States of exception,human rights,and social harm: Towards a border zemiology

Law and border

During the last few decades the construction, function, and control of state borders in the western world have undergone profound transformations (Rumford, 2006). Once a fixed geographical feature inextricably linked with the state’s sovereignty and territorial integrity, borders are increasingly mobile and embedded through society, and their enforcement is entrusted to a complex network of cooperation among state and non-state actors (O’Dowd, 2002; Rumford, 2006). While progressively demilitarized, borders have become increasingly policed and managed through crime control (Bosworth and Guild, 2008; Campesi, 2015b). This in turn has fed a widening security discourse within which overlapping insecuritizations such as fear of crime, terrorism, and economic uncertainty have converged on the figure of the migrant (Bigo, 2000).

It has been argued that presenting border-related concerns as part of the security continuum allows the state to frame migration control as a form of crime prevention (Bigo, 2002). The framing of migration through a criminal lens exemplifies what Pratt and Valverde (2002: 135) have called ‘hybrid governance’, where different social issues and public concerns are merged to create a new tool of governance. This hybrid governance has brought to the rise of crimmigration, that is, the pervasive blurring of boundaries between criminal law and migration law. Crimmigration creates a hybrid legal framework where administrative coercion, presented as necessary and justified to maintain security, can be adopted without requiring the individual safeguards normally built within criminal proceedings (Aas, 2011; Bosworth and Guild, 2008; Sklansky, 2012; Stumpf, 2006). Migration law affords state agents wide discretionary powers to apprehend, detain, and eventually expel foreign citizens, even without evidence of criminal behaviour or breach of migration rules, but based on loosely defined security concerns (Aas, 2014). As the crimmigration control system can subject non-citizens to ad hoc legal processes that are more likely to result in less favourable outcomes, it has been argued that fundamental principles underpinning criminal law such as presumption of innocence or right to trial are better understood as being reserved to the citizens of the state (Guild, 2007; Stumpf, 2013; Zedner, 2013).

Despite the higher likelihood of more restrictive outcomes, the crimmigration control system does not appear to be linked to penal populism or higher levels of punitiveness, but rather has established itself as a routinized form of governmentality now widespread throughout Europe (Aas, 2014). The securitization of migration may thus not be a simple show of force or legal authority by the state, but rather be better understood as a manifestation of the state’s prerogative to make exceptions to the law; in this case, criminal law. By suspending the rights of part of the population, the state would thus exercise the concept of sovereignty theorized by philosopher Giorgio Agamben (1995, 2005), who defines sovereign power as the ability to legally suspend the law by establishing when it should and should not be applied. This prerogative to strip individuals of their political rights and reduce them to what Agamben calls ‘bare life’ would then manifest itself in migration detention centres, and in the high level of exclusionary discretion that characterizes border control (Agamben, 1995; Salter, 2008).

The fiction of bare life

Bare life is best described by Hannah Arendt in her account of the statelessness of Jews persecuted in Europe before the Second World War, whose status put them outside of the recognition of the law. Exclusion from the law constituted such a comprehensive deprivation of rights to make criminalization a more desirable option, as breaking the law would have brought the individual back within its remit and thus under its protection (Arendt, 1958). According to Agamben (1995, 2005), the ability to reduce individuals to bare life is central to sovereign power, as it reinforces and normalizes its prerogative to make exceptions to the rule of law. Bare life should not be understood as the literal description of an animalistic natural state, but rather as a performance: it is the symbolic act of stripping the person of their political rights that reaffirms sovereignty, much like a successful degradation ceremony reaffirms a denouncer’s embodiment of the community’s collective values (Garfinkel, 1956). Bare life is a fiction produced by the sovereign power itself, and it is functional to its governmentality.

