Law and the Study of Migration

Unlike History, Law is not a research discipline or tool of social analysis. Law is a tool of regulation; as such it constructs 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. Law is overwhelmingly produced on a national basis, and 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.

This paper examines migration and sovereignty in the Westphalian and partially post-Westphalian eras. It examines some ongoing problems, as well as some new ones and the reforms that the current historical period has witnessed. It then addresses the neo-Westphalian backlash against recent migration developments and closes with an assessment (post)-multiculturalism and the neo-liberal welfare state.