Beyond Criminal Law and Methodological Nationalism:

Jurisdictional games and decision making: The Belgian approach in dealing with migrant smuggling

“…The coding started inductively by the creation of a list of general themes that emerged organically from the data. Some themes were expected such as “discretion” or “institutional collaboration” whilst others came up surprisingly such as “passing the buck” or “capacity shortage.” A while after the data collection and the initial coding, I familiarized myself with the empirical work and analytical insights developed by Moffette (2018) and Moffette and Pratt (2020) (see below). Their findings appeared to be transferable to the Belgian case as it became apparent that the (smuggled) individuals in transit in the country found themselves at a juncture where distinct legal frameworks intersect with one another.…”

“…The enactment or performance of jurisdictions involves therefore a practice through which an actor (for instance a local police officer, prosecutor, legislator) who wishes to invoke the law, makes a claim about the when, where, what, who and the how of the law. With this claim, the actor subsequently specifies the reasons for why a subject or an object, in a certain time and place, will fall under the authority of a determined governing body and should be treated with procedure X or Y (Moffette & Pratt, 2020, 19). Taking jurisdictional games and the multiplicity of actors involved in them as a conceptual and analytical lens can help clarify discretionary decisions to mobilize one realm of law (e.g., administrative over criminal law) over or combined with another.…”

“…Hence, the body of scholarship on “crimmigration,” which discusses and problematizes the intersection between criminal and administrative law appears suitable to understand the dynamics at play in the governance of migrants in transit (see Chacón, 2015). Nonetheless, Moffette (2018) and Moffette and Pratt (2020) highlight an important limitation of the crimmigration thesis as it focuses solely on the merger between the two realms of law (see also Brandariz, 2021). Moffette and Pratt (2020) claim that this could prevent a thorough understanding of a more “complex and multi‐layered empirical processes of legal governance” (Moffette, 2018, 260).…”

“…Nonetheless, Moffette (2018) and Moffette and Pratt (2020) highlight an important limitation of the crimmigration thesis as it focuses solely on the merger between the two realms of law (see also Brandariz, 2021). Moffette and Pratt (2020) claim that this could prevent a thorough understanding of a more “complex and multi‐layered empirical processes of legal governance” (Moffette, 2018, 260). Instead of looking at points of intersection between administrative and criminal law, they suggest innovative approaches to conduct further study in legal and criminological research in a way that looks beyond the overly dominant focus on crime, criminal law, and the nation‐state.…”

“…Together with the concept of “jurisdictional games” (see Section 2), interlegality pays attention to the heterogeneity and distinction between legal realms intersecting with one another in the governance of object/subject. Applying this framework allows for a deeper analysis on the different treatments given to the individuals governed trough coexisting legal regimes (e.g., municipal bylaws, administrative or criminal law) (Moffette, 2018; Moffette & Pratt, 2020).…”