The contemporary figure of the foreigner is not judged for what they do, but for the fact of who they are. In regimes of crimmigration, guilt no longer follows the act—it precedes it. It attaches to presence, to mobility, to the mere fact of inhabiting without prior authorization. What emerges is not simply a transformation of migration policy, but a deeper reconfiguration of law itself: a shift in which the juridical order produces subjects already outlawed, already exposed to sanction, already constituted as bearers of guilt.
Law does not operate as a neutral framework regulating conduct. It constitutes and maintains order through a force indistinguishable from negation. The juridical order is one in which norm and violence are inseparable, just as law is inseparable from power, and where its force persists precisely because it is indistinguishable from negation. Order is not an affirmative arrangement of social relations; it is sustained through the continuous opposition to what it names as disorder—crime, deviance, danger. These figures are not external to law, but inscribed in advance within its own structure. The excluded are not outside the law; they are constitutive of it. Nowhere is this more visible than at the threshold of the law. The foreigner appears as life in its most decisive form: as nothing more than human. Yet this appearance is immediately re-coded. The legal order’s response is to declare this presence illegal. Presence becomes illegality; mobility becomes suspicion; existence becomes evidence. The capacity for action embedded in life is read not as potential, but as threat. The law does not wait for the act—it anticipates it. When encountering life as force, it does so not as something to be integrated, but as something to be secured from.
What is at stake is not simply exclusion, but the production of a subject whose existence is marked by guilt prior to any deed. As Walter Benjamin (1996) writes, “law does not condemn to punishment but to guilt,” and further, “unhappiness and guilt are imposed by law as criteria of the person.” Guilt thus becomes the medium through which life is drawn into the orbit of law. It is not the consequence of wrongdoing, but the condition under which life becomes legible to the juridical order. This relation becomes even more apparent when we consider the structural dependency of law on the very possibility of crime. Law in force does not emerge from a neutral reservoir of relations or from the common; rather, it remains bound to the possibility of transgression as its condition of intelligibility. The well-known juridical maxim nulla poena sine iudicio (no punishment without judgment) conceals a deeper dynamic: punishment contains within itself the verdict of guilt. Law does not punish because guilt exists; it produces guilt as the condition under which punishment becomes possible. If we reverse the maxim—no judgment without punishment—we see that the absence of juridical decision would imply not only the absence of punishment, but the absence of guilt itself. Guilt is thus not a response to life, but the mechanism through which life is captured and rendered available to law.
To grasp this condition, one must return to the theological and anthropological structure of guilt. As Elettra Stimilli (2017) notes, “Adam was able to disobey only because, from the moment of creation, he was already subject to a commandment,” and consequently, “there is disobedience only where a commandment exists.” This formulation reveals a decisive inversion: transgression is not an accidental event, but a structural presupposition. The law requires the possibility of disobedience in order to constitute itself as law. The human being appears, from the outset, as already implicated within a system in which violation is anticipated. The subject is thus produced under the sign of potential guilt. What follows from this is not simply a theological insight, but a juridical one. If transgression is structurally presupposed, then the law does not encounter subjects as neutral actors, but as beings already oriented toward violation. The anthropological figure that emerges is one in which human life is marked by an inherent inclination toward disobedience. Under this sign, action is no longer the expression of freedom, but its limitation. The law does not respond to action; it anticipates it as deviation. In this sense, guilt precedes not only the act, but the subject itself.
René Girard’s (1979) account of sacrifice radicalizes this insight. Within the juridical system, “the guilty party can take the place of the innocent sacrificial victim precisely because those who have the power to impose punishment—the judge, the court, and even the State—stand in an asymmetrical position with respect to those who are punished.” What matters is not the empirical verification of guilt, but the restoration of order through the designation of a bearer of guilt. Law, in this sense, seeks sacrifice. It depends on the identification of figures who can absorb violence, figures whose punishment resolves the crisis that law itself presupposes. Hereof, the scapegoating of migrants and refugees appears as political ground for modernity. At this point, the actual transgression of the law becomes almost secondary. What matters is the availability of bodies that can bear guilt. The juridical system operates through a sacrificial logic in which the designation of a guilty party stabilizes the social order. The sacrificed are not simply criminals; they are marked bodies—enemies, outlaws, dangerous individuals—selected for their capacity to carry guilt. In this sense, the foreigner does not appear as a contingent figure within law, but as one of its most reliable sacrificial forms.
