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Law as Literature

Dreams

& Dramas

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Agnieszka Kilian

Introduction. Dreams & Dramas

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Introduction. Dreams & Dr amas

Subjects gain or lose interest; reputations are made or unmade; revisers, reporters, lawyers and presidents gain assurance and authority; they slip up, they overcome obstacles, they invoke legal means, they do not make things fly, they glide over another terrain, they reinforce precedents, they revise interpretations. We should not hurry to distinguish which of these vehicles transports pure law and which are mere accompaniments or parasites. Bruno Latour, The Making of Law: An Ethnography of the Conseil d’Etat

Commands are older than speech Elias Canetti, Crowds and Power

The law organizes our selves and our environments in an all-pervasive fashion. An omniscient narrator, it takes physical states and experiences, concrete concepts such as “the body” or “poverty,” and lends them autonomous significance conveyed by the phrases “in legal terms” or “in the eyes of the law.” Yet, inasmuch as it describes as well as creates reality, the law is not abstracted from the stuff of life. Nor is it extricable from the language and other tools of its own execution, either in the courtroom, or in the practice of everyday life. Accordingly, it is always more than “the letter of the law.” 7

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The present publication traces these dual vectors (law’s description and creation of reality) in consideration also of the performative dimension of law, which is to say, the ways in which it and its manifold effects are acted upon and read. Clara non sunt interpretanda, says the Latin maxim: “that which is clear requires no interpretation.” But can the law ever be totally clear? To surrender to tried-and-true models for the interpretation of a text or an incident, or to reiterate eternally unchallenged precedents, merely perpetuates set social structures. If, instead, one strives for an innovative, critical approach then a broad variety of material must be brought into play, ranging from the literary canon to those disciplines peripheral to legal practice, such as anthropology, political science, and history. The aim of our project is to do precisely this. The publication—a general reader—ensued from the eponymous exhibition held in the neue Gesellschaft für bildende Kunst, Berlin, in spring 2017, which, along with its program of workshops and screenings, helped forge a space for communication about Dreams & Dramas. Visibility and spatiality were the key (though not exclusive) points of reference; and it is they, here too, which mark the thematic axes of the body, property, territory, and community as inscribed in and by the law. Crucially, these primary themes are interwoven in every chapter, so as to shed light and confer new meaning on one another. By examining concepts in pairs—the body and property, for example, or the body and territory—the authors explore how the law literally plots the legality or illegality of our presence in public space, thereby creating us (or not) in terms of personhood 8

Introduction. Dreams & Dr amas

and citizenship. In order to clarify distinctions between the “civil body” and the “legal slave” [see Dolin in this reader, p. 46] they also survey the rituals and codes of the jurisdictions that shape our existence. In parallel, they examine the tools used by the law, such as cut and montage, indirect speech, and legal fiction. This brings to light the narrative nature of the law and, pertinently, the matter of which stories are heard and which are not. On the Body and Its Personhood

The cut is one of the basic tools of the law. It reduces a person to one dimension (or a stereotypical set of dimensions), apprehending them not as a unique whole but as a member of a particular social category—citizen, refugee, stateless person, then black, white, trans, or female, etc.—who has (or does not have) the right to land, and to origins, and to a personal (hi)story. Such categories operate almost always in terms of binary and hence mutually exclusive alternatives, so delimiting (or even denying) more complex (multifaceted, multilayered) manifestations of existence or non-existence on the sociopolitical landscape. Costas Douzinas notes that “the right to privacy isolates the genital area and creates a ‘zone of privacy’ around it; the mouth is severed and reappears ‘metonymised’ as free speech which protects its communicative, but not its eating function.”1 The journalist in search of asylum must prove that staying in their country of origin exposes them to “grave danger” 9

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and that residing and earning a living there is thus impossible. Such reduction to a specific role prescribes both the very concept of a person and the scope of their agency in public and private space. Physical integrity, too, can be broken down into the public and private spheres, as in the case of Henrietta Lacks. Cancer cells taken from Mrs. Lacks’s body in 1951, without either her or her family’s knowledge, were used to launch the first ever immortalized cell line, which remains in use in medical research to this day, generating untold profits for the pharmaceutical industry. In Private Bodies, Public Texts, Karla Holloway recounts this story with great insight, highlighting the potential legal repercussions of such private events as illness and death.2 Thus death itself is shown in this reader to take multiple forms: social death, which generally involves a person’s exclusion from a community following their segregation or criminalization; and its historical twin, civil death, which in the nineteenth century implied the punitive withdrawal of a person’s opportunities for legal recourse. Colin Dayan analyzes civil death in the extract from her book Law Is a White Dog.3 She does so without resorting to the language of the law, preferring instead parables and rituals drawn from historical sources that still resonate today, as Marina Gržnić in turn shows in her essay, “Is There Any Escape from Injustice? On Migration, Necrocapitalism, Civil Bodies and ‘Legal Slaves’” [Gržnić, p. 64]. Necrocapitalism rears its head in the words spoken by the Italian Prime Minister Enrico Letta on 4 October 2013: “The hundreds who lost their lives off Lampedusa yesterday are Italian citizens as of today.” 10

