Between law and the nation state: novel representations of the refugee.

Author:Behrman, Simon


Given the degraded profile of the refugee in contemporary discourse, it is tempting to seek alternatives from a rich tradition of literary tropes of exile. However, this article argues that the romanticized figure of the literary exile ends up denying, albeit in positive terms, a genuine refugee voice, as much as the current impersonal hegemonic concept of the refugee as found in law. Ultimately, the spell in which refugees find themselves trapped today can be broken only by opening up a space of politics in which the refugee herself can be heard.


Etant donne le profil degrade des refugies(e)s qui existe au sein du discours contemporain, la tentation de trouver d'autres possibilites d'approche a partir d'une riche tradition de figures litteraires de Vexil s'impose. Cet article maintient, cependant, que la figure romantique litteraire de Vexil aboutit, bien qu'en termes positifs, a un reniement de la voix authentique des refugie(e)s, au meme titre que la conception hegemonique et impersonnelle des refugie(e) s que Von trouve actuellement dans la legislation. Enfin de compte, le sort qui tient les refugie(e)s prisonniers ne peut etre brise que par la creation d'un espace dans la dimension politique qui puisse donner voix aux refugie(e) s eux-memes.


The figure of the exile in literature, or the literary figure in exile is a familiar, if not in fact a hackneyed one. (1) However, over the last fifty or so years, this tradition has died out. In its place we find, instead, the exile not so much as hero as victim; shamed rather than valorized; an object of history as opposed to being an active shaper of her own life and of the broader sweep of events. The refugee is no longer a romantic figure, overcoming tragedy to triumph. In this article I identify two major reasons for the break between the exile literatures of the past and those of the present. The first is the post-colonial settlement, which has left us with a fairly rigid international state structure, demarcated with borders that are becoming ever-more policed and impassable. Previously migrants of all types had benefited from much more contingent spaces, that is to say spaces in which sovereignty was contested, often overlapping or in flux, and where there were little to no border controls. Second, the advent of the international refugee law regime has transformed the asylum-seeking process from one dominated by rival political or religious ideologies, in which refugees were often active subjects, to a highly bureaucratized process focused on categorizing and managing the movement of migrants.

In this depoliticized and delegitimized nadir of the refugee, perhaps one place to seek out her voice is in literature. There is now a rich stream of writing on the relationship between law and literature, which variously seeks out law as described in literature, law as itself a literary form, and other parallels. (2) It is sometimes claimed that whereas law presents itself as Truth, literature offers itself as an artful reflection of reality. Therefore, there is a space within literature in which the monolithic narrative of law can be ruptured. (3) But equally, the relationship can flow in the opposite direction, whereby hegemonic legal concepts become reflected in literature and beyond into the wider culture. In short, as Kieran Dolin notes, works of literature "may question the boundaries established by the law, or they may simply reflect such boundaries." (4) So in this article, while attempting to show how images of refugees are passed into literature from the law, I am also interested to see whether or not literature, in turn, creates what Edward Said has described as an "affiliative" space, within which the refugee can be reimagined. In The World, the Text and the Critic, Said describes "filiation" as the adherence to a tradition--including "a party, an institution, a culture, a set of beliefs, or even a world-vision." (5) "Affiliation," on the other hand, is also an order, but one to which one consciously adheres. Filiation is an example of a "natural" or established order--filial, the father, etc. Thus the "filiative scheme properly belongs to the realms of nature and of 'life,' whereas affiliation belongs exclusively to culture and society." (6) The real problem arises when social orders are presented as filiative, and thus natural and fixed, law and the nation-state being prime examples, seen as inescapable facts of a well-ordered, civilized life. It is therefore the job of critical pursuits, whether academic, literary, or political, to intervene and disrupt in ways that are "affiliative." Thus, in relation to the refugee, I am seeking here to interrogate the extent to which the pseudo-filiative subjects of law and the nation-state are reinforced or challenged within the supposed affiliative space of literature. I do this through a reading of three novels--Exodus by Leon Uris (1959), Shame by Salman Rushdie (1984), and Refugee Boy by Benjamin Zephaniah (2001)--that cover the period of transition from the refugee as hero to that of victim or threat.

