A SOCIOLOGY OF SCHEMATIC DISCORDANCE: CHANGING RELATIONS BETWEEN MORAL WORTH AND LEGAL SCRIPTS IN ASYLUM ADJUDICATIONS
 | Talia Shiff Northwestern University One of the central, albeit largely unanswered questions in sociology, is why and when do frontline workers, who operate under conditions of limited resources and time constraints, break from routine forms of decision-making to help people they deem “deserving,” even when this entails acting against their own professional interest. |
The narrative sections of ethnographic studies on decision-making in frontline agencies and social control institutions, abound with examples of agents – whether these be police officers, judges, health workers, or social welfare bureaucrats – who bend, stretch and even defy agency rules to assist “deserving” clients and persons (Fassin 2015, Zacka 2015, Lara Millan 2014, Marrow 2009, Maynard Moody and Musheno 2003). To date, however, existing studies do not investigate the theoretical importance of this discordance between established rules and understandings of moral worth as a motivating factor of the decision-making process, even though the empirical data they provide often suggest that it is precisely this discordance which influences how frontline actors proceed to evaluate their clients.
In my work I set to examine these moments of discordance between legal and moral categories in the context of US asylum status determinations, with the goal of advancing our knowledge of when frontline workers operating under conditions of strain, shift from rule-bound forms of decision-making to engage in moral-deliberation. A growing number of scholars have importantly highlighted how frontline actors working in various institutional contexts, such as access to welfare (Maynard-Moody and Musheno 2003), job market decisions (Pager 2003), academic performance (Mallard and Lamont 2009), and policing (Fassin 2015), draw on moral boundaries when deciding how to allocate resources or assign rights and/or punishment. And yet, existing approaches often explain bureaucrats’ willingness to engage in creative deliberation as a factor of “discretion” or an internalized sense of “the right thing to do.” Building on interviews with US asylum officers, in addition to case law and administrative data on asylum applications, I propose a theoretical framework of decision-making that broadens the explanatory power of existing approaches by refocusing our attention on the ways changes in the relation between formal legal categories and embedded categories of moral worth may work to create institutional dynamics amenable to distinct forms of rule-bound versus deliberative forms of evaluation.
New Approach: Legal-Moral Deliberations
Institutions are comprised of both legal and moral categories. By legal categories I am referring to the official classificatory schema that agents use to organize, label and diagnose behaviors and persons (Sudnow 1965). These are the formal and procedural categories that instruct actors how to apply a given rule to a particular person or case. Conversely, by moral categories, I am referring to informal categorical distinctions that are shared and learned within a given institutional context and time period, concerning who is deserving or undeserving of benefits or punishment. Importantly, these moral scripts are not idiosyncratic but are rather embedded within the culture of the institution and workers draw on them when deciding how to enact a given rule (Wood et al. 2018; Lamont 2000).
While a long list of scholars has identified the moral and the legal as two distinct dimensions constitutive of social institutions, to date we know surprisingly little about how changes in the interrelations between these two dimensions may work to inform how institutions are enacted and applied. In my work, I identify how different relations between the moral and legal dimensions of institutions may generate conditions that are amenable to different forms of evaluation. Specifically, I distinguish between two types of relations between moral and legal scripts: relations of accordance and relations of discordance.
Relations of Accordance
In order to resonate, social institutions depend on there being a certain degree of accordance between moral and legal scripts. Accordance is achieved when frontline actors encounter a claim the attributes of which resonate with embedded understandings of moral worth and fit within established categories of the law. In these situations, moral and legal categories are often enmeshed together in the form of policy scripts to which frontline actors can default to for purpose of processing large volumes of cases in a time efficient manner, generating conditions amenable to routine processing of cases. The bulk of organizational sociology concerned with street-level bureaucracy and frontline decision-making in social control institutions focuses on this right here. Studies have importantly shown how rather than viewing cases as isolated events, frontline actors evaluate them by reference to what is thought of as expected for a given policy scripts (Gilboy 1991, Emerson 1983). However, too often overlooked are moments of discordance between these two dimensions. In my work, I identify two central forms of discordance between moral and legal categories: discordance characterized by legal deficit and discordance characterized by legal excess.
Relations of Discordance I:
Legal Deficit Moments of discordance characterized by legal deficit occur where frontline actors encounter claims the characteristics of which resonate with embedded moral scripts, but do not fit within the formal categories of the law. In these instances, the established categories of law appear too limited to accommodate subjects construed as otherwise “morally deserving” of care or protection, hence the experience of legal deficit.
