Anti-Muslim Racism on Trial

Muslims, the Swedish Judiciary and the Possibility of Justice

Marta Kolankiewicz

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367670788
• eBook ISBN: 9781351608107
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Genocide & War Crimes
• Index: Politics & International Relations

This book constitutes a critical engagement with debates on the possibilities and limits of fighting racism with the help of criminal law. With in-depth analyses of cases of anti-Muslim violence in Sweden—a mosque fire, hate speech and of a series of assaults— Anti-Muslim Racism on Trial sheds light on issues central for understanding the ways in which racism is approached in court. It also illustrates the different forms that Islamophobia can take. Departing from a definition of law as a knowledge regime that embodies the power to decide on the meaning of the acts on trial and to establish a valid version of these events, the author explores the possibility of justice and recognition in court. From within a post-Holocaust and post-colonial context, this book recounts the complex and ambiguous history of laws against racism, examining the ways in which racist practices change in a society where certain manifestations of racism have come to be treated as crimes. As such, it will appeal to scholars of sociology and criminology with interests in Islamophobia, race and ethnicity and violence.

1 Introduction

DAMAGE: The car was scratched on the right side of the body. The scratches were approximately 1.5 m long. The scratches were so violent and deep that the white base varnish was visible.

The word Muslim had been scratched on the rear left passenger door, these scratches were also very violent and deep, also here the base layer of varnish was visible. The word Muslim had been scratched in an approximately 10 cm long and 2 cm tall text.

The word Muslim had also been scratched on the hood. The text was approximately 100 cm long and 40 cm tall. The scratches were violent and deep, the base layer of varnish was visible through the scratches.

(Police report, Case 1)

One night in 2009, a car was vandalized in a Swedish city. This was reported to the police in the morning. The police classified the act as damage to property and the above detailed description of the state in which the car had been found was made. With much accuracy, the length and height of the scratches on the paint were measured and recorded; similarly, their depth was observed on several occasions. It was noted that the scratches on the rear left passenger door and on the bonnet spelled the word ‘Muslim’, but nothing in the police report indicated that attention was given to what it might have meant to scratch the word ‘Muslim’ on somebody’s car.

The description of the damage to the car is symptomatic of the ways in which the police produce evidence of injury: the harm is measured in centimetres of scratched paint. How the police described and recorded the injury as well as the police’s act of classifying it as possibly a crime of damage to property involved an act of establishing the meaning of the reported event. The materiality of the damage was the most prominent, if not the exclusive, dimension of the injury taken into account in the police report. Other possible meanings of the act of carving the word ‘Muslim’ on somebody’s car remained occluded in the technical language in which the material evidence of the crime was captured, and with them other dimensions of the injury that the act could have entailed.

As with a vast majority of reported crimes, this case was never taken to court. Therefore, it never received any treatment by the judiciary. The police report, however, had already been structured by the language of the legal system, classifying the act as a particular type of crime, presenting the evidence of the occurrence of this crime according to the rules of how such evidence should be collected and described, and fixing the meaning of the act, and thereby the extent and nature of the damage. Thus, the power of the judiciary had already been at work in the above fragment, organizing the text according to its logic, leading to a particular type of closure. This closure is one of the main mechanisms of the judiciary’s work. It involves the establishment of the legal truth of an event, by endorsing an interpretation thereof according to legally relevant frames and in terms that are intelligible to the legal understanding of justice. In the process, other possible ways of describing and accounting for the acts in dispute remain concealed, other possible meanings indiscernible, and other possible injurious effects unrecognized.

