When the body of a young boy washed ashore in Turkey in 2015 theworld temporarily held its breath and the humanity of our migrationlaws was – for a short while – put on moral trial. The image of young Aylan Kurdi, who tragically perished during the perilous passage by sea, appeared to be an exception among the continuous coverage showing people crossing borders as different forms ofimagined threa s. As an image of the innocent, the photograph of Aylan Kurdi had a significant impact in the shape of a temporary softening of some migration regulations. As this chapter will furthershow, that impact was possible because images of migrant children, in the right circumstances, are able to challenge the otherwise arid ethical landscape of the border.Unlike most figures we have seen thus far, the figure of a child conjures strong feelings and emotionsand for many is a signifier of innocence, vulnerability, as wellas the ultimate need for care (Wells 2007, p. 59). Therefore, images of children are capable of triggering a unique ethical response in viewers and are often used to elicit empathy (O’Dell 2008;Höijer 2004; Moeller 2002). As emphasised by Anna Larsen,conceptions of children as vulnerable and innocent make them ideal victims in news media coverage (2017, p. 894). Imagery of this kind isused to elicit sympathy, engagement and action. This explains why international organisations and media often use stories and faces ofchildren when covering tragic events such as famine or war (ibid.).Theimage of Aylan Kurdi was no exception to this rule, because empathystirred by depictions of suffering children prompts most viewers torespond ethically (Höijer 2004) in a visual landscape where the average viewer suffers from what many have termed ‘compassion fatigue’ (Moeller 1999; Tester 2001). Images of children break through compassion fatigue – a state in whichtoo many images of suffering people results in emotional indifference to further portrayals of people in dire circumstances – becausechildren signify innocence and typically harbour no ill intentions (imagined or otherwise).

Racialisation of the figure of the migrant examined in the previous chapter is not the only dehumanising frame that can be applied to those arriving. Another way in which the host gaze frames migrants and obscures their humanity is to present those arriving as a homogenous mass, often metaphorised as a flow or flood. This chapter analyses depictions of the figure of the migrant as a faceless and dehumanised homogenous mass. As a semi-alien threatening organism, those presented as a nameless cohort are seen as a danger even greater than the racialised other.While the racialised other is presented as a danger to the culture, history and perceived national values of host states, the anonymity and the large-scale threat of the mass is often presented as a multifaceted burden that exceeds the capacity of the host to absorb it. This perceived burden is both socio-cultural and economic in its framing. The economic burden is related to the first figure examined in this book, namely the ‘bogus’ asylum seeker or the unwanted form of homo oeconomicus that allegedly competes with the local population for resources, access to social welfare, and employment. While the racialised other is alleged to threaten the cultural foundations of the host state, the anonymous mass threatens all forms of community survival, including economic survival. Together, these figures are often used as a powerful tool in the political arsenal of migration critics.Combined, they constitute a threat so great that not only do they motivate voters to elect right-wing and anti-immigration parties that implement ever stricter forms of migration control (Langlotz and Muazzin 2014), but they also have the capacity to enter the mainstream discourse and become increasingly normalised (Betz 2013; Kallis 2013). What follows from that normalisation are unprecedented legal changes shifting the foundations of existing consensus and legal principles regulating migration.

In the past two decades migration has become a central topic of news coverage,political debate and electoral campaigning across theglobe. Interest in regulating migration and details of migration law have become central not only in traditionally migration-receivingcountries but also in those once perceived as migration-producing. As a result of increasing political tensions over controlling borders, multiple countriesacross the globe have experienced rapid changes in regulation of who and under what circumstances can enter their territories, reside in them and enjoy the full benefits of belonging.In the aftermath of these rapidly accelerating changes, those leaving the territory of their own state and moving to the territoryof another state have often experienced increasingly comprehensive forms of control over their lives. Beginning from the moment of their appearance at the border, and sometimes even beforehand, the lives of migrants have become strictly regulated across continents andlegal contexts.

