> Wsifran Chise Blog - Criminal Law and Criminology - wsifranchise.info http://wsifranchise.info en j.d.maaskant@law.leidenuniv.nl Copyright 2017 2017-03-23T13:38:00+00:00 Who to vote for in these challenging times? - wsifranchise.info http://wsifranchise.info/articles/who-to-vote-for-in-these-challenging-times http://wsifranchise.info/articles/who-to-vote-for-in-these-challenging-times#When:06:00:00Z Many people do not yet know which party to vote for in the upcoming elections. To avoid escalation of conflicts it has become essential to choose individuals with balanced minds – politicians who are able to transcend a dualistic world view.]]>

This year there will be elections in several European countries and on 15 March it will be the Netherlands’ turn. The number of parties to choose from here is historically high, no less than 28. But even with such a huge choice many people have said they do not yet know which party they are going to vote for. Apparently, choosing the right political party in these times is far from easy. And how do you know you have made the right choice? After only one month of Trump’s presidency in the US, I’m sure many protest voters are already very much regretting their choice. They had listened to his many promises but had not taken account of his personality.

Focus on individuals

Therefore it makes sense to be more aware in advance what the likely consequences will be of a particular vote. I think the prime question for the coming elections (in whatever country they take place) is: do you want to contribute to an escalation of conflicts (on different levels) or do you genuinely want to contribute to a reversal of the process? Considering the current developments in world politics and the presence of a survival instinct in all of us, I bet not many people would seriously opt for an escalation.
To realize the reversal process, a decline in conflicts, I think it is more important than ever that – before we blindly accept the beautiful promises of the party programmes – we must first take a closer look at the individuals within the parties, starting of course with the party leaders. The current situation in the US, which is affecting the whole world, shows that it is essential to get individuals with reasonably mature, balanced minds on the influential positions. The party banner they operate under is not insignificant, but it takes second place.

Transcending dualism

For me, the central criterion is to vote for someone who personally knows the limits and dangers of a dualistic world view, and is also able to transcend it – thereby creating a mental space for building bridges. In a nutshell we can say that dualism is an expression of our ego consciousness, which is rooted in our heads, whereas transcending it means that our heart gets involved as well and is even allowed to take over. When this happens, we are bound to remember that in fact we have always been interconnected beings – connected to others, to the country, and to the world.

Reciprocity

That this deeper, connected side of ours is not just some fanciful idea we can witness in the fact that no one can live without breathing the air, drinking the water, and eating the food, which the natural environment keeps on offering us continually without asking anything in return. And the incredible amount of cultural wealth, created by people of previous generations and freely given to us, must also not be taken for granted. Transcending dualism means becoming aware of the importance of reciprocity: of being deeply grateful and considering it natural to offer something in return for all that has been given. This is essential wisdom for politicians who genuinely want to serve the inhabitants of their country and the natural world. It is my firm belief that only politicians who know at heart that we are interconnected beings can be trusted with making good decisions and creating good laws.

Avoiding bad laws and bad examples

I think we should avoid voting for politicians who are still largely missing this kind of wisdom. Observing today’s political developments we can see that ego-driven politicians are primarily identifying themselves with the Absolute Good and are recognising anything negative only in an absolute sense in other easily identifiable groups. Jungians would say they are projecting their inner shadow onto others. It should be clear to voters that politicians with this kind of dualistic mindset cannot serve anyone but themselves and should not be trusted with anything either – least of all with taking decisions and making laws that deal structurally with the problems in our society. And we should not forget that they are simply setting a bad example to all of us, by saying that it is OK to be like them – to be angry all the time, to be proud to exclude people, to project fear onto others – and that this is all there is to being human.

Balance and challenge

But of course there is a lot more to being human, and fortunately many people are aware of this. We should not underestimate the fact that a growing number of people on this planet have discovered the wealth of their inner potential, and know that the meaning of their life depends on developing this potential. They are continually working on transcending their own dualistic tendencies, on balancing their ego and their deeper interconnected side. They know that it is an exciting project that is never finished, and that there is also a real challenge in being involved in this. Because of this they have begun to feel more part of a rising Earth Community than of any particular country. (See my previous blog on this theme.) Naturally there are politicians who have picked up this ‘spirit’ as well and try to include it in their policies.

Finding the right candidate

How can we recognise these kinds of politicians? Simply by their sense of being genuinely grateful and compassionate, by their honesty and openness, by their peaceful intentions, by their cooperative nature, by the absence of any smart media strategies to trick us into voting for them, by the absence of hidden agendas. And, perhaps most importantly, by the fact that they only speak after they have listened! Personally I have spotted a few Dutch politicians who express these qualities to a reasonable degree. And, after having weighed the content of their party programmes as well, one of them will get my vote in March.  

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2017-02-22T06:00:00+00:00
An old, dying Empire versus a rising Earth Community - wsifranchise.info http://wsifranchise.info/articles/an-old-dying-empire-versus-a-rising-earth-community http://wsifranchise.info/articles/an-old-dying-empire-versus-a-rising-earth-community#When:08:00:00Z Trump and his followers have shown that patriotism and imperialism are not dead yet. They are part of a larger populist movement, which is still small compared to the rising number of people who feel they belong to an Earth Community. ]]>

If there was one line of Trump’s inauguration speech on 20 January, that kept echoing in many minds – and in mine too –, it was ‘From this day forward it is going to be only America first’. I heard someone comment that this entire speech could have been held a year ago, because it still sounded as if he was campaigning for presidency. Indeed the tone of anger, opposition and struggle had not yet disappeared, and I’m sure it will persist, because the complete outlook of Trump is founded on it.

The old Empire song

Somehow this week the song Old England by the Waterboys from the 1980s quite often came to my mind. It emphasises that although ‘old England is dying’, ‘still he sings an empire song, still he keeps his navy strong, and he sticks his flag where it ill belongs’. Of course imperialism, which has always mixed well with patriotism, has been the driving force behind much of Western history and has also existed in America with its Manifest Destiny. And now that Trump has claimed America for the Americans first and wants to make it ‘great’ again, the empire turns out to be not fully dead yet.

