Law and the Stranger New Edition

Stanford University Press

Copyright © 2010 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-7154-2

Contents

CONTRIBUTORS………………………………………………………………………………………………xiNegotiating (with) Strangers AUSTIN SARAT, LAWRENCE DOUGLAS, AND MARTHA MERRILL UMPHREY…………………………..1Necessary Strangers: Law’s Hospitality in the Age of Transnational Migrancy PHENG CHEAH…………………………..21The Strangers in Ourselves: The Rights of Suspect Citizens in the Age of Terrorism ROGERS M. SMITH…………………65Strangers Within: The Barghouti and the Bishara Criminal Trials LEORA BILSKY…………………………………….96Conflict of Laws and the Legal Negotiation of Difference PAUL SCHIFF BERMAN……………………………………..141Who’s the Stranger? Jews, Women, and Bastards in Daniel Deronda HILARY M. SCHOR………………………………….180Of Stranger Spaces KENJ I YOSHINO…………………………………………………………………………..211INDEX…………………………………………………………………………………………………….237

Chapter One

Negotiating (with) Strangers

AUSTIN SARAT LAWRENCE DOUGLAS MARTHA MERRILL UMPHREY

Law calls community into being. It constitutes the “we” it governs, hailing us as those subject to its power, naming us as the group under its jurisdiction. This performative act of naming necessarily produces an outside as well as an inside, a border whose crossing is guarded in order to maintain the identity, coherence, and integrity of the space and people within. Those wishing to enter must negotiate a complex terrain of defensive mechanisms, expectations, assumptions, and legal proscriptions. Is that, “we” ask, someone who should be allowed to enter, someone to whom we should offer hospitality? We in turn negotiate those questions with and through law, which enforces the boundary between inside and outside in both physical and epistemological ways. We know who “we” are by situating ourselves, or by being situated, in relation to that boundary.

Law and the Stranger New Edition explores ways in which law, and in particular liberal legal regimes, identifies and responds to strangers within and across their borders, both historically and in the present day. The chapters in this book analyze the ambiguous place strangers occupy in communities not their own, and each chapter, from its own perspective (whether theoretical, jurisprudential, historical, or literary), reflects on the ways in which dealing with strangers challenges the laws and communities that invite or parry them.

The inquiries here are all the more timely because questions about how nations, peoples, and communities ought to negotiate with strangers have emerged as an increasingly pressing issue in the early twenty-first century, a time of intensified global conflict and global interconnection both economically and technologically. While Barack Obama may be moving away from the by-now familiar invocation of a “war on terror,” it remains the case that the geopolitics of the United States and Western Europe are inextricably connected to battles, both military and cultural, being fought in other lands. And, as the recent global economic crisis has all too clearly emphasized, the interdependence of nations with each other and with global institutions means that vulnerabilities apparent in one nation’s economy reverberate around the world in waves that can bring smaller nations to their knees.

In such a context, conflicts (whether literal or metaphoric) among states, religions, classes, ethnicities, religions, and cultural groups seem to impose themselves on liberal legal regimes in ways that can put their liberalism under pressure. How have and should liberal states confer recognition on those who knock on the door and ask for entry? What complications arise when those perceived as strangers are inside the polity rather than outside supplicants? What, if anything, is owed to strangers without regard to their moral, political, or economic worth?

To the extent that extending hospitality is a legal project, a bestowing of recognition according to conditions created by law, we might say that strangers are made through law, rather than born through accidents of geography. What kind of legal subject is constituted by these processes of recognition? How does the legal recognition of a stranger come to constitute both stranger and self?

What Is a Stranger?

Georg Simmel, one of the most insightful commentators on the social identity of the stranger, argued that strangers are not, as common sense might have it, those who are not known, but are instead those who have been encountered but not fully assimilated into the community. Simmel describes strangers as potential wanderers, people within a community who have not belonged to it from the start and who import qualities that do not stem from the community itself. Such people are, he writes, “a synthesis of nearness and distance.” Under auspicious circumstances, that ambiguous position within a group can confer a distinct kind of power on the stranger in relation to the rest of the community.

Dwelling, however temporarily, with others, strangers approach new communities with what Simmel describes as an attitude of “objectivity” because the stranger is not “radically committed to the unique ingredients and particular tendencies of the group.” Strangers such as these can engender a particular kind of intimacy dependent upon their remove from the enveloping everyday world of common custom and culture. They can be entrusted with community members’ confidences and confessions that cannot otherwise be spoken. The stranger’s objectivity accords him or her a bird’s-eye view, unburdened by “habit, piety, and precedent.”