While migration has always been considered an area where state sovereignty is relatively unrestricted, recent years have expanded the notion of sovereignty and challenged the way that international standards are interpreted and applied in the area of migration and refugee law.For instance, Australia’s offshore processing ofasylum seekers – known as the ‘Pacific Solution’ – initially drew heavy criticism in terms of its legalityand compliance with international standards as established under the Refugee Convention of 1951. Despite mounting legal critiques and serious reservations expressed by international human rights bodies, soon afterwards, in response to the so-called Syrian refugee crisis of 2015, a similar approach was proposed in the EU–Turkeydeal, which aimed at reducing the number of people claiming asylum in the European Union.

While ‘bogusness’ and ‘illegality’ underpin much of migration policy discourse, not all figures of the migrant focus on crossing borders. At times, guests already in the host territory experience the power of the host gaze, particularly when it is used in representations aiming at changing existing migration regulation. In this chapter I argue that such frames often operate in the host society for many years or sometimes even decades after the guest’s arrival. These deeply entrenched frames through which the host views those recently settled govern the lives of migrants to a substantial degree.Those already living in their new countries are often subjected to the assumption that being a ‘migrant’ is not just a transitory state, but instead a long-lasting or even perpetual status. Indeed, in certain host societies migrant status can be ‘inherited’ to the point of speaking of first, second or even third ‘generations’ of migrants. The host gaze applied to those already living in societies often relies on the presumption of ‘inherent’ differences between host and guest. These differences are cont nuously emphasised by the use of the host gaze which reinforces a perception of irreconcilability and inability of those with a migrant background to ever ‘truly’ belong.The perception of such ‘irreconcilable’ and ‘natural’ cultural differences and perpetual exclusion from being a full member of society continue to impact the lives of those who have already settled in the territory and sometimes even those who were born there. As shown in this chapter, the figure of an absolute other isoftenharder to deconstruct as a migration-related figure but continues to be powerfully effective in controlling discussion of migration law and introducing changes limiting the rights of newer members of society.

Despite the growing importance of images in our contemporary world and the ease with which we can share, look at and use pictures, photographs and visual media of all kinds, sceptics may continue toremain unconvinced that imagery has much to do with law. After all,if we focus on the idea of competition for gaze, presence of recurring imagery may be considered irrelevant as long as competing imagery is emerging and attempting to speak to viewers. Yet, in spite ofthe wide variety of visual media available today, the influence of certain depictions of migrants has had an extraordinary power to convince voters (Matthes and Schmuck 2017).However, in this pictorialera – as W. J. T. Mitchell (1995) called it – we are still often unaware of the framing, the gaze and the affect create by the visual field. The way in which we look often goes unnoticed and is rarely treated as a form of power shaping so ietal bonds andrelations. Meanwhile, growing reliance on the visual field in communication more generally makes it all the more importan to understand that the way in which we look shapes our understanding of dutieswe have towards ethical and legal subjects. This book has shown that the visual field communicates messages and presumed relationshipsbetween host and migrant through elements such as the frame, the gaze po nt and the field of appearance.In the overwhelming visual presence of certain figures, the ethical distance between the viewerand the figure of the migrant has become so normalised that exclusionof the migrant from a range of rights and societal participationappears to be ‘natural’. Awareness of the role of these archetypal images and their impact on forming individual decisions and normative standards can help us understand why migration lawhasbeen progressively moving in the direction of increased hostility, and why hospitality is increasingly withdrawn and remains onditional on meeting numerous special requirements.

As a result of increased discourse about migration, hardly a daypasses without news about migrants, migration policy plans or newlyintroduced migration laws. While the COVID-19 pandemic temporarilyslowed migration and temporarily held borders closed, the Ukrainian conflict quickly reversed this tendency, resulting in intensified discourse on the boundaries of welcome owed to the latest group of people escaping strife. At the same time, a wave of new accidentshasalready dominated the media, from those occurring in the Mediterranean Sea to news of a truck – recently discovered in San Antonio – where migrants tragically lost their lives.Yet, despite the term ‘migrant’ or ‘immigrant’assailing the ears almost daily, there is little certainty as to who the ‘migrant’ is, how they cross the border and what their relationship with the law is. Despite seeing migrants in photographs, news reports or on government posters, we have a rather narrow image of the ‘migrant’ – a figure encompassing a wide array of people crossing borders for diverse reasons. A migrant remains primarily a synonym for the figure of an outsider waiting at the gates of the community to be found worthy of inclusion and let into the community. This somewhat narrow image goesagainst the lived reality of people crossing borders whose different aspects of life are regulated by different legal provisions depending on their purpose, intention to stay or family status.Indeed, those who fit the narrow category of a ‘migrant’ includea broad range of people crossing borders, from the specialised worker overseas on a posting, through a seasonal worker, someone joining their family, all the way to an individual fleeing persecutionor escaping circumstances such as war, famine or climate change. People crossing borders differ vastly and may arrive via specified legalroutes granting them ‘legal’ status or may be crossing borders irregularly, often resulting in their classification as ‘illegal’.