In the context of US asylum after the Cold War, moments of discordance characterized by legal deficit often occurred in relation to claims involving gender-based violence. Starting in the early 1990s, the predominant framing within feminist legal circles came to be that rape, domestic abuse and other forms of sex-based violence were inflicted on women on account of their gender. This framing of gender-based violence was gradually imported to the asylum context through agency gender guidelines and court decisions. Importantly, as of the late 1990s, asylum officers typically agreed that women who were subject to various forms of gender violence were targeted on account of their gender – a trait that they cannot change and that is fundamental to their identity – and were thus no less deserving of asylum protection than refugees persecuted on account of their race, nationality, religion, or political opinion. At the same time, asylum law recognized only very limited types of gender-based violence as eligible bases for protection. In these situations, officers experienced a legal deficit – the formal categories of the institution failed to encompass the full range of deserving subjects it ought to protect.
Relations of Discordance II: Legal Excess Moments of discordance characterized by legal excess occur where frontline actors encounter individuals who they perceived to be undeserving of benefits or care, but nonetheless appear to be legally eligible for them. Here, the established legal categories appear to be too broad, failing to adequately discriminate the undeserving from the deserving. I term these types of encounters as encounters of legal excess.
Again, if to draw from the world of asylum, moments of discordance characterized by legal excess often came up in relation to claims involving Chinese nationals fleeing China’s coerced family planning strategies. As of 1996, US asylum law provided what many officers viewed to be in practice a blanket form of protection for Chinese nationals – Chinese nationals who feared China’s one-child policy were considered to eligible to apply for asylum. At the same time, a combination of institutionalized bias and documented fraud, led officers to believe that the majority of Chinese applicants are morally undeserving of this benefit. Thus, when officers encountered Chinese claims to whom they attributed moral failure, they perceived the blanket protection accorded to them by the one-child policy provision as excessive, failing to adequately discriminate the undeserving from the deserving.
Mapping Modes of Bureaucratic Encounters Building on in-depth interviews with 30 US asylum officers, I map out how moments of accordance and discordance in officers’ decision-making process generate institutional dynamics that are amenable to distinct forms of evaluation, with implications for how frontline actors approach their clients and define their own gatekeeping roles. I show that accordance between established legal categories and embedded moral distinctions generates conditions amenable to routinization. In these situations, officers tend to engage in a deductive form of inquiry and identify as rule-followers, approaching cases with a disposition of neutrality. Among my interviewees, this was by far the most common pattern of decision-making.
Conversely, moments of discordance characterized by both legal deficit and legal excess disrupted routine processing of cases. However, whereas discordance between high moral worth and lack of legal fit led asylum officers to engage in an inductive process of inquiry focused on a critical assessment of law and its standards, the discordance between moral failure and high legal fit, led to a deductive process of inquiry focused on the credibility of applicants’ claim to fit within the said legal category.
Theoretical and Empirical Implications:
A framework of decision-making centered on differing degrees of accordance or discordance between legal and moral categories, makes a number of contributions – both empirical and theoretical. First, it expands a growing asylum literature concerned with the processes through which asylum seekers are construed as undeserving criminals and bogus refugees, by focusing our attention on spaces where claims of moral worth and established categories of law do not align. I contend that these spaces, where agents have to negotiate the meaning of legal categories visà-vis moral ones, are critical to our understanding of processes of exclusion and inclusion at the border.
Second, identifying distinct forms of discordance between established legal categories and categories of moral worth, contributes to our understanding of the role of bias in asylum evaluations, with possible implications for the study of social inequality. When asylum officers encounter undeserving yet legally eligible applicants, they often assess the individual applicant in accordance to group stereotypes and relied on markers of race and class to distinguish the individual from other group members, resulting in a reaffirmation of racial and class biases. Conversely, when encountering deserving yet legally ineligible applicants, officers draw on biases only indirectly; in these situations, officers cease approaching applicants as mere abstractions of group stereotypes and refer to them as distinct individuals with a name and unique life story. This suggests that while processes of racialization and stigmatization play a role in shaping how we perceive and evaluate distinct groups, it is the tension between shared scripts of moral worth and established rules that often determines their direction of influence on how evaluation unfolds.
