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Draft Overview and Preliminary Findings from On-Going Research Project: 

“Issues Among Inmates Held for Immigration Concerns”

drafted by Robert Barsky on the basis of interviews and work with the Center for the Americas workgroup on immigrant incarceration,  Vanderbilt University


Introduction to the project (draft and preliminary -- for distribution, not for citing)

In the current post 9/11 juncture, immigrants and asylum seekers are increasingly spending time in local, state and federal prisons for violation of a host of newly-enacted or newly-enforced laws in a context of heightened security, and this incarceration has as its justification a series of memos, laws, proposed laws and programs which are variously and inconsistently applied.  

The range of rationales employed to incarcerate migrants affects individuals throughout the immigration system, and is threatening to create strain within a correctional system which was not designed to accommodate a high level of foreigners. 

Cultural differences amongst inmates, and between inmates and incarceration officials, get played out on a daily basis over a range of concerns relating to inter-cultural communication, the carrying-out of religious rites, access to appropriate culinary conditions, and relations with family. Summary incarceration of immigrants and asylum seekers, and the rising rate of incarceration of “illegals,” who through lack of resources or knowledge are often forced to proceed without legal counsel, is creating heightened tension within immigrant communities who find themselves on the wrong side of new laws.  

Current laws and practices also affect law enforcement officials.  Charged with enforcing vaguely-defined laws and regulations, some zealous superior officers are anxious to fill local police coffers through the financial incentives offered by the federal government, while others are more reluctant and find the task unsavory and inappropriate.   In either case, the officers face many tasks in relation to these new detainees for which they are demonstrably ill-equipped.
  
The context within which immigration-based incarceration is presently occurring has significantly changed, for the worse, since the adoption of new post-9/11 legislation. This has not passed unnoticed, and has even affected law enforcement officials who now find themselves charged with assessing immigration data, as well as officials involved in incarceration of foreigners in unprecedented numbers, on grounds which are murky to officials and often incomprehensible to those who find themselves in the system.

In response to these complex dynamics, a work group came together at the Center for the Americas at Vanderbilt University in Nashville, Tennessee in the fall of 2004 to design a pilot study.  A goal of that study has been to inventory the range of cultural concerns expressed by people on both sides of the immigrant incarceration issue, including interviews with immigrant inmates, incarceration officials, and judicial authorities. Among other things, the work group plans to assess the past trajectory and the plight of those who have found themselves in the system. The past trajectory includes information pertinent to how the incarcerated individual arrived in the US and where s/he lived leading up to his/her arrest. This study will culminate in concrete recommendations to corrections and law enforcement officials. Academic work and shorter articles in newspaper and journals will also be written in the hope of offering a thorough representation of intercultural concerns and misunderstandings on both sides, with the overall goal of improving a situation of growing concern.
 
As the site of the study, Tennessee is in many ways representative of the national situation, but it is understudied compared to hubs like New York and Miami.  It also has certain defining characteristics which deserve special mention. The traditionally bi-polar black-white racial system in Tennessee has been destabilized by an unprecedented influx of low-wage immigrants and international refugees over the past decade. According to U.S. Census Bureau, Tennessee had the sixth fastest rate of immigrant growth (169%) of any state between 1990 and 2000, and the fourth fastest rate of Latino growth (278%). In 2000, the Refugee Services Program of the Nashville and Davidson Country Metropolitan Government estimated that at least one out of every six Nashvillians was born outside the United States.  The growth in the refugee populations in Nashville stems  from the efforts of the Office of Refugee Resettlement in the U.S. Department of Health and Human Service and in 2002. Tennessee was among the top five states to receive refugees.  
 
Along with the on-going influx of migrants and the passage or proposal of new realms of legislation at local, state and federal levels, comes the concomitant problem of incarcerating individuals who meet these vaguely-defined definitions, and this at an unprecedented rate. The South has a disproportionate number of immigrant inmates, and states like Tennessee, less historically adept at addressing immigrant issues than Florida, California or New York because of the relatively recent changes in immigrant demography, are especially affected by recent changes. This is leading to confusion, resentment and fear, leading some law enforcement officials in the South to actually speak out against what they fear is becoming a dangerous situation. The Nashville Police Chief Ronal Serpas, for example, has been an outspoken figure on the issue of charging law enforcement officials with addressing immigration violations. In an interview with the Tennessean (April 5, 2004), he stated that “it’s foolish to think that this country’s immigration problems are going to be settled on the backs of local police officers.” 
 