Opposition and denial

It is no coincidence that this new manifestation of patriotism has emerged also in several other Western countries: Wilders who wants the Netherlands for the Dutch first, a Brexit Britain for the British first, and so on. Populist politicians answer the call of a lot of Western people who apparently feel confronted with a threatening development they must collectively oppose.
Although the ‘new patriots’ passionately put their fellow countrymen and women on a pedestal, and want to protect them badly from anything that comes from abroad, I think this is only a surface projection of a much deeper sense of inner denial: the denial of the ongoing development towards global interconnectedness and of a growing awareness of our embeddedness in the surrounding natural world. In this sense the new patriotism differs from its predecessors.

Moving towards an interconnected world

To put this in perspective the ideas of David Korten are interesting. In his book The Great Turning (from 2006) he has argued that ‘the way of Empire’, which has been around for 5000 years, is leading to environmental and social collapse, and therefore unavoidably we are moving towards an Earth Community. According to him, this process entails an entire transformation of our culture: ‘The turning from Empire to Earth Community has two primary elements. First is a turning from money to life as our defining value. Second is a turning from relations of domination to relations of partnership based on organizing principles discerned from the study of healthy living systems.’ (p. 295) It can hardly have escaped anyone’s attention that through the centuries there has been an ongoing movement towards globalisation, and that especially in our time the world is becoming increasingly interconnected.

A cultural synthesis and planetary awareness

Although with regard to globalisation the focus has often been exclusively on the economy, this process is even more significant in a cultural and spiritual sense: increasingly we have become familiar with the rich diversity of cultures on our planet, which have existed and still exist all over the world. In retrospect the Western world has even started to reevaluate the various indigenous cultures that it had struggled against so persistently for centuries.
This development has triggered human awareness in an unprecedented way: there is the promise of a global cultural synthesis in which the best from all cultures can be integrated – to become a true melting pot. And this happens in a context of an even larger planetary awareness, which has gradually spread since the pictures of earth made by the Apollo astronauts at the end of the 1960s have become transformative icons.

Fearful, defensive minds

But although the old Empire is definitely dying, it does not easily give way to the rising Earth Community, as the popularity of the populist movement clearly shows. The old collective identities, which have been handed down to us through the centuries, no longer fit and are even showing serious cracks. Yet it turns out that a large number of people seem unable to open their minds to the presence of these worldwide changes. Fearfully, they react by clinging even tighter to their secure collective identities, enlarging them, defending them at all cost. With the sad result that new walls are being erected and border controls are being reinstalled everywhere.

The damage done and the role of law

I think the increasing number of people who feel they belong to an Earth Community are aware of the tremendous damage that the Empire has caused and will continue to be causing under the rule of the populist movement. In particular, on a macro level the natural environment will continue to suffer badly. As is well known,Trump has denied that climate change exists. In this he is a real spokesman for the entire the populist movement: climate change is absent on any populist agenda. But now that it has become clear that in 2016 the global temperature has risen one full degree, who can seriously keep on denying the reality of climate change? That’s why it is high time to get ecocide recognised as a major crime, as suggested by Polly Higgins, and to get the rights of Nature or of Mother Earth recognised by all countries, as advocated by Cormac Cullinan.

Patience and hope

I have good faith that eventually the movement towards an Earth Community will be the stronger development which will prevail. We just have to be patient. In this respect the large-scale protests on the day after Trump’s inauguration – whose very diverse participants are representatives of the Earth Community – are quite hopeful. Surprisingly, he did not react, as though it hadn’t happened at all. But, as the saying goes, sometimes silence speaks louder than words…

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2017-01-25T08:00:00+00:00
Investigating Cybercrime - wsifranchise.info http://wsifranchise.info/articles/investigating-cybercrime http://wsifranchise.info/articles/investigating-cybercrime#When:09:59:00Z In this blog post, the main results of the dissertation ‘Investigating Cybercrime’ are presented. ]]>

On 10 January 2017, I successfully defended my PhD thesis ‘Investigating Cybercrime’. In this blog post, I would like the share my main research results.

Cybercrime investigations

My study shows that in cybercrime investigations, evidence is often gathered by following the two digital leads of IP-addresses and nicknames. I explain how evidence is gathered, based upon these leads. In cybercrime investigations, law enforcement officials often encounter the three challenges of anonymity, encryption and jurisdiction. These challenges can leave law enforcement officials empty-handed in certain circumstances.

However, law enforcement officials can use digital investigative methods to deal with these challenges. The following four investigative methods are identified and further analysed in the study: (1) gathering publicly available online information, (2) issuing data production orders to online service providers, (3) applying online undercover investigative methods, and (4) performing hacking as an investigative method.

Regulating digital investigative methods on a national level

On a national level, my research shows that the identified digital investigative methods are not regulated in a foreseeable manner in the Netherlands. The reason is that the scope and manner in which investigative methods are applied are not sufficiently clear. In addition, I argue that the quality of the law for certain investigative methods is not adequate. The main and concrete results of my analysis are as follows:

  • The manual and automated gathering of publicly available online information should be regulated in detail, outside criminal procedural law. These regulations should indicate how data protection regulations should be applied in a concrete manner when these digital investigative methods are used.
     
  • The regulations for undercover investigative methods (both online and offline) should be improved by incorporating supervision by an investigative judge.
     
  • A warrant requirement should apply for obtaining traffic data and content data from online service providers. The category of ‘content data’ should be defined more clearly by the legislator or Public Prosecution Service.
     
  • Regulating hacking as an investigative power is necessary. The proposal to regulate this investigative method in the Computer Crime Act III is adequate. However, the investigative power is formulated in a rather broad manner and the legal consequences of its application to ‘disrupt cybercrime’ are uncertain.

