Vol. 15 No.8 (August 2005), pp.746-748
HUMANITARIANISM, IDENTITY, AND NATION: MIGRATION LAWS OF CANADA AND AUSTRALIA, by Catherine Dauvergne. Vancouver: UBC Press, 2005. 284pp. Cloth. $75.00. ISBN: 0774811129. Paper. $29.95. ISBN: 0774811137.
Reviewed by Jonathan Klaaren, Professor of Law, the University of the Witwatersrand, Johannesburg. Email: firstname.lastname@example.org .
A number of studies have examined the relationship between migration laws and national identity. Some of these works uncritically assume a one-to-one relationship where laws reflect the identity and the identity reflects the laws. Other examinations find much more complexity in that relationship (Smith 1997). Catherine Dauvergne’s study of the relationship between the migration laws of Australia and Canada and their national identities by no means sits on the uncritical side of this fence.
One could say that this is due to her explicit use of critical theory. After surveying the work of liberal theorists on questions of migration, she situates herself within a critical school. She draws on Peter Fitzpatrick’s and Martha Minow’s insights regarding the dichotomous pairings and the inherent instability within liberal rights discourses and concepts (pp.25, 213). But her nuanced analysis is more than a use of, or a borrowing from, the pages of critical theory. Indeed, one of the attractive features of this book is its originality.
Dauvergne breaks up the migration law/national identity relationship into three components. First, her rendering of a law and identity perspective leads her to place particular focus on categorization, hierarchy, boundaries, and people. Here she is employing the lessons of constructivism and interpretivism in analyzing the relationship.
Second, she asserts that migration law is not only a logical place to find representations of national identity but also that migration laws are necessary for the boundaries of the community in settler societies such as Australia and Canada. This component becomes quite a strong claim, as Dauvergene sees migration law – in such contexts – to override the significance of constitutional law: “In settler societies, migration law and the mythology constructed in and around it is a prior condition to the community. As such, it is foundational, and constitutes the community in a way that constitutional law alone cannot” (p.51).
Dauvergne’s third step is an identification of liberalism’s failure to produce a justice standard relating to the question of migration and the paradoxical revelation of a humanitarian consensus across liberal national societies such as Australia and Canada. Dauvergne claims that humanitarianism – understood here as the practice of states to admit to residence persons who fall outside the letter of the migration laws and not as a basis for the use of armed force against a sovereign state nor as a concept underlying foreign aid and [*747] its delivery – is a central site for the elaboration of national identity.
Her theoretical argument for this centrality goes like this (pp.72-75): Liberal advocates of both open and closed borders share a sense that humanitarianism requires at a minimum that wealthy Western nations open up more admission places to those in need outside their borders. Humanitarian migration (including admissions of refugees) differs from family unification and economic migration but should still be understood against a framework of national need. Humanitarianism responds to a national need “to define and understand the nation to be compassionate and caring.” Humanitarianism is the opposite of justice since it is rooted in a type of difference created by material inequality. It “provides a stand-in for justice in the immigration realm while reinforcing the boundary between an ‘us’ group and a ‘them’ group.” Despite the existence of this consensus and its argued-for centrality to national identity, humanitarian migration has become the exception rather than the norm since the mid-twentieth century because migration is a bulwark against globalization.
Having outlined her humanitarianism theory, Dauvergne also points to the empirical significance of this variable for national identity in three processes, even though, as she acknowledges, in number terms, humanitarianism does not underlie a big proportion of admissions (25,111 of 226,913 admissions for Canada and 12,525 of 119,365 for Australia in 2002 and 2002/2003 respectively). Dauvergne examines the legal process of recognizing and thus constructing refugees in Australia and Canada. Here, Canada comes off better: less control and more multiculturalism – perhaps demonstrating the traces of White Australia and the two founding Canadian cultures (p.124). In looking at humanitarian admissions outside of the refugee process, humanitarianism seems likewise written more explicitly into the Canadian law, precedent, and practice. This is so even if its legal moorings may diminish its power. Third, Dauvergne voyages through the national court hierarchies and processes, reading court cases on migration to explore the relationship between national identity and these laws. In her view, differing constitutional rights contexts are ultimately not determinative (though differing concepts of the separation of powers may play a role) as the results and judgments in these cases reflect the influence of the national identities constructed in humanitarian admissions (p.211).
HUMANITARIANISM, IDENTITY, AND NATION brings in an important complicating variable to the usual linear relationship between migration laws and national [*748] identity – the complicating variable of humanitarianism. Is the central claim of the significance of humanitarianism for national identity proven? Given the relatively limited nature of the “strategic sampling” in the comparison of Canada and Australia (p.9), all readers may not feel clearly convinced on this point. In any case, the claim is perceptive and provocative and has been advanced in a study that is worth taking seriously within the realms of law and society, migration and citizenship studies, and political science. This argument would immediately benefit those studying, for instance, the relationship between migration law and national identity in other societies such as the United States or South Africa.
A final note concerns the relationship of migration laws and citizenship. There is no entry for “citizenship” in Dauvergne’s index – surprising in relation to a concept and analytical category that has been dominant in studies of migration laws and of national identity. Some may see the omission as a positive feature given the proliferation of citizenship studies; others have moved beyond the classic definitions of the concept (Mbembe 2001). In any event, Dauvergne’s omission here is quite deliberate. Her explanation comes in a footnote (p.11) where she explains that her concerns “cover some of the same areas as citizenship theory, but are for the most part more narrowly focused on law and admittance to the polity rather than on the subsequent questions of membership and participation.” While the theory of citizenship does cover the dimensions of rights-holding and political activity, it is also broad enough to include a study (such as this) examining permanent residence or citizenship as a legal status, as well as one linked to collective identity (Bosniak 2000). A slightly fuller justification of the deliberate lack of engagement with citizenship seems called for.
Bosniak, Linda. 2000. “Citizenship Denationalized.” 7 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 447-509.
Mbembe, Achille. 2001. ON THE POSTCOLONY. Berkeley, CA: University of California Press.
Smith, Rogers M. 1997. CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY. New Haven, CT: Yale University Press.
© Copyright 2005 by the author, Jonathan Klaaren.
Back To LPBR Home