The link between migrants and bare life is put forward by Agamben himself. In Agamben’s view, the public spectacle performed by immigration detention centres represents the state’s ultimate exercise in exclusionary supremacy, and is a clear manifestation of the state of exception (Agamben, 1995; Owens, 2010). However, detention centres are not sites of absolute state control. While immigration detention may be considered a legal anomaly (Campesi, 2014), the idea that it represents a literal legal vacuum where detainees’ political power is systematically annihilated has been refuted by empirical research. For example, Bosworth (2013) points out that UK detention centres may be sites of exclusion and poor oversight, but they are also sites of resistance and solidarity. Similarly, in his ethnography of Italian detention centres, Campesi (2015a) finds that the effective state of anomie in which detainees are kept by authorities effectively decreases control and foments rioting and violent protest. This does not diminish the oppressive nature of detention centres, nor does it negate their inherently harmful nature (Canning, 2019). However, as the power relation established by detention carries the possibility of resistance, the state’s attempt to exercise ultimate biopower over migrant bodies fails to strip them of their political significance, in turn undermining its own claim to supremacy over bare life (Foucault, 1994; Owens, 2010).

Hybrid sovereignties

Resistance is not the only issue undermining the definition of detention as a state of exception. Defining migration detention as an expression of unfettered sovereignty suggests that such measures fall fully within the remit of the state. However, contemporary migration control effectively relies on continuous negotiation and cooperation among different sovereignties. For instance, recent work by Fabini (2019) highlights the limited power of the Italian state to deport illegalized non-citizens. Regardless of domestic policy, the deportation of a non-citizen is ultimately contingent on their acceptance by their country of origin: the denial of this acceptance effectively makes the non-citizen ‘undeportable’, in turn removing the rationale for detention. In addition, international legal principles such as non-refoulment formally restrict states’ ability to banish non-citizens.

Migration policy in general is rarely the product of unilateral decisions by a sovereign state. In the European Union, for example, border control involves a ‘pooling of sovereignty’, where migration management is cooperative and informed by regional as well as national interests (Andreas, 2003: 84). In practice, although individual member states are responsible for managing their own borders and setting their own policy with regards to controlling the movement of non-EU citizens, the presence of a common framework impacts on their operation and priorities. This is particularly the case when a member state’s frontiers correspond with the EU’s outer borders, as the securitization of external frontiers is necessary to safeguard internal policies such as the freedom of movement of EU workers or the suspension of border control within the Schengen area (Mitsilegas, 2009). Furthermore, the existence of EU-level agencies such as FRONTEX and shared databases like Eurosur and Eurodac suggest an increasingly centralized role in controlling the movement of non-EU citizens, where the EU may act in a sovereign-like manner despite not constituting a state-like political entity (Campesi, 2015b). This interplay between national, international, and supranational actors performing migration control creates a hybrid form of sovereignty, which is simultaneously claimed, negotiated, and delegated by the nation state. In the case of contemporary Europe, it has become meaningless to view migration policy as an expression of supreme power by those who introduce and enact it, as wider structural forces are also inevitably at play. The application of Agamben’s concept of states of exception to migration control thus seemingly overemphasizes the power of the state, undervalues migrants’ agency, and overlooks the non-state forces that influence migration and its management.

Beyond crimmigration

Agamben’s limited relevance to real-life migration control has not gone unexamined (Johansen, 2013; Owens, 2010). However, the criticism outlined above paves the way for further critique of the concept of crimmigration. For example, the idea that crimmigration represents an exceptional use of coercive state power coupled with diminished accountability suggests that the use of force is the prerogative of the criminal justice system. However, as Velloso (2013) points out, this view overlooks existing forms of administrative coercion, such as military law or mental health tribunals. Velloso takes this point further and argues that the concept of crimmigration is born out of criminologists’ professional bias, what he calls ‘criminocentric dogmatism’: the tendency to view social phenomena within a crime framework, measuring different forms of social control against criminal law. This does not mean that crimmigration as a phenomenon does not exist. On the contrary, as Bosworth et al. (2018) argue, the state indubitably uses the criminal justice system as a way to regulate mobility, so crimmigration must become integral to our study of punishment. However, if crimmigration widens our understanding of penality and of the role of criminal justice, its contribution to our understanding of migration control is more limited. Velloso’s criticism points to a fundamental drawback in the crimmigration discourse: the linking of crime control and migration management frames the latter as a domestic issue, understating its international and supranational dimensions and overstating state’s power and state sovereignty. Consequently, the lens of crimmigration obscures the global dimensions of migration control.

