Law and the Stranger

Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey

• Publisher: Stanford Law Books
• Year: 2010
• ISBN:
  9780804775151
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Law calls communities into being and constitutes the "we" it governs. This act of defining produces an outside as well as an inside, a border whose crossing is guarded, maintaining 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. Essentially, law enforces the boundary between inside and outside in both physical and epistemological ways.

Law and the Stranger explores the ways law identifies and responds to strangers within and across borders. It analyzes the ambiguous place strangers occupy in communities not their own and reflects on how dealing with strangers challenges the laws and communities that invite or parry them. As the book reveals, strangers are made through law, rather than born through accidents of geography.

Conflict of Laws and the Legal Negotiation of Difference

PAUL SCHIFF BERMAN

In a world of multiple normative communities, law constantly confronts the stranger. Indeed, if globalization means anything, it is that territorial borders are even less able to keep the unfamiliar at bay, forcing legal systems to consider how to adjudicate disputes involving the norms of multiple, perhaps far-flung, communities.¹ Accordingly, law must constantly negotiate the permeable and ever-shifting divide between the familiar and the strange.

Further, the very idea of the stranger fundamentally implicates concerns with law because law is a social discourse that helps to mediate disputes between Self and Other. Even in the most homogenous societies, it is precisely because selves are inevitably distanced from—and therefore strangers to—each other that law is necessary. Law provides fora for both dispute resolution and (ideally) some moments of communication across both literal and psychic distances.

In this essay, I begin by exploring ideas of strangerness and otherness, building on works of sociologists and political theorists analyzing interpersonal and societal communication. I contrast a vision whereby difference is overcome by assuming commonality with one in which “strangerness” is seen as an inevitable part of human interaction. And I argue that it is unwise to attempt to “overcome” difference by trying to forge sameness. Instead, we should aspire to a state of unassimilated otherness. In such a state, we seek communication across difference rather than annihilation of difference.

Then, I turn to law and suggest that the three legal doctrines grouped under the rubric of conflict of laws—jurisdiction, choice of law, and judgment recognition—provide a site for viewing this sort of negotiation among strangers. Jurisdiction involves the decision of a community to assert legal dominion over an act or actor. Choice-of-law analysis considers which community’s legal norms should apply to a dispute involving members of multiple communities. And recognition of judgments asks communities to decide whether to enforce prior judgments of other communities, even when those judgments would not (or could not) have been issued by the enforcing community as an original matter. Each of these doctrines, therefore, is crucial to analyzing how law confronts “strangerness” and conceptualizes ideas of space, place, distance, territory, sovereignty, and pluralism. Yet, neither sociolegal scholars studying the interaction of legally defined communities nor scholars interested in the multiplicity of legal and quasi-legal norms under conditions of globalization have focused sufficiently on these conflicts doctrines. This is unfortunate, and so one aim of this essay is merely to stake a claim to conflict of laws as a crucial area of interdisciplinary inquiry. Indeed, it is largely on the terrain of conflict of laws that communities delineate Self and Other and consider the alternative normative communities that are all around.

But beyond simply identifying conflict of laws as a fruitful subject of further study, I also want to argue that conflict of laws provides a potentially useful framework for viewing disputes among multiple normative orders. If taken seriously, a conflicts analysis could offer a forum for creative engagement with questions of community affiliation, extraterritorial effects, and the development of hybrid norms. Moreover, following the insights of legal pluralists, who have long argued that the state does not hold a monopoly on “law,” we can use conflicts analysis to consider interactions with nonstate normative communities as well. Accordingly, conflicts analysis can become a form of cultural anthropology, permitting an inquiry that acknowledges that we are all members of multiple overlapping normative communities, that some of those communities are state-based and some are not, and that all of these communities may assert norms that have real impact on the world stage of law. This vision of conflicts of law, because it is both cosmopolitan (recognizing multiple, possibly nonterritorial, community affiliations) and pluralist (recognizing nonstate community affiliations) may help to better negotiate the inevitable divide between Self and Other by requiring communities both to acknowledge competing community norms and to wrestle explicitly with the question of how much to assimilate or give deference to those competing norms. Such an approach does not annihilate difference in the vain search for uniform rules; instead it fosters engagement among strangers and negotiation of unassimilated otherness.

Self, Other, and the Negotiation of Difference

Sociological studies of communication often start from the idea that interpersonal interaction requires both parties in an encounter to believe (or at least assume) that the other is not truly other at all.² According to this view, most associated with Alfred Schutz,³ differences in individual perspective are overcome only if each party tacitly believes that he/she could effectively trade places with the other. As Schutz describes it, “I am able to understand other people’s acts only if I can imagine that I myself would perform analogous acts if I were in the same situation.”⁴ Thus, differences in perspective are reduced to differences in situation. Any possibly more fundamental differences are suppressed in order to facilitate dialogue.

