Migrant deaths in the name of law

In international political sociology, a variety of scholars following Agamben and the so-called state of exception emphasize the routes of violence against migrants in the light of their privation of rights or “suspended law”. While acknowledging that law creates at times violent conditions, this scholarship tends to consider that the main problem of migrant deaths is not the presence of law but the lack of law. However, at the difference of Agamben we do not consider that it is only the suspension of law that produces such violence but that the killed migrants are presented as actors in their position as homo sacer and thus in their own death as they place themselves against legality.

Drawing on Walter Benjamin, in our recent Security Dialogue article we argue that appealing to law does not necessarily function to protect migrant lives but may serve to legitimate migrant deaths. In this spirit we propose the concept of nomofication to make sense of the legitimising rationale which appeals to the structure of law (juridical, natural and social) in order to confer a universal, logical and moral value to social practices. Nomofication relates to nomos (law) and more specifically to a universalist reading of law by which law can be applied unproblematically to any context. We have identified multiple dimensions of nomofication through which the European Commission legitimizes migrant “casualities” through references to law. A first compelling function of nomofication is that it presents a narrative which seems logical and objective. The dominance of this narrative is perhaps due to its simplicity and apparent appeal to logic. A second aspect of legitimization through nomofication is related to its moral function. Instead of regretting not being more active in saving migrant lives, the European Commission inversed the moral charge. While the first wrong doer was framed as the smugglers, migrants themselves and their lack of respect of legal rules and national borders also cast them as morally deficient. In spite of their lack of support to vulnerable migrants, the European Commission presented itself as somewhat superior and as guarantor of law and order that saves migrants lives provided that they learn to respect legality. Thirdly, we identified how nomofication can create an emotional distance through typification. We show in respect to migrant deaths that categorisation produces their symbolic death – “migrants” become an anonymized mass both by the fact that they are not named but also due to metaphors used for their aggregation such as “waves” or “flows” which do not resonate with personhood. It is difficult to empathise with matter.

In some cases nomofication can be instrumentalised to display an active role, for instance, how actors appeal to law in order to demonstrate mastery of the situation. Typically, it is claimed that tougher punishment towards smugglers and more effective law enforcement will “solve the problem”. One important issue in our view for active nomofication concerns so-called bureaucratic violence. Hannah Arendt (2002) has claimed that individuals like Eichmann may kill in the name of efficiently applying existing rules. However, Eichmann was a convinced antisemite and it is plausible that he also instrumentalized law in order to dominate and eliminate Jews and at the same time appear as legitimate and even moral. Thus, political actors do not simply submit passively to laws, but laws can also be used as a resource for the legitimisation of what might seem at first glance immoral – in this case the “right” not to protect.