Introduction: marginalisation in law, policy and society

Abstract

Introducing our Special Issue on marginalisation, this paper considers some of the challenges that this topic poses for legal scholars. The paper identifies that these challenges arise principally from the ambivalence of ‘marginalisation’ itself: at once an idea so broad that it arguably underpins the bulk of legal research (and socio-legal research in particular), but at the same time an idea that in practice too often quickly gives way to various other neighbouring ones: disadvantage, discrimination, disempowerment, exclusion, inequality, silencing, stigmatisation, victimisation and so on. This paper considers this ambivalence and traces etymological roots (and routes) by which we understand the margin, the marginalised and marginalisation.

1 Introduction

The theme of ‘marginalisation’ is a perennially important one in legal research; however, it also presents some perplexing conceptual difficulties. Although the word itself appears straightforward enough to understand, its implications for legal scholarship can quickly become at once unfeasibly broad and, oddly, meanly narrow. Taken at a very general level of someone or something placed at or confined to a ‘marginal’ or ‘peripheral’ space, responding to marginalisation is arguably the basic point of much, if not all, legal research. Socio-legal scholarship typically involves highlighting that which had hitherto been ‘marginalised’ in the sense of having gone unnoticed, unreported, underresearched, etc. The wide scope for work on marginalisation within socio-legal studies may also have to do with the fact that researchers have sometimes tended to think of ‘marginalisation’ as a gateway to, or even a synonym for, a number of other concepts – disadvantage, discrimination, disempowerment, exclusion, inequality, silencing, stigmatisation, victimisation – all of which imply a sense of a keeping out and holding down, of voices not being listened to, needs not met and interests not furthered. Furthermore, if our theme is taken to include also intellectual marginalisation, then this arguably means that any original research is to some extent concerned with this theme insofar as it produces knowledge, ideas and positions that had previously escaped sustained scrutiny. On the other hand, if the primary function of marginalisation is indeed as a gateway into a discussion about other concerns, then it may be equally true to say that it is actually a very narrow concept, and that once these other concerns are cut away, there is little of interest leftover.

Given these conceptual difficulties therefore, it is perhaps appropriate to reflect that this Special Issue is a project that emerged from an earlier workshop on ‘vulnerability’, involving some of the same contributors and organised by Southampton Law School's Centre for Law, Policy and Society (CLPS). The issue proposes to engage marginalisation as a concept in its own right: that need not necessarily be dismissed either as overly broad or narrow, and with its own distinctive potential as an object of study and a useful source of insight. The papers collected here all explore some aspect of marginalisation as a concept that guides critical legal analysis. Although all the papers frame their arguments with regard to particular jurisdictional boundaries and legal questions, each one addresses an intersection of law, policy and society with implications that are general and international. Before introducing the papers, these introductory remarks review some of the conceptual difficulties associated with marginalisation and propose a way forward in putting it to work.

2 Conceptualising marginalisation

‘Marginalisation’ may be understood as a meeting point for three distinct but interrelated ideas, each of which makes its own contribution to the larger concept. First, there is the spatial dimension of the margin – a word that implies a peripheral positioning: a ‘sideline’ 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 towards that periphery or down that hierarchy – that is, 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. This Special Issue on marginalisation and its role in legal studies begins then with a brief introduction to these three ideas or dimensions: the margin, the margin-al and marginalis-ation.

2.1 Margin: a peripheral positioning

‘Margin’, along with the meanings of ‘periphery’, ‘edge’, ‘brink’, ‘border’ and ‘limit’, derives from the medieval Latin marginem, denoting the edge of a lake (Barnhart, 2010). From the late fourteenth century, ‘margin’ became the term used more specifically to describe the space between a block of text and the edge of the manuscript on which it was written – a space that could accommodate additional notes (Latin marginalia). Taking either of these meaning as our starting point lacks the sense of violence or force that we might ordinarily now associate with the verb to marginalise, and even arguably carries some positive connotations. For example, if the ‘margin’ is a space to one side of the main body but within a more distant exterior limit or edge, then anything placed there is not altogether ‘excluded’ (i.e. locked out, or debarred) but rather put into a state that has some special meaning or status of its own.¹ The place of the ‘marginal’ is by implication thus more provisional, revisable, hopeful than the ‘excluded’. And deriving 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 actually falls.

These in combination are qualities that make the margin a useful ‘living metaphor’ (to borrow Lakoff and Johnson's (2003) 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 – albeit that might one day be readmitted.