Finally, my analysis provides new analytic terminology by which to answer with more precision the question of why people at times break from rule-bound forms of decision-making to become moral deliberators – even when this goes against their own professional interest? This question is core to our understanding of how frontline actors, whether they be asylum officers, police officers, health workers or welfare bureaucrats, proceed to evaluate clients when the needs of deserving individuals exist in tension with the restrictive limits of rules. By conceptualizing decision-making as comprised of moments of discordance between moral and legal scripts, my analysis connects the fields of cultural, organizational and legal sociology and contributes to a building of a sociology of evaluation.
References
New Approach: Legal-Moral Deliberations
Institutions are comprised of both legal and moral categories. By legal categories I am referring to the official classificatory schema that agents use to organize, label and diagnose behaviors and persons (Sudnow 1965). These are the formal and procedural categories that instruct actors how to apply a given rule to a particular person or case. Conversely, by moral categories, I am referring to informal categorical distinctions that are shared and learned within a given institutional context and time period, concerning who is deserving or undeserving of benefits or punishment. Importantly, these moral scripts are not idiosyncratic but are rather embedded within the culture of the institution and workers draw on them when deciding how to enact a given rule (Wood et al. 2018; Lamont 2000).
While a long list of scholars has identified the moral and the legal as two distinct dimensions constitutive of social institutions, to date we know surprisingly little about how changes in the interrelations between these two dimensions may work to inform how institutions are enacted and applied. In my work, I identify how different relations between the moral and legal dimensions of institutions may generate conditions that are amenable to different forms of evaluation. Specifically, I distinguish between two types of relations between moral and legal scripts: relations of accordance and relations of discordance.
Relations of Accordance
In order to resonate, social institutions depend on there being a certain degree of accordance between moral and legal scripts. Accordance is achieved when frontline actors encounter a claim the attributes of which resonate with embedded understandings of moral worth and fit within established categories of the law. In these situations, moral and legal categories are often enmeshed together in the form of policy scripts to which frontline actors can default to for purpose of processing large volumes of cases in a time efficient manner, generating conditions amenable to routine processing of cases. The bulk of organizational sociology concerned with street-level bureaucracy and frontline decision-making in social control institutions focuses on this right here. Studies have importantly shown how rather than viewing cases as isolated events, frontline actors evaluate them by reference to what is thought of as expected for a given policy scripts (Gilboy 1991, Emerson 1983). However, too often overlooked are moments of discordance between these two dimensions. In my work, I identify two central forms of discordance between moral and legal categories: discordance characterized by legal deficit and discordance characterized by legal excess.
Relations of Discordance I:
Legal Deficit Moments of discordance characterized by legal deficit occur where frontline actors encounter claims the characteristics of which resonate with embedded moral scripts, but do not fit within the formal categories of the law. In these instances, the established categories of law appear too limited to accommodate subjects construed as otherwise “morally deserving” of care or protection, hence the experience of legal deficit.
In the context of US asylum after the Cold War, moments of discordance characterized by legal deficit often occurred in relation to claims involving gender-based violence. Starting in the early 1990s, the predominant framing within feminist legal circles came to be that rape, domestic abuse and other forms of sex-based violence were inflicted on women on account of their gender. This framing of gender-based violence was gradually imported to the asylum context through agency gender guidelines and court decisions. Importantly, as of the late 1990s, asylum officers typically agreed that women who were subject to various forms of gender violence were targeted on account of their gender – a trait that they cannot change and that is fundamental to their identity – and were thus no less deserving of asylum protection than refugees persecuted on account of their race, nationality, religion, or political opinion. At the same time, asylum law recognized only very limited types of gender-based violence as eligible bases for protection. In these situations, officers experienced a legal deficit – the formal categories of the institution failed to encompass the full range of deserving subjects it ought to protect.
Relations of Discordance II: Legal Excess Moments of discordance characterized by legal excess occur where frontline actors encounter individuals who they perceived to be undeserving of benefits or care, but nonetheless appear to be legally eligible for them. Here, the established legal categories appear to be too broad, failing to adequately discriminate the undeserving from the deserving. I term these types of encounters as encounters of legal excess.
Again, if to draw from the world of asylum, moments of discordance characterized by legal excess often came up in relation to claims involving Chinese nationals fleeing China’s coerced family planning strategies. As of 1996, US asylum law provided what many officers viewed to be in practice a blanket form of protection for Chinese nationals – Chinese nationals who feared China’s one-child policy were considered to eligible to apply for asylum. At the same time, a combination of institutionalized bias and documented fraud, led officers to believe that the majority of Chinese applicants are morally undeserving of this benefit. Thus, when officers encountered Chinese claims to whom they attributed moral failure, they perceived the blanket protection accorded to them by the one-child policy provision as excessive, failing to adequately discriminate the undeserving from the deserving.
