Über die Autorin bzw. den Autor

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Lawrence Douglas is James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College. Martha Merrill Umphrey is Professor of Law, Jurisprudence, and Social Thought at Amherst College.

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Law and the Stranger

Stanford University Press

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

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 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...