Serpas is well-placed for such an issue, particularly in light of his experience in the Washington, DC area, where in which he initiated immigrant awareness programs aimed at addressing... For instance, he addressed intercultural issues relating to Hispanic farm workers who were unaware of local traffic laws. His program, entitled “El Protector,” was an Hispanic education project aimed at aiding foreign workers.  His efforts to replicate this program in Nashville show the importance of a research project which will make available the kind of data appropriate for enacting new programs not only for Hispanics, but for all of the cultural communities with which law enforcement agents must regularly interact. But even here there are variations in terms of how the Chief’s approach is implemented..
 
So part of the problem is trying to determine how recently-enacted or newly-proposed legislation affecting foreigners, emanating from different Federal, State and local offices, should be enforced locally. These changes are in themselves a source of great anxiety amongst immigrant and asylum communities, and amongst those charged with enforcing new laws. Authorities charged with overseeing this monumental new responsibility are facing logistical problems relating to costs, training, facilities and manpower, and a dilution of power to solve actual crimes. And finally, of course, the “war on terror” has led for calls amongst officials to use stronger tactics in arresting and questioning and is leading to a severe rise in the caseloads of immigration courts and the demand for space in correctional facilities, with the concomitant problems associated with both. No matter what side of the issue one stands on, the net effect of all these changes and new realities will be to create severe stresses on a strained system, and compound an already obvious need for a better understanding of cultural concerns amongst those involved in the system.
 
Are we right to be concerned? Are we really in a realm of almost pure discretion when dealing with immigrants, particularly illegal immigrants?  In the Supreme Court case INS v. St. Cyr, on the effects of the 1996 laws on Enrico St. Cyr, Deputy Solicitor General Edwin S. Kneedler argued that “when it comes to immigration, the courts must respect the tradition of granting the Executive practically unlimited power,” and that waiver of deportation is a matter of executive discretion.   Justice Ruth Bader Ginsberg responded with the following: “There’s a lot of discretion in Federal agencies, but there’s also a concept of abuse of discretion, and you seem to be saying no, there isn’t…. The discretion is there but it’s kind of lawless discretion. Is that what you’re telling us?” 
 
The answer, from our preliminary findings in the Nashville study, is “yes.”  And the way this plays out “on the ground” is the clearest indication that this kind of “discretion” leads so far as to justify the new category of “fictional law, as we’ll see further down.”
 
Some preliminary recommendations, for discussion purposes [note: Consistent with the outreach and pedagogical agenda here, it seems appropriate to offer up some concrete suggestions, over and above the general gist suggested thus far in the talk. This is a preliminary list of proposals, the early beginnings of what will be a large-scale report and series of suggestions to be offered to the Tennessee Department of Corrections. Comments and further suggestions would be gratefully accepted by the workgroup. The general point, however, is that the present system is so fundamentally flawed as to make specific small-scale improvements of menial value; nevertheless, to help reduce the suffering of those who are or about to be subjected to  the current system, which has as its most poignant characteristic a profound degree of unfairness and arbitrariness, there are some concrete ways to improve the system in the short term, hopefully en route to important changes aimed at a higher level of justice.]

1. Interpretation, translation and communication (gleaned from interviews with interpreters)

  • From a general perspective, we need to promote and value bilingualism and multilingualism in all institutions in our society.
  • We need in a concomitant way to value the diversity that immigrants bring to our nations.
  • With this change in attitudes will come the need on the part of individuals and institutions to recognize, acknowledge, and disseminate the importance of quality interpreting and translation, and what that means. 
  • We need active training, recruitment and promotion of translation and interpreting.
  • We need to look beyond our borders and form links to governments of nations from which our immigrants come, which is to say every country in the world; in a general way this means the promotion of the United Nations and similar internationalist efforts, but more specifically we need to promote ties between consulates, embassies, international agencies, NGOs, even international corporations, and we need to lobby them to get involved with the citizens of their countries who are now residing elsewhere. As one interpreter said, “when I was working in the public defender’s office there were representatives from the Mexican consulate in Atlanta who came to meet with some of the attorneys to let them know that they are there for incarcerated Mexicans, and that the clients would have access to their office.  They would be able to call and should call for help, even if they were undocumented.”
  • Even these small efforts, which would place interpreters and translators throughout our offices, police forces, schools and companies, and would as a consequence raise the levels of expectation and competence and training, would help alleviate some horrendous suffering, some purposeless acts of violence and repression, and, for those caught up on the wrong side of the steel fence, would at least provide some ability to communicate outside of the horrors of one’s own troubled mind.
  • All documents must be made available in a language that is comprehensible to the person who will be subjected to their requirements or effects.
  • Police and government officials must be provided with adequate foreign language training leading to real competency and not stop-gap measures which can lead to miscommunication.
  • Prison guards must be available in different language groups, notably in Spanish.
  • Cultural brokers trained in anthropology, Latin American Studies, immigrant mental health, and related areas should be hired to act as intermediaries between home and host countries at all levels of the judicial and government system.