The limits of crimmigration are particularly evident when moving beyond the nation state as the main unit of analysis. In the next section I present the EU’s policy of non-assistance in the Mediterranean Sea as an example of extra-territorial migration control, and examine the challenges it presents to criminological analysis. I argue that migrants’ deaths at the EU’s southern border are the result of hybrid sovereignties which may transcend individual states’ powers, resulting in the deprivation of sea-crossers’ rights under international law. As remarked by Aas (2011), Mediterranean sea-crossers represent the realization of Agamben’s bare life, suggesting that Agamben’s conceptualization remains relevant to contemporary migration control; however, the exclusionary power they embody is not born out of an individual state, signalling the need to move beyond sovereignty and reframe our analysis of migration control.

Inaction and impunity at sea

Just as the cat in Shroedinger’s paradox is both dead and alive until an observer opens the box that contains it, the legal status of individuals on an irregular migratory journey is a superposition of possible outcomes, until one is crystallized by contact with a state’s jurisdiction. While in itinere, Mediterranean sea-crossers occupy a legal twilight zone, as their still undefined legal status means they are not entitled to the rights attached to citizenship or territory. For example, international protection obligations, which put a duty on receiving states to process requests for asylum, are generally understood to be triggered once migrants reach the jurisdiction of a member state, whether by reaching its territory, boarding one of its ships, or being under the effective control of state agents (Hartmann and Papanicolopulu, 2015). The lack of jurisdiction equals a lack of protection, not only under humanitarian law, but under human rights law as well, as the absence of an accountable authority makes these rights effectively unenforceable (Mann, 2018).

This legal gap does not represent a literal suspension of the law, but rather exposes its jurisdictional limits. For instance, Article 1 of the European Convention on Human Rights puts on contracting parties the obligation to respect the rights of all those in their jurisdiction, but establishing jurisdiction at sea is not as straightforward as it may be on land. The United Nations Convention on the Law of the Sea 1982 (UNCLOS) assigns zones of competence to coastal states with varying degrees of sovereign rights depending on distance from the coastline. Whereas territorial waters (up to 12 miles from coastline) are considered part of the nation’s territory, in contiguous zones (12 to 24 miles) the state’s jurisdiction is restricted to customs, taxation, pollution, and immigration, while in exclusive economic zones (up to 200 miles) it is limited to the seabed and its natural resources. As costal states have the right to patrol their border within territorial and contiguous zones, a state’s human rights obligations can stretch up to 24 miles from the coast (Galani, 2018). However, as established in Hirsi Jamaa and Others v Italy (2012), extra-territorial jurisdiction applies when EU member state agents exercise control over individuals outside of the state’s territory. During search and rescue (SAR) at sea, frequently the first contact between non-EU sea-crossers and their destination countries, EU rescuers are therefore subjected to European Convention on Human Rights obligations even in international waters. While these negative obligations put a duty on EU states not to breach human rights at sea, they do not constitute a positive obligation to proactively patrol international waters for SAR purposes. Paradoxically, rolling back SAR capacity does not breach sea-crossers’ human rights, even if consequences are lethal.

In its damning investigative report ‘Death by rescue’, the University of London’s Forensic Oceanography department describes the EU’s collective decision to prioritize deterrence and border protection over the prevention of sea-crossers’ deaths as ‘institutionalised neglect’, of which Operation Triton has been a glaring example (Heller and Pezzani, 2016). Following the drowning of over 300 sea-crossers off the coast of Lampedusa, in 2013 the Italian navy began the major SAR operation Mare Nostrum, which rescued over 100,000 people along the Central Mediterranean Route. Concerns by other EU member states that rescuing sea-crossers could constitute a pull factor and encourage other crossers meant that Mare Nostrum was ended after only a year, and substituted with the much less ambitious Operation Triton, headed by EU border control agency Frontex. Due to its limited remit, smaller budget, and focus on border control, Triton is estimated to have failed to prevent at least two major shipwrecks which would have fallen within the remit of Mare Nostrum, contributing to the preventable death of over 800 people. Despite the clearly foreseeable lethal outcome, the EU’s failure to provide sufficient SAR capacity does not contravene any explicit legal obligation.