Regulating digital investigative methods on an international level

On an international level, my research shows that the application of digital investigative methods are not sufficiently taken into consideration in mutual legal assistance treaties. States should realise and take into consideration that unilateral cross-border digital evidence-gathering activities already take place.

The application of digital investigative methods can endanger both State sovereignty and the legal certainty of individuals in certain circumstances. At the same time however, I argue that unilateral cross-border digital evidence-gathering activities should be permissible in certain circumstances. Ideally, States agree on what terms these evidence-gathering activities are allowed and protect the right and freedoms of the individuals involved in mutual legal-assistance treaties or on an ad-hoc basis. In the meantime, States should create a policy for their law enforcement authorities to determine under which circumstances unilateral cross-border digital evidence-gathering activities are allowed. I provide recommendations about these restrictions for the Dutch legislator.

Finally, I would like to say that it has been a pleasure performing research as a PhD Candidate at Leiden University. I will continue to do research in cybercrime, cybersecurity, digital investigations and privacy in the future.

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2017-01-11T09:59:00+00:00
Will the real you please stand up! - wsifranchise.info http://wsifranchise.info/articles/will-the-real-you-please-stand-up http://wsifranchise.info/articles/will-the-real-you-please-stand-up#When:07:00:00Z Everywhere collective identities are struggling with other identities. They are mere substitutes, however, for the personal identity we are born with – whose development is justly protected as a human right and is the antidote to the crises facing us.]]>

When a good few years ago Maxima, before she became Queen of the Netherlands, stated publicly that she had searched for, but not found, the ‘Dutch identity’, it caused a lot of heated discussion. Since then this discussion has continued and it has turned out that it is not limited to the Netherlands: nowadays it hits a sensitive nerve with people all over the world. With the election of Trump in the US, the rising popularity of populism and protective nationalism in almost every country, we can see how we are struggling on a global scale with our sense of identity. Calls are now being made to protect it, to distinguish it from other identities. And what happens if we lose our identity? Can we then search for it and reclaim it? To deal properly with this issue, we must first get a clear picture of what we are actually talking about.

A dualistic identity

I think the sort of identity that Maxima was talking about and which is also central to the debates in the media, is what I would like to call a dualistic identity. It is collective and exclusive in nature:  it tells people which group of similar thinking people they belong to and which easily identifiable groups they definitely do not want to belong to. It even owes its very existence to a constant confrontation with the other identities and refutation of their ideas. Today we witness all around us how people with a dualistic identity see enemies everywhere and welcome polarisation.

A personal identity

There is also good news: fortunately a dualistic identity does not express something very deep. It is only ego-driven. People clinging to it are often unaware of the fact that in them there has always existed and still exists a completely different kind of identity, a very individual, authentic and ever-evolving one. An identity that everyone is born with it, potentially, and no one but ourselves can transform into an actuality.
The American archetypal psychologist James Hillman has written interesting books about this kind of identity growth: The Soul’s Code and The Force of Character. In them he shows that the core of our character, the ‘acorn’, is present from the day we are born, but often takes a lifetime to develop and reveal itself fully to the outside world. It is an individual challenge that is offered to everyone and expresses something far deeper than ego.

Open, cooperative and connected

Hans Andersen’s story of the Ugly Duckling beautifully illustrates the development of the personal identity. As the story shows, this development is not always easy, but gradually reveals who we actually are, the authentic person living inside, the unique individual who is unlike anybody else. A personal identity is inclusive and cooperative, open to others and the world. However individual in nature this identity might be, paradoxically it does not feel separated from the world: it feels very much connected to the larger whole – the nonhuman realm which stretches out beyond all human groups.  

Recognised as a human right

It is telling that the Declaration of Human Rights (Art. 22 and 29) only mentions the right to develop a personality – a personal identity. It is an important recognition of the fact that we all have unique individual qualities that must be treasured and given the freedom to develop. There is a lot of wisdom in this protection: unique beings by definition deserve our respect. It also makes sense in relation to other human rights, like the freedom of expression (or speech). We can only trust people with well-developed personal identities with the freedom of expression.
In this respect it is understandable that the dualistic identity is not recognised as a human right. People clinging to this kind of identity, focused on a struggle with others whom they have reduced to a mere category, do not have the mental space to simultaneously respect other people’s rights or freedom.

(Getting rid of) substitute identities

When we inspect the two types of identity a bit closer, we can see that the dualistic identity really is a substitute identity. When we have lost touch with our authentic, evolving personal identity, however, we still are vaguely aware that there is something important lacking in our life. That is when collectives, from soccer teams to (populist) political parties to even whole nations, can easily step in to fill the gap with their dualistic identities – which are always static blueprints, resisting any change.
And once again there is some good news:  people today are increasingly becoming aware that in the present political ‘climate’ – where attention has shifted again to tightening border security and potential enemies instead of to the far more comprehensive issue of ‘climate change’ – this clinging to static, collective identities is not only giving people a false sense of security, but can even become destructive on a global scale. The sheer worldwide sense of shame and fierce protests surrounding the election of Trump must be seen in this light.

In a sense, we should be glad that Queen Maxima was unable to find the Dutch identity. This can truly be seen as a message of hope. The real antidote to the crises facing us today is that we collectively start cherishing the development of our diverse personal identities.

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2016-12-14T07:00:00+00:00
A call to make a guideline for online investigations accessible - wsifranchise.info http://wsifranchise.info/articles/a-call-to-make-a-guideline-for-online-investigations-accessible http://wsifranchise.info/articles/a-call-to-make-a-guideline-for-online-investigations-accessible#When:13:46:00Z A public policy on the gathering of publicly available online information does not exist. Such a policy should be made available in order create an accessible and foreseeable legal basis for the application of this investigative method.]]>

The gathering of publicly available online information is nowadays part of ‘most police investigations’. Some call this information the ‘new social DNA’ for law enforcement. Indeed people publish massive amounts of information about themselves on the internet on a voluntarily basis. At the same time other people can also publish information about individuals on the web. Law enforcement authorities make use of this information to fulfil their tasks, such as maintaining public order, and as a source of information in criminal investigations. In this blog post I submit that Dutch law enforcement authorities and the Public Prosecution Service should publish their policy on the use of publicly available online information in criminal investigations.