For example, appeal judgments in the common law tradition create a margin by prioritising key legal points as the reason for the decision (the ratio decidendis) and relegating (marginalising) other reasons to the position of other remarks (obiter dicta); the latter are not altogether excluded from the law, since it is open to courts in future to attach significance to them, depending on the circumstances. Again, problems can arise when courts fail to marginalise obiter comments, and instead treat them as legally binding. A well-known recent example in the English legal system was the case of Ivey ² in which the Supreme Court used the opportunity of a civil case on the recoverability of money allegedly won by a casino gambler by cheating, to overturn a long-standing criminal law precedent on the legal meaning of dishonesty. The Court's remarks on the criminal law could only have been obiter since they did not bear on the instant case. However, Lord Hughes's stated view that the long-standing criminal law authority (Ghosh ³) was wrong and should no longer be followed has indeed been accepted as law by the Court of Appeal (Criminal Division) (Laird, 2018).

For legal scholars, the notion of the ‘margin’ as derived from its Latin roots in 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 call 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.⁴ Within national jurisdictions furthermore, laws may be made and unmade, with the effect that people and interests that are prioritised here may be overlooked there, and vice versa. In this respect, to focus on the question of law's margin is to focus on its flexibility. For whatever occupies that space is not necessarily lost; there remains scope for subsequent revision and reincorporation back into the main body.

More subversively, strands of interdisciplinary research have given new life to the question of law's own ‘margins’, its ‘limits’ and ‘borders’, of what occupies these regions and the possibilities for legal thought to approach or even cross them. Legal scholars working in the humanities, for example, have critiqued the ways in which law (and legal theory by extension) traditionally legitimises itself by way of general and abstract principles, solemnly authorised texts and agents, and rational systems for admitting and evaluating arguments. By these means, law arguably separates itself from and stands above fleshy substances such as bodies, emotions, psychopathologies, personalities, profit and politics. Critiquing this picture of law tends to consist by contrast in an insistence that law is itself also fundamentally material and carried not only in the intelligible, textual and abstract, but also in the stuff of matter and sensibility (Davies, 2017; Giddens, 2018).

Interdisciplinary legal scholars have highlighted, for example, the bodily movements that in particular contexts create legal meaning (Barr, 2016 – e.g. ‘walking the bounds’); the gestures of lawyers in the courtroom (Abrams, 1999); sounds and silences in the performance of legal processes (Mulcahy, 2019); the visual display of legal symbols and marks (Goodrich, 2014); the impression created by legal architecture (Mulcahy, 2011); visual impressions conveyed by the figure of the judge (Moran, 2021), by the legal vestments of wigs, robes and gowns (Watt, 2015); and the spectacle of the trial process itself (Dymock, 2017). All of these are, for the scholars referred to in this paragraph, sites of law's ‘margins’ in the ambivalent medieval sense of its Latin root: a space that is ostensibly trivial but which is at the same time an inseparable and necessary part of the ‘body’ or ‘core’ around which it is to be found. Thought of as representing law's ‘limit’ or its ‘edge’, the margin represents an opportunity for (and an invitation to) scholars to find ever new ways to push at it, permeate it and even traverse it (Davies, 2017; Giddens, 2018; Matthews and Wan, 2017).⁵

The notion of the ‘margin’ and its various synonyms have generated a large and diverse body of literature on the issue of identifying and describing the ‘edge’, ‘limit’ or ‘border’ of juridified space. These are important themes in legal studies, and indeed each of the eight papers included in this issue addresses some aspect of the materialisation of the margin under and within the law.

2.2 Marginal; marginalia: the subject of marginalisation

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 (Blumberg, 2017; Dymock, 2017). 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 also a space in which particular people (migrants, asylum seekers, convicted prisoners, prisoners awaiting trial, etc.) are held temporarily 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) legal procedures and processes.