Ensuring extraterritoriality

In recent years non-governmental organizations (NGOs) have begun patrolling the Central Mediterranean Route in an effort to increase SAR capacity and fill the gap left by Mare Nostrum, particularly during the so-called Mediterranean migration crisis of 2015 (Cusumano, 2017). The work of NGOs in the Mediterranean however has been met with hostility by EU border states such as Italy, which are frequently tasked with providing a safe port to rescued sea-crossers and process asylum claims under Dublin regulations. Restrictive bureaucracy, impounding of ships, and prosecutions for facilitating illegal immigration have constrained NGO operations, culminating in the refusal in the summer of 2018 to grant permission to enter Italian ports to NGO ships carrying rescued sea-crossers (BBC News, 2018; Cusumano, 2019; Cuttitta, 2018; Fekete et al., 2017). The obstruction of NGOs in the Mediterranean has corresponded with increased cooperation with third countries. Following the signing of a memorandum between the Italian government and Libya’s interim government in 2017, the Maritime Rescue Coordination Centre (MRCC) in Rome has been increasingly delegating SAR responsibility in the Mediterranean to the Libyan Coast Guard (Governo Italiano, 2017). This bi-lateral agreement is supported by the EU, whose own Operation Sophia changed its mandate to include the capacity building and training of Libya’s Coast Guard and Navy to help prevent human smuggling and trafficking (Political and Security Committee, 2016).

The return of rescued sea-crossers to Libya by EU agents would breach the principle of non-refoulment, as widespread abuses against detainees mean that Libya cannot be considered a place of safety as defined by the International Maritime Organization (2004; see also Amnesty International, 2017; OHCHR, 2016). The creation of a Libyan MRCC, supported by Italy and the EU, aims to facilitate the interception of sea-crossers by Libyan agents, before they reach EU member states’ jurisdiction. However, NGOs have reported witnessing abusive and unsafe practice by Libyan agents during rescue operations, with sea-crossers being left to drown when refusing to board Libyan ships (Guardian, 2018; Sea-Watch.org, 2017).

The EU’s delegation of SAR duties to Libya is designed to absolve EU member states of their obligations under human rights and humanitarian law, prioritizing border control at all costs. In the absence of clear jurisdiction and accountability, international law is effectively unenforceable, stripping the individual of their human rights. Furthermore, this jurisdictional vacuum removes the power dialectic between state and individual, denying the latter any opportunity for resistance. Within this gap in the law, sea-crossers’ lives are lost with impunity.

Institutional negligence and prevention of harm

Restrictive EU migration policy and the deliberate roll back of search and rescue operations have increased the lethality of the EU’s southern border and effectively weaponized the Mediterranean Sea in the war against migration (Amnesty International, 2014; Hartmann and Papanicolopulu, 2015; Steinhilper and Gruijters, 2017). The complex power dynamics operating at and beyond the border make it difficult to categorize these actions from a criminological point of view. Below I examine three different approaches in categorizing states’ attempts to prevent immigration, and their applicability to the policy of non-assistance.

From crime to harm

Instead, moving beyond crime and focusing solely on social harm is best suited to critically evaluate contemporary migration control practice. By looking at the impact of how states and international organizations operate, regardless of whether their actions could be labelled as criminal or whether the harm caused is intentional, this approach provides an alternative viewpoint on migration control practices focusing primarily on preventability. For example, operation Mare Nostrum and NGO SAR missions have demonstrated that it is in EU member states’ power to prevent a considerable number of deaths at sea, so by limiting SAR operations EU states consistently and knowingly fail to prevent serious harm.