Anti-Muslim Racism on Trial is concerned with acts, like the one described in the police report above, that involve violence of a particular character directed at Muslims or people perceived as Muslims. The point of access to these acts has been the official statistics of police reports from the period 2006–2009 compiled and classified by Brå—the Swedish National Board for Crime Prevention—as Islamophobic hate crimes, as well as court documents of the cases that were taken to court. Brå identified approximately one thousand such cases reported to the police in Sweden in those four years. They involve violence of very diverse types: slander hurled in the midst of a quarrel between neighbours; blows dealt out on the street by a stranger screaming that he will kill all Muslims; a veil torn off the head of a Muslim woman by a passer-by; letters with threats and insults; a pig’s head thrown on the property of a Muslim association on which a mosque was to be built; graffiti sprayed on a train, reading that Muslims should leave Sweden; anonymous phone calls in the middle of the night; a broken window in a mosque; denied entrance to a nightclub; threats on the Internet; abusive taunts shouted in a park; and hundreds of others. Throughout the book, I will be using the term anti-Muslim racism to suggest that there might be a dimension to the acts that gives them a specific character and to name this character of these acts of violence. Although they are most frequently acts of violence against individuals, they simultaneously invoke violence against a group. What is at stake here is ‘the perception of a group in the body of an individual’ (Ahmed, 2004, p. 55). The acts are anti-Muslim as they target individuals because of this kind of perception. At the same time, they contribute to the construction of a Muslim subject that emerges as a result of the violence. Following some scholars (e.g. Fekete, 2004, 2009; Meer & Modood, 2010, pp. 69–84), I choose to use the concept of anti-Muslim racism, rather than Islamophobia, for three main reasons. First, to draw attention to the ways in which the idea of non-belonging—cultural, religious or other—continues to be linked in these acts to the idea of descent, and in particular to that of the immigrant as an alien. Thus, these acts are racist because those who are targeted are burdened with a type of heritage, one that is impossible to shake off. Second, by using the term ‘racism’, I want to underscore some continuities and similarities with the histories of oppression that have existed in the West based on the idea of race, but also on the idea of religion and culture. I will claim that the meaning of these acts is difficult, if not futile, to decipher without reference to these histories. Finally, the term ‘racism’ helps, I believe, to draw attention to the role that perceptions of the physicality of those attacked, although impossible to reduce to the classic biological idea of race, still play in these acts of violence.

As in the case of the vandalized car described in the opening of this chapter, these acts of violence, accessed through the police files and court documents, are registered through certain filters: the narratives of those affected and involved; police jargon; the technical legal terminology in which the events are captured, classified and described; the persuasive tone of the prosecutor; and, last but not least, the discourse of the judges responsible for dispensing justice in the few cases that went all the way to court. These filters reveal some stories in themselves. The acts are already named, classified, sometimes defined, other times interpreted, and, in some dozen cases, judged. Anti-Muslim Racism on Trial is about these ways of naming, classifying, defining, interpreting and judging—it aims at understanding the idiom and logics of judiciary when dealing with cases potentially involving anti-Muslim racism. In a way, this book took shape as a result of an encounter with police and court documents, an encounter that was unsettling and at the same time intriguing, as these documents bear witness to a sort of violence occurring in court. This violence is different from the type of violence described by the police; there is no blood involved, no raised voices, no scuffles. Still, the rigid and formal language of judges who categorically fixed the meanings of the acts they were adjudicating discloses a particular type of power over the experiences of those involved in trials: the power to make some stories visible, others invisible; some voices heard, others silenced; some injuries recognized, others denied. This book will attempt to decipher the judicial interpretations and to understand the rationale behind these cases in order to explore how anti-Muslim racism is understood and treated in court.

The power of the judiciary

Several scholars have described and analysed the particular nature of the power of the judiciary (e.g. Cover, 1986; Derrida, 1989). Judges do not only speak through their judgements; they do things with their words. Verdicts are performative utterances exercising power (Austin, 2011, p. 151). Through the words uttered by a judge, the law is enforced, which means applied by force, in a way that is deemed legitimate by society (Derrida, 1989, p. 927). Thereby, the judgement carries with it a very tangible and concrete violence:

Legal interpretative acts signal and occasion the imposition of violence upon others. … When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from each other.

(Cover, 1986, p. 1601)

Hence, the words uttered in the courtroom, by setting in motion a chain of institutional practices, perform violence by depriving certain persons of freedom or property, separating family members from each other and allowing the state to interfere in people’s lives. This manner of understanding the force or violence of law stems from a classic conception of power as exercised by the state on its subjects within a sort of contract in which individuals transfer their own power, defined as rights, like commodities, to a sovereignty.

When I write that in this book I will be addressing the power of the judiciary, it is, however, not this type of violence that I have in mind. Rather, I refer to mechanisms through which the judiciary imposes a particular way of getting to and establishing a true interpretation of the events disputed in court. Thus, I am interested in the court’s representational practices and its ways of recognizing some kind of injury, while keeping silent about other possible perspectives. I will explore in this book how, during trial, some experiences are made legitimate, while others are denied. I will also analyse the relation between the language, epistemology and ontology of legal knowledge, on the one hand, and the possibility of certain claims for justice being formulated and an injury claimed, on the other.

The questions that I pose here are informed by an understanding of power that links its exercise with a regime of knowledge that aims at the establishment of a certain truth. This is, essentially, the definition of power that Michel Foucault formulated in his works on madness, sexuality and discipline and that he linked to his understanding of discourse that orders and controls social life, acting multidirectionally, both in productive and destructive ways. As Foucault puts it:

In the end, we are judged, condemned, classified, determined in our undertakings, destined to a certain mode of living or dying, as a function of the true discourses which are the bearers of the specific effects of power.