2. Recommendations relating to legal and administrative proceedings (in no particular order), gleaned from interviews with lawyers, religious figures, medical personnel and others who have worked with immigrant asylum (specific statements from interviewees are sometimes quoted):

Aylum:

  • The asylum process should be expedited to quickly rule out unfounded claims, and to offer those with apparently legitimate cases the possibility of leading a normal life in the US while awaiting their hearing. This system is used, with great success, in many host countries including Canada.
  • Since asylum is something that turns very heavily upon expert knowledge, heavy recruitment of well-trained judges and lawyers should be undertaken immediately.
  • The government should appoint specialist judges for each of the different areas from which asylum seekers come. If necessary, hold the hearings by video conferencing, which is bad, but it’s better to have an expert than these untrained people who have familiarity only with the US.

 

  • Illegals and Incarceration:

    We need to do what works; incarcerating people for victimless crime doesn’t work, incarcerating people for drug use or addiction doesn’t work, incarcerating people to keep them out of the country doesn’t work. And treating people badly when they are here, by denying them fundamental services, is counterproductive, as one lawyer stated: “it’s so ridiculous to think if we don’t provide this, they will not come. They are going to come. Why would you not want them to take a driver’s test and get insurance and learn the rules of the road. Immigrants are going to be here and they are going to work and they are going to do you a good job while they are building your house so why would you not want them? It is for you and me that they are getting their driver’s license and their children are getting education. It is just like everybody wants to be blissfully ignorant of reality. Reality is these people are here, building your schools, cleaning you schools, building your community, why not embrace them into your community and help the next generation really integrate.”
  • Illegals should not be treated as “criminals” unless they have committed an actual crime (i.e. not a migration offense).
  • A fast track system whereby if an undocumented migrant is up for deportation the sentence is annulled or drastically reduced, and the person is deported immediately and without incarceration.
  • If the person arrested on an immigration offense is legally in the country, s/he should get out on a bond.
  • Since a system with illegal re-entry rules doesn’t deter people, it should be abolished. It’s hurtful, expensive and is destroying families and individual’s lives. As one lawyer stated, “the kind of people who tend to come back are going to be criminals anyway, or they’re so desperate that they’ll do a drug crime to make money. The other people have serious ties to the country, and they’ll come back, because they have family or kids. They’re going to come back, even if it means five years in jail. There’s no other option. They need to loosen up immigration laws, and let people with real ties, let them come into the country, and regularize their status. The other people are criminals anyway, they’re going to get busted anyway.”
  • The 1996 laws should be repealed; the tightening up of the immigration laws has only made it more likely that people are going to get abused, that good people are going to land up doing illegal re-entry.
  • The whole point of the way that we incarcerate and sentence people convicted of federal offenses is totally misguided; there’s an emphasis on punishment, with no emphasis upon rehabilitation. This needs to be reversed.
    e need to advocate for changes to the discourse, in the media and in society, concerning immigration and immigration offenses.
  • We need to discuss what advocates are or should be out there, in and beyond the prisons, and if they feel like they have the support and resources to consult people.
  • We need to be spending money on rehabilitation, prevention and education rather than punishment.
  • We need to focus upon the effect that all of this criminalization is having upon families, as one lawyer indicated: “They totally destroy the families and that is really something that the Supreme Court or Congress needs to do something to address that issue because you cannot destroy families like that.  I don’t see how you will gain anything, we all know how kids without parents grow up with emotional issues, psychological issues, but somehow they are saying that we as a whole would be safer by doing this to immigrant kids.  That makes no sense in my mind.  That is totally crazy.  And then of course, you create the never ending cycle of parents wanting to come back and see, I’ve seen this happen over and over again, their entire families are here and they come back again.  They get caught and they get the federal criminal charge and they are in jail for two and a half years.  So now they released from the federal prison, they come back a second time, five years, they come back a third time, ten years.  And then the families are having to hide their mom or dad and the cost is outrageous, for some guy who sold a $10.00 marijuana cigarette.  That’s where the criminalization of immigration law is outrageous.”
  • We need to decriminalize immigration laws and to diffuse the nationalistic and chauvinistic slogans used against immigrants.
  • People should be taught their civil rights, in schools, and immigrants should be educated about the rights they have in this country.
  • When people receive visas to come to the US from another country, or when they arrive at the point of entry, they should be educated about the consequences of illegal activities, including illegal entry and re-entry.
  • The consequences of second offenses must be clearly set out by officials and lawyers to reduced the rate by which people are re-arrested.
  • There should be a provision of legal consultation and referrals to get attorneys. 
  • We should bring back the “212 relief” that existed pre-1996. as one lawyer asked, “how fair is it for a lawful permanent resident who can’t get a 212H waiver for a crime, but somebody who has never had permanent resident status can get it, somebody who has been a permanent resident for more than seven years.  And the only people we are hurting are these people who have their permanent resident status for less than seven years.  Why do they do that?  Because the government was losing cases before on 212C, so they did away with that.  They just break the law as if the prosecutor were writing the law.  And with no input from the other side.”
  • Judges should be offered discretion in sentencing at all levels to offer relief in cases where the sentencing guidelines are too strict.
  • There needs to be a way for immigrants to regularize their situations, to eliminate their being “illegal.” For instance, we need to reinstate 245I, because without it, if you have entered  without inspection, you are ineligible to adjust  status in the United States unless you have a petition.
  • We need to reduce the penalties for using false documents which were incurred post 9/11.  As one lawyer indicated, “ None of the highjackers used false documents, so what is the point of all this. Who do they think they are going to catch. The poor little Mexican guy who has a green card and a Social Security card printed up, and then they make the penalties for misrepresentation as a U.S. citizen, you are permanently inadmissible to the United States, permanently, and you are deportable, and permanently ineligible for citizenship.  What was the point of that?  Why is that lie any worse than any other lie?”