A critical challenge in this harm-based approach is to develop a theoretical framework that can offer a meaningful analysis not just of deaths at sea, but also of other social harms related to border control, such as the detrimental impact of detention on individuals and communities, or the diversion of border communities’ resources away from local objectives in favour of supranational political interests (Orsini, 2016). Zemiology can offer an alternative lens able to zoom out from state-defined deviance and law-related concerns in favour of wider forms of harm and their structural causes (Webber, 2004). This approach has already been applied to the critical study of contemporary migration control practices, the most notable example being Victoria Canning’s (2017, 2018, 2019) body of work on the harms of migration detention. However, while convincingly advocating for the usefulness of a zemiological approach in the study of border control, Canning refrains from suggesting what a zemiological methodology should look like, or upon which ontological and epistemological grounding it should be based. Indeed, there is still no agreement over how social harm ought to be defined and studied, and even zemiology’s relationship to criminology remains an object of debate (Copson, 2018). The conceptual challenges provided by migration control represent an opportunity to develop a zemiological methodology that is empirically useful, creating a constructive approach that goes beyond a simple critique of crime and crimmigration control.

Defining social harm

To be empirically useful, the zemiological framework requires a working definition of social harm. Like crime, social harm may be described as a construct lacking an ontological reality, and there has been limited consensus so far on how it should be defined, or whether it should be defined at all (Hillyard and Tombs, 2007; Pemberton, 2007). A loose understanding of social harm provides an attractive degree of flexibility when contrasted with the problematic power relations hiding within the more rigid definition of crime; however, it also risks promoting a view of zemiology as antithetical, rather than complementary, to criminology. Zemiology should be viewed not simply as a critique of criminology, but as an additional arrow in the theoretical quiver of the socio-legal scholar, an alternative tool that can be deployed when the criminological lens provides too narrow a focus. As such, it needs solid ontological and epistemological grounding.

A compelling ontological basis is provided by Majid Yar, who bases his conceptualization of social harm on Honneth’s theory of recognition, which in turn borrows from Hegel’s philosophy of right (Honneth, 1995; Yar, 2012). For Hegel the individual is not a monadic self-subsistent entity, but rather exists in a dependent form from others, and through others it can know itself and determine its own sense of worth. Self-realization is therefore intersubjective, as our sense of selfhood depends on the recognition of others. Based on this concept, Honneth develops three levels of recognition at familial, community, and state level. Interpersonal acts, structural impediments, and wider processes that deny the pre-conditions leading to individual self-realization at any of these levels can be conceptualized as harms, as they deny a fundamental human need (see Figure 1).

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Figure 1.

Honneth’s (1995) three social modes of recognition.

Recognition can thus give coherence to the concept of social harm, allowing for different harms to be united under a single overarching framework while at the same time remaining distinct. This provides micro, meso, and macro levels of analysis that make this framework particularly useful when analysing complex social phenomena such as migration. The death of sea-crossers can therefore be seen not only as the immediate consequence of the lack of rescue, but also of those conditions that make sea-crossing the only route into Europe for migrants from many African and Asian countries. These conditions are not limited to state measures that deny equal rights to migrants (such as restrictive migration policies or non-assistance at sea) but are enabled by racial and financial concerns in receiving countries. These factors conspire to deny migrants’ needs for safety, solidarity, protection from discrimination, and so on.

Beyond Honneth: Addressing the agent–structure conflict

While Yar’s recognition-based understanding of social harms is a useful starting point upon which to build a border zemiology, its reliance on Honneth’s inter-subjective understanding of realization raises further ontological and epistemological questions. The first issue relates to the nature of the self and the meaning of realization. The idea that the individual knows and realizes themselves only through interaction with others suggests a vision of the self as socially constructed. On the other hand, the term recognition implies the acknowledgement of a pre-existing quality, something intrinsic to the person. Both concepts are problematic for recognition: if recognition brings personhood into existence, then misrecognition simply brings a different person into being, which makes the need for recognition meaningless; if recognition only uncovers what is already there, then it is its role in realizing the person that becomes meaningless. Honneth does not provide a definitive solution to this conundrum (Laitinen, 2002; Markell, 2007).