Many would argue that nothing is further apart than the subjective experience of an image and the objective experience of the law, unswayed by emotions. Costas Douzinas and Lynda Nead remind us thatthe jurisprudence of modernity has put an apparent distance betweenthe concerns of the law and the concerns of art and literature (1999, p. 3). If we look at the law simply through the lens of positivelaw, or so-called black-letter law, nothing hints at the importance of animage and the relevance of the visual realm in assessing how law operates, creates legal categories or forms legal judgments.Themere existence of visual frames, certain forms of gaze or modes of appearance may indeed seem irrelevant for the daily experience of the law and its regulation. But, as Douzinas and Nead insist, this imagined distance between the legal and the visual is simply a form of pretence through which law attempts to close itself off from other discourses and practices in order to keep itself ‘pure’ from the outside influence of the non-legal (ibid., p. 4).

Just as numerous other law and aesthetics scholars have insisted, this volume, too, emphasises that the distance between law and the surrounding visual realm is illusory.As we shall see, an understanding of images that shape and influence political and legal discourse in diverse legal areas is crucial for an understanding of the visual affect implicated in creating and maintaining the social bond(ibid., p. 9). Migration law will of course be no exception in thisregard. As already hinted at in the previous chapter, this volume argues that the visual figures of migrants underpinning migration discourse are relevant for the maintenance of power relations betweenhost and guest, often even before the migrant arrives at the border.

This volume has argued that the way we see the world shapes the way in which we organise and legislate the lives of our communities. The surrounding imagery has a deep influence on the ethical and legal duties we envision towards others and the relationship betweenthem. In our contemporary world, as our reliance on visual communication increases, so too will the prominence of visual imagery. Deconstructing the way in which we gaze at others can help us uncover multiple presumptions hidden behind the irresistible allure of the image. After all, despite being bombarded by thousands of images every day, we often remain unaware of the frames, gaze points and messages encapsulated in the field of appearance in the pictures we look at. Surrounded by visual campaigns and often glued to the screens of our mobile phones, we too often assume that this visual reality exists in separation from the social contract we constantly negotiate and has little to do with the laws we live by. Yet – as Ihope this volume has shown for lawmakers, lawyers dealing with migration cases, human rights activists or scholars teaching migration law – understanding the visual presumptions behind images ofmigrants may be crucial for understanding why, despite decades of arguing in favour of recognising the rights of migrants, we are steadily moving away from rights-based approaches and towards a heavilycrimmigration-based system regulating migration.This book has focused primarily on the ethical distance that archetypal images of migrants establish between host and guest. It has shown how archetypal representations of those arriving at the border perpetuate dominantperspectives shaped by the host gaze and reinforce the host’s existing presumptions about those arriving.