The existence of marginal spaces at the edges of society and their populations are important subjects of legal scholarship, and much ethnographic research has been crucial in shedding light on what marginalisation looks or feels like for marginalised people (Altay et al., 2021). The critical edge that such research often brings to the subject derives from the same etymological roots described above regarding the inherent provisionality and revisability of the margin and the marginal. Those in a position to wield power over others may wish to go further than merely marginalising them, perhaps to ‘exclude’ them from itself altogether. For example, when Oscar Okwurime died in a British immigration detention centre on 12 September 2019, the Home Secretary Priti Patel attempted to have his friend and co-detainee Ahmed Lawal (as a foreign national) deported before he could give inquest evidence about the death. Lawal's deportation was blocked by a High Court judge by injunction and the inquest (at which Lawal testified) found that Okwurime had indeed died unnaturally partly due to neglect in the detention centre. A later ruling (Lawal, in the Upper Tribunal (Immigration and Asylum Chamber) on 14 April 2021⁶) found that the Home Secretary had acted unlawfully in failing to investigate the death properly and in seeking to deport a key witness before his evidence could be obtained (Xenophontos, 2021).

That case vividly illustrates some of the precarities of the margin, the impositions it creates for the marginal subject, but also some important differences between the marginal and the excluded. On the one hand, the marginal space that was (and is) the immigration detention centre and the marginalised status of those who must occupy it serves cruelly to emphasises the power differential between the source and the sharp end of power. Hence the death itself was a consequence of Okwurime's marginalisation by being held the immigration detention centre in the first place; the usual processes that ordinarily would be accorded legal significance to an unnatural death are subject to being hampered by the capacity (and preparedness) of the government to prevent them; the frustration of justice was only prevented in this instance by decisive and courageous action on the part of another marginalised actor (Lawal) who should not have had to shoulder such a burden. On the other hand, the case also highlights that confinement to this particular margin does not necessarily mean complete exclusion or expulsion, at least while there exists a judiciary sufficiently potent and independent of government to prevent the latter acting with impunity.⁷

There is a strong focus in a number of the papers in this issue on the responsibilities often placed on those who find themselves in the position of marginalia: to demonstrate their value to society by having to approach, engage with, even challenge those in positions of authority from a position of relative weakness and vulnerability. The problem though, as mentioned above, is that once we begin to try to study the experiences of being ‘marginal’, it becomes increasingly difficult to avoid falling back on neighbouring concepts such as disadvantage, inequality, poverty, vulnerability, etc. This brings our discussion back around to the problems associated with giving content to marginalisation as a concept without it disappearing altogether.

2.3 Marginalisation; marginalising; marginalised: processes and power differentials

Our observations so far have relied on deriving our theme from pre-nineteenth-century concepts of the margin as a space or an edge or limit and of the marginal subject that occupies it. The verb ‘to marginalise’ is a more recent invention (the OED Online (2021) 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 ‘trivialise’ or ‘sideline’. Understanding ‘marginalis-ation’ therefore requires us to pay particular heed to the power differential between the agent and the subject of that process, and to changes over time. A study of relevant changes necessarily implies a 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 ‘direction of travel’, or in other words, what the continuation of marginalising processes or effects means for the future of the subject. 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, stigmatisation, victimisation, etc. I suggest that addressing this difficulty, while also taking seriously the intersecting dimensions of marginalisation discussed above involves two key moves.

The first move is to recognise that identifying actual marginal spaces, experiences at the margins and processes of marginalisation is an endeavour that combines both multilayered conceptual analysis and empirical methodologies. Studies on marginalisation typically respond to a claim issuing from a particular subject and a demand for scholarly interest and attention. It is important that our linguistic frameworks for assessing such a claim are broad and adaptive enough to avoid further marginalisation. For example, claims will inevitably strike audiences as strong and persuasive where they appeal to an already dominant narrative framework for conceptualising questions of the legitimacy of state authority and institutions, processes for ensuring democratic participation and the protection of human rights, and pre-established expectations about the sorts of conditions in which marginalisation happens. Care should be taken therefore to avoid allowing dominant narratives to ‘drown out’ more complex or less easily observed experiences of marginalisation (Miller, 1993). Furthermore, the fact of marginalisation is in both cases a matter of theoretical and conceptually informed empirical observation, rather than theoretical or conceptual analysis alone. In other words, an a priori concept of marginalisation is useful insofar as it can tell us what it is we are looking for and provide a benchmark for evaluating what we find. However, 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.

