David Gurnham, Professor of Criminal Law and Interdisciplinary Legal Studies, School of Law, University of Southampton.
When we think about what it is that legal scholars share in common, and whether there is any single concern that connects us all as part of a single endeavour, it is difficult to avoid concluding that marginalisation is key. But what is marginalisation? What does it actually look like, and what makes it distinct from other indices of disadvantage, subordination or victimisation? Approaching these questions, we are struck that ‘marginalisation’ seems to contain three ideas that are at once distinct and interrelated. First, there is the spatial dimension of the margin, a word that implies a peripheral positioning: a ‘side-line’ or a perhaps a low ‘rung’ in some hierarchy. Second, there is the subject of marginalisation, namely that which is marginal, the nature of which may be human, animal, experiential or conceptual. Third, there is the implication of passivity on the part of that subject and a more active and dominant force that causes the subject’s movement toward that periphery or down that hierarchy – i.e. her marginalisation. This third idea may also take various forms and implies a power dynamic involving one or more of human agency, processes, or structures. Legal scholars seeking to understand the ‘issue’ of marginalisation through socio-legal or humanities-based approaches, must grapple with these three ideas and the relationships between them.
In the first place then, if the ‘margin’ is a space to one side of a given ‘body’ but within a more distant exterior limit or edge, then anything placed there is not altogether excluded, locked out, or debarred, but rather put into a state that has some special meaning or status of its own (the legal authorities cited in the margins of Coke’s Institutes being a noted example). The place of the ‘marginal’ is by implication thus more provisional, revisable, hopeful, than it might be. And deriving etymologically in medieval Latin from the watery edge (marginem) of a lake, ‘margin’ furthermore implies a line that is never still, that laps at a shore – constantly and ceaselessly advancing and retreating so that it is impossible ever to determine exactly where the line falls. These in combination are qualities that make the margin a useful ‘living metaphor’ (to borrow Lakoff and Johnson’s well-known expression) for both legal practitioners and scholars. At the most prosaic level, institutions and processes of law create and recreate margins as a necessary and inevitable by-product. Making, implementing and interpreting law must determine also that which is not the law, and which is not, not yet, or not any longer the correct interpretation of the law, after all. Primary legal questions about what is in a legal text and what is not, what may be read into it and what may not, are questions that necessarily marginalise that which is deemed to fall outside.
For legal scholars, deriving ‘margin’ from medieval natural history is helpful because it reminds us that law is a creature of indeterminate and changeable shape and size. The history of the common law with authorities approved and applied here, and distinguished or not followed there, is proof enough that the precise ‘shoreline’ of the law is indistinct in ways that calls to mind the lapping waters of a lake. The same metaphor gives meaning to the modern legal notion of a ‘margin of appreciation’ – that quantity of figurative space of variable dimensions within which (for example) national courts may give effect both to the European Convention on Human Rights and the distinctive character of their own legal cultures. Within national jurisdictions furthermore, laws may be made and unmade, with the effect that people and interests that are prioritized here may be overlooked there, and vice versa.
Second, there is the question of the subject of marginalisation – in other words, of who or what is to be found in marginal spaces. The criminal law in general may be understood as a means of producing marginalia by deeming certain behaviours and intentions as ‘beyond the pale’, albeit that this determination itself can have the effect of placing those behaviours and intentions centre stage in the form of the public trial, with attendant publicity. It is widely accepted also that states create marginal spaces and use these spaces to marginalise populations at transit points on the borders of their sovereign territory, in detention centres and in prisons and young offenders’ institutions away from the public at liberty. These are places that represent both physical and symbolic ‘edges’ of a society. Combining spatial and disciplinary meanings of our concept, that ‘edge’ or ‘border’ is not only a line that designates a simple separation between those who are in and those who are out of its jurisdiction, but a space in which particular people (for example, irregular migrants and asylum seekers, convicted prisoners, prisoners awaiting trial, the severely mentally ill, etc.) are held temporarily or permanently as marginalia. People in such a position are within the margin of the society from which they have either been separated or to which they are seeking to join, in order that they may be subject to (sometimes not at all pleasant) procedures and processes.
Those in a position to wield power over individuals in these positions may wish to go further than merely marginalise them, perhaps to exclude them from itself altogether. Cases such as those involving human rights-based challenges to punitive or coercive government policies towards them regularly illustrate the precarities of the margin: the impositions it creates for the marginal subject, but also some important differences between the marginal and the excluded, at least while there exists a judiciary sufficiently potent and independent of government to prevent the latter acting with impunity.
Third, what of marginalisation itself? The verb ‘to marginalise’ is a more recent invention (the OED Online suggests its first use is no earlier than 1832), which tends to be associated with actions or processes of a more dominant, forceful, even violent nature: ‘to belittle, depreciate, discount, or dismiss’, and with actions that ‘trivialize’ or ‘sideline’. Understanding marginalisation therefore requires us to pay heed to the power differential between the agent and the subject of those actions or processes, and to changes over time. A study of relevant changes necessarily implies an historical dimension (if our subject has been acted upon by forces that have given rise to marginalisation, what was their status previously?) and a sense of what the continuation of marginalising processes or effects means for the subject’s future. Here again though, a difficulty arises with respect to maintaining the distinctiveness of marginalisation vis-à-vis other ideas pertaining to changes over time: discrimination, exclusion, disempowerment, disenfranchisement, inequality, stigmatization, victimization, and so on.
On this latter point, I think we are obliged to acknowledge that an a priori concept of marginalisation has necessary limitations. It is useful insofar as it can tell us what it is we are looking for and provide a benchmark for evaluating what we find, but at the same time, identifying examples of marginalisation requires information about lived experience that is itself collected after careful and informed consideration of the most appropriate methods for doing so. Openness to new methodologies is key to achieving the inclusiveness and receptiveness necessary to give voice to the marginalised. Furthermore, we must recognize that understanding marginalisation inevitably means dealing with metaphorical and metonymic meaning – with meaning that is dependent on context and convention and given to a degree of slippage and uncertainty. Where marginalisation is the primary focus of study, we gain access to its meaning through one or more of discrimination, exclusion, disempowerment, disenfranchisement, inequality, stigmatization, victimization, and so on, these notions concretizing the meaning of marginalisation by standing in for it, depending on the context (hence in one instance we may say ‘marginalisation is discrimination’, and in another that ‘marginalisation is exclusion’ … etc). At other times marginalisation may be just one of several effects or consequences of some particular set of conditions, in which case marginalisation stands alongside those other things as a source of meaning for a broader framework (‘x is marginalisation’, ‘x is discrimination’, ‘x is exclusion’, etc.).
The conceptual problems involved in understanding and researching marginalisation within legal studies are not insignificant. However, approached with caution, imagination and flexibility, they are arguably not insurmountable. The thoughts and ideas offered in this brief post are presented in a longer form as the first essay of a new special issue of the International Journal of Law in Context – Introduction: Marginalisation in Law, Policy and Society. The issue also features original research articles that address marginalisation by way of important questions about where people live, how they do so, and what is owed to them by a state that brings them within its purview and that would seek to direct their choices.