This logic finds a precise articulation in modern penal rationality. As Michel Foucault (1978) demonstrates, the focus of criminal law shifts from the act to the subject. What is at stake is no longer simply the offense, but the being of the offender. The penal system increasingly concerns itself with medico-legal criminality and the juridico-moral principle, extending its reach into the domain of life itself. As Foucault writes, one “is held responsible because by their very existence they are a creator of risk, even if they are not guilty.” Danger is no longer tied to action; it is located within the subject as such.
Luigi Ferrajoli (2008) captures the political implications of this transformation with stark clarity: “the ideology of exclusion criminalizes the poor, the marginalized, or worse—the different: the foreigner, the Muslim, the undocumented migrant—under the banner of a racist anthropology of inequality.” Criminal law becomes a mechanism for the production of enemies, filtering the social body through categories of suspicion and danger. What identity is to politics, guilt becomes to law: a means of assigning subjects to positions within a structure of inclusion and exclusion.
If we view criminal law as the platform of the social contract—particularly when this contract draws its justification from fear as a juridico-political stimulant—it becomes evident that the juridical-political apparatus justifies itself through the identification of bearers of danger. This insight traces back to Cesare Beccaria (1995), who links the effects of criminal law to the “harm caused to the nation,” noting that such harm is “much more likely to be caused by individuals from certain social strata than from others.” Even in its most rationalist formulation, criminal law reveals an underlying tendency to locate danger within particular bodies. The question of harm thus becomes inseparable from the question of who is presumed capable of causing it.
Crimmigration emerges precisely at this intersection. It is not merely the convergence of criminal and immigration law, but the consolidation of a logic in which mobility itself becomes suspect. Legal regimes no longer respond to infractions; they anticipate them. The crossing of a border, and the mere fact of presence, become sufficient grounds for intervention. Guilt is no longer derived from conduct, but from status. What Foucault identifies as a shift toward the dangerous individual finds one of its clearest contemporary expressions in migration regimes. If danger is no longer tied to action but to existence, then the foreigner appears as an exemplary figure of this transformation. Their mobility, their presence, their very being becomes legible as risk. The juridical system no longer requires evidence of wrongdoing; it requires only the identification of a subject whose existence can be construed as dangerous. In this sense, crimmigration does not introduce a new logic—it radicalizes an existing one.
This logic is not merely theoretical but is codified with particular clarity in contemporary U.S. legal formations. Texas Senate Bill 4 (2023), alongside provisions of the Immigration and Nationality Act, renders unauthorized presence immediately legible as grounds for intervention: “Any alien who is present in the United States in violation of this chapter… is deportable” (§237(a)(1)(B)). What is decisive here is not the commission of a harmful act, but the juridical transformation of entry and presence into markers of culpability. The subject is no longer encountered as a bearer of equal legal capacity, but as one whose relation to the border already situates them within a field of political and juridical negation. In this configuration, guilt does not follow conduct; it is inferred from status, from the mere fact of having crossed or remained without authorization. The law does not wait for transgression—it presupposes it, recoding mobility as incipient violation and presence as a condition of sanctionability. While similar tendencies are observable in the European Union’s Pact on Migration and Asylum (2024), where pre-screening and detention mechanisms attach suspicion prior to individualized assessment, the U.S. case renders explicit the underlying juridical logic: the border does not simply separate lawful from unlawful movement; it produces subjects whose existence is already legible as site of negation, or of bare lives as bearers of guilt and nothing more.
What these regimes reveal is a transformation in the ontology of legal subjectivity. The foreigner occupies a position in which the passage from biological existence to juridical recognition is obstructed. One remains at the threshold, exposed to the force of law without being fully incorporated within it. This condition resonates with what Giorgio Agamben identifies as the inclusion of life through exclusion: life is captured by the juridical order precisely by being deprived of political qualification.