Accessibility and foreseeability

A policy on the use of privacy-interfering investigative methods should be accessible and foreseeable to the individuals involved. Accessibility means that a guideline or regulation is published and made publicly available to individuals to take notice from. Foreseeability means that the scope of investigative methods and the manner they are applied are clear to the individuals involved. An arbitrary interference by governmental authority powers in the private lives of individuals can be avoided with a foreseeable legal framework.  

Murky legal basis

At the moment it is likely that the gathering of publicly available online information takes place on the legal basis of law enforcement officials’ statutory task description for the investigation of crimes (art. 3 of the Dutch Police Act). This is implied in legislative history (the explanatory memoranda on the Act on special investigative powers and the Computer Crime Act II). Although these acts go back more than 15 years - at a time when the Internet looked very different and social media services were not as popular - this is the only legislative history available. In addition a court in The Hague decided in 2011 that law enforcement officials can make use of Google Earth on the basis of art. 3 Police Act.

However this legislative history and court decision become murky when they explicitly mention that “information cannot be gathered systematically and stored in police systems” upon the basis of art. 3 of the Police Act. When exactly is information gathered systematically about individuals? Is it when a “more or less complete picture of certain aspects of an individual’s private life” is obtained? And then what? What special investigative powers apply? Shouldn’t the investigative activity be part of the task of law enforcement officials, to gather the necessary data they require for a criminal investigation without the application of special investigative powers?

Online observation

When law enforcement officials observe the online behaviours of individuals the special investigative power of ‘systematic observation’ applies. The Dutch legislature suggested at the time that factors such as the duration, place, intensity, frequency and the use of technical devices should be taken into consideration to determine whether the behaviours of individuals are observed ‘systematically’. Still, these abstract factors were originally written for application in the physical world and provide a lot of leeway for law enforcement officials and public prosecutors to decide when application of the special investigative power of systematic observation is required.

Data protection regulations

It is clear however that data protection regulations on the gathering of personal data restrict the investigative activity. Data protection regulations apply as soon as law enforcement officials look for the information on their computers or use an automated data collection system, to gather the information. These regulations thus apply at an earlier stage than when the results of the search are stored in police systems. Earlier research (see for instance this report and this report (in Dutch)) raises questions about how automated data collection systems meet key principles of data protection regulations. Yet these questions remain unanswered by law enforcement authorities and the legislature.

Conclusion

We – the people – require an explanation of how and under which conditions law enforcement authorities gather publicly available online information. Interestingly, in a 2016 master thesis (.pdf in Dutch) an internal procedure on the ‘gathering of data from social media services’ is mentioned. If such a policy indeed exists, but is not made available to the public, the law is not accessible and foreseeable to the individuals involved. For that reason I urge Dutch law enforcement authorities, the Public Prosecution Service and the Dutch legislature to make such a policy public. If such a policy does not exist, a guideline should be developed and published online as soon as possible. 

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2016-12-01T13:46:00+00:00
South-South migration: law, procedure, and exclusion in under-explored contexts - wsifranchise.info http://wsifranchise.info/articles/south-south-migration http://wsifranchise.info/articles/south-south-migration#When:08:00:00Z With anti-migrant sentiment apparently rising in the global North, this blog post turns to exclusionary measures in relation to South-South migration. ]]>

Rarely has there been a more poignant time to write about migration and discrimination. The recent election of a candidate to the US presidency who has gone on record calling Mexicans rapists and promoting a ban on Muslims entering the country is deeply and profoundly disturbing. Whilst not generally expressed so vociferously or in such starkly racist terms elsewhere in the global North, rising xenophobia is increasingly a feature of politics and policy – playing a part, for example, in the recent Brexit vote in the UK.

It is not just in the global North, however, that anti-migrant sentiment is translated into action by both policy makers and the public. Nor does this translation always occur in obvious ways. Through our research, we seek to uncover the ways in which migrants in different parts of the globe face both overt and subtle exclusion on a daily basis, and how this is at times a product of law and policy. This blog will focus on a context of exclusion that has remained under-explored in the literature – that of Bolivian migrants in Chile – and will attempt to provide two frameworks to interpret the exclusionary measures being taken in this context: that of crimmigration and that of attrition through enforcement.

The exclusion of Bolivian migrants in Chile

Megan Ryburn explores through interviews and participant observation the everyday experiences of citizenship of Bolivian migrants in Chile. Bolivians in Chile form part of an increasing flow of migrants entering Chile from neighbouring countries. Many are forced to live what Megan terms uncertain citizenship – a series of exclusions from multiple aspects of citizenship across nation-state boundaries.

One aspect of citizenship that she explores with them is legal status (other aspects include social and political rights). Both through Chilean migration legislation as it exists ‘on paper’ and through the ways it is put into practice by some border agents and public officials, Bolivian migrants often face discrimination. As a human rights lawyer in Chile told Megan, Decree Law 1094, the most important legal instrument governing migration in Chile, is a norm dictated under the state of exception in the year 1975 [during the Pinochet dictatorship], which establishes a police regime … with regards to foreigners in Chile.

In spite of some important changes to migration law over time, there remains a pervasive logic of exclusion stemming from Decree Law 1094 that permeates the residency and naturalisation application processes. The visa application fees, for example, are prohibitively high for low-wage migrants. Moreover, it can be very difficult for migrants to access and understand the application process, and this is often not facilitated by public officials. As Diana (not her real name), a migrant interviewee, explained, “They attend you very badly in all honesty and it makes you not want to ask anything.”