As a result, the deliberate “assuming away” of the unfamiliar is seen as a constant part of everyday life. The unfamiliar is relegated to the category of “strange,” and “strangeness” necessarily is placed elsewhere, somewhere other than the interaction at hand.⁵ Moreover, Harold Garfinkel and other ethnomethodologists have argued that individuals do not simply passively maintain these assumptions, but are constantly engaged in a joint enterprise aimed at sustaining this familiarity.⁶ In all of these studies, the emphasis is on “the human production of common worlds of meaning as the only axis on which dialogue rotates.”⁷

But is that all there is to the experience of the other? Is it really imperative constantly to assume that our fellow human beings are fundamentally identical to us? After all, as Z. D. Gurevitch has argued, “Under this principle, if a dialogue is to take place, strangeness as a phenomenon of everyday interaction must be considered negatively, namely, as that part of an encounter that must be constantly ‘assumed away’ by the participants.”⁸ Thus, we are left with a world in which people are classified either as familiar or as strangers. And, even more problematic, these studies suggest that it will be simply impossible to bridge the communication gap with those deemed strangers. Yet, as Georg Simmel noted long ago, the stranger is never truly distant,⁹ so there will need to be some way of bridging gaps short of assuming away strangeness altogether.

To seek an alternative formulation, we might turn to political philosophy. Hannah Arendt, for example, offers a different way of conceptualizing the encounter with the stranger. Instead of assuming commonality, she seeks, in “Understanding and Politics,” the quality that “makes it bearable. . . to live with other people, strangers forever, in the same world, and makes it possible for them to bear with us.”¹⁰ Note that for Arendt the task is how to “bear with” strangers, even while recognizing that they will forever be strange.¹¹ Significantly, this task is very different from the more intimate communication relationships studied in the sociological literature discussed above. After all, if strangers are “forever strange,” their strangeness cannot be overcome through psychological assumptions; a different strategy is necessary.

Arendt’s strategy for bearing with strangers is more than just mutual indifference and more than just toleration as well. It “involves a mental capacity appropriate for an active relation to that which is distant,”¹² which Arendt locates in King Solomon’s gift of the “understanding heart.”¹³ Understanding, according to Arendt, “is the specifically human way of being alive; for every single person needs to be reconciled to a world into which he was born a stranger and in which, to the extent of his distinct uniqueness, he always remains a stranger.”¹⁴ And what does “understanding” entail for Arendt? This is a bit difficult to pin down, but she makes clear that it is not gained through direct experience of the other, and it is not just knowledge of the other.¹⁵ Instead, understanding starts from the individual situated apart from others. Thus, instead of “feeling your pain,” understanding involves determining what aspects of the pain people feel has to do with politics, and what politics can do to resolve our common dilemmas. Moreover, “Understanding can be challenged and is compelled to respond to an alternative argument or interpretation.”¹⁶ In short, understanding in Arendt’s formulation looks a lot less like empathy and a lot more like judging.¹⁷

This more distanced conception of the encounter with the stranger appears to have something in common with Iris M. Young’s vision of “unassimilated otherness,” which she posits as the relation among people in the ideal “unoppressive city.”¹⁸ Young envisions ideal city life as the “‘being-together’ of strangers.” ¹⁹ These strangers may remain strangers and continue to “experience each other as other.”²⁰ Indeed, they do not necessarily seek an overall group identification and loyalty. Yet, they are open to “unassimilated otherness.”²¹ They belong to various distinct groups or cultures and are constantly interacting with other groups. But they do so without seeking either to assimilate or to reject those others. Such interactions instantiate an alternative kind of community,²² one that is never a hegemonic imposition of sameness but that nevertheless prevents different groups from ever being completely outside one another.²³ In a city’s public spaces, Young argues, we see glimpses of this ideal: “The city consists in a great diversity of people and groups, with a multitude of subcultures and differentiated activities and functions, whose lives and movements mingle and overlap in publ...

Table of contents

• Title Page
• Copyright Page
• Dedication
• Acknowledgments
• Table of Contents
• Contributors
• Negotiating (with) Strangers
• Necessary Strangers: Law’s Hospitality in the Age of Transnational Migrancy
• The Strangers in Ourselves: The Rights of Suspect Citizens in the Age of Terrorism
• Strangers Within: The Barghouti and the Bishara Criminal Trials
• Conflict of Laws and the Legal Negotiation of Difference
• Who’s the Stranger? Jews, Women, and Bastards in Daniel Deronda
• Of Stranger Spaces
• Index