This contradiction exemplifies the conflict between agency and structure. If we take the individual as our unit of analysis and discount the role of social structures, then we also discount the role of recognition in influencing the person. If, on the other hand, we consider social phenomena as main drivers of human behaviour, then we discount the significance of misrecognition and its presumed impact on the self. For zemiology to be empirically useful, it needs to engage with the agent–structure conflict and embrace a position on how to solve it. It seems clear that a recognition-based framework cannot rely on either an individualist or a collectivist approach to social reality; instead, the causal relationship between individual and the social should be seen as bi-directional, where each can impact and, in some way, cause the other. Recognition only makes sense if such a co-creative process is present.

The nature of this process, however, needs further examination. It may seem reasonable to argue, for example, that agents and structures simultaneously create one another, in accordance with Anthony Giddens’ (1984) theory of structuration. After all, recognition is based on the presence of a dialectical interaction between the individual and the social, with the encounter seemingly affecting both parties concurrently. However, the inextricable interdependence of agency and structure presupposed by structuration hinders the development of a methodology to examine their causal power, as its effects cannot be isolated. Instead, I argue that a recognition-based understanding of social harm should be based on what Margaret Archer (1995: 66) calls ‘analytical dualism’, where agency and structure are ontologically distinct and co-create each other not simultaneously, but over time. In Archer’s view, existing social structures influence individual agency, which then goes on to causally impact future structures. This distinction is fundamental, and its effects are better understood when referring to the example of Mediterranean sea-crossers.

Analytical dualism

Let us begin by considering the implications of basing recognition on structuration, that is the simultaneous co-generation of agent and structure. If an individual’s realization depends upon others’ recognition, then this presupposes an encounter with others, whether they are other individuals or social or legal structures. It follows that in the absence of a dialectic interaction not only would recognition be impossible, but so would be misrecognition: social harm as denial of recognition can thus only happen if an encounter takes place. For example, as the withdrawal of SAR operations prevents contact between migrants and EU jurisdictions, then it could be argued that this negates the possibility of a dialectical encounter between the two, preventing both recognition and its refusal. This understanding of social harm would mirror the legal paradox identified earlier in this article, justifying non-assistance as prevention of harm.

Taking an analytical dualism-informed view, however, I contend that the dialectical encounter has indeed taken place: previous search and rescue efforts by EU agents show that the right of migrants to be saved has already received recognition in the past, and this recognition has then been denied by subsequent policy reversals. However, the dialectic has already been established, regardless of whether physical encounters continue to take place. The present denial of recognition of sea-crossers’ need for rescue means that deaths at sea are a social harm under this framework, even when extra-territoriality and lack of contact with EU agents cast doubt on whether they can be legally defined as human rights violations. Recognition and misrecognition are thus not just the product of momentary encounters, but of longer-term social processes. Archer’s dualism also gives a basis for individuals’ needs for recognition to change over time, in accordance with the cycle of social and political change; for example, in the face of increasing protections for cultural or social rights, individuals may come to expect progressively more comprehensive recognition of their needs under these rights, and suffer social harm when this is denied. Individual examples of social harm, therefore, cannot be studied in isolation, but must be placed within their historical context. Embracing analytical dualism has wide-ranging methodological implications for the nature of zemiological enquiry, which I summarize in the next sub-section.

Methodological implications

Margaret Archer’s work on analytical dualism is situated within the framework of critical realism. Critical realism has been defined as a metatheory: not a comprehensive theory of society per se, but rather a set of principles put together by various critical realist thinkers based on the work of British philosopher Ram Roy Bhaskar (Gorski, 2013; Rutzou, 2016). According to Bhaskar (2008a [1975]), empirical investigation of social reality can never uncover universal laws; this is because the social world is only partially discoverable, so causal relationships cannot be generalized beyond what is known. Our understanding of the social world is thus not only based on what we know about it, but also on what we cannot get to know. Adopting a critical realist view of society means accepting its view of causation, and of how it can be conceptualized. Under a critical realist framework, causal mechanisms are never deterministic or universal; instead, as summarized by Rutzou (2018), causation is always complex, contingent, and conjunctural. Archer’s (1995) historical view of social processes adds a view of causation as ever-changing, as it is continually transformed by the cyclical dialogue between the individual and the social. If universal laws cannot be inferred from empirical data, then an inductive research strategy would be ill suited to this kind of enquiry. Similarly, a deductive approach seeking to test theory from data would suggest that all causal mechanisms can be experienced, which contradicts the critical realist stance. Instead, research based on these theoretical tenets would best rely on a retroductive approach, where the underlying causal mechanisms behind an observed phenomenon would be examined solely in relation to their specific context (Meyer and Lunnay, 2013).