International Law and International Organizations

  • Consulates and embassies should get involved with the families of incarcerated migrants.
  • Consulates could also help lawyers and public defenders by contacting people in the country of origin, and be securing necessary documents. They could also provide reading and viewing materials for their foreign nationals who are incarcerated in the US. Consulates could also provide vocational training, courses in literacy, and job training, so that when the person leaves the prison and returns to the country of origin, at least s/he can work.
  • To help re-situate the idea of illegality of migrants, we need to advocate to make international law respected and understood to be part of domestic law. As one lawyer pointed out, “I do think that international law, by its very nature, has always been more sophisticated about protecting people who cross borders, so it has more to say from an objective standpoint than domestic law, which is oftentimes political and xenophobic, and doesn’t always have the best protections.” One question becomes the forum employed for the question at hand, so as one lawyer pointed out, pure international law is highly applicable in a refugee context, or in cases involving NAFTA, “which implicates all these business interests which maybe puts economic power behind something.” However, you “have to have some organizing strategy to make the discourse work for you.”
  • We need to draw on the expertise of other host countries, both in terms of their legislation and also their regular practices in the institutions erected to host and assist migrants. Canada should play an important role in this regard, along with European countries, Australia, and so forth. 

Prisons and incarceration of migrants:

  • There is just a lack of compassion and humanity on the part of most of the people who are working in incarceration facilities, and within the public as a whole. It’s so pervasive that even the inmates start expecting to be treated in a subhuman fashion. As one interviewee recalled, “I had a guy who said “well, I messed up, and if I’m not getting this medication, I had it coming to me, because I messed up.  They start to believe that they are not worthy of any dignity, it pervades the whole culture.”
  • Any industry tries to expand and become more profitable, and therefore the prison industrial complex should not be profit or growth-driven.
  • Conditions for guards must be improved, beginning with their training. As one lawyer pointed out, “The guards are poorly trained, and they are not well compensated, and the job itself is not good, but the alternative is a factory job that is now in Malaysia. These prisons are moving to these towns, where you have a strange sense of comfort and security when you see an Exxon station, -- there’s just nothing out there. It’s very beaten down little towns, and CCA comes in, and creates this shiny new prison and gives a bunch of people jobs. But the culture there on the whole is horrible, and even more so in the county lockups where the conditions are terrible.”
  • Prisons should be equipped with the resources to provide meaningful substance abuse treatment.  “They’re not any more rehabilitated on the back end than they were on the front end, and in many cases, their families and communities suffer so much because they are incarcerating people who would be working, people who would be contributing to lives of families, who would be a source of support and stability. A lot of the people we are incarcerating are not the worst of the worst, and they wouldn’t be a detriment to their communities. So I think that the system as a whole as it applies to migrant inmates.”
  • Cultural intermediaries should be hired and paid by the state for consultation as required with migrants in different legal and official instances.
  • We need to talk publicly about the experiences of incarcerated people in very concrete terms, including how they landed up in the system, how many hours, days, months or years they spent in custody, and so forth.
  • Medical care and medications must be doled out with due respect for the needs, the culture and the language of the patient.
