Law, communication, and the discourse of migration

A version of this post was originally written for the graduate seminar “Framing Migration,” taught by Prof. Deniz Göktürk of the UC Berkeley Department of German. In this post, seminar participant Abigail Stepnitz uses legal theory lenses to tie together the strings of multiple readings from the course. An earlier version of this post served as an introduction to Abigail’s seminar presentation on law and refugee status in contemporary Europe. 

The texts Abigail draws on include Gayatri Spivak’s seminal essay of postcolonial theory “Can the Subaltern Speak?”, communications theorist and guest “Framing Migration” participant Marco Jacquemet’s “Transidiomatic Practices”, sociologist William H. Sewell, Jr.’s “Historical Events as Transformations of Structures”, anthropologist Marita Eastmond’s “Stories as Lived Experience”, and author Jenny Erpenbeck’s novel Gehen, ging, gegangen.

Spivak is inviting us to recognize the limits of the Western knowledge-production project – to question the intent behind and the consequence of knowledge and especially its ties to economic and colonial interests. Given that we are thinking about how the western “we” stands in judgement of the knowledge produced by refugees/asylum-seekers, especially, in light of Jacomet’s piece, when the knowledge they are producing is the knowledge about their own lives.

Law is an especially problematic discursive institution. If western knowledge itself is a site in which we must be wary of being complicit in the colonial project, then law is the location most at risk for asserting and defending essentialism and positivism, and for making suspect claims of objectivity.

Spivak draws our attention to two ways to represent: vertreten (“represent” as in political representations) and darstellen (“re-present” as in economic value – two forms she calls “related,” in the project of state formation and subject formation before the law, but are also irreducibly discontinuous, as in subject-predication. “Because ‘the person who speaks and acts … is always a multiplicity’, no ‘theorizing intellectual … [or] party or … union’ can represent ‘those who act and struggle.’ Are those who act and struggle mute, as opposed to those who act and speak” (Spivak, 70).

I feel that Spivak presents before the Western scholar/author the most singular challenge of writing about the subaltern – indeed about the refugee – asking if it is possible or advisable to speak with/for/about (if there is even a reasonable project in disintegration of those words that is other than epistemologically self-serving?)

The Sewell article “Historical Events as Transformations of Structures” is probably the most formative piece I’ve ever read in terms of really shaking up my thinking about how I frame my own research. Sewell’s basic framework is that structures are interactions between cultural schemes, distributions of resources, and modes of power, noting that when they come together they reproduce the aspects of social life that we consider to be legitimate and necessary, over and over again.

Law is a powerful site of ritual and an occasional site of historic event. Everything about engaging with law is highly regulated, from acceptable speech and physical comportment to assumed intention. As such we can see how the law and legal theatre in particular can set off “sequences of ruptures that effect transformations of structure,” and that then the “transformation of structure has the potential of touching off dislocations and rearticulations of overlapping or contiguous structures” (Sewell, 871).

I have also been thinking about Sewell’s notion of ritual, alongside the centrality of space and emotion (in particular in Durkheimian effervescence) in light of other work on ritual as being important in allaying fear and in light of research into how law can limit, manufacture, and direct emotion.

I find Sewell’s discussion of “semantic slippage” (Sewell, 683) in particular to be extremely relevant for the migration context. It is clear that during the current European “crisis” there is a strong sense emerging that the term refugee needn’t be burdened by legal specificity, but instead should reflect social recognition of past suffering, of inequality, of the need to be able to pursue a better life. As an example of “semantic slippage,” this demonstrates a change in the meaning of a widely recognized concept because of a major change in or disruption to social structures.

The social reclamation of the language of “refugees” despite the aggressive and deliberate limitation of what is legally possible shows a desire to build social solidarity between citizens and migrants. As opposed to resulting in a rejection of the underlying cultural and ideological forces which gave the word its original meaning, this process of redefinition actually affirms and rearticulates those forces and their values.

I see Eastmond and Erpenbeck as approaching the way that refugee lives are communicated in two very different ways. As Eastmond writes, “stories are never transparent renditions of reality, but partial and selective versions of it, arising out of social interaction (Eastmond, 250.) In the case of the asylum narrative that selectivity arises out of interaction instead with the law, in the case of the asylum-seeker’s experience, as we read in Erpenbeck’s excerpt, the lived experience also arises out of social interaction.

Abigail Stepnitz is a PhD candidate in Jurisprudence and Social Policy at the University of California, Berkeley. Find out more about her work here.


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