By Professor Carla Ferstman

This post was first published on the blog of the Journal of Law and Society: https://journaloflawandsociety.co.uk/blog/meet-the-book-author-conceptualising-arbitrary-detention-power-punishment-and-control/

Conceptualising Arbitrary Detention: Power, Punishment and Control was published by Bristol University Press in May 2024.

What is the book about?

The book is about arbitrary detention, but it is also a reflection on the shifting meaning of arbitrariness as a concept. I consider how forms of marginalisation and other arbitrary factors influence who will be detained, when, for how long and in what conditions. Policies of securitisation, regimes of exception, and criminalisation have exacerbated these arbitrary distinctions given their propensity to target “otherness,” even though there is nothing exceptional about “otherness.” How these policies are applied, and their impact on individuals and communities, depends on the underlying political values and goals at stake, which differ between countries and over time.

The book also explores how arbitrary detention has become normalised. It is used purposively by governments to foster divisions and to enforce hostility against socially marginalised groups who I classify in this book as: the “unseen” (those marginalised on account of their destitution and/or extreme social needs); the “reviled and resented” (the recipients of racist, xenophobic and discriminatory attacks); and the “undeserving” (refugees and other migrants).  When arbitrary detention is normalised, it becomes impossible for courts to only countenance detention that is exceptional – the logic no longer works. So, this conundrum is analysed from different angles and factual contexts.

Why did I write it?

The idea for the book crept up on me in a non-linear way. It was always the book I wanted to write but it took some internal prodding and mental gymnastics for me to figure out how to articulate the urgency that I was feeling about the subject matter in a way that made sense on the page. So, framing the ideas, and the ideas within the ideas took time. In many ways the book is a homage to all the survivors of arbitrary detention I have been privileged to know and support, and to all the courageous human rights defenders, lawyers and psychologists who continue to work in this space.

How did I go about doing this research?

The methodology question is never straight-forward and the sociolegal purists may want to turn away now!

My ideas about the subject matter stem from about two decades of legal practice and advocacy working with victims of torture and seeing up close the suffering people undergo while in detention. So, there was a significant evidence base from where I derived my thinking, but it was quite diffuse, deeply personal and of course, subjective.

The purpose it served in the research process was mainly to guide me with the crucial task of figuring out what themes I needed to foreground. A good example of this is the decision I took to delve into the relationship between arbitrariness and torture. I claim that the disorientation, despair, uncertainty, lack of agency that arbitrariness produces (also considering the extensive psychological literature) is so harmful psychologically that it can rise to the level of torture (all other elements of torture being present). My decision to tackle this theme stems from years of speaking with clients about how arbitrariness in and of itself, made them feel. It also helped me to work out where I wanted to situate my thinking critically on the side of key debates. An example of this is how I critically examined the caselaw on socially excluded and marginalised groups and began to confront the failure of some courts to confront the phenomenon of industrial-scale arbitrary detention.

Then, I would say there are different layers to the book, and some of these layers are more pronounced or prominent, depending on the chapter. There is a layer which is in the classic style of human rights rapportage; going through reams of testimonials and reports to locate patterns and derive meanings and using individual narratives to give context. Another layer is the analysis of how regional and international courts have addressed the phenomenon of arbitrary detention. So, there is a deep doctrinal analysis of the caselaw and how certain findings came to be. But, because much of the caselaw lacks an obvious internal coherence I also use a variety of critical legal theories, social theory, and political philosophy to help me with the task of making sense of what has little obvious internal logic.

I enjoyed the process of pulling the text together; here’s to hoping readers will find it just as enjoyable to read!