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Über dieses Buch

The book applies an interdisciplinary analytical framework, based on social psychology theories of inclusion and exclusion, to a discussion of legal discourse and the development of legal frameworks in Europe concerning migrants, asylum seekers, refugees, and European citizens. It adopts a psycho-historical perspective to discuss the evolution of international and European law with regard to the rights of citizens and asylum-seeking non-citizens, from the law’s inception following the Second World War up to present-day laws and policies. The book reveals the embracing of a European identity based on human rights as the common feature in European treaties and institutions, one that is focused on European citizens and has inclusionary objectives. However, a cognitive dissonance can also be found, as this common identity-making runs counter to national proclivities, as well as securitized, threat-perception-oriented perspectives that can produce exclusionary manifestations concerning persons seeking asylum. In particular, a view of inclusion and exclusion via legal categorizations of status, as well as distributions of social and economic rights, draws attention to the links between social psychology and international law. What emerges in the analysis: a process of creating value is present both at its psychological roots and the expressions of value in the law. Fundamentally speaking, the emergence of laws and policies that center on human beings and human dignity, when understood from a psychological and emotion-based perspective, has the potential to transcend the dissonances identified.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Introduction

Abstract
The evolving story of Europe amidst the story of humanity involves numerous global triumphs and defeats, viewed and experienced from multiple perspectives. Be it climate change, a pandemic, digital developments, migration, the economy, polarization, social disruptions, or the vulnerability of our mental health that is underlined by psychological challenges—they can coalesce to disturb the systems and minds holding things together. In the progress of history, the shapers of European identity had decided that human rights values, universally prescribed, would feature prominently. But how to reconcile an identity based on a values system that applies to all human beings equally, the ultimate inclusionary ideal which human rights aim to fulfil, within a context that is socio-politically driven and therefore more often inclined to limit itself and exclude? The best way to understand the evolution, both from its historical context but also looking to the future, is to step back to a meta-perspective, one that delves in and out of the laws and policies from an interdisciplinary angle.
Magdalena Smieszek

Chapter 2. Rights of Asylum: Overview of International and European Laws Concerning Inclusion and Exclusion

Abstract
Awareness of and legal entitlement to rights within a global community of belongingness is fundamental, as Hannah Arendt so profoundly put it. A refugee herself, Arendt placed the rights of citizens above the fundamental of freedom and justice, noting that what is at stake is belonging to a community of human rights when the rights as citizens are taken away. That experience of inclusion or exclusion via rights, and the relationship between having rights as a human being in a global community and rights as a recognized member of certain status is of concern here. Inclusion and exclusion in this book refer broadly to legal status determination based on category definitions as well as asylum-related social and economic rights and integration. This chapter gives an overview of the rights concerning asylum under international and European law, the gradations of inclusion and exclusion, touching on their paradoxes, history, and some underlying psychology. A closer focus is placed here on rights in regards to employment, housing, and social benefits for asylum seekers, refugees, and related status categories. In the legal provisions that will be explored, inclusion and exclusion are expressed vividly and the substance of these rules and rights can also be viewed as determinants of social value that are in turn tied up with social psychological inclinations.
Magdalena Smieszek

Chapter 3. Methodologies and the Conceptual Framework

Abstract
Judgement, evaluation, critique, and the discerning of value involved, as Douzinas asserts, are psychoanalytical in nature and all analogous to law. The assertion goes further that the law itself is psychoanalytical. Taking the role of an outsider to one’s own discipline by applying an interdisciplinary lens permits a psychoanalysis of the discourse in the psychoanalytical elements of law. The present study more specifically explores the psychology of inclusion and exclusion reflected in human rights and asylum laws in Europe in order to analyze, compare, and critique their evolution. This is done by applying an interdisciplinary methodology to an analysis of the evolution of frameworks at the international and pan-European levels, an approach that will be introduced in this chapter. The discussion here will introduce a conceptual framework based on the social psychology of inclusion and exclusion. The chapter will outline relevant social psychological theories, terminology, and scholarship that serve to underpin a discussion of the psychology of the international and European human rights law concerning asylum. The approach relies on a “frame analysis”, a cousin of discourse analysis, using three frames that are based on theories from social psychology that can be used to understand, explain, and critique the legal developments. The frames are similar to themes used in other disciplines that were not explicitly connecting social psychology with policies.
Magdalena Smieszek

Chapter 4. The Conflicted Making of International Refugee Law

Abstract
The troublesomeness of the refugee label is longstanding from multiple angles, whether expressed by the sentiments of delegates within the process of creating a legal definition that attained standing through the United Nations in 1951, or the experience of persons that had sought refuge, as expressed in Hannah Arendt’s essay in 1943, persons for whom the legislation was created. These days, refugee law literature focuses extensively on contemporary legal manifestations—and there is plenty of material to reflect on with nearly daily developments in a state of the world that produces increasing numbers of refugees. And yet, while human psychology and its legislative formations are malleable, they can also be stubbornly enduring. A psycho-historical reflection is needed, some of which was started in Chap. 2 on the origins of asylum and it is apt to continue with the beginnings of international refugee law as of the twentieth century with its focus on Europe. The idiom goes that hindsight is 20/20 with clarity when looking at the past, though it is difficult to get the full context and mindset of a different era, especially through the skewed lens of the present, looking back does permit a connecting of the dots. Importantly, this is best done through an updated set of tools and perspectives for understanding the evolution.
Magdalena Smieszek