  • Prisons and jails should aim for rehabilitation rather than punishment and confinement. This would reduce cases and extremity of mental health breakdowns.
  • Prisons should have cultural training programs.
  • Visitation rights need to be expanded, and access to prisoners, through personal visits and telephone calls must be facilitated, particularly in the private prisons.
  • Phone calls to and from prisons shouldn’t cost more than regular calls.
  • Prisoners should be kept near the communities where they have family, friends and other support systems.
  • People should only be incarcerated for violent crimes and serious violations of the criminal code; but even in those cases it should be undertaken with the objective of promoting rehabilitation. One lawyer stated that “I am not saying there is no place in our society for prison and jail, it is not appropriate under certain circumstances. But I think that it has gotten blown out of proportion especially on immigration stuff.  I mean, why do they need to be locked up. Where are they going to go. They have run here already.” And further, “We should be privileged that people want to come to our country and not punish them for wanting what we have.  We should feel kind of honored and instead we, you know, ostracize them.” 
  • If they have committed a crime, they should be deported back for justice from their judicial systems, not incarcerated in ours. 
  • Since almost everyone in prison will get out sooner or later, unless they’re subject to deportation afterwards immigrants need to have the same access to the private sector or nonprofit sector programs to help with housing, social welfare and employment.
  • Non-English speakers should get English as a second language classes, and native English speakers could be learning from the immigrants – language, culture, history, literature. There could be “exchange” classes, which would be beneficial to all parties.
  • The state should be providing reading materials and visits from perhaps community volunteer groups who would be interested, anything that can get , not just foreigners, anything that can get a  community and individuals involved with people who are in a prison or jail is very useful for maintaining a certain level of civil socialization. 
  • Visitation rights must be improved, particularly for family members: “The problem is that many of the institutions  that they are in do not have decent visiting, and the situation with incarcerated immigrants is that family members often live at considerable distance from where the prison is and does not have financial means to travel, and what you get in terms of federal prisons, they are often housed fairly far away from the court where their case is.  For example, people who have been caught crossing the country with drugs, and the case  comes up here in Nashville, but the family is in California maybe, well if they are put in a place like Springfield or Bowling Green, which are the kind of places where we generally put our prisoners, their visiting time may be 15 minutes a week.  No one is coming from California  for 15 minutes.  Now they might if they can get somebody to transfer them to Mason.  Mason has longer, maybe 2 to 3 hours, on the weekends.  Maybe somebody would come for that.  But no one is going to come a long distance just for 15 minutes. So the conditions in the jail, itself, do not favor family interaction unless the family is close at hand and close emotionally with the prisoner.”
  • Use video conferencing in the courthouse and in prisons for interviews with lawyers.

 
3. Theory section on “Fictional law”: 

I wish to provocatively argue for the purposes of this document that  there are situations of a legal nature in which the law which is invoked to justify an action follows a series of actions which are so discretionary in nature as to render the idea of law arbitrary. In these cases, law is no more real than the series of haphazard circumstances that lead to it being invoked.  So what characterizes the law in these situations is not its formal qualities, even as compared to literature, but rather its arbitrariness.  It is neither formalized, predictable, nor linked to the actions which eventually occur, and so it is, for all intents and purposes, a fiction.   