Focusing specifically on cultural narratives of the stranger, Bonnie Honig builds on this insight in Democracy and the Foreigner, arguing that fantasies of foreignness point to not just fear of corruption but also its cure. Honig argues that narratives that imagine foreigners specifically as founders rather than enemies point to a deep impulse toward renewal. “Sometimes,” she notes, “the figure of the foreigner serves as a device that allows regimes to import from outside (and then, often, to export back to the outside) some specific and much-needed but also potentially dangerous virtue, talent, perspective, practice, gift, or quality that they cannot provide for themselves (or they cannot admit they have).” In Honig’s view, our capacity to imagine foreigners as founders creates the possibility of what she calls “democratic cosmopolitanism,” an ideal that “seeks out friends and partners even (or especially) among strangers and foreigners.” Such strangers become objects of desire, sometimes mythologized, who continually help to refound the national community.

Yet both Simmel and Honig note that even those strangers we seem to welcome are also dangerous presences, easily transmuted into scapegoats when communities feel threatened. As Rene Girard observed, scapegoating and sacrificial violence restore equilibrium to a community threatened by internally generated violence. Simmel ties this possibility to the greater distance and objectivity of the stranger, which enables those within a community under attack to claim that they were provoked from outside the community, not from within. Honig reverses the logic of Simmel’s proposition insofar as she argues that a scapegoat need not be in the first instance a foreigner; rather, a scapegoat is one cast as a foreigner, and as such, cast out of a community. Scapegoating, she argues, is “a social practice that finds or produces the object it needs.”

Simmel suggests that a stranger’s dual remoteness and nearness has a further effect: in giving a community a sense of the more abstracted nature of the relation between it and those beyond its geographic or cultural borders, the stranger’s ambiguous presence highlights the general qualities shared by all in dividuals. “The stranger is close to us, insofar as we feel between him and ourselves common features of a national, social, occupational, or generally human, nature. He is far from us, insofar as these common features extend beyond him or us, and connect us only because they connect a great many people.” If the stranger is not “one of us,” the connections we perceive with him or her nevertheless point to a thin but powerful basis for reciprocal recognition even across the sometimes high barriers of group identification, of the kind necessary for a regime of human rights.

Strangers and Hospitality

“I have always depended upon the kindness of strangers,” purrs Blanche DuBois in Tennessee Williams’s A Streetcar Named Desire. Blanche’s imposition on strangers is cast as an ethical problem in Williams’s play, but some scholars have noted that beyond the ethical there is, or ought to be, a legal dimension to the extension of hospitality to strangers. The foundation of these claims is Immanuel Kant’s argument that strangers have what he calls a “cosmopolitan right … not to be treated in a hostile manner by another upon his arrival on the other’s territory.” This right, Kant suggests, is “a right to visit, to which all human beings have a claim, to present oneself to society by virtue of the right of common possession of the earth.” This argument posits a thin but broad basis for a right-one need not recognize in the stranger even Simmel’s “common features of a national, social, occupational, or generally human, nature”-and that right is at best minimal: not to be treated with hostility upon arrival. Yet it is a universal right, one that subtends much of the present era’s theorizations concerning proper exercises of law in a globalizing world.

Distinguishing between the foreigner and the barbarian (of which more below), Jacques Derrida extends Kant’s analysis in arguing that what he calls “conditional hospitality” involves reciprocal obligations, passed down across generations, based on a logic of minimal familiarity. That, in turn, “presupposes … that it is possible for them [the foreigners] to be called by their names, to have names, to be subjects in law, to be questioned and to be liable, to have crimes imputed to them, to be held responsible, to be equipped with nameable identities, and proper names.” This capacity to be named by and before the law makes the stranger legible to the law. As Derrida describes it:

[T]his foreigner, then, is someone with whom to receive him, you begin by asking his name; you enjoin him to state and to guarantee his identity, as you would a witness before a court. This is someone to whom you put a question and address a demand, the first demand, the minimal demand being: “What is your name?” or then “In telling me what your name is, in responding to this request, you are responding on your own behalf, you are responsible before the law and before your hosts, you are a subject in law.”

Although the question “What is your name?” may require a translated response, its very asking not only invites but interpolates a good-faith respondent into the law, which for Derrida confers a right to hospitality on the stranger and engenders reciprocal responsibilities.

