Law and Migration: Many Constants, Few Changes
in Caroline Bretell and James Hollifield, Eds., Migration Theory: Talking Across Disciplines (New York and London: Routledge 2015), pp. 289-317
27 Pages Posted: 25 Oct 2014
Date Written: October 23, 2014
Addressing an interdisciplinary readership, the essay takes on a host of current and nettlesome issues in regard to “Immigration and Sovereignty,” core “Westphalian and Post-Westphalian Problems and Reforms,” recent developments that might be characterized as a simultaneous “Post-Westphalian and Neo-Westphalian Backlash,” and ongoing debates over “Post-Multiculturalism and the Neo-Liberal Welfare State.”
Law is not a research discipline or tool of social analysis. Law is, in the first instance, a tool of regulation; as such it constructs legality and illegality, the permissible and the impermissible. Law is also an expression of norms of justice as construed by a particular sovereign legislating community, one whose own composition is dynamic and changed by the very things, including migration, it seeks to regulate. Law, like the state in general, may be construed as a society’s résumé, indicating where the society has been and where it stands at any particular time, what is there and then being contested and what is not, who is in charge and who is not. Since it may evolve, law is also a terrain of struggle over where and how to steer society, one of many fields in which class and interest politics, constructed in myriad ways, play out in simple and complicated venues. Finally, since law, notwithstanding the existence of bi- and multilateral agreements, is overwhelmingly produced on a national basis, methodological nationalism is reflected in most thinking about law and what it does. Westphalian conceptions of sovereignty still prevail, and perhaps more in the arena of migration and citizenship than in most others.
Keywords: immigration, welfare state, sovereignty, labor, Westphalia, multiculturalism, security
Suggested Citation: Suggested Citation