
- 38.
Spena (2014).
- 39.
Ibid.
- 40.
Arendt (1986, p. 433).
- 41.
Ibid., p. 87.
- 42.
See García Hernández in this volume.
- 43.
Arendt (1986, p. 295).
- 44.
Ibid., p. 297.
- 45.
Arnold (2016, p. 12), and (2018) proceeds from paraphrasing Arendt’s (and also subsequent Agamben’s) thesis that it is better to be a criminal than the stateless person and discusses this while also observing that not absence of law is the characteristic of the status of migrant but “fullness” of rules—hyperlegality. She however argues that that Arendt, as well as Agamben, is “idealizing the criminal justice system and prison conditions” and that they do not take into account the “diminished personhood rights that inevitably occur to citizen-criminals before and after sentencing (or, before and during imprisonment)”.
- 46.
- 47.
Bosworth (2012) and Zedner (2013, p. 54).
- 48.
See Billings in this volume.
- 49.
Stumpf (2006).
- 50.
“A decision to exclude in criminal law results in segregation within our society through incarceration, while exclusion in immigration law results in separation from our society through expulsion from the national territory.” Stumpf (2006, p. 168). “Yet at bottom, both criminal and immigration law embody choices about who should be members of society: individuals whose characteristics or actions make them worthy of inclusion in the national community”. Ibid., p. 297.
- 51.
Maybe the analogy between two exclusions holds more for some countries than for others. In the US, the exclusion of a criminal offender from civic rights is much more radical than in other places, such as Europe. Felons lose the right to vote and other political rights in all but two states (see Felon voting rights 2017), which is rarely the case in Europe. In 22 of the Council of Europe member states, prisoners retain their right to vote, while the rest have varying restrictions. In accordance with several sentences of the European Court of Human Rights, some of these restrictions are about to be removed (except for the UK after Brexit). See Horne and White (2015).
- 52.
Agamben (1998, p. 126ff) concludes based on the theory of the state of exception that the refugee/stateless is paradoxically both excluded (as a citizen, resident) and included into law, at the same time (as a bare human being, homo sacer). Yet such law of inclusion can be considered “law” only if it is defined as “force” or violence, and law and violence in fact coincide. Such total separation from justice (Recht) would be in my opinion the characteristic of totalitarian “law”.
- 53.
- 54.
Zedner (2013).
- 55.
- 56.
Hegel (1972, p. 96), § 100.
- 57.
And as Garcia Hernandez (2015: 4) describes for the US case, in spite of the “immigration law’s early reliance on criminal law to decide upon whom to allow to enter into or remain in the United States, the Supreme Court made clear that deportation was not to be considered a form of punishment”.
- 58.
Ibid., § 99.
- 59.
Ericson (2007a, p. 207ff).
- 60.
Fekete (2009).
- 61.
Ericson (2007a, p. 219).
- 62.
Ibid.
- 63.
Fraenkel (2010).
- 64.
Ibid., p. 3.
- 65.
Schmitt’s position—Giorgio Agamben (1998: 15ff) took it over when he launched the thesis about homo sacer (which, with a sovereign decision, was excluded from law)—is dominating in recent reflections on the theory of sovereignty. They are located within Schmitt’s theory of decisionism, which greatly hampers the understanding of how the state of emergency is established. That does not necessarily happen on the edge, as an exceptional, “special case”, but can take place “within the usual legal procedures” carried out by individual officials, authorities, etc. In short, in order to understand these processes, one needs, as Austin Sarat argues, to move “beyond the drama of a sovereign suspension of legality” into a less abstract debate on sovereignty, emergency state and legality. Cf. Sarat (2010, p. 2).
- 66.
Fraenkel (2010, p. 5).
- 67.
Dreier (2012).
- 68.
Fraenkel (2010, p. 89).
- 69.
Ibid.
- 70.
Ibid., p. 95 (emphasised by VJ). In this case, the court decided that the fact that the motion-picture stage manager was a Jew was equivalent to “sickness, death and similar causes rendering the stage manager’s work impossible” and that the company could therefore terminate the contract with an employee of Jewish origin. The court then also dismissed the complaint of the stage manager with the argument that “the former (liberal) theory of the legal status of the person made no distinction between races”. Ibid.
- 71.
Bibler Coutin et al. (2014, p. 99).
- 72.
Cf. Saito (2007).
- 73.
Ericson (2007b, p. 7).
- 74.
Walsh (2014, pp. 252–253).
- 75.
Ibid.
- 76.
Arendt (2007).
