What can migration-law learn from cartography? : Some reflections on critical legal mapping as a method for understanding law
Summary, in English
The aim of this article is to articulate how legal processes, that produce assumptions about social realities which subsequently shape relations of inequality and oppression, may be explored using a critical legal cartographic approach. Critical cartography points to the duality of representation and construction that is innate to cartography, i.e. when portraying reality, maps are also making it. Asking what legal processes do, more specifically how they enable some human activities and constrain others, this study takes a performative approach to law. Furthermore, the article tries to answer why it is important to reveal performative aspect of legal processes. Departing from de Sousa Santos’ influential article from 1987 about law as a map for mis-reading in the form of distorted representations of reality, this article seeks to contribute with a deeper knowledge of how law works when law produces the social reality it needs, and how socio-legal scholars may explore this using critical cartographic methodologies. De Sousa Santos introduces three concepts that provide an understanding of legal judgments and the effects of law as a map: Scale, projections and symbols. Whereas he suggests that law “creates the reality that fits its application” (Santos 1987: 288), he does not in depth elaborate on the material conditions produced by law. Bringing such performative aspects of legal mapping into light, the present study focuses on how the social world is constructed through legal mapping exercises (cartographies) and what the material implications are. By changing the perspective, from representations of the social world (which is the focus of Santos) to the actual material conditions shaped through legal decision-making, we argue that a deeper understanding may be gained of the power that is embedded in law. To illustrate how critical legal cartography may contribute to socio-legal studies in the field of migration, this study presents two mapping exercises of “practical impediments to enforcement” in the context of Swedish asylum law. This means, concretely, that both mapping exercises concern asylum cases where the persons seeking refuge had their asylum claims rejected and therefore received an expulsion decision. Nonetheless, due to a practical obstacle of some kind, the concerned persons cannot return to the designated country. As “undeportable deportees” they are caught in a situation where they receive repeated unenforceable removal orders (Grant 2007). Whilst in this situation, in the Swedish context, they have no right to work and no right to economic support (children excepted). Legally speaking, practical impediments may lead to a residency in Sweden. In fact, the migration authorities must consider such barriers in decisions concerning refusal-of-entry or expulsion (see, for example, Chapter 8, Section 7 of the Aliens Act). Additionally, if the enforcement barriers appear after a removal order has become final and non-appealable, such impediments should be taken into consideration (see Chapter 12, Section 18, first paragraph, point 2 of the Aliens Act) and residency may be granted. Despite these legislations, which makes it possible to grant a residence permit in Sweden because of enforcement barriers, a number of people remain in Sweden after receiving a refusal-of-entry or expulsion order without being granted such a permit. Some of these people are stranded for longer periods of time in a legal no-man’s-land. They are trapped in a maze of bureaucracy that is virtually impossible to find a way out of. Applying critical legal cartography as a method, the article presents two cartographies trying to manage this position of legal limbo (Dauvergne, 2008; Paoletti, 2010): One state-based “hegemonic” map, and one case-based mapping exercise of an individual case. Whereas the former (an independent state-enquiry) serves to illustrate the state’s capacity to dominate through a combination of coercion and consent of those dominated, the latter (case-based cartography), is a counter-mapping exercise in that it reveals the hegemonic politics inherent in the state’s mapping. The case-based cartography also critically problematizes the advantages of regulating (i.e. mapping) human mobility. Within the framework of the state enquiry, certain issues regarding enforcement barriers are invented and re-invented, and certain assumptions about the law are made and questions asked. In a similar way, the case-based study makes other assumption of law and put different issues on the table. This is not unexpected considering that the motives of the state enquiry and the individual case study differ in many ways. Nevertheless, a mapping of the individual case-based study, functions as a deconstruction as well as a reconstruction of the migration law of the state-enquiry. Accordingly, the case-based study, is a form of counter-mapping which has a dual role; to reveal the consequences of the law in the world and for people’s living conditions, and to raise questions about what is desirable, or even possible, to map in a complex field of human migration in the current ‘world of mobility’. Ultimately, this article discusses the essence and significance of contemporary laws and legal mapping. References De Sousa Santos, Boaventura. (1987) “Law: A Map of Misreading - Toward a Postmodern Conception of Law” Journal of Law and Society. pp. 279-302. Grant, Stefanie. (2007) “The Human Rights of Legally Stranded Migrants” in Cholewinski et al. (eds.) International Migration Law, TMC Asser. The migration of power and north-south inequalities: the case of Italy and Libya. Dauvergne, Catherine. (2008) Making People Illegal What Globalization Means for Migration and Law.