Bordered penality: Precarious membership and abnormal justice
| Author | Katja Franko Aas |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| DOI | http://doi.org/10.1177/1462474514548807 |
| Subject Matter | Articles |
Punishment & Society
2014, Vol. 16(5) 520–541
!The Author(s) 2014
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DOI: 10.1177/1462474514548807
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Article
Bordered penality:
Precarious membership
and abnormal justice
Katja Franko Aas
University of Oslo, Norway
Abstract
The article brings to attention, and explores, the transformations of criminal justice
related to the control of unwanted mobility, looking in particular at recent Norwegian
developments. It maps a gradual emergence of a differentiated, two-tier approach to
criminal justice and a more exclusionary penal culture directed at non-citizens. The
article suggests that the absence of formal membership is the essential factor contribut-
ing towards shifting the nature of penal intervention from reintegration into the society
towards deportation and territorial exclusion, and towards the development of a par-
ticular form of penality, termed hereby bordered penality. The lack of formal citizenship
status also crucially affects the procedural and substantive standards of justice afforded
to non-members. While these developments are not confined to Norway alone, they
cast doubt on the non-punitive image that is widely attributed to Scandinavian countries,
and present a set of conceptual, epistemological and normative challenges for criminal
justice in a rapidly globalizing world.
Keywords
criminal justice, crimmigration, deportation, immigrants, punishment
In June 2012, the Bureau for the Investigation of Police Affairs in Oslo received five
complaints from Romanian citizens of Roma origin. They claimed that they had
been driven out of the city and left by the highway. Some were separated from their
group and had to get back to the city on their own, without the money to do so.
The activities were not documented in the official police log. The Complaints
Commission was critical of the practice, however, it also pointed out the ‘escalating
Corresponding author:
Katja Franko Aas, Department of Criminology and Sociology of Law, University of Oslo, PO Box 6706,
St Olavs plass, 0130 Oslo, Norway.
Email: k.f.aas@jus.uio.no
challenges’ that the influx of migrants without fixed abode present for the police.
Rather than being directly illustrative of an established practice, the episode can be
seen as a general symbolic representation of how territorial exclusion is being used
as a law and order strategy in contemporary Europe. This article brings to atten-
tion and explores transformations of criminal justice related to the control of
unwanted mobility, looking in particular at recent Norwegian developments.
1
By
doing so, it aims to tease out and theorize the changing ways in which contempor-
ary Western criminal justice systems imagine and do justice and, finally, to examine
the complex interconnections between globalization, the state and punitiveness.
The thesis presented in the article is the following: when penal power is exercised
over individuals without formal membership, it essentially changes its nature and
becomes – even in arguably one of the most inclusive and least punitive societies in
the world – more openly exclusionary. The absence of formal membership is the
essential factor contributing towards shifting the nature of penal intervention from
reintegration into the society towards territorial exclusion, and towards the devel-
opment of a particular form of penality, termed hereby bordered penality. The
absence of formal citizenship status also crucially affects the procedural and sub-
stantive standards of justice afforded to non-members. In trying to conceptualize
the phenomenon, the article suggests that we are seeing a gradual development of
two, essentially different, types of justice. The ordinary one for citizens, which is
despite periodic popular punitive onslaughts, in Europe and in Scandinavia in
particular, wedded to the idea of reintegration into the social. The other, emerging,
form of justice departs from the ordinary; it is bordered, deeply globalized and
geared towards exclusion from the national social body.
While the latter type of justice could be described as exceptional, the article
chooses not to do so for two reasons. Exceptionalism has been in recent scholarship
applied to explain why Scandinavian societies are less punitive and have, among
other things, lower prison figures and better prison conditions (Pratt and Ericsson,
2013; Ugelvik and Dullum, 2012). The phenomena outlined in the article, however,
represent Scandinavian exceptionalism of a different, punitive kind. Moreover,
I shall refrain from using the term exceptionalism in order to avoid analogies
which might naturally be drawn to the state of exception – the term most notably
developed by Giorgio Agamben (2005), and taken up by a vast body of work
within migration studies (see, inter alia, De Genova and Peutz, 2010). Although
the episode with the Roma, mentioned earlier, seems to suggest otherwise, the
developments described in the article are not exceptional in a sense of being
extra-legal or outside the law, a case of suspension of the law. What we are wit-
nessing is by and large a legally regulated, but differentiated, two-tier system of
justice. Drawing on the work of Nancy Fraser, it shall be described as a case of
abnormal justice. In what follows, the article first outlines Fraser’s argument and
how it applies to the case of contemporary penality, and then moves on to present
empirical evidence which may support it. It concludes by examining theoretical and
normative implications of the thesis for our understanding of the nature of con-
temporary punishment and membership.
Franko Aas 521
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