The “groundbreaking” idea posed by those of us interested in breaking down disciplinary boundaries by working on law and literature, or literature and law, needs to be further extended into the elimination of these sometimes arbitrary classifications altogether. In other words, we need to break new ground by suggesting that sometimes law isn’t like fiction, in the way that it is interpreted or in the issues it raises, but it is a fiction.  And the real world consequences that occur in its name in such cases are as arbitrary as the discretionary conditions that led to it being invoked in the first place.   I will also suggest that in the current juncture, other legal settings in which discretion prevails, such as immigration law more generally, or refugee law, provide such a high level of arbitrariness as to render suspect any idea of codified legal norms for considering the “other.”

I will advance this category of “fictional law” by drawing from an area of work which has important currency in certain American academic circles, notably in the best law schools (and some literature departments):  literature and law.  Reference to the work done in this area helps us to understand the arguments here, because important work in the domain has challenged ideas of formal law and has demonstrated its point with reference to a corpus of fictional work which, if nothing else, calls attention to its non-authoritative status. It is further motivated by the fact that lawyers and literary types who have developed interests in the law-literature overlap have concerned themselves with epistemological issues as they relate to the recognized “canons” of work, with the authority of interpretative strategies, and with the knowledge claims made in the realms of literature and of law.   Work that has been done in literature and law provides a number of tools that can aid understanding of the stakes and constraints of “fictional law.” 

The literature and law movement has been remarkably progressive and useful for pedagogical, theoretical and juridical reasons.  Some of the most interesting and sophisticated work has been undertaken by the likes of Peter Brooks, Wai Chi Dimock, Richard Posner, Richard Weisberg, Robin West and Theodore Ziolkowsky. Nevertheless, there have remained gaps in which types of law and which genres or examples of fiction are chosen, gaps which unduly limit the application of useful literary categories or theory to law, and the types of law deemed appropriate for consideration through literary or literary theory lenses. 

The range of genres usefully engaged could be expanded variously, of course, because one can cross any number of disciplinary lines by adding the “and,” and produce valuable insights, particularly when one of the subjects considered happens to be literature: Literature and Religion, Literature and Philosophy, Literature and Anthropology, Literature and Language Studies, Literature and Sociology, Literature and Ethics, Literature and Politics, Literature and Medicine – the list of existing programs or articles in each of these realms is vast. There are variations as well, such as the sociology of literature, or the politics or literature, or the ethics of literature, which extend the number of cases exponentially. And given the endless range of subject matter which can be treated by literature, one can easily envision papers or even courses on such combinations as literature and horticulture, literature and cooking, literature and architecture – the list is as complete as the examples one might find in the history of texts deemed literary. 

Thérèse Murphy’s work on “bursting binary bubbles: law, Literature and the Sexed body,” in Tall Stories? Reading Law and Literature,  is a great description of this phenomenon: “If Disney World is a place where dreams come true, then law’s world is the stuff of nightmares. It is a place full of facts, stripped of fantasy, fun and feeling. A place where the professional voice overwhelms all others and the virtues of precedent blithely trump those of justice. However, whether despite or because of this, law’s public face retains an unassailable vibrancy. Its triumph is such that non-law or ‘law and’ disciplines emerge as the also-rans. Their hyphenated worlds appear dingy when compared with the forthrightness of law.  They are also beset by a grubby earnestness. We sense that these ‘other’ disciplines seek empathy and, unlike law, have no stomach for absolute truth. With them, there are no certainties, there will be no resolution. This makes the choice between law and non-law an uninspiring one” (57).

To provide some focus, and to suggest that it’s not always as unequal or clear-cut a binarism as Murphy describes, I would suggest that literature and law is among the most promising and least unbalanced of these cross-disciplinary efforts.  This is so for a number of reasons.  First, there exist a convincing array of ways in which literature and law overlap on near-equal footing.  For instance, there is a plethora of legal themes in literature (crime, confession, revenge);  likewise there are many theories of narrative, language and fiction which have emerged in the literary realm and which can be applied to law (narratology, dialogism, reader-response theory).  Both realms deal with questions of judgment and discernment.  Some legal texts can be considered inside of specific literary genres.  There are overlapping themes of genre, canon, authority, representation, interpretation and evidence in both realms.  There is a strong interest in stylistics, argumentation and rhetoric which provides grounds for valuable cross-fertilization and discussion.  