Chapter 5. Common European Identity Formation and Asylum

Abstract
There have been calls for more Europe and European solidarity in regards to the refugee context with different versions of what that means exactly, where leaders like Victor Orbán and Angela Merkel stand in ambiguous contrast. Since the events of 2015 that saw an influx of persons seeking asylum in Europe, a state of crisis has overtaken Europe, but the psychology underlying this is very much connected to Europe’s own identity crisis. The nature of the crisis has been hotly debated, the response of the European Union institutions widely criticized, and what became evident is that Europe’s asylum system was not up to par with its intended objectives. There have been many analyses underway of the policies and legal frameworks concerning asylum in Europe, more so as these frameworks continue to change on a continual basis. This chapter aims to make a contribution to these scholarly and policy debates by taking a step back and considering, through a social psychological lens, the evolution of European identity, since the Second World War until the beginnings of the Common European Asylum System (CEAS) at the end of the millennium, with respect to European treaties and institutional perspectives on human rights and asylum. The subsequent chapters will consider how this social psychology that feeds into a legal narrative, and vice-versa in a feedback loop, continued to evolve in the first two decades of the CEAS.
Magdalena Smieszek

Chapter 6. The Spectrum of Self and Other in Legal Categories in Europe

Abstract
The site of struggles in Europe that Elspeth Guild describes, this transforming yet persistent crisis about insiders and outsiders, even if seen as temporary related to particular contexts, has a complex set of factors that challenge European self-definitions. Within this identity crisis ridden context in Europe, the aim of this chapter is primarily to give closer attention to this legal categorization and point to its psychological nature in relation to laws that distinguish rights of humans when placed in certain categories within the Europe-wide frameworks. Categorizations in the form of legal status, separating nationals, migrants, refugees, and asylum seekers, are embedded within international and national laws. The contention here is that laws with a purpose of inclusion and exclusion that rely on categories, as is the case with the concept of European citizenship and asylum laws, have a psychological source and a psychological impact that is both direct and far-reaching. Categorizations that the laws rely on, create, and reinforce, are not simply abstract and disembodied in the form of law, rather the process of categorizing is deeply embedded in the human psyche.
Magdalena Smieszek

Chapter 7. The Evaluative Legal Concept of Dignity: Towards Psychological Inclusion of Asylum Seekers in Europe

Abstract
Dignity as an essential element of humanness has been professed through the senses of seekers, supporters, and critics. The extensive literature on human dignity highlights the elusiveness and potency of the concept, both from the side of its proponents as well its detractors. Indeed, that evocative resonance and emotional charge of the dignity concept, that “phenomenological approach to the valuation of human life” which is awkward to define, contributes to concerns about its legal application. Nevertheless, human dignity features prominently as a foundational concept for human rights across the globe, all while being essentially contested. Dignity denotes universality and is emblematic within international and European human rights law. In fact, the drafters of the Universal Declaration of Human Rights (UDHR) inserted dignity into the document as an effort to make human rights philosophically grounded and it passed without extensive deliberation. Notably, as this chapter will explore, dignity also has a psychological underpinning and impact, and it can be considered an inclusionary concept. And yet, a definitive understanding of human dignity remains elusive and calls for unpacking in psychological terms.
Magdalena Smieszek

Chapter 8. Transforming Legal Paradigms and New European Co-Creations

Abstract
The queries within this book explored an evolution of a Europe and its laws, but that legal and socio-psychological development has an ongoing direction continuing beyond the research, reflections, conclusions, and suggestions that were inscribed. Accepting the challenge to become a global tribe that Kwame Anthony Appiah presents, one that some of our migratory ancestors had understood generations ago, implies a functioning cosmopolitanism which Europe can take forth. Getting there, however, equipping minds and hearts and institutions to serve these objectives requires a deeper self-awareness. The contribution to this process was the overall purpose of research within this book that considered the evolution of Europe-wide human rights and asylum frameworks through the lens of the social psychology of inclusion and exclusion. Taking an interdisciplinary psycho-historical perspective, the aim was to consider the substrate of the laws and policies, the underlying “nature” of the legal frameworks. Psychological concepts, theories, and studies were employed to frame the legal discourse and accompany the analysis of the legal frameworks and their development, with the starting premise that inclusion and exclusion is at the heart of European laws concerning citizens and asylum-seeking non-citizens. The three theoretically-informed interlocking frames described in Chap. 3—identity formation of self and other, cost-benefit calculation, and threat-perception—encapsulated and partially steered the analysis.
Magdalena Smieszek

Backmatter

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