Mapping Modes of Bureaucratic Encounters Building on in-depth interviews with 30 US asylum officers, I map out how moments of accordance and discordance in officers’ decision-making process generate institutional dynamics that are amenable to distinct forms of evaluation, with implications for how frontline actors approach their clients and define their own gatekeeping roles. I show that accordance between established legal categories and embedded moral distinctions generates conditions amenable to routinization. In these situations, officers tend to engage in a deductive form of inquiry and identify as rule-followers, approaching cases with a disposition of neutrality. Among my interviewees, this was by far the most common pattern of decision-making.
Conversely, moments of discordance characterized by both legal deficit and legal excess disrupted routine processing of cases. However, whereas discordance between high moral worth and lack of legal fit led asylum officers to engage in an inductive process of inquiry focused on a critical assessment of law and its standards, the discordance between moral failure and high legal fit, led to a deductive process of inquiry focused on the credibility of applicants’ claim to fit within the said legal category.
Theoretical and Empirical Implications:
A framework of decision-making centered on differing degrees of accordance or discordance between legal and moral categories, makes a number of contributions – both empirical and theoretical. First, it expands a growing asylum literature concerned with the processes through which asylum seekers are construed as undeserving criminals and bogus refugees, by focusing our attention on spaces where claims of moral worth and established categories of law do not align. I contend that these spaces, where agents have to negotiate the meaning of legal categories visà-vis moral ones, are critical to our understanding of processes of exclusion and inclusion at the border.
Second, identifying distinct forms of discordance between established legal categories and categories of moral worth, contributes to our understanding of the role of bias in asylum evaluations, with possible implications for the study of social inequality. When asylum officers encounter undeserving yet legally eligible applicants, they often assess the individual applicant in accordance to group stereotypes and relied on markers of race and class to distinguish the individual from other group members, resulting in a reaffirmation of racial and class biases. Conversely, when encountering deserving yet legally ineligible applicants, officers draw on biases only indirectly; in these situations, officers cease approaching applicants as mere abstractions of group stereotypes and refer to them as distinct individuals with a name and unique life story. This suggests that while processes of racialization and stigmatization play a role in shaping how we perceive and evaluate distinct groups, it is the tension between shared scripts of moral worth and established rules that often determines their direction of influence on how evaluation unfolds.
Finally, my analysis provides new analytic terminology by which to answer with more precision the question of why people at times break from rule-bound forms of decision-making to become moral deliberators – even when this goes against their own professional interest? This question is core to our understanding of how frontline actors, whether they be asylum officers, police officers, health workers or welfare bureaucrats, proceed to evaluate clients when the needs of deserving individuals exist in tension with the restrictive limits of rules. By conceptualizing decision-making as comprised of moments of discordance between moral and legal scripts, my analysis connects the fields of cultural, organizational and legal sociology and contributes to a building of a sociology of evaluation.
References
- Emerson, Robert M. 1983. “Holistic Effects in Social Control Decision-Making.” Law and Society Review, 425–455.
- Fassin, Didier. 2015. “Can States Be Moral?” At the Heart of the State: The Moral World of Institutions.
- Gilboy, Janet A. 1991. “Deciding Who Gets in: Decision-making by Immigration Inspectors.” Law and Society Review, 571–599.
- Lamont, Michèle. 2000. The Dignity of Working Men: Morality and the Boundaries of Class, Race and Immigration. Cambridge, MA: Harvard University Press.
- Lara-Millán, Armando. 2014. “Public Emergency Room Overcrowding in the Era of Mass Imprisonment.” American Sociological Review 79 (5): 866–887.
- Mallard, Grégoire, Michèle Lamont, and Joshua Guetzkow. 2009. “Fairness as appropriateness: Negotiating epistemological differences in peer review.” Science, Technology, & Human Values 34, no. 5: 573-606.
- Marrow, Helen B. 2009. “Immigrant Bureaucratic Incorporation: The Dual Roles of Professional Missions and Government Policies.” American Sociological Review 74 (5): 756–776.
- Sudnow, David. 1965. “Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office.” Social Problems 12 (3): 255–276.
- Wood, Michael Lee, Dustin S. Stoltz, Justin Van Ness, and Marshall A. Taylor. 2018. “Schemas and Frames.”
- Zacka, Bernardo. 2015. “When the State Meets the Street: Moral Agency and Discretionary Power at the Frontlines of Public Service.”
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