The figure of the refugee, central to further discussions on thespreading paradigms of ‘illegality’, appears to rely on a somewhat fragmented and Janus-faced set of imagery. Refugee law literature has characterised this as the interplay between two distinct figures, namely those of the ‘bogus’ asylum seeker and the ‘genuine’ refugee (Kmak 2015). This chapter focuses on these f gures to illustrate that they have informed depictions of migrants and refugees more broadly. This is possible because the dichotomy between ‘bogusness’ and ‘genuineness’ applies both to images that communicate negative ideas concerning migration and to those that convey positive depictions of refugees and migrants. While negative imagery may be used by political campaigns or – as shown here – governmental materials, positive depictions are often prepared by artists for NGOs or rights-based initiatives.I intend to show, however, that regardless of their intention, most of these images rely on established ways in which the ‘genuineness’ of a refugee hinges on depictions of absolute deprivation and destitution. These two figures are pivotal because of the previously noted confusion in categorising between refugees and migrants and the exponential expansion of ‘illegality’ in migration law more generally. The dichotomy between who is ‘genuine’ and who is‘bogus’ – and, by extension of their bogusness, ‘illegal’ – has overtaken social, political and sometimes legal discourses affecting all migrants and the conditions for crossing borders or settling in the new community.As I will show in this chapter, this dichotomous framing stems from the interplay between autonomy and refugeehood observed in refugee literature (Zagor 2015). The assumption of limited autonomy underpinning the figure of the refugee has shaped refugee law into a form of charity deserved only by those most victimised and deprived.

This Introduction has three objectives. The first is to situate this volume within the current phase of South Africa’s difficult engagement with land reform in particular and transformative constitutionalism in general. For this purpose, we characterise the recent debate on ‘Expropriation Without Compensation’ (EWC) and the political developments leading to the tabling, and failure, of the Constitution Eighteenth Amendment Bill. In section two, we begin with an account of the research project and conference that led to this volume and then review the book’s three-part structure and its individual chapters in relation to each other. While there are important points of convergence with regard to the contested assemblage of law, land reform and redistributive justice, there are also divergent views for probing further. In the third section, we respond to this challenge by addressing three interlinked issues that emerge from a transversal reading of the chapters, which we regard as central for the future of redistributive justice in South Africa. These are, first, the respective roles of the state, popular politics and the private sector in driving this project; second, the relative importance to be attached to productive and redistributive measures as building blocks of change; and third, the scale of the structural changes that are needed.

This chapter explores land reform and redistributive justice from the vantage point of the Karoo, a large, sparsely populated and marginalised area that constitutes some 40 per cent of South Africa’s commercial farmland, where major land-use changes are recalibrating the significance of this land both locally and nationally. Underpinning the discussion is a concern with the narrow framing of contemporary land debates in terms of land as redistributive justice, rather than one plank in a larger framework for social justice. The argument is not that the Karoo is typical of the country as a whole, or that the time for land reform is past. Rather, thinking through social–ecological changes here pushes one to scale down expectations of land reform while foregrounding other issues of concern. Five cross-cutting themes are highlighted: the scale of the Karoo; its challenging environment; current land-use changes; the small-town character of the region; and its multi-layered history. The chapter draws on recent research on land-use change and sustainable development in the region, concluding with a case study of land restitution and renewable energy in the small town of Loeriesfontein.

This chapter focuses on the so-called politics behind nil compensation against the background of some recent judicial developments, which arguably show a conservative trend in awarding compensation that deviates substantially from market value. The chapter questions why the narrative in favour of nil compensation is so dominant if it is argued that it is already legally possible to expropriate for very little compensation. Considering the Msiza judgments in the Land Claims Court and the Supreme Court of Appeal, the chapter asks: Do we need to rethink the space that nil compensation occupies in our legal framework? The fact that expropriation is essentially compensation-based, coupled with the difficulty that courts have to determine compensation that is not (always) related to market value, suggests that it may be necessary for us to engage more directly with the idea of nil compensation in a much more open, honest and principled manner. There is enough evidence to show that this option is not only politically driven but in fact legally necessary.

The transition from an apartheid state to one whose foundation is universal suffrage saw South Africa adopt multiple methods to signify transition from the one form of rule to the other. Such a transition involved, among others, the creation of truth commissions, the amendment of legislation and the promulgation of new legislation – a process collectively referred to as transitional justice. Despite the protections against the arbitrary deprivation of property, provided for in the Constitution of the Republic of South Africa and other pieces of legislation born of transitional justice, there continues to exist a disparity in respect of who South African property law caters for and protects. Against this background, the South African Constitution and case law, this chapter engages the principle of transformative justice to interrogate the conceptions of ownership and property under South African property law. This chapter argues that the current conception of property and ownership serve to, inter alia, economically exclude a large number of South Africans whose property custodianship exists outside of the current conceptions of ‘ownership’ and consequently outside of the recognition of private ownership of land or property.