Poor service, complex bureaucracies, and this pervasive logic of exclusion can all act to push migrants into situations of ‘illegality’. Lack of legal status impacts on all other aspects of migrants’ citizenship. To give but one example, there are currently around 25,000 migrant children in Chile who exist in a legal limbo because they have not been assigned a Chilean identity number. Amongst other problems, non-assignation of an identity number leads to their years of schooling not being officially recognised, meaning they cannot sit university entrance exams. Thus their exclusion from the legal domain of citizenship impacts on their ability to access education, which can be considered part of citizenship’s social dimension. Megan’s research revealed many other similar overlapping exclusions from different arenas of citizenship.

Crimmigration and attrition through enforcement

There are two concepts – used particularly by Patrick van Berlo in his research – that can help us to understand the processes leading to, and stemming from, these multiple exclusions from different dimensions of citizenship: crimmigration on the one hand and attrition through enforcement on the other.

The merger of criminal law and immigration law – a process described as ‘crimmigration’ for the first time in 2006 by Juliet Stumpf – has been explored in different contexts before on the Wsifran Chise Blog. Over the past decade, the term has been employed by many scholars across a variety of disciplines to denote not only the blurring boundaries between criminal and immigration law, but also the more general amalgamation of criminal justice and immigration enforcement. Thus, as Van der Woude & Van Berlo (2015) outline, “[t]his process of crimmigration manifests itself on different levels: the level of political and public discourse, where crime and immigration are increasingly lumped together in debates and political decision-making, the legislative level, where substantive criminal law and immigration law are increasingly merged – and the level of procedure and enforcement”. The result of these processes is an ever-expanding population of outsiders across the criminal-migrant divide.

On the other hand, the notion of attrition through enforcement has been proposed to denote the idea that the return of ‘undesired’ migrants can be attained by extremely discouraging policies that rely on strict enforcement. As such, the idea is that – if the aim is to exclude certain categories of migrants from our society – the most effective way to do so is to cut their access to key services and institutions, including education, employment and public benefits. Simultaneously, local police forces must be deployed for immigration enforcement purposes. As such, this approach focuses much more on voluntary self-deportation, although it of course can be questioned whether such self-expulsion can indeed be seen as voluntary given the sober policies and strict enforcement measures required under this approach.

Crimmigration and attrition through enforcement seem to be closely related: they both focus on the exclusion – both physical and symbolic – of undesired migrants from society, albeit via different routes. Moreover, attrition through enforcement may push migrants into illegality, which feeds into crimmigration rhetoric and practices. Indeed, the strict enforcement mechanisms required under the attrition through enforcement approach may be seen as ultimate expressions of crimmigration, where the migrant has been labelled as belonging to, and drawn into, a sphere of criminality.

In the literature on these notions, their presence and effects have been examined by looking at countries in the Global North. As this blog shows, however, they may also be valuable tools in denoting the situation in cases of South-South migration: in these contexts too, examples of crimmigration and attrition through enforcement seem indeed to be present. As outlined above, Bolivian migrants in Chile are pushed into illegality on the basis of their non-belonging and face an array of exclusionary policies that destabilise their position in society.

A note of hope

Nevertheless, in the Chilean context there have been moves to challenge such exclusionary policies, both from actors in civil society and from within government itself. An initiative (in Spanish) has just been established by the Chilean Departamento de Extranjeria y Migraciones (Department of Immigration) to foment greater collaboration between the state and academia in order to improve public policy pertaining to migration. The #NoMasRut100 campaign (in Spanish), started by the NGO Servicio Jesuita a Migrantes, has gained significant traction as it seeks to prevent migrant children from entering into the legal limbo that results from non-assignation of an identity number. 

Time will have to tell whether such initiatives will indeed manage to alter rhetoric, legislation and policy vis-à-vis migrants. Much work remains to be done, and it is essential for migration scholars to maintain a critical stance as we address discrimination in migrants’ daily lives in the global North and the global South, applying concepts such as crimmigration and attrition through enforcement. But as we enter an era of anti-migrant sentiment in the global North, we would also do well to cast an eye globally at the projects and people who offer some possibility of hope.

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Criminal Law and Criminology, 2016-11-16T08:00:00+00:00
When words get in the way… - wsifranchise.info http://wsifranchise.info/articles/when-words-get-in-the-way http://wsifranchise.info/articles/when-words-get-in-the-way#When:08:00:00Z Dutch governmental organisations have decided to get rid of the words ‘autochtoon’ and ‘allochtoon’ – widely used to define native and non-native inhabitants – because they were stigmatising and confusing. But do we know what they really mean? ]]>

In the Netherlands until recently the terms ‘autochtoon’ and ‘allochtoon’ were widely used to distinguish between native and non-native inhabitants. They were first suggested in 1971 by the sociologist Hilda Verwey-Jonker, and from 1989 on they were used widely in reports of governmental organisations. At the beginning of November this year, however, it was announced in Dutch media that two of these organisations – the Wetenschappelijke Raad voor het Regeringsbeleid (the Scientific Council for Government Policy, WRR) and the Centraal Bureau voor Statistiek (the Central Bureau for Statistics, CBS) – have decided to stop using them, because their meaning was no longer clear and they were stigmatising people. From now on they will only be speaking about ‘inhabitants with a Dutch or a migration background’.

Defining non-natives

An ‘allochthonous’ (non-native) inhabitant of the Netherlands was defined by the WRR in 1989 as someone of whom at least one of the parents had been born abroad. This rule might not have had the status of law, but it has had a big impact all the same. And the trouble started with this definition. To qualify inhabitants who have one foreign parent as non-natives doesn’t make much sense. It has unnecessarily created a large group of non-natives, who themselves probably feel very Dutch – including for instance my own daughter, who has an Irish mother. The terms ‘autochtoon’ and ‘allochtoon’ became even more problematic, when ‘white’ inhabitants of Dutch descent started using them primarily to distinguish themselves from and feel superior to the ‘coloured’ inhabitants with foreign roots.