References
Aas KF, Gundhus H (2015) Policing humanitarian borderlands: frontex, human rights and the precariousness of life. Br J Criminol 55:1–18
Arendt H (1986) The origins of totalitarianism. André Deutsch, London
Arendt H (1994a) ‘What remains? The language remains’: a conversation with Günther Gaus. In: Kohn J (ed) Essays in understanding: 1930–1954. Harcourt Brace & Company, New York, Sand Diego, London, pp 1–23
Arendt H (1994b) Eichmann in Jerusalem. Penguin Books, New York
Arendt H (2007) We refugees. In: Kohn J, Feldman RH (eds) The Jewish writings. Schocken Books, New York, pp 264–274
Arnold KR (2018) Arendt, Agamben and the issue of hyper-legality: between the prisoner-stateless Nexus. Routledge, London, New York
Arnold KR (2016) Is it better to be a criminal than a stateless person? Revisiting Arendt’s famous comparison. https://www.academia.edu/35941822/_Is_it_Better_to_be_a_Criminal_Than_a_Stateless_Person_Revisiting_Arendt_s_Famous_Comparison_
Bibler Coutin S, Richland J, Fortin V (2014) Routine exceptionality: the plenary power doctrine, immigrants, and the indigenous under U.S. law. UCIrvine Law Rev 4/97:97–120
Bigo D (2004) Criminalization of ‘Migrants’: the side effects of the will to control the frontiers and the sovereign illusion. In: Bogusz B, Cholewinski R, Cygan A, Szyszczak E (eds) Irregular migration and human rights: theoretical, European and international perspectives. Martinus Nijhoff Publishers, Leiden, pp 61–92
Broeders D (2010) Return to sender? Administrative detention of irregular migrants in Germany and the Netherlands. Punishment Soc 12(2):169–186
Carling J, Hernández-Carretero M (2011) Protecting Europe and protecting migrants? Strategies for managing unauthorised migration from Africa. Br J Polit Int Relat 13:42–58
Carrera S, Allsopp J, Vosyliute L (2018a) Main research findings of ESRC project on the effects of EU’s anti-smuggling policies on civil society actors. http://www.picum.org/Documents/Publi/2018/Main-Findings-of-the-Report-2018.pdf
Carrera S, Allsopp J, Vosyliute L (2018b) The effects of anti-migrant smuggling policies on humanitarian assistance in the EU. Int J Migr Border Stud (IJBMS) (Special Issue). https://gtr.ukri.org/publication/overview?outcomeid=5aa85eece3ddc5.75737244&projectref=ES/P001335/1
Chimni BS (2000) Globalisation, humanitarianism, and the erosion of refugee protection, Refugee Studies Centre. Queen Elisabeth House, University of Oxford. Working paper No. 3. https://www.rsc.ox.ac.uk/files/files-1/wp3-globalisation-humanitarianism-erosion-refugee-protection-2000.pdf
Côté-Boucher K (2015) The criminalization of migration in Canada. In: Pickering S, Ham J (eds) The Routledge handbook on crime and international migration. Routledge, London, New York, pp 75–90
Dreier H (2012) Nachwort. Was ist doppel am Doppelstaat. Zu Rezeption und Bedeutung der klassischen Studie von Ernst Fraenkel. In: Der Doppelstaat, Ernst Fraenkel, 3rd edn. Europäische Verlaganstalt, Hamburg, pp 274–300
Duff AR (2010a) Perversions and subversions of criminal law. In: Duff RA, Farmer L, Marshall SE, Renzo M, Tadros V (eds) The boundaries of the criminal law. Oxford University Press, Oxford, pp 88–110
Duff AR (2010b) A criminal law for citizens. Theor Criminol 14:293–309
Ericson R (2007a) Crime in an insecure world. Polity, Cambridge
Ericson R (2007b) Security, surveillance and counter-law. Centre for Crime and Justice Studies. CJM no. 68/Summer. https://www.crimeandjustice.org.uk/sites/crimeandjustice.org.uk/files/09627250708553271.pdf
European Union Agency for Fundamental Rights (2014) Criminalization of migrants in an irregular situation and of persons engaging with them. http://fra.europa.eu/en/publication/2014/criminalization-migrants-irregular-situation-and-persons-engaging-them
Fassin D (2011) Humanitarian reason. A moral history of the present. University of California Press, Berkely
Fekete L (2009) A suitable enemy: racism, migration and Islamophobia in Europe. Pluto Press, London
Fekete L (2017) Introduction. In: Fekete L, Webber F, Pettitt-Edmond A (eds) Humanitarianism: the unacceptable face of solidarity. Institute for Race Relations, London, pp 1–6
Fekete L (2018) Migrants, borders, and the criminalization of solidarity in the EU. Race Class 59(4):65–83
Fellon Voting Rights (2017) National conference of state legislatures, 3 April 2017. http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx
Flynn MB (2016) From bare life to bureaucratic capitalism: analyzing the growth of the immigration detention industry as a complex organization. Contemp Readings Law Soc Justice 8(1):70–97
Fraenkel E (2010) The dual state. A contribution to the theory of dictatorship. The Lawbook Exchange, Clark, NJ
García Hernández CC (2015) Naturalizing immigration imprisonment. Cal L Rev (103)1449
Guild E (2010) Criminalization of migration in Europe: human rights implications. Council of Europe: Commissioner for Human Rights, February 2010. http://www.refworld.org/docid/4b6a9fef2.html
Hegel GWF (1972) Grundlinien der Philosophie des Rechts (Outline of the philosophy of rights). Ullstein Buch, Frankfurt am Main, Berlin, Vienna
Horne A, White I (2015) Prisoners’ voting rights (2005 to May 2015). House of Commons Library, UK. http://researchbriefings.files.parliament.uk/documents/SN01764/SN01764.pdf
Hussain N (2007) Beyond norm and exception: Guantánamo. Crit Inquiry 33(4):734–753
Jalušič V (2017) Refugees today: superflousness and humanitarianism. Estudos Ibero Americanos 43(3):524–534. http://revistaseletronicas.pucrs.br/ojs/index.php/iberoamericana/article/view/26139
Jalušič (2019) Criminalizing “pro-immigrant” initiatives: reducing the space of human action. Two Homel 49:109–122. http://twohomelands.zrc-sazu.si/en/articles/show/589/criminalizing-pro-immigrant-initiatives-reducing-the-space-of-humanaction
Levi P (2003) If this is a man. The truce. Abacus, London
Malkki L (1995) Refugees and exile: from ‘Refugee Studies’ to the national order of things. Ann Rev Anthropol 24:495–523
Parkin J (2013) The criminalization of migration in Europe. A state-of-the-art of the academic literature and research. CEPS Paper in Liberty and Security in Europe, No. 61. https://www.reuters.com/article/us-europe-migrants-hungary-strasbourg-idUSKBN16L1YO
Provera M (2015) The criminalization of irregular migration in the European Union. CEPS Paper on Liberty and Security in Europe, No. 80/February. https://www.ceps.eu/publications/criminalization-irregular-migration-european-union
Roach K (2011) The 9/11 effect: comparative counter-terrorism. Cambridge University Press, Cambridge
Saito NT (2007) From Chinese exclusion to Guantánamo Bay: plenary power and the prerogative state. University Press of Colorado, Boulder (Colorado)
Sampson R (2015) Briefing paper: does detention deter? International detention coalition. www.idcoalition.org. Accessed 1 Nov 2018
Sarat A (2010) Sovereignty, emergency, legality. Cambridge University Press, Cambridge, New York
Sklansky DA (2012) Crime, immigration, and ad hoc instrumentalism. New Crim Law Rev 15(2):157–223
Spena A (2014) Iniuria Migrandi: criminalization of immigrants and the basic principles of the criminal law. Crim Law Philos 8(3):635–665
Stumpf J (2006) The crimmigration crisis: immigrants, crime and sovereign power. Am Univ Law Rev 56(2):367–419
Vazquez Y (2016) Crimmigration: the missing piece of criminal justice reform. Univ Richmond Law Rev 51:1093–1147
Walsh JP (2014) Watchful citizens: immigration control, surveillance and societal participaton. Soc Legal Stud 23(2):237–259
Webber F (1996) Crimes of arrival: immigrants and asylum-seekers in the new Europe. Statwatch, London. http://www.statewatch.org/analyses/crimes-of-arrival.pdf
Webber F (2008) Border wars and asylum crimes. Statewatch, London
Zedner L (2013) Is the criminal law only for citizens? A problem at the borders of punishment. In: Aas KF, Bosworth M (eds) Migration, citizenship, and social exclusion. Oxford University Press, Oxford, pp 41–54
Acknowledgements
This chapter is the result of two research projects – J5-7121 “Crimmigration between human rights and surveillance” and J5-1749 “The break in tradition: Hannah Arendt and conceptual change”, and the research programme P5-0413 “Equality and human rights in times of global governance”, all funded by the Slovenian Research Agency.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2020 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Jalušič, V. (2020). Less Than Criminals: Crimmigration “Law” and the Creation of the Dual State . In: Kogovšek Šalamon, N. (eds) Causes and Consequences of Migrant Criminalization. Ius Gentium: Comparative Perspectives on Law and Justice, vol 81. Springer, Cham. https://doi.org/10.1007/978-3-030-43732-9_4
Download citation
DOI: https://doi.org/10.1007/978-3-030-43732-9_4
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-43731-2
Online ISBN: 978-3-030-43732-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)