Introduction. Dreams & Dr amas

As Gržinić points out, “The state burial the victims received was less expensive than sending the bodies back to their point of departure.” This is a further example of how physical bodies are cut off from the persons they belong to and treated as mere encumbrances, unwanted property. Citizenship & Property

To this day, jus sanguini, the right of blood, and/or jus soli, the right of soil, determine a person’s sociopolitical status as a citizen or a non-citizen. Yet, as Ayelet Sachar and Ran Hirschl remind us in “Citizenship as Inherited Property,”4 it is vital also to bear in mind the economic dimension of the particular ties that exist between citizenship and property, two institutions seemingly remote yet based both on the law of exclusion and the premise that any opportunity to seize more goods should be seized. Citizenship is a lucrative commodity inherited according to the right of blood, a point they examine with a play on words: What is the real “worth of citizenship?” They throw light on the whole of the chapter, hence also on the conversation (commissioned for this volume, [p. 88]) between lawyer Agata Stajer, author and literary scholar Jasper Verlinden, and artist Agnieszka Piksa,5 who put under the microscope the machinery in place at Terespol in Poland, on the EU border. Is a body unequipped with the commodity of relevant citizenship a person? The interlocutors’ gaze fixes on this body and its (in)visibility in the legal sphere described by spatiotemporal conditions at the EU border crossing; their gaze takes in the architecture of the passageway in the broader sense, encompassing such essential factors as train schedules, 11

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and rules for entering / exiting the claims building. The law is revealed thus to be only one among a whole series of factors that collude in the common denial even of asylum-seekers’ embodied (physical) personhood. As in: Not recognized. Does not compute. Subjecthood was a topic also for the Marxist legal theorist Evgeny Pashukanis in his groundbreaking work of 1924.6 In the first part of the chapter “Commodity and Subject,” Pashukanis examines the distinction, still pertinent today, between “person” and “legal subject.” It is more than a linguistic distinction, for it determines how a person is perceived and treated. In reference to Marx, Pashukanis notes that the subject is a product crucial to effective circulation—and has, as such, a market function. The subject can therefore be understood as the sum of their contractual capabilities. Quite independently of Pashukanis, contemporary artist Patrick Bernier advances this same notion of the person as a function or an operative: in his fiction featured in chapter II [p. 118], a woman subversively presents herself to a deportation tribunal as both a piece of intellectual property and the trustee of an immaterial work of art. Significantly, it was on the basis of A Tale… that Bernier and artist Olive Martin, in collaboration with lawyers Sébastien Canevet and Sylvia Preuss-Laussinotte, devised “X. et Y. c/ Préfet de…; Plaidoirie pour une jurisprudence,” a performance in the form of a courtroom defense speech. Drawing on the arsenal of contemporary capitalism—intellectual property rights—the authors ask: Given that deportee X is in artistic collaboration with Y, a citizen of France, would deportation of X amount to the dispossession of Y? 12

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Storytelling: Territories and Their Bodies

Property and possession have a long history, and their meanings have evolved, at every stage casting light on the significance of land and the political concept of territory, as well as of people and community. The second excerpt from Pashukanis’s “Commodity and Subject,” presented in this chapter, analyzes the concept of property. Pashukanis first outlines its historical development. At the same time he situates it in the context of the person and their individual agency, while remaining alert to the risk brought about by this autonomous subject and their “free will.” Pashukanis also outlines the story of property and the subject, noting that the latter is always changing their role: from claimant to debtor. The history of property, and in particular of land, also has the power to create a society and support its existence. Gerald Torres and Kathryn Milun tease out these aspects in “Stories and Standing.” They show how the rule of land affects the right to define one’s own identity, to be acknowledged as an ethnic group. Analyzing the Mashpee case (mainly on the basis of trial recordings), they demonstrate how the existence of a community could be called into question, and what creates a history relevant to the law. One of the key questions was property, a means of exerting power over land. Yet the principles of this power (and its essence) were untranslatable. The law, as this example irrefutably demonstrates, strictly adopts “the form established by the rules to be comprehended by legal discourse, regardless of whether the self-constructed 13