A new and very limited meaning

Now that the words seemed to have increasingly got in the way, perhaps it is quite understandable that people in governmental organisations decided to radically end this continuing confusion. But we should realise that at least the concept of ‘autochthony’ is not new. Although it was not widely used, it did already exist – and with a meaning that makes much more sense to me, and also feels closer to its real meaning, than the new and very limited meaning given to it by the WRR.

Belonging to a place

The historian of religion and mythologist Mircea Eliade has said some interesting things about the meaning of ‘autochthony’. In his book Myths, Dreams and Mysteries he explains that ‘autochthony’ expresses ’the profound feeling of having come from the soil, of having been born of the Earth in the same way that the Earth, with her inexhaustible fecundity, gives birth to the rocks, rivers, trees and flowers. It is in this sense that autochthony should be understood: men feel that they are people of the place, and this is a feeling of cosmic relatedness deeper than that of familial or ancestral solidarity.’ In another book, The Sacred and the Profane, he expresses it in a slightly different way and links autochthony to ‘the feeling (…) of belonging to a place.
In other words, autochthony has nothing to do with rules, reason and objectivity, and everything to do with the personal, subjective realm of feeling and more specifically with the feeling of belonging to a place.

The realm of the chthonic

The second part of the concept, ‘chthony’, is interesting as well. It is related to the word ‘chthonic’, which refers to what is underneath the earthly surface, to the subterranean world, to (in Eliade’s words) the inexhaustible fecundity of earth, which gives birth to rocks, rivers, trees and flowers – and of course also to humans. In this sense autochthonous people consider themselves first and foremost earth beings, and are very much aware of the sacred quality of the ground beneath their feet. This earthly connection is so essential to human life that the people who have lost it cannot stop longing and searching for it– which explains the fact that people sometimes return to their place of birth to find it. (In this respect, see my previous blog on the sacred landscape.)

Beyond familial or ancestral solidarity

When Eliade says that autochthony goes ‘deeper than familial or ancestral solidarity’, he means that it is related to our sense of embeddedness in the natural environment. This sense expresses itself on the one hand locally in a connection to the natural environment, but on the other hand in a ‘cosmic relatedness’ which reaches beyond man-made borders between national states (inspired by ancestral solidarity). Autochthony is all about our relationship with the earth, with Mother Earth, and not with an abstract conception of a nation or a state. Historically we may have shifted our focus primarily to our human activities, but we should not forget that without our embeddedness in nature, our life is bound to lose its deeper meaning.

To get down to earth

I like the idea that autochthony, the way it is described above, is something which some people do not automatically possess as a birthright and might even lose along the way. It implies that we actually have to do something – to get down to earth – to stay in touch with it. It could inspire us to take another good look at the place we have been living all our lives, and perhaps even to discover things in it that have somehow always escaped our attention. And when we really feel that we belong to a place, I am sure we welcome ‘inhabitants with a migration background’ in it as well.

So the overall moral of the story is: before we get rid of certain confusing words, we would do well to first get to know what they actually mean. 

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2016-11-09T08:00:00+00:00
Are you a victim? The low self-identification of victims of labour exploitation - wsifranchise.info http://wsifranchise.info/articles/are-you-a-victim-the-low-self-identification-of-victims-of-labour-exploitat http://wsifranchise.info/articles/are-you-a-victim-the-low-self-identification-of-victims-of-labour-exploitat#When:07:00:53Z Many victims of labour exploitation do not perceive themselves as a victim. Why is it that some victims come to recognize their victimhood whereas others remain in the dark?]]>

Since 2005 some forms of labour exploitation have been criminalised as human trafficking in the Netherlands. From a legal point of view it is difficult to identify labour exploitation, as clear guidelines are lacking. Since this criminalisation attention for combatting labour exploitation has continued to grow and different parties have invested in recognising victims. Jurisprudence increasingly provides guidelines. Nowadays victims are generally identified more easily than before, but at the same time many victims still go unrecognised.

That the identification of victims of labour exploitation is not yet functioning optimally is presumably partly because of the commonly held idea that suffering from labour exploitation is less devastating than being exploited in the sex industry.  This image is dominant both among the general public as well as among professionals. However  victims of labour exploitation can also experience serious abuse. Some are misled about working conditions, are trapped in their workplace and experience physical violence. Victims may also experience psychological and physical symptoms that are similar to victims in the sex industry. The perception that being a victim of labour exploitation is not so problematic is worsened by the victims themselves: through their low self-identification. Victims are not likely to consider their own suffering as serious enough to seek help nor to report their victimhood to the police.

Human trafficking is an offense which does not take place at one moment in time, but has a long-term character. This means that it is not easy to compare its victims with those of other types of crime. Trafficking victimisation is created under the influence of constant exploitation. The moment of self-identification may occur at various times during the exploitation or only take place afterwards. Self-identification is crucial so that victims may try to leave the situation or seek help. From victimology we know that self-identification can also be slow for other types of crime, for example because victimization is defined too narrowly or because of psychological mechanisms such as denial or repression. These factors probably also play a role in labour exploitation. Moreover there are a number of additional explanations for the low self-identification of victims of labour exploitation.

Scholars, for example, often point to victims’  immigrant background. Victims do not perceive the circumstances under which they work as worse than what they were used to in their country of origin; sometimes they even regard them as an improvement. They are also often not well-informed about their rights. This makes them less likely to see themselves as victims of labour exploitation. Others point to the fact that many victims are migrants with a precarious residence status, who fear deportation if they report violations to the police.

While it is clear which obstacles play a role in explaining victims’ low self-identification, it remains unclear how some victims of labour exploitation - given these obstacles – do arrive at self-identification. This question was examined in a recent article published in Tijdschrift voor Criminologie. Drawing on in-depth interviews and focus group discussions with victims and professionals, this qualitative study points at the importance of information provision in this process and identifies two ideal-typical pathways to self-identification. In the first trajectory self-identification is gradually formed through information gathering and deteriorating working conditions. In the second trajectory self-identification is triggered by a sudden vital event.

