Sanctuary Discourse, Powers, and Legal Narratives

• Date: 27 March 2006
• Pages: 71-104
• DOI: https://doi.org/10.1016/S1059-4337(05)38003-3
• Published date: 27 March 2006
• Author: Randy Lippert

SANCTUARY DISCOURSE,

POWERS, AND LEGAL

NARRATIVES

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Randy Lippert

ABSTRACT

Through an analysis of texts and interviews with sanctuary providers from

sanctuary incidents in Canada, this paper f‌irst details how sanctuary is

made possible by pastoral and non-state sovereign powers. It then argues

at least three stories of law are instantiated in sanctuary discourse. Law is

at times arbitrary and unpredictable. In other instances, a ‘higher’ law

authorizes sanctuary. Law is also a broader game in which lawyers are

relied upon and sanctuary becomes a tactic to ‘win’. These legal narratives

work together to constitute sanctuary and are instantiations of pastoral

and sovereign powers at the level of the subject.

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This article is a result of a broader four-year study of sanctuary in Canada supported by a

Social Sciences and Humanities Research Council of Canada research grant. An earlier version

of this paper was presented at the Canadian Law and Society Association meetings in Halifax,

Nova Scotia, June 1–4, 2003.

Studies in Law, Politics, and Society, Volume 38, 71–104

Copyright r2006 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(05)38003-3

71

INTRODUCTION

Sanctuary is traditionally thought to be beyond the reach of law. Sanctuary

discourse assumes law will likely be kept outside the door, pursuing au-

thorities remaining at bay. From inside sanctuary, law seems oppressive. It

waits threateningly in the exterior for those just beyond its grasp. Yet, upon

closer inspection of sanctuary discourse, law also authorizes sanctuary,

majestically propping up its walls in full view of onlookers. In still other

moments, law gracelessly takes advantage of the f‌leeting, uncertain protec-

tion sanctuary provides to plot how its recipients might pass through sanc-

tuary’s walls and authorities’ arms to freedom. The relation between law

and sanctuary is therefore more complex than it f‌irst appears.

Emerging recently in the rapidly growing ‘governmentality’ literature and

following considerable ref‌lection on liberalism as a governmental rationality

are efforts to unearth neglected powers such as pastoral power (Hunter,

1994;Hindess, 1996;Lippert, 1998a, 2004;Valverde, 1998;Blake, 1999;

Dean, 1999). There remains as well in this zone of research a sustained –

though qualitatively variable – interest in sovereign power and its relation-

ship with governmentality (Constable, 1993;Dillon, 1995;McLure, 1995;

Valverde, 1996;Tadros, 1998;Agamben, 1998;Stenson, 1998, 1999;Edkins,

2000;Dillon & Reid, 2000;Pratt, 2001;Hindess, 2001;Dean, 2001, 2002a, b;

Lippert, 2004). Attention to these other powers operating alongside liber-

alism is in part a consequence of critiques centered on an identif‌ied tendency

in governmentality studies to understand liberalism as ‘systematizing’

(O’Malley, 2001). This current work suggests these other powers can neither

be easily subsumed within liberalism nor dismissed as insignificant anach-

ronisms (Constable, 1993;Dillon, 1995;Lippert, 1998a, 2004;Stenson, 1998,

1999;Pratt, 2001). While the role of law within liberal governance has been

well documented (e.g., Rose & Miller, 1992;Hunt & Wickham, 1994), a vital

question remains: How does law f‌igure in the presence of these other pow-

ers? Pursuing answers to this question in the sanctuary context requires

going beyond governmentality studies to draw on recent work on legal

consciousness in the critical legal studies tradition.

Critical legal studies have explored legal consciousness in sophisticated

ways (Sarat, 1990;Merry, 1990;Ewick & Silbey, 1998;Neilsen, 2000) and

typically as forms of ideology or ‘deception’ (Ewick & Silbey, 1999, p. 1026).

In contrast, in governmentality studies, as Valverde, Levi, Shearing, Con-

don, and O’Malley (1999, p. 5) note, individuals’ ‘consciousness is imbri-

cated in the dominant rationalities of government and in the prevailing

governance strategies’. Despite a clear difference

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in this respect, the two

RANDY LIPPERT72

bodies of work nevertheless share an attention to ‘the point and places

where the human subject gets transformed into a legal subject’ (Rose &

Valverde, 1998, pp. 547–548) and may therefore offer one another fruitful

insights for understanding particular domains.

Operating from within critical legal studies and drawing on interviews

with ‘common’ people about law in their everyday lives, Ewick and Silbey

(1998, 1999) identify three dominant stories of law: ‘against the law’, ‘before

the law’, and ‘(playing) with the law’. In the f‌irst narrative, ‘against the law’,

law is deemed arbitrary, oppressive, and requiring resistance to cope; it is a

powerful force not to be confronted directly. Law is to be coped with via

avoidance, tricks, and ruses. Ewick and Silbey (1998) write: ‘Foot-dragging,

omissions, ploys, small deceits, humor, and making scenes are typical forms

of resistance for those up against the law’ (p. 47). In the second narrative,

law is imagined as majestic, authoritative, and external. Law operates ‘by

known rules in carefully delimited spheres’ (Ewick & Silbey, 1998, p. 47).

Here law stands outside and above social life. The third narrative, ‘with the

law’, is consistent with the notion that ‘[l]aw is concrete, partial, f‌lawed, and

changing.’ It is ‘an arena of competitive tactical manoeuvring where the

pursuit of self-interest is expected’ (Ewick & Silbey, 1998, p. 48). Law is a

game, open to all, but played best by legal professionals upon whom there is

considerable reliance (Ewick & Silbey, 1998, pp. 152–153). These stories are

not thought to neatly match specific persons, with some ‘against’, others

‘before’, and still others ‘with’ the law. Indeed, these narratives are occa-

sionally evident within a single utterance (Ewick & Silbey, 1998, pp. 50–51)

or textual segment.

These three narratives are discussed in the context of contemporary

sanctuary discourse in conjunction with an analysis of some 1,600 docu-

ments and 46 personal interviews

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with sanctuary providers from 36 sanc-

tuary incidents occurring in Canada from 1983 to 2003. Rather than

uncritically borrowing this tripartite narrative scheme to apply to sanctuary,

however, its deployment is intended to aid thinking about how law relates to

and constitutes sanctuary and about relations among law and two non-

liberal powers. Legal narratives and corresponding subjectivities are – in this

specific site – imbricated in a pastoral power and a non-state sovereign

power that together constitute sanctuary. In some instances of sanctuary

discourse, perhaps as expected, law is imagined as arbitrary, capricious, and

unpredictable. Here, law renders pastoral power possible by serving as an

integral element of a condition ripe for ‘shepherd’s’ intervening sacrif‌ice on

behalf of ‘sheep’ (Foucault, 1988). In other instances, however, forms of

‘higher’ law authorize sanctuary consistent with the exercise of a sovereign

Sanctuary Discourse, Powers, and Legal Narratives 73