Critical realism’s nuanced understanding of social reality and causal mechanisms makes it unsuitable for general theory-building or testing, but appropriate for critical enquiry. Roger Matthews (2010, 2014), for example, has long argued that a critical realist approach could address the fundamental theoretical inadequacies of both traditional and critical criminology, reversing what he sees as a worrying drift towards empiricism. A further reason to found zemiology on critical realism is the latter’s understanding of the causal power of absence. As Bhaskar (2008b [1993]) argues, absence is not just the negation of a state, but a state in itself, and as such it can generate consequences. Furthermore, ills can be seen as absences of an ideal state, just like social harm is here conceptualized as absence of recognition, and these absences can limit human realization (Bhaskar, 2008b [1993]; Collier, 2005). Human emancipation therefore requires the removal of these ill-causing absences, and of the constraints that may inhibit this removal (Collier, 2005). A recognition-based, critical realist zemiology thus revolves around a political view of the social world, and the progressive struggle to remove obstacles to human realization.

Activism versus transpraxis

Proponents of zemiology never envisioned it as an apolitical approach. In fact, it has been used to argue for wide-ranging social change (Pemberton, 2007) and to support direct activism (Canning, 2018). Indeed, zemiology builds upon a sizeable tradition of activist and revolutionary approaches first developed within critical and radical criminology (see, for example, Arrigo, 2016). A zemiological framework must, in some way, enable social change. In a recent contribution to zemiological theory, Copson (2016) argues that critical and radical approaches to crime and justice inevitably legitimize the systems they oppose, whereas zemiology can offer a truly alternative view of the social world. Part of Copson’s argument is based on Henry and Milovanovic’s (1991) constitutive criminology, which states that systemic structures or power relations are reproduced, rather than challenged, by critical opposition. This, Henry and Milovanovic argue, is because agents and structures co-create one another: individuals challenging the system end up reproducing it because their identity is being forged by it. As opposition praxis is unable to achieve systemic change, scholars should instead strive towards transpraxis, that is moving beyond the constraints of existing structures or relations. Transpraxis means to journey in uncharted territories, engaging in a ‘permanent revolution’ (Arrigo and Bersot, 2016: 561). Zemiology, Copson (2016) argues, represents an opportunity for transpraxis because it transcends legal systems and the related ideology of crime.

Henry and Milovanovic’s constitutive criminology is founded on structuration, where agents and structures are inseparable, while the zemiological framework put forward in this article relies on a dualist view. Nevertheless, both approaches have in common the understanding of agency and structure as causing each other, whether simultaneously or over time. It could be argued therefore that analytical dualism does not necessarily contradict Henry and Milovanovic’s (1991) view of opposition as reproduction of existing discourse. The question then is whether a recognition-based zemiological framework can be as transformative as Copson advocates. However, Arrigo and Bersot’s understanding of transpraxis indicates that recognition, with its emphasis on negating or affirming categories and identities, fits squarely into praxis rather than transpraxis:

it is not enough to return or to restore the subject’s identity (or an excluded group’s identity) to a state of political equilibrium (e.g., inclusion, enfranchisement) through reliance on categories of difference and their intersectional standpoints as derived from the praxis of resistance.

(Arrigo and Bersot, 2016: 551)

Honneth’s theory of recognition, it seems, can only take us so far in the quest for a transformative, permanently revolutionary zemiology. However, later critiques of Honneth’s work have sought to move recognition away from identity and focused on subverting accepted power structures. Incorporating these views is the final step towards building a comprehensive zemiological framework for the research of migration control.