Organisations such as Fairwork provide information on labour rights to labour migrants who are in precarious situations. It turns out that receiving this information can accelerate or confirm the self-identification process for victims in the first trajectory. For victims in the second trajectory information is not a trigger for self-identification, but it does play a role in making it easier to seek help from organisations once they have already come to realise their victimhood. Victims’ educational level is likely to play a role here in that for better educated migrants, information can actually act as a trigger for self-identification because they are better able to process the information than less educated migrants.

It is important to improve the self-identification of victims of labour exploitation. It is in the interest of the victims and has a symbolic value in that it satisfies a social need for justice. It is important to identify potential victims and to provide the right tools to enable self-identification, but it is equally important to help them to find solutions to their problems other than being officially recognised as victims of human trafficking. After all, earlier research has also stressed that a criminal law perspective does not always do justice to the social reality around labour exploitation (Hiah & Staring, 2013).

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Criminal Law and Criminology, 2016-09-28T07:00:53+00:00
The power of Diversity & Inclusion - wsifranchise.info http://wsifranchise.info/articles/the-power-of-diversity-inclusion http://wsifranchise.info/articles/the-power-of-diversity-inclusion#When:05:59:57Z How can different phenomena like state formation, cultural development, human rights and even life itself be linked to the principle of Diversity & Inclusion? And why is it important that we recognise its value? Read all about it in this blog.]]>

Nowadays organisations pay a lot of attention to the principle of Diversity & Inclusion and how to stimulate it. Leiden University is one of those organisations: in 2014 and 2015 symposia were organised on this theme. I think this beautiful, powerful principle is very valuable outside the context of organisations as well. It can help us to focus clearly on what is important in life and what is not. There is also an interesting connection to the field of law, as it expresses in a nutshell what all human rights are about. 

Imposing unity

For too long now we have widely believed in the opposite principle, which we could call ‘Similarity & Exclusion’. From the 16th century on,  European rulers – including the Dutch – dealt with the tensions and conflicts of their ‘subjects’ by politically imposing unity on them. In the Netherlands, like in other European countries, these tensions and conflicts have existed since the dawn of history: between the indigenous Celtic/Germanic tribes and the Roman invaders, and much later between Protestants and Catholics. Of course they have always existed on a smaller scale as well: between town or city dwellers and people from the country, between people from the north side and the south side of a town, between men and women. 

Collective projection

When the European states were (gradually) formed, these tensions and conflicts did not magically disappear but were only hidden behind the veil of a national identity, represented by a national flag – and of course a sentimental national anthem to artificially glue it all together. They were simply shifted to a higher level and projected across the border. This process has a long history. In the distant past this collective projection was made famous by the ancient Greeks, who labelled their non-Greek speaking neighbours simply ‘barbarians’ – people to be distrusted and to be kept at a safe distance. Josep Fontana has shown, in his very interesting book The Distorted Past, how this Greek idea about ‘barbarians’ continued throughout the centuries to play an important role in Western societies, constantly reappearing in different guises. Because of this long ‘tradition’ we might forget that originally (and necessarily) life has always been diverse – everywhere and on all levels. Thus we might wonder to what extent the very act of sticking negative collective labels on groups of people has actually contributed to the emergence of the tensions and conflicts… 

The roots of culture

Although some politicians nowadays seem to think that ‘national’ culture can be protected by defending it against unwanted ‘foreign’ influences – under the guidance of Similarity & Exclusion – in reality culture has always been born from Diversity & Inclusion. It cannot be imposed but is always the result of a bottom-up development. Central to cultural flourishing is getting respect for and cultivating a genuine interest in people with completely different outlooks on life. This can only be achieved by practising empathy, which has the power to transform distant strangers into friends, competitors into co-operators (see in this respect my previous  blogs on the relationship between crime and empathy). The great cultural developments have always manifested in areas where diverse outlooks on life existed side by side, did not threaten each other and somehow managed to fuse and grow to become something new. 

The natural way

It is interesting that there is scientific evidence that the principle of Diversity & Inclusion is something very natural as well. Research by geneticists, biologists and ecologists has confirmed that every life form badly needs diversity to be able to grow. Without biodiversity evolution would have stagnated a long time ago. That is why it is not so strange that this principle also works well for us, for our social relationships and our culture. Perhaps these scientific insights could also help us to realise that the opposite principle, Similarity & Exclusion, is in fact something very artificial – and very dangerous as well at this point in history.

Human rights

I already mentioned above there is an important connection to law as well. All human rights –  freedom of speech, religion, and prohibiting discrimination according to race, sex, etc. – have always given expression to Diversity & Inclusion. They try to remind us of something very deep within ourselves, of our urge to connect with and get to know other people – people who initially appear very different from ourselves. When we violate human rights, we not only activate lawyers to fight for justice but also directly damage our own self, our potential to grow. Although legally they exist on a higher level than the national laws, in a wonderful way paradoxically they are much more intimately related to our individual lives. 

Welcoming diversity

The reality of diversity is all around us, more obvious than ever, whether we like it or not. Daniel Fairbanks aptly describes in his book Everyone is African his experience of the diverse human world while travelling on a New York train: ‘The people I saw coming in and out of the train were diverse, with ancestries from many places. Not only did they appear diverse, many were speaking different languages. I recognized Portuguese and Spanish, languages I speak fluently, and those speaking them had accents typical of the Azores, Puerto Rico, Mexico and Peru. I also heard other languages I did not understand, as well as a wide range of accents in English. The people on this train were probably a mix of local residents, tourists, business people and students. This sort of vibrant human diversity is now commonplace in major cities throughout the world’

So in our time, when deliberate polarisation of ‘ethnic’ groups and even whole countries seems to be on the increase everywhere, there is an important lesson to be learned. The time of imposing false unities is behind us. But unfortunately some of us haven’t realised this yet. 