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reality of the Mashpee corresponds to the legal model.” Consequently, it was acknowledged that the Mashpee did not exist. Fiction and fictitiousness are other legal tools, presented here by Mateusz Stępień. A parallel reality acquires a greater power when the state machinery stands behind it. It authorizes the assertion that “Minorca was a part of London,” so shaping the social landscape. Similarly, the “subjectified estate”—the legal person, one of the oldest legal fictions—shapes the social landscape. Companies, which are foundations (corporate bodies) that resemble bodies without organs, are nonetheless equipped with decision-making attributes: they voice opinions and express desires. As such, they are new territories. They, too, shape the social landscape, conquering the banks of the rivers and affecting their division so that they vanish from the face of the map, as Rupali Patil shows in “Let’s Divide the River Too” [p. 180]. The aforementioned “cut” is present also in cartography: “Cartography Cuts the Forest from the Tree.” This observation made by the pioneer of critical cartography J.B. Harley can also be translated into law. An analogy between mapping and law lets us tease out the convention (or even fiction) behind irrefutable “elements of reality such as land and territory, which we are used to taking for granted.” Anca Benera + Arnold Estefan speak of the cultural abstraction of space, with reference to a specific conflict between Romania and Ukraine heard in the International Court of Justice [pp. 182–89]. The ties between body and territory are highly complex and are grounded in economics, based on a special understanding of equivalence, methodology, and narrative. 14

Introduction. Dreams & Dr amas

Text and Its Performance (or: One Sets the Rules)

Drawing from critical cartography, Anne Bottomley's and Hilary Lim’s “Taking the Law for a Walk in Land” puts forward a new methodology: a sense of the law which acknowledges spatiality and movement. Here, too, to designate principles is to go beyond the letter of the law: it then becomes a matter more closely related to the execution of law as “embodied geography,” an insistence “upon the need to return to the physicality of place and people.” In this regard their text responds to questions posed by Issa G. Shivji: What constitutes a rule of law and, crucially, what is the relationship between the rule and that which the law calls facts? The law would seem to be based on knowledge, yet throughout its repertoire it grapples with this basic relationship— between who knows (or does not know) and what is known (or not known). This understanding is also determined by how one approaches the movement and value (of life) and the compulsory staticity of the law. While Anne Bottomley and Hilary Lim seek an emancipatory methodology, in Bruno Latour’s article which concludes this anthology we find a critical portrait of how the legal narrative is built: between the desk and the bookshelf, with notes, reports, and commentaries. Here, thought roams the space of a closed room, keeping the surrounding environment “outside of the frame.” Significantly, however, this article helps us catch a glimpse of a person who builds connections between narratives. As in a video work by Carlos Amorales [p. 204], we see (and read about) key decision-makers removing, modifying, or preserving the word of the law. We see their bodies, 15

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their “hands,” making a new montage of a text that has already been edited multiple times. As Deleuze and Guattari state in A Thousand Plateaus,7 the question already contains the answer. (We respond with questions contained in another response, but the question, as such, is actually never posed.) The law is self-referential; it quotes itself. “Indirect speech” holds sway, leaving the field of reality outside the frame. At the same time, it is not divorced from the practice of living: it is inscribed within us, even if we wish it were not so. Many of the articles and materials in these pages tackle the relationship between knowledge and the lack thereof, yet while simultaneously striving to link fields which are senso stricto unconnected: the use of literary forms in transcending set structures, the visualization of the manufacture of the law. The texts themselves draw on various styles and machineries, trying to cull keywords from the prescriptions, and to prompt transitions. To return to A Thousand Plateaus: “In a prescription, life is meant to respond to death not with an evasion, but by transforming it into action and creativity. (…) The same thing, the same word undoubtedly has this twofold structure: one must be extracted from the other—the structures must be turned into component transitions.”8

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These bridges and crossings are, perhaps, a dream. But in dreams begins responsibility for not allowing oneself to be persuaded that the law is a place where we can only speak in the language from which it is created. The causative can derive from a poetic. 5 When the Facts Reach the Sphere of the Law, Agata Stajer & Jasper Verlinden in conversation with Agnieszka Kilian; illustrations by Agnieszka Piksa Bratislava / Berlin, 2017

1 Costas Douzinas, “Human Rights and Postmodern Utopia,” in Law and Critique, vol. 11 (Oxford: Hart Publishing, 2000), p. 230. 2 Karla Holloway, Private Bodies, Public Texts: Race, Gender, and a Cultural Bioethics (Durham and London: Duke University Press, 2011) p. 3. 3 Colin Dayan, Law is A White Dog. How Legal Rituals Make and Unmake Persons (Princeton: Princeton Press, 2011), pp. 39–49. 4 Ayelet Shachar and Ran Hirschl, “Citizenship as Inherited Property”, in Political Theory, vol. 35, no. 3, (Thousand Oaks: Sage Publications, Inc., 2007), pp. 253–68.

