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Law and Society Association: Mobilizing European Law Against Racialization and Exclusion

May 31, 2019 @ 10:00 - 11:45

This panel investigates how racialized groups mobilize for dignity inside and outside courts. Passalacqua analyzes the transformation of UK migrants’ dignity claims by courts and lays bare law’s limits as a dignity-restoring instrument. Farkas probes the conceptions of dignity by European and US actors in the Transnational Roma Rights Network arguing that the transnationality of the practice field mitigates towards client interests. Xenidis explores frame disputes in the context of the CJEU headscarf cases, contrasting the academic understanding of Islamophobia as intersectional discrimination and litigants’ strategic reliance on religious discrimination claims. Lauro examines the evolution of UK anti-deportation campaigns from the 1970s on an demonstrates a focal shift from discrimination to dignity in the context of deradicalization

Session Organizer
Raphaële Xenidis, European University Institute, Law Department

Scott Cummings, University of California, Los Angeles

Moritz Baumgärtel, Utrecht University


Litigating against Islamophobia in Europe: a 3D puzzle
Raphaële Xenidis , European University Institute, Law Department

Decades ago, social science research demonstrated the pervasiveness of racialization processes targeting certain religious groups. From Balibar’s notion of ‘neo-racism’ to Said’s critique of ‘orientalism’, culture played a crucial role in explaining how ‘othering’ processes operate, construct differences and justify exclusion. Similarly to ‘the Jews’, ‘the Muslims’ are subjected to such homogenizing external racial ascriptions, which are a fundamental dimension of a phenomenon now widely called ‘Islamophobia’. One religious and cultural symbol in particular attracted renewed political, but also legal, attention over the past years. Targeting the hijab has in fact served as a profiling technique, one way to pin down ‘the Muslim archetype’. In these politics of symbol-hunting, women’s bodies have become – as often – a place of projection for societal contestations. Gender performance and gender politics therefore cannot be ignored in our legal dealings with this particular configuration of Islamophobia. It is therefore puzzling that litigants, their lawyers and the Court of Justice of the EU altogether are willing to set this reality aside, as they did in recent cases Achbita and Bougnaoui (2017). Why have these cases been dealt with as religious discrimination, remaining silent about the race and gender dimensions? In this paper, I explore frame disputes between an academic understanding of Islamophobia as intersectional discrimination, and the litigants’ strategic reliance on religious discrimination claims, a minority rights based approach.

Lost in translation? Migrants’ quest for dignity in the UK
Virginia Passalacqua, European University Institute

Migration is a dignity-seeking journey’ but migrants are often denied dignity when they reach Europe. To deter migration, several European governments have introduced policies that strip migrants of their dignity, by confining them to the margins of society and exacerbating their vulnerable position. Virginia Passalacqua’s paper analyzes selected UK dignity-stripping measures on family migration and shows how migrants’ supporter groups challenged these measures using supranational litigation. Passalacqua demonstrates how, even in cases where eventually the given national policy was declared unlawful, the court’s reasoning failed to satisfactorily restore the dignity of the migrant; the judgment was based on evaluations such as the discriminatory character of the policy, rather than its negative impact on the dignity of the person involved. By analyzing the process through which a migrant’s claim to dignity is reframed and transformed into a legal claim to dignity, she shows that something important gets ‘lost in translation’, laying bare the limits of the law as an instrument to restore dignity.

Competing conceptions of dignity in Roma rights activism
Lilla Farkas, European University Institute

Lilla Farkas looks at the conceptions of dignity by European and US actors in the transnational Roma rights network. She shows that long preceding the dilemma the Charlottesville incident brought to light in the US, Roma rights lawyers in Europe stood for the equality of a racialised minority in its quest to curtail hate speech. They did so in defiance of the US constituents of the Network, who favored liberty over equality, a collision Risa Goluboff argues is perhaps “not for the law to resolve”. Conversely, when it came to forced evictions from segregated housing US actors urged nonaction for basic human dignity so as not to compromise a broader struggle for equality (integration). In lieu of Roma rights lawyers of Roma origin, hard decisions on balancing US and European conceptions of dignity on the one hand and the interests of the socio-economically very different Roma ‘classes’ on the other fell to Roma activists. While the Roma activists at the regional level fortified by the international legal elite aligned their agenda with US legal liberalism, domestic actors stuck to European conceptions of social justice. Revisiting Derrick Bell’s classic take of ‘serving two masters’ Farkas sheds a different light on the agency dilemma. In this case study the political liability of elite activists and lawyers is contrasted to their domestic counterparts. Ultimately, domestic lawyers instrumentalised the fundamentally decentralised nature of the transnational practice field to counterbalance the demands of resourceful constituents, trading off professional acknowledgement while fighting for dignity on their clients’ terms.

From Race to Human Dignity? The Evolution Anti-Deportation Campaigns’ Political Claims in the UK from the 1970s to the present day
Diletta Lauro, University of Oxford, Lincoln College

In her paper, Diletta Lauro explores the ways in which various grassroots actors have contested the state use of deportation as a normalised policy solution to combat irregular migration in the United Kingdom. In particular, Lauro is interested in examining anti-deportation activists’ political and normative arguments against deportation and the ways they change over time. Tracing an evolution of anti-deportation campaigning from the late 1970s to the present day, Lauro demonstrates that there has been a shift in the arguments of these campaigns; from a focus on the discriminatory nature of immigration controls – and the ways in which both race and the legacy of colonialism intersect with dominant conceptualizations of the nation – during the 1970s and 1980s, to an emphasis on migrants’ human dignity, the procedural injustices related to the asylum process, and the emergence of more localised forms belonging since the 1990s. While acknowledging that anti-deportation campaigning in the UK has always been embedded in tensions between the humanitarian and the political, Lauro argues that this shift is part of a broader process de-radicalization of anti-deportation campaigning, which in turn is rooted in the changing legal-institutional framework, political opportunity structure and ideological context of the UK.


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