The second move is to recognise that understanding marginalisation inevitably means dealing with metaphorical and metonymic meaning – in other words, with meaning that is dependent on context and convention, and given to a degree of slippage and uncertainty. Metaphor means one thing being conceptualised in terms borrowed from an entirely different domain but that shares with it some perceived resemblance or similarity (as in ‘equality is the foundation of human rights law’ or ‘Article 16 is the nuclear option’). Metonymy means conceptualising a thing in terms of some particular aspect or part of it (e.g. ‘the poll tax is a head tax’ (body part for whole body) or ‘free movement is governed by Schengen’ (place name for contents) or ‘9/11 changed everything’ (date for event and whole for part) (cf. Littlemore, 2015; Lakoff and Johnson, 2003). Where marginalisation is the primary focus of study, we gain access to its meaning through one or more of discrimination, exclusion, disempowerment, disenfranchisement, inequality, stigmatisation, victimisation and so on, these notions concretising 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.). A difficulty may arise in either case in deciding whether marginalisation and all those other concepts represent altogether different domains (in which case we are dealing with metaphor) or merely parts of the same thing (metonymy) and this can have important implications for the nature of relevant analysis and critique. However, this too is something that tends to be dependent on context, construction and convention.

3 Causes and manifestations of marginalisation and the papers comprising this issue

For the purposes of a collection like this, it might make sense to organise our material in terms of the reasons why particular people or communities are, or feel they are, marginalised. For example, marginalisation often attaches itself to identity and this is a fact that lends itself to grouping cases in terms of the significance that age, ethnicity, nationality, sexuality, gender, disability or a combination of intersecting identities has for instances of marginalisation (Mills, 2018; Henne and Troshynski, 2013; De Beco, 2018). Marginalisation of people on the basis of identity (or combination of identities) has been the focus of a good deal of narrativist and narratological scholarship within (for example) critical race, feminist and queer studies, bringing to light the experiences of variously marginalised communities through diverse means (Brooks, 2005; Olson, 2014). Such experiences being liable to give rise to discrimination and inequality, the literature on human rights as a whole might arguably be understood as responding to intersectional identity marginalisation (De Beco, 2018). More subtly, marginalisation has at times been noted to be the consequence of ideological factors that produce the social exclusion of those who fail or refuse to conform to ideal expectations, norms or standards of behaviour. For example, some studies have noted the marginalising effects of liberal market-place ideologies that permeate law-making in contexts such as housing, welfare and criminal justice (see e.g. Pawson and Kintrea, 2002; Albertson et al., 2020).

An alternative approach is to understand marginalisation in terms of different manifestations of marginalisation. First, marginalisation can manifest itself spatially. Spatial marginalisation can come about as a consequence of, for example: (1) the uneven geographical impact of globalisation and economic development (Puig, 2021); (2) government policies that lead to the dispersal and dislocation of populations such as the homeless and those seeking asylum (Burridge and Gill, 2017); (3) enduring legacies of the historic removal and resettlement of aboriginal and native populations in lands colonised by Europeans (Atkinson et al., 2010; Strauss, 2019); (4) confinement by way of imprisonment, with marginalising impacts both on prisoners or detainees (Agozino, 2000) and their partners and families (Codd, 1998); (5) other forms of detention – in mental hospitals, care homes and migrant detention centres – sites of marginalisation that became a focus for debate during the COVID-19 pandemic (JCHR, 2020; 2021). Second, marginalisation can occur due to the constitutional and basic legal arrangements of a state, territory or region, so as to marginalise some particular community by excluding them from full citizenship rights or involvement in public life and office (Ben-Youssef and Tamari, 2018; Vigh, 2019). Third, marginalisation can be an effect of prejudicial attitudes and beliefs that can impact on all forms of social life. Such attitudes can create barriers and difficulties in terms of access to (and deriving full benefit from) public services such as policing (Herbert et al., 2018) or life's opportunities more generally (Bhopal et al., 2016).

These very broad and crudely drawn categories are not mutually exclusive and typically overlap. Any given instance or experience of marginalisation may well engage multiple and intersecting identities, and may be produced by a combination of marginalising forces. For similar reasons, the contributions to this Special Issue are themselves difficult to categorise neatly, and indeed it is right that this should be so. We can at least observe that some of the papers in this collection may be understood as prioritising discussion of accounting for why marginalisation occurs, while others primarily seek to bring to light particular examples of marginalisation. This final section provides a brief introduction to the papers: the topics and questions that they focus on and the broad themes of general interest that they address.

