Guest post by Stephanie Maher, a cultural anthropologist at Western Washington University whose work focuses on the social and political lives of forcibly repatriated migrants in Senegal.

Review of Undocumented Immigrants in an Era of Arbitrary Law: The Flight and Plight of People Deemed ‘Illegal’ by Robert F. Barsky (Routledge, 2016)

Though often seemingly straightforward, laws are complex cultural artifacts whose legitimacy is far from self-evident, transcendent, or universal. Despite the growing importance of international conventions and declarations, laws are particularistic creations tied indelibly to individual nation-states. But laws also change; they are subject to the same vicissitudes of history as the juridical systems that enforce them. Moreover, they can be invoked with extreme force in one setting and conveniently ignored in another. For Robert F. Barksy, most famous for his work on convention refugee hearings, it’s this particularity, changeability, and unpredictability that make laws arbitrary. In this rich and economically written monograph, Barsky draws from an impressive analytical toolbox to explore the legal terrain of undocumented immigration in the United States. Incorporating critical discourse analysis, hermeneutics, performance theory, comparative literature, translation studies, human rights scholarship, and legal studies, his analysis focuses on the ‘language issues’ of illegality. Such issues include linguistic interpretation and cross-cultural translation as well as rumors and gossip in the host country, which constitute a discursive field that is rife with tension, miscommunication, and intimidation. Although the subject of Undocumented Immigrants in an Era of Arbitrary Law focuses exclusively on the United States, Barsky’s insights will be important to those studying immigration across national contexts.

Drawing on extensive fieldwork in the courthouses and jails of Tennessee, Barsky explores the theoretical and practical challenges facing many undocumented immigrants. Rather than focus on immigrants themselves and their experiences of ‘illegality,’ this book explores the discursive production of illegality from the perspective of those involved in processing and litigating cases against undocumented immigrants. These include lawyers, public defenders, judges, police officers, prison guards, translators, and interpreters. From the moment someone is detained for a routine traffic violation (or, more aptly, for ‘driving while Mexican’) to the moment of sentencing and deportation, various actors can intervene in and thus redirect an immigrant’s trajectory. This, Barsky says, is what makes law arbitrary: a person’s future is decided not according to a fixed set of legislative rules but depending on who is involved in the process.

To unpack the idea of arbitrary law, in Chapter 1 Barsky first distinguishes between discretionary power, which is influenced by opinion, and arbitrary power, which is influenced by desire. Discretionary authority, he suggests, is negotiable, whereas arbitrary power is capricious and unregulated. And yet, for Barsky, arbitrariness in law is not simply a hegemonic monolith bearing down uniformly on unsuspecting populations. Rather, it’s more a matter of degree. Like a spectrum of variability that extends from discretionary authority to fiction, law is arbitrary because it’s fundamentally unpredictable.

Social discourse, translation, and the ‘language issues’ of illegality are the foci of Chapter 2. Calling principally on Bakhtin, Bourdieu, and Angenot, Barsky lays the conceptual foundation for the ethnographic chapters that follow. The legal landscape through which undocumented immigrants move is a kind of ‘marketplace’ (p. 40) wherein lawyers, judges and translators peddle their discursive commodities in a charged sociopolitical field. Echoing the work of Nicholas De Genova, Barsky argues that undocumented immigrants are not ready-made objects; they are illegalized through discourse. Their foreignness, liminality, and polluting ‘otherness’ are political and ideological constructions, which are then used to justify increasingly draconian immigration control policies, particularly in a post-9/11 context.

Chapters 3 to 5 each explore discrete temporal moments in the undocumented immigrant’s encounter with law enforcement. These range from first encounters with police to later meetings with judges and detention officials. Importantly, discretionary power weakens as people move from the traffic stop to the courtroom to the detention center. Thus, as they become more illegalized, the less outside actors such as lawyers, interpreters, and translators can negotiate on their behalf.

In addition to examining the racialized discourses and criminalizing practices implemented to control undocumented immigrants, Barsky also pays attention to the political economy of immigration. This is helpful not only for thinking through his framing of the social marketplace of discourse, but also for appreciating class differences among immigrants themselves. Those without adequate resources are at a decided disadvantage vis-à-vis their more affluent counterparts. The class dimension also reveals the extent to which undocumented immigrants have become the new global proletariat (p. 151) whose deportable labor is exploited and whose illegality underwrites the neoliberal expansion of the migration control industry, including ‘assembly line justice’ (p. 66), the financial incentivizing of arrest (p. 81), and the proliferation of private prisons (Chapter 5).

Overall, the implications of this work are not strictly philosophical for Barsky. From the outset, he makes it clear that he’s less concerned with intellectualism and more interested in social justice. For that reason, he concludes with recommendations for open borders and more humane adjudication processes. Because miscommunication is so rampant and immigrants are often ignorant of the few rights they do have, he argues, early intervention is critical. Consequently, we need more interpreters at the moment of arrest and more translators during trials.

For undocumented immigrants, laws—and the people who invoke or ignore them—have particular gravity because crossing them the wrong way, just like crossing territorial borders the wrong way, can have devastating consequences. Although Barsky does suggest that border-crossing is both a linguistic and physical act (p. 36), he doesn’t explicitly use the concept of borders as a heuristic device to analyze the shifting legal terrain he is attempting to explore. As interstitial spaces, borders aren’t precisely one thing or another. They are something betwixt and between, a mixture of the harder realities that lie, if only figuratively, on either side. Borders are dangerous because they could go either way—a moment of negotiation, or a spark of fear, can have life-changing consequences for people. Barsky does well to underline how a lack of social, linguistic, and financial resources ‘can destroy a life’ (p. 143), but his analysis could have benefited from a deeper engagement with border studies. Barsky’s monograph deftly illustrates the variability of outcomes in many juridical settings, and for this reason theorizing law as arbitrary is important. And yet, in the end it seems that law is not so arbitrary after all. Rather, what seems more unpredictable, even arbitrary, is the enforcement of law, not the law itself.

That being said, this richly investigated book will be eminently useful to a broad audience including scholars of critical discourse, legal studies, and migration as well as the general public. Barsky’s theoretical depth and approachable writing style would also make this book a valuable addition to academic syllabi for both undergraduate and graduate courses.

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How to cite this blog post (Harvard style):

Maher, S. (2016) Book Review: Undocumented Immigrants in an Era of Arbitrary Law. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/01/book-review (Accessed [date]).