From Hannah Arendt through to contemporary writers such as Liisa Malkki and Philip Marfleet, the role of the nation-state in the creation of the modern refugee subject has been clearly laid out. (7) The "imagined community" of the nation, founded upon notions of belonging based on a shared culture, language, and space necessarily also produce the subject of an alien other against whom the nation defines itself. (8) The twentieth century is littered with bloody examples of this phenomenon--the great "unmixing of peoples" following the collapse of the Ottoman and Austro-Hungarian Empires, the partition of India and Pakistan, the creation of the state of Israel, the collapse of Yugoslavia. What is interesting, however, is that in each of these cases, along with many others, the refugee subject had a dual aspect. For as well as being the alien other of one state, that negative image had a positive one as the human material of a new state. As Arendt saw, those refugees who had no connection with any state whatsoever faced the ultimate degradation. In the 1930s this was the fate of the European Jews, now it is the reality of the Palestinian diaspora. One interesting aspect of Exodus is the valorization of the former through their striving towards statehood. However, today the post-colonial settlement has, for the most part, closed off the route to valorization via the creation of new states. (9) The experience of most refugees today therefore is that of a "waste" product either warehoused in the archipelago of camps and detention centres or shunted around borders and seas in search of asylum. (10)

Another fundamental difference between refugee literature then and now is that up until very recently the legal process played, at most, a marginal role in their narratives. This can be easily explained. Until the twentieth century the legal category of the refugee did not exist. (11) One of the first encounters between the refugee and law that we can find in literature is W.H. Auden's Refugee Blues. Written in 1939, this poem reflects the experiences of refugees in the age of passports, border controls, and the first abortive attempts at defining and ordering the refugee in international law. (12) Describing the experience of a Jewish couple arriving somewhere from Nazi Germany, the fourth stanza reads:

The consul banged the table and said, "If you've got no passport you're officially dead": But we are still alive, my dear, but we are still alive. (13) The equation of death with lack of citizenship--civic death--is, with the exception of that other law-bound epoch, ancient Rome, a peculiarly modern concept. Only fifty years before Refugee Blues, refugees were able to move across Europe and gain asylum with few restrictions. (14) Today, of course, the experience of reaching a potential country of asylum lacking a passport, visa, or other bona fide document is a common one. So too the refusal of asylum for this lack is also all too common an event today.

Just a few years after Auden's poem we find a similar concern with legal documentation as a necessary pathway to asylum in the classic film Casablanca (1942). (15) Daniel Steinbock makes an excellent case for the film as revealing the ideological framework that would, within a decade, determine the shape of international refugee law. (16) Casablanca preaches the morality of assisting the refugee to find asylum. Yet, as Steinbock demonstrates, there are two important qualifications. First, it is up to a decision-maker (represented in the film by Rick Blaine) to weigh up just who deserves asylum. Second, the image of the deserving refugee is one of almost unbelievable worthiness. Victor Laszlo is a political refugee from a criminal regime, whose character demonstrates almost no flaws. Instead he is repeatedly shown to be a man of the highest moral probity, unfailingly polite, speaking impeccable English, and always well dressed. This is all a far cry from the reality of most refugees from the Nazis, who were often of far less means and forced to skate difficult lines of moral judgment in order to survive. This is not to denigrate these or indeed any other refugees. The point is that no one is able to achieve the kind of uncomplicated goodness of a Victor Laszlo. It is telling that such a fictional construct is necessary in order to earn our sympathy. In the age of refugee law, of judgment on who is or is not a genuine and deserving refugee, we must believe that the claimant's credentials are of the highest standard. This type of characterization can be seen as closely linked to an equally flat and romantic construction of the refugee within refugee law. The legal category of refugee rests upon certain criteria, which perhaps have more to do with what we consider to be an ideal-type rather than reflecting the myriad reasons for forced...

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