The papers in this issue by Carr, Cowan and Kirton-Darling (‘Marginalisation, Grenfell Tower and the voice of the social-housing resident: a critical juncture in housing law and policy?’), Dobson and Turnbull (‘In or against the state? Hospitality and hostility in homelessness charities and deportation practice’), Bevan (‘The Homelessness Reduction Act 2017: furthering not fracturing marginalisation of those experiencing homelessness’) and Oliva (Exorcism and children: balancing protection and autonomy in the legal framework’) all consider how marginalisation is produced and reproduced by liberal ideologies underpinning legal interventions. Dobson and Turnbull's contribution describes the painfully real ways in which the Home Office have built and furnished their ‘hostile environment’ – truly a marginal space for migrant rough sleepers at the farthest edge of society – in which marketised nonprofit organisations are recruited to work with law enforcement to identify and deport rough sleepers. Cowan, Carr and Kirton-Darling propose in their paper that the long-standing marginalisation of the social-housing resident (a fact brought to public prominence by revelations about Grenfell residents’ complaints about safety not having been acted on prior to the fire that killed seventy-two people) is unlikely to be reversed. The reason for this is that despite actively seeking residents’ views, housing policy is set to continue to promote a liberal ideology focused on the individual as a market actor.

Bevan's paper explores the relationship between homelessness and social exclusion, and how government policy (namely the Homelessness Reduction Act 2017) actually produces further problems of social exclusion by making assistance contingent on particular assumptions and conditions: that a homeless person who truly wants to improve their situation will seek and avail themselves of the right information, will actively engage and co-operate with relevant authorities, and so on. Oliva's paper is similarly concerned with understanding the ideological currents that produce marginalisation. In his case, these relate to dominant rationalist ideas that marginalise traditional religious beliefs amongst certain minority communities and families by associating them with bodily harm to vulnerable individuals. Focusing on child exorcism, Oliva describes and challenges prevailing assumptions that exorcism beliefs and practices necessarily harm children, or impinge on their human rights and their freedoms of thought, conscience and private life.

The contributions by Laurie (‘Marginally housed or marginally homeless?’) and by Campas Velasco (‘Vulnerability and marginalisation at sea: maritime search and rescue, and the meaning of “place of safety”’) offer new legal analyses and interpretations that highlight and challenge the spatial marginalisation of particularly vulnerable communities. Their papers describe the marginalising impacts that flow from current readings of positive law and guidance as they relate to, respectively, homeless people in the UK and irregular sea migrants off the coasts of Europe and north Africa. In her paper, Laurie considers the question of when a person may be deemed to be ‘homeless’ in a legal regime that does not require a minimum-quality threshold for housing. Through her notion of being ‘marginally housed’, Laurie focuses on those households who, having failed to establish their ‘homelessness’ according to the current legal standard are marginalised both by their material deprivation and by the failure of the state to recognise their especial need. Relatedly, Campas Velasco's paper takes a critical perspective on interpretations by states of their duty to provide a ‘place of safety’ for irregular sea migrants. Campas Velasco observes that internal pressures to frame that duty narrowly can lead to serious failures to take proper account of the human rights or the unique vulnerabilities of people in extremely desperate situations.

The contributions by Deakin, Fox and Harragan (‘Help or hindrance? Rethinking interventions with ‘troubled youth’) and by Hunt (‘Non-religious prisoners’ unequal access to pastoral care’) address causes and consequences of marginalisation within criminal justice. Deakin, Fox and Harragan's mixed-methods empirical study illuminates the often counter-productive impacts of ‘risk-reduction’ interventions involving monitoring and surveillance of ‘troubled’ young people by police, the youth justice system, schools and social services. Giving voice to young people targeted for these interventions and the resentments and resistances that these provoke, the paper charts an alternative route towards more positive, less stigmatising engagements based on respect, trust and listening. Meanwhile, Hunt draws on her interviews and observations in prisons to describe the unequal provision of pastoral care services as between religious and non-religious prisoners. Both groups are marginalised by their removal from society, but the marginalisation of non-religious prisoners is made all the deeper by the fact that, in contrast to the institutionalised chaplaincy service, non-religious pastoral care is either not provided in prisons at all, or else is patchy and poorly supported. The marginalisation in prison law, policy and practice of non-religious prisoners (as well as also non-religious volunteer pastoral carers) flows from an assumption, which Hunt refutes, that non-religious prisoners have no spiritual or pastoral needs that cannot be met by a professional religious chaplain.

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. It is hoped that this issue will advance debate on marginalisation in its own right, and that others might build on the new light brought by these papers to the lived experiences of marginalised people.