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2016-09-07T05:59:57+00:00
Studying outside the box of legal logic: Law & Society research - wsifranchise.info http://wsifranchise.info/articles/studying-outside-the-box-of-legal-logic-law-society-research http://wsifranchise.info/articles/studying-outside-the-box-of-legal-logic-law-society-research#When:06:00:34Z The interaction between law & society is something that is not necessarily studied by legal scholars. Socio-legal research explicitly addresses this interaction by adopting an external approach. ]]>

Big, abstract and intangible processes such as globalisation and technologisation have made the world an increasingly more complex place. As a result the nature of the social problems that need to be addressed by governments also seems to have become less manageable through new rules and regulations. Being a social construct, the structural and cultural changes and challenges the world is facing not only have an impact on the law itself, they also impact the study of the law. In this blog I would like to focus on the latter. Although my main field of legal expertise lies within the realm of criminal law, I feel it is safe to say that on the whole the notion of society has become more important in the study of the law in creating a deeper understanding of it. Listening in on discussions between legal PhDs, talking to colleagues throughout and outside of the country, but also looking at the increased emphasis that is placed on knowledge valorization in research grant procedures, questions on the interaction between law & society and the effects of law on society and vice versa seems to be gaining importance in legal scholarship. To quote Ehrlich (1975) “The center of gravity of legal development lies not in legislation, nor in juristic science, nor in judicial decision, but in society itself”. In finding answers to these often non-normative questions, socio-legal research can offer valuable – yet often overlooked – theoretical insights and methodological tools.

Outside the box of legal logic

Early socio-legal research, a term first established in and used in the US since the early part of the twentieth century, emerged in reaction to doctrinal analysis of law (Galanter 1974, Macaulay 1963). According to Calavita (2010) In this more doctrinal approach, law is seen as a more or less coherent set of principles and rules that relate to each other according to a particular logic or dynamic. The object of study in jurisprudence is this internal logic and rules and principles that circulate within it. According to this approach, law comprises a self-contained system that, with some notable exceptions, works like a syllogism, with abstract principles and legal precedents combined with the concrete facts of the issue at hand leading deductively to legal outcomes. It is – put differently – mostly devoted to examining what takes place “inside the box of legal logic”. Law and society scholars see this more formal study of the law as inadequate to explain law as it is experienced and lived in and through society. In order to examine this, law and society research adopts an external perspective on the law. It examines the influence on the law of forces outside the box of legal logic. Some of the central claims underlying this external perspective of the law are that (1) the meaning of law is not intrinsic to statutes or cases, but rather is dependent on extralegal factors such as political and social context; (2) that the form, interpretation, enforcement and impact of law tend to reinforce the extant social structure; and (3) that the sources of law are themselves socially derived (Seron & Silbey 2004). The inside perspective on the law focuses on legal rules and procedures, sees these rules and procedures from within the legal system and it usually accepts them more or less at face value. As the “socio” in socio-legal already implies, other than seeing law as a closed system of logic, law is seen – and thus also studied - as tightly interconnected with the context within which law exists, be that a sociological, historical, economic, geographical or other context.

The social-legal perspective and empirical research

Insofar as it draws on legal texts, legal research is empirical. Nonetheless, the empirical label is usually reserved for research that relies on methods and methodologies drawn from the social sciences - either as applied to legal materials themselves, or as applied to actors in their interaction with a legal system, legal order or “law” as broadly understood. A researcher, using the tools of social science, can gain valuable insights into a society, a community, or group dynamics that “insiders” overlook or take for granted. The tools of social science can therefore be turned back on parts of our own society – the legal system for example – to acquire new insights and analytical clarity. Empirical  legal research is therefore closely connected to socio-legal research. Nevertheless, empirical legal research will not necessarily be encompassed within the context of socio-legal scholarship. Indeed, Cownie (2004, p. 57) suggests that a number of academic lawyers who describe themselves as black letter do so because they associate socio-legal approaches with always also carrying out empirical research. Although empirical research can definitely contribute greatly to furthering an external perspective on the law, a socio-legal approach to law does not have to be exclusively empirical. External reflection can also be achieved by means of a theoretically sound analysis. If empirical research methods are used it is vital to also situate them in the broader theoretical frames of socio-legal studies in order to  understand what can be gained from empirical study. Over the years it has been noticed that, although interested in a socio-legal approach, the thought of having to carry out empirical research can make legal scholars rather uncomfortable. It is important to stress that empirical legal studies entail more than quantitative, statistical, research methods. While the empirical legal studies movement in the US has had more of a focus on quantitative research, Cane and Kritzer (2010, p. 1) refer to a ‘healthy pluralism of empirical approaches to the study of law and legal phenomena. With that in mind, the more qualitative research methods, methods that might appear less “exotic” to legal scholars, such as interviewing, case study research, discourse analysis, etc., need not be forgotten. Although in general cobblers should stick to their last, in order to prudently use these methods it is not necessary to be a full blown social scientist: There are many handbooks, training modules and – let’s not forget - colleagues out there that can offer a helping hand. Where there’s the will to be more engaged in socio-legal research, there’s a way!

An open invitation 

Although this blog has clearly been a promotion for socio-legal research, it does not imply that socio-legal research should replace more traditional, more normative, legal research. On the contrary, more traditional legal research not only serves a purpose on its own since it addresses different types of questions compared to socio-legal research, it also serves as an important source of input for social legal research. Yet, I am convinced that the conceptual and epistemological lens through which the law is studied can be enriched by conversations that cross disciplinary and methodological boundaries. In order to spark these cross-boundary discussions, this blog is an open invitation to attend the upcoming Leiden Socio-Legal Series: a series of 9 lectures, starting in October 2016, during which various renowned international socio-legal scholars will reflect upon the way the socio-legal perspective has helped them in their research. 

More information about the Socio-Legal Series

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Criminal Law and Criminology, Interdisciplinary Study of the Law, 2016-08-31T06:00:34+00:00