My own hobby horse is the question of narrative “construction,” a matter that offers intriguing links between how we “construct a productive other” in legal settings and how an author engages in similar issues when s/he creates a character in a fictional setting.  Just as law students and practitioners in legal fields can benefit from the work undertaken in literary settings, students of literature derive significant value from concrete legal examples of certain ideas discussed in literary settings. Finally, we are reminded through fiction that hard-and-fast approaches to subjective issues -- be they “scientific,” legal, formal, structuralist or otherwise -- are easily challenged by literature when it arrives at the hearing, lampshade on its head, dancing, drinking and being the “trouble-fete” it plays so well.

But self-congratulatory work on the power of this overlap between literature and law can be challenged by some difficult questions about the epistemological status of the two realms.  If we say that there is much to be learned from literature and law, we presumably know what we mean by each of these categories, even as we recognize the institutional qualities of both. Here the waters are muddied, generally on the side of the literature, because the category we call “literature” is historically recent, intellectually dubious in the broader context of a social discourse universe, and also ever-changing.  Even if (or perhaps because) the focus tends to be, or should be, upon the arbitrarily assigned category of “literature,” I’d like to focus attention upon the more indubitable side of the occasion, the letter of the law, to show that in certain cases, particularly those involving extreme levels of judicial and administrative discretion, the idea of the “law” is as fictional as that of “literature.”  Indeed, it would be as reasonable in certain cases to point to (say) Kafka’s Trial as it is to invoke the federal statutes relating to deportation to explain why someone is doing fifteen years in a federal penitentiary

Elsewhere in the process of tracing the distinction (or lack thereof) between law and fiction, I  have described in some detail on the work of those who are writing about literature and law, reporting on what they consider to be their respective corpuses, their definition of “law,” and their literary definitions.  I will not pursue that full description here, beyond suggesting that this body of work is quite instructive as a way of delineating this concept of fictional law. 

 In closing I will, however, point readers to Theodore Ziolkowski’s The Mirror of Justice: Literary Reflections of Legal Crises.  In that work, Ziolkowski provocatively claims that “Justice gazes most often into her literary mirror when she has been disheveled by the winds of social and political upheaval.”  Ziolkowski uses this criteria as a principle for the selection of his texts, and postulates that great literary examples are found in times when, “for one reason or another, the law finds itself out of phase with the prevailing community passions, and justice is wracked” (63).  He observes, “It is at those moments when the tension between law and morality is increased to the breaking point that law is changed and its evolution lurches forward again. And it is precisely those epoch-making moments that great literature reflects” (16).  Examples of how this approach works conclude each of his close and historically-informed readings.  For instance, “it is this transition, marking the shift from tribal culture to civic society, from individual blood vengeance to the controlled legality of the city-state, from private orality to social justice, that Aeschylus celebrates in his great trilogy” (41).  Similarly, “ [Reinke de Vos] exposed itself as a mirror of the law – a mirror reflecting the uses as well as the abuses of the law of medieval France, Germany, and Flanders” (97).  Likewise,  “The Merchant of Venice reveals itself as Shakespeare’s brilliant contribution to the contemporary debate on jurisprudence: a legal parable portraying a society whose collective consciousness was pervaded by precisely that state of anomy that his contemporary and friend Lambarde had within the same decade diagnosed as the condition of Elizabethan England in the 1590s” (186).  
 
Will literature reflect the current circumstances relating to mass incarcerations? Are there texts, beyond Kafka, which adequately describe the many Kafkaesque situations which are leading the U.S. to incarcerate ever growing numbers of its population?  Are we in a moment when the tension between law and morality has come so near the breaking point that some major dislocation – and perhaps of creativity– should be expected, as Ziolkowski suggests?
 
It may be time to look into the prisons themselves to see what is being carved onto pages and into walls as two million people find themselves locked inside of the Gates of Injustice described by the likes of Alan Elsner or the Gulag America so powerfully rendered by Michael Dow. That will be the next step in our work.

Note: An array of reports and articles will be produced on the basis of this research project, including: 

  • Robert Barsky, “Fictional Law” in SubStance: A Journal of Theory and Criticism U of Wisconsin P, 2006, pp. 83-145.

    Robert Barsky, “Activist Translation” in Traduction, Terminologie, Rédaction (TTR), 2006.

    Virginia Simon, Undergraduate thesis on migrant incarceration, directed by Patricia Foxen, Department of Anthropology, Vanderbilt University.



For more information, please contact Robert F. Barsky.
copyright Robert F. Barsky, 2006