Recognition, distribution, and representation

The role of public institutions in Honneth’s society is to mediate universal recognition for all by all (Yar, 2012). However, as Nancy Fraser (2000) argues in her critique of Honneth’s work, a push for recognition is meaningless without egalitarianism. This means that recognition cannot be solely concerned with the individual’s standing with regards to social or cultural norms, but can only truly be obtained by addressing the structural obstacles that impede personal realization. Understanding recognition as a simple reaffirmation of identity distracts from the structural causes of inequality, while at the same time shifting the burden onto the individual to meet their own need for self-realization. Fraser states that emphasis on identity is problematic, as it lends itself to exclusionary rhetoric by sanctioning rather than challenging status subordination within society. Fraser’s position is consistent with Arrigo and Bersot’s (2016) critique of activist praxis, or indeed earlier work by Bourdieu, whose thought is also informed by structuration; for Bourdieu (1977), addressing cultural bias without tackling structural inequality legitimizes existing societal hierarchical divisions, thus reinforcing the status quo as an undisputed, natural order. The state’s role in mediating recognition thus cannot be simply to mitigate existing cultural and social harms, but also to address its own role in legitimizing misrecognition, for example through legislation or policy which systematically undermine the status of certain individuals (Fraser, 2000). For Fraser (2000: 110), focusing on misrecognition ignores the other fundamental dimension of social injustice: ‘distributive injustice’, or maldistribution. Misrecognition and maldistribution, while distinct, are closely linked: both need to be included in a vision of justice, as addressing one will not ameliorate the other. The definition of social harm must therefore include both dimensions.

Maldistribution is a central concept in migration studies. For example, the status subordination of migrants from poorer African and Asian countries in the EU is a visible manifestation of their economic subordination. The market forces that determine the value of labour power operate largely independently of cultural norms and are the true determinants of migration policy. The discrimination of migrants from poorer countries should thus be seen through a double lens: one is xenophobia, where prejudice denies recognition, and which may be fought for example through recourse to human rights law; the other is racism, a systemic means of governance and control, which is based on denial of resources and must be fought through redistribution (Curcio, 2011). The inclusion of the dimension of maldistribution highlights the constitutive nature of opposition and paves the way towards true transpraxis. In addition, it highlights when measures to ameliorate one dimension of social harm may in turn exacerbate the other. For instance, extraordinary measures such as asylum, which grants status recognition to a limited number of worthy individuals, can act as an impediment to redistribution, as their foundation in exceptionality reinforces the legitimacy of harsh migration restrictions. If economic maldistribution lies at the foundation of border policy, it follows that the social harm caused by migration management can only be addressed by challenging the foundations of unequal hierarchies of mobility. Misrecognition and maldistribution then become two key dimensions of social harm, defining at once a coherent vision of social justice and of the duty of institutions. By relying on this framework, a zemiological analysis can provide a coherent critique of institutional action or inaction that moves beyond legal obligations.

This independence is fundamental, especially when considering transnational phenomena such as migration. Going beyond the limits of state, law, and territory is necessary to understand migration, because its management by states is the result of processes that stray well beyond their borders, and which are influenced by regional politics, global economies, and so on (De Genova, 2013). This brings me to the final hurdle that the zemiological framework must be able to overcome, to avoid what Fraser (2006: 48) calls misframing, that is ‘when the state-territorial frame is imposed on transnational sources of injustice’. Misframing, Fraser argues, is a meta-injustice, as it denies a voice to those who are not represented by the polity. When claims for recognition and redistribution are pressed for some individuals but not others, then a third form of injustice comes into view called misrepresentation (Fraser, 2006: 48). A zemiological approach must thus come with an understanding that, in a globalized world, the domestic cannot be isolated from the international. This is particularly important in a European context, where a supranational actor such as the EU, with its complex web of overlapping sovereignties and conflicts of interest, is involved in performing border control. However, it is equally relevant when looking at control from within the state’s borders. For instance, migrant detention by EU member states cannot be viewed as a national issue, the way one would regard imprisonment, but as one manifestation of a wider process of exclusion. This does not mean that zemiology should ignore what Canning (2018) calls ‘micro-level harms’. However, a transformative zemiology must look beyond providing a list of social harms caused by state practices, and seek out and challenge the wider processes that reinforce these practices and conspire to perpetuate global inequity.