Between legality and legitimacy: The courtroom as a site of resistance in the criminalization of migration
| Author | Hanna B Haddeland,Katja Franko |
| DOI | http://doi.org/10.1177/1462474521996815 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
Article
Between legality
and legitimacy: The
courtroom as a site
of resistance in the
criminalization of
migration
Hanna B Haddeland
Oslo Metropolitan University, Norway
Katja Franko
University of Oslo, Norway
Abstract
The criminalization of migration-related acts, rather than simply strengthening state
authority, also represents a risk of exposing legal legitimacy deficits. By drawing on
juridical analysis of court judgements, legal documents, and case law, together with
ethnographic observation in court and analysis of media coverage, the article argues for
acknowledging the extra-legal aspects of criminalization. By employing the concept of
legal consciousness, we bring attention to how bordering processes are challenged
from below by using the courtroom to expose potential legitimacy deficits concerning
crimmigration enforcement. The article shows how the courtroom is not merely a
place for convictions but also a site for resistance and social mobilization: a platform
that may give marginalized groups voice and visibility, invoking a complex picture of
state power, involving the ability to use force as well as reluctance and ambivalence
connected to the questionable legitimacy of criminalization strategies.
Keywords
crimmigration, irregular migrants, legal consciousness, legal legitimacy, mobilization,
resistance, the right to work
Corresponding author:
Hanna B Haddeland, Faculty of Social Sciences, Oslo Metropolitan University, Norway.
Email: hannabu@oslomet.no
Punishment & Society
!The Author(s) 2021
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DOI: 10.1177/1462474521996815
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2022, Vol. 24(4) 551–570
Introduction
In recent years, an impressive body of academic scholarship has identified a trend
towards the criminalization of migration in the global North. It charts the crim-
inalization of ever more acts related to irregular migration (Aliverti, 2013; Stumpf,
2006) and more stringent controls (Aliverti, 2013; Franko, 2020), as well as the
greater use of state bureaucratic technologies against migrants (Bosworth and
Guild, 2008), seen in a growing reliance on detention (Bosworth, 2019), deporta-
tion (Kanstroom, 2012), expulsion (Van der Woude et al., 2014) and the
policing of immigrant communities (Armenta, 2017; Weber, 2013). It has been
argued that the trend is driven by the rise of nationalism, punitiveness, and exclu-
sionary sentiments towards migrants, with states aiming to reclaim sovereignty and
strengthen their authority through reliance on criminalization (Barker, 2012,
2018).
Far less acknowledged and explored in scholarly literature is the fact that these
processes and state actions may be accompanied by a considerable level of ambiv-
alence and reluctance, due to the legitimacy deficit that exists in the use of crim-
inalization to control unwanted migration. This article examines how
criminalization, rather than simply strengthening state authority, also represents
a considerable risk for its legal legitimacy because courtroom encounters expose
the legitimacy deficit in migration enforcement (Bosworth, 2013).
The article focuses on criminalization – one side of the ‘crimmigration coin’
(Weber and McCulloch, 2019: 509) – and begins with an account of two recent
criminal cases in Norway. In November and December 2019, Arne Viste and
Gunnar St ˚alsett were accused of employing migrants without the necessary work
permits. Although those subjected to the power of criminal law were not ‘non-
members’ (Stumpf, 2006), ‘non-citizens’ (Franko, 2020) or ‘enemies of the State’
(Krasmann, 2007), but Norwegian citizens – one of them a retired bishop who
personified high moral standards and core societal values – the cases illustrate
important dynamics about the use of the courtroom as a site of resistance in the
criminalisation of migration. Drawing on the critical approach to legal conscious-
ness, we examine how the different approaches to the law taken on behalf of the
accused challenged internal border processes from below by questioning the legit-
imacy of using criminal law to manage unwanted migration, often referred to as
‘crimmigration’ (Stumpf, 2006).
We begin by outlining the legal circumstances of the two cases, before present-
ing observation data and notes taken manually to record details of the trials.
The article employs juridical analysis of court judgements, legal documents, and
case law, together with ethnographic observation in court and analysis of media
coverage. The methodological approach is designed to capture the interplay of
sociological and legal aspects of the cases. While official court decisions contain
assessments of legal factors, they offer no insight into situational factors.
By observing social encounters in and outside the courtroom, we provide the
social context of the trials, beyond their legal outcomes. We argue the importance
552 Punishment & Society 24(4)
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