In Derrida’s view, however, that right is contingent; the host must necessarily choose the guest. There is, Derrida says, no hospitality without sovereignty over one’s home; and “since there is also no hospitality without finitude, sovereignty can only be exercised by filtering, choosing, and thus by excluding and doing violence.” Hence Derrida, unlike Kant, sees the conferral of hospitality and legal recognition as always already bound up with the violence of law.

Border Patrol: Law’s Negotiations with Strangers

In a world of nation-states, modern law organizes these general conceptualizations of the stranger along the axis of citizen/alien. As Rogers Smith reminds us in his chapter in this book, conditions of exclusion and conditional entry vary from culture to culture and era to era, but immigration restrictions and border patrols are constant features of the modern nation state. Border crossings can be dangerous business; now, in our tightly controlled world borders are in some places likely to be walls made of concrete, metal, and barbed wire; guards are ready with weapons and ever-searching gazes; and noncitizens are subject to passport controls and biometric scans, and sometimes redirected to small, windowless interrogation rooms.

Beyond those concrete borders, though, liberal legal regimes by their very nature grapple continuously with the question of how to negotiate with strangers standing at their points of entry: those who wish to gain access to the privileges of citizenship, those who request entry on a contingent basis for economic or other reasons, and those who remain outside the physical or legal boundaries of the sovereign state but who are nevertheless interwoven in some way with it. As Seyla Benhabib puts it:

Sovereignty entails the right of a people to control its borders as well as define the procedures for admitting “aliens” into its territory and society; yet in a liberal democratic polity, such sovereignty claims must always be constrained by human rights, which individuals are entitled to, not by virtue of being citizens or members of a polity, but insofar as they are simply human beings.

If one agrees with Benhabib that there is, descriptively, a set of universal rights, then one must ask, normatively speaking, how liberal legal regimes should accommodate strangers who claim the right of hospitality.

Embracing the concept of “human rights” in their most abstract form, one that empties humans of their specificity in order to confer universal rights upon abstract legal subjects, does not, Will Kymlicka suggests, in the end resolve some of the most important issues emerging from cultural difference. Rather, negotiations across borders require a thicker understanding of both the subjects in negotiation and the ethical relations at stake. Contemporary scholars have framed their analysis of this problematic in a number of ways. Some emphasize differences across groups and identities and call for a politics of recognition that accords dignity and respect-and sometimes legal recognition-to those differences. The literature in this area emphasizes the dialogic nature of identity production and urges attention to, in particular, cultural diversity.

According of substantive rights through mutual recognition, argues Axel Honneth, confers both self-respect (the capacity to assert claims as a morally responsible agent) and self-esteem (the capacity to be distinguished as an individual according to qualities that are valued). A liberal polity, these scholars suggest, has the moral responsibility to engage in a politics of equal recognition of this sort, particularly in an increasingly multicultural world. This type of analysis informs the work of the kind done in this book by Paul Berman and Leora Bilsky, both of whom are concerned to create discursive legal spaces open enough that conflicts between states and communities can be articulated and adjudicated in a way that respects national and cultural differences.

Other scholars emphasize the ways in which identities hybridize when individuals and groups interact, producing a cosmopolitanism that can transcend the we/they binary. As Benhabib puts it:

I think of cultures as complex human practices of signification and representation, of organization and attribution, which are internally driven by conflicting narratives. Cultures are formed through complex dialogues with other cultures. In most cultures that have attained some degree of internal differentiation, the dialogue with the other(s) is internal rather than extrinsic to the culture itself.

Julia Kristeva suggests that one who chooses cosmopolitanism is one who, “against origins and starting from them, [has] chosen a transnational or international position situated at the crossing of boundaries.”

Indeed, scholars of cosmopolitism problematize the very idea of the border or boundary in ways that cut against some multiculturalists’ assumptions about the authenticity and containability of differing cultures. As Homi Bhabha observes, “The boundary is Janus-faced and the problem of outside/inside must always itself be a process of hybridity, incorporating new ‘people’ in relation to a body politic.” Indeed, Bhabha argues, “The ‘other’ is never outside or beyond us; it emerges forcefully, within cultural discourse, when we think we speak most intimately and indigenously ‘between ourselves.'” One can see this dynamic at play most clearly in the chapters by Hilary Schor and Kenji Yoshino, below, both of which turn to the literary to trace internal contradictions in narratives about the relation between strangers and law. Theorizing cosmopolitanism enables a self-reflexivity that destabilizes the citizen/alien binary. To the extent that we are capable of such self-reflexivity, our task is to recognize our own internal foreignness in order to discover and abjure what Kristeva calls “the violence of the desire to be different.”

(Continues…)

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