This threshold condition can also be understood in relation to the passage from biological existence to juridical existence—the passage one might describe as a second birth. The mere fact of coming into the world does not coincide with inclusion in the legal order. Rather, life must be transformed, qualified, and recognized within a juridical framework in order to count. The foreigner, however, remains suspended at this threshold. Their existence is not fully translated into juridical form; they are held in a state where life appears, but does not fully enter the order. In this sense, what is at stake is not simply exclusion, but the obstruction of this second birth. Yet the operation of guilt does not remain external. It penetrates the interior of the subject. Alf Ross (1975) offers a stark formulation: “The burden of guilt is simply the fear of the punitive revenge of authority,” but this burden extends further, into “the anguish of the soul, feeling separated from God, and in conflict with oneself and others.” Guilt is not only juridical; it is affective, existential.
Carl Schmitt’s early reflections on guilt push this insight even further. In his infamous doctoral thesis Über Schuld und Schuldarten (1910), where he examines the meta-legal (metagesetzlich) nature of guilt, Schmitt writes: “Law sees the essence of crime—what it truly accuses—in a certain type of process within the soul,” and what appears externally “is not judged according to its appearance, but according to the inner spiritual movement from which it has emerged.” The juridical effect thus aims to surpass the boundary of the skin and reach into the inner processes of self-experience. Law must internalize itself within the subject in order to be effective. Punishment becomes an inner process; negation becomes self-negation. What becomes visible here is the extent to which law does not merely regulate external conduct, but seeks to reorganize the internal life of the subject. The reach of law extends beyond sanctionable acts into the domain of self-relation, where guilt becomes a mode of being (innersubjektives). The subject does not simply fear punishment; they come to inhabit guilt as part of their own identity. In this sense, crimmigration produces not only legal subjects, but affective ones. The foreigner is constituted as a subject who carries guilt as a condition of existence. This is not merely a legal status, but a state of the soul—one that generates anxiety, self-surveillance, and the anticipation of sanction. The boundary of the law is no longer external; it passes through the interior of the person.
What emerges is a form of political community that depends on the production of guilt. Law requires threatening bodies because, without them, it would be forced to reinvent its primary referent—fear. The identification of enemies becomes the condition of political coherence. The foreigner is not excluded by accident; they are structurally necessary. If the juridical order depends on the production of guilty subjects, then the figure of the foreigner reveals not a failure of the system, but its condition of possibility. The foreigner is not simply excluded; they are required. Their presence as a bearer of guilt allows law to continuously reaffirm its own necessity. The crisis law claims to manage—danger, disorder, threat—is the very condition it must reproduce in order to sustain itself.
This reveals something fundamental about the nature of contemporary law. It is not an instrument that regulates an already existing community. It produces the community by defining who cannot belong. Inclusion is secondary; exclusion is primary. The political is constituted through the continuous designation of those whose presence is intolerable. To confront this configuration requires more than policy reform. It demands a rethinking of the relation between law, life, and political community. If law condemns to guilt, and if guilt becomes a condition of existence, then the question is no longer how to better integrate the foreigner, but how to dismantle a juridical order that depends on their exclusion. The foreigner is not simply outside the political community. They are the figure through which its boundaries are drawn. At the threshold where presence becomes crime, the violence of law becomes visible. And it is from this threshold that another politics might begin.
People need to start assuming that intelligent readers can recognise AI writing. If this person did not rely heavily on AI, I am shocked by how similar their natural writing style is to AI. (The amount of “not X but Y” sentences is alarming).
Also, this makes no sense: “In regimes of crimmigration, guilt no longer follows the act—it precedes it.” Guilt follows the act of movement in the absence of certain legal privileges (in a Hohfeldian sense of the word); those privileges are based in legal status/citizenship and are empirically verifiable facts prior to movement occurring. You might argue that criminal liability ought not to be ascribed or that it is ascribed on an unfair basis but to suggest that guilt proceeds conduct is non-sequitur.
The essay treats philosophical claims as if they prove empirical ones and is mainly just a rhetorical exercise.
If you want to criticise legal regimes on normative grounds then do it; post-colonial and critical race thought are there and low-hanging fruit. Personally, I welcome that kind of analysis. But if you want to pretend at legal critique, you need to employ sound legal reasoning.