(Foucault & Gordon, 1980)

Foucault thereby shifts focus from the sources of authoritative violence, whose power could be defined in a classic way as the oppression of sovereignty upon its subjects, to the domains in which the regimes of truth are produced and human bodies disciplined more subtly and imperceptibly, such as through medicine or psychiatry. While Foucault did not analyse law itself, which remained to him an instance of the vanishing classic authority, I will follow Foucauldian feminist analyses of law and the judiciary that claim that law can be seen as a regime of truth (Smart, 2002). Thus, my interest lies in violence that takes place in court and my approach is shaped by an understanding of the law and the judiciary, not so much as an instrument of authoritative power, but as an interpretative power in and of itself. This approach is inspired by Carol Smart’s argument:

If we accept that law, like science, makes a claim to truth and that this is indivisible from the experience of power, we can see that law exercises power not simply in its material effects (judgements) but also in its ability to disqualify other knowledges and experiences.

(2002, p. 11)

Smart claims that there are parallels in the ways that law and science operate in terms of making claims to truth. She furthermore argues that, through its method and in its language, law produces knowledge of the reality that it examines and adjudicates. In this sense, law operates like science, but in an extreme way—its claims to truth and its verdicts are firm and final and thereby other interpretations are categorically disqualified as invalid; there is only one unambiguous version of the disputed events that the court must establish during the trial. Moreover, by defining the terms of reference in which acts are interpreted in court, and by providing the language in which an injury can be expressed, law lays down the possible frameworks for justice claims. As such, law exercises its power by defining the limits of what Judith Butler calls ‘speakability’ and ‘unspeakability’, that is, by establishing a discursive field in which things can be expressed and zones of silence where experiences that cannot be expressed are retained (Butler, 1997, p. 136).

With this theoretical framework, I will explore how the knowledge about the acts involving anti-Muslim racism is produced and legitimized in court. In particular, I am interested in exploring the definitions and interpretations of racism made by the judiciary: Which meanings of a violent act targeting Muslims or people perceived as Muslims become legitimized in Swedish courts, and which meanings are occluded in the process? What is the rationale behind the judgements? How is racism defined in law and in court? What is necessary for an act to be classified as racist? And, more indirectly: What kind of injury can be claimed in court?

Contextualizing the book: beyond ‘Swedish exceptionalism’

To study the ways in which anti-Muslim racism is dealt with by the judiciary in Sweden is interesting for several reasons. For some time, an idea of ‘Swedish exceptionalism’ has become quite commonplace both as a part of the Swedish national identity and a kind of international renown. As various scholars have noticed, until recently the country was treated as the model of a tolerant and egalitarian society, combining welfare with multiculturalism (Eliassi, 2017, p. 18; Schierup & Ålund, 2011, p. 47). This exceptionalism has been considered not only as a feature of an inclusive state system, but also as a characteristic inherent to Swedish society and manifested in widespread tolerance and openness. It reflects a political ideal that granted immigrants and minorities extensive rights and broad inclusion in the welfare system as well as freedom of choice regarding their identities. It is often assumed that this ideal also led to a number of legal measures targeting racism and discrimination. In Chapter 4, I describe the genealogies of different laws against racism introduced in Sweden in an attempt to create a more nuanced image of the dynamics that led to the criminalization of some forms of racism.

This image of Swedish exceptionalism has been questioned, however, by those who study the development of the Swedish migration regime and multiculturalism, as disregarding urban segregation, labour market discrimination, and other forms of discrimination, and many other ways in which minorities in Sweden may have been excluded (Schierup & Ålund, 2011). Moreover, in the context of the developments in the 1990s, it has been noticed that, despite the exceptional levels of general tolerance, members of minorities in Sweden were already being confronted with growing racism (Pred, 2000). In this context, the two mass murderers attacking specifically immigrants—the Laser Man (Lasermannen) in the 1990s and, more recently, Peter Mangs—were often mentioned as having a significant impact on the everyday experiences of belonging and safety among immigrants and racialized minorities (Gardell, 2011; Khosravi, 2010; Tamas, 2005). Despite these criticisms, Swedish exceptionalism persists both as an international perception and as an important part of the Swedish national identity.

In recent years, another image of Sweden has started to circulate: Sweden as a failed state (Eliassi, 2017). In this imaginary, Sweden is also defined as exceptional, but this time because of its naïve faith i...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• 1. Introduction
• 2. Anti-Muslim racism Scales and contexts
• 3. Meeting with the court documents Methodological reflections
• 4. Making racism a crime
• 5. On the politics and poetics of hate-crime statistics
• 6. In search of a racist subject
• 7. Hate speech, linguistic injury and language in court
• 8. On judging and responsibility
• 9. Conclusions
• Index