6 Evgeny Pashukanis, The General Theory of Law and Marxism, (New Brunswick: Transaction Publishers, 2002) 7 Deleuze and Guattari, A Thousand Plateaus, (Minneapolis : University Minnesota Press, 2002 ) p. 110. 8 Ibid., p. 110.

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Agata Stajer & Jasper Verlinden in conversation with Agnieszka Kilian

When the Facts Reach the Sphere of the Law 88

When the facts reach the sphere of the l aw

kilian

Agata, last March, together with thirteen other advocates, you tried to give legal aid to people attempting to cross the border and seeking international protection at Terespol. This is not only the border between Poland and Belarus, but also a border that marks the frontier of the European Union. It has a special kind of architecture, where a meaningful layout governs the “time and space” of the border crossing.

stajer

It is only a short distance from Brest to Terespol, on the map. The international train from Brest, in Belarus, to Terespol used to depart once a day, just before 7 a.m.

K

People who arrive at the border are not yet refugees. Who are they? What does the phrase “seeking international protection” mean? When boarding the train, they have to buy a return ticket at once, for 11 a.m., when the train heads back across the river. It’s the only one they are allowed to take.

S

Right, everyone has to buy the return ticket in Brest, or they can’t get on the train to Terespol. When getting to the train, the passengers seeking protection travel in separate spaces. And everyone who is refused entry to Poland has to get on the return train. Entry is refused to all those without EU citizenship or a valid visa, unless they have declared the need for help by applying for international protection.

K

So let’s return to the question of what it means to seek international protection in these circumstances, with only four hours to spare. How do these thresholds determine the space of the law? Of course one might say it is just an abuse of the law, but only if we look at the nature of law in a broader context.

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Verlinden

The term “threshold� is somewhat misleading in this context, as it suggests that there is a space outside of the law. Law, however, permeates every part of society. In this case, we can see, for example, not only how the law structures the spatiotemporal conditions in which the asylum seekers find themselves, but also how it compels bodies to move through time and space. It is the law, itself, which puts certain groups of people in a state of rightlessness. The fact, for instance, that if you are not an EU citizen or visa holder, then you have to buy a return ticket in order to be allowed to board the train to Terespol suggests that this particular reason for traveling, namely seeking asylum, is not officially recognized. Additionally, this means that when the travelers arrive they are not yet recognized as applicants. What they are effectively denied in this situation is legal personhood. Hannah Arendt describes personhood as the right to have rights. The difficulty with making a legal claim, such as applying for international protection, is that you first have to be recognized as a legal subject able to make a claim. As long as you find yourself outside of this frame of recognition, you cannot really speak of having rights.

In order to be recognized, you have to be legible within a certain framework. The spatiotemporal constraints in this case work to prevent the applicants from entering a frame of recognition. The question is, then, how do you make yourself visible within the legal framework of seeking international asylum? How do you cross the threshold of legal legibility when the spatiotemporal loop is designed to keep people outside of the frame of recognition? K

Taking threshold as the key phrase, I would agree that there is no clear line as to what is a law and what is not. But following your question on legal legibility, from my point of view the threshold would be not the defined line, but more the spatiotemporal setting where the rule of law reveals its character, where it is at play with legal 90

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visibility. Agata, every passenger on the train has their own story based on some facts, but no one else knows it. It first has to be heard to become visible, to have the chance to enter the scope of the law. What happens after the train comes? S

First you have to gain entry to the border control building. This is not easy, you have to wait until all the “priority travelers” leave the train: the EU citizens and visa holders. Only then can the remaining people get off. These are mainly people from Chechen territories seeking international protection. There is a passage that leads from the railway platform to the border control building, you have to go down an underpass, and then climb the stairs to the building. The building is a totally new structure, financed by the European Union. It is cubeshaped and, significantly, made of glass, Venetian glass at that. This means you can see outside; this is normal city life, as the border crossing building is not cordoned off by a strip of land. Yet no one sees what goes on inside. But the border is, on the one hand, symbolic; there’s a door that goes from the town to the border-crossing building. An ordinary sliding door, like you find in supermarkets, operating with a motion detector. When the passengers leave the train, the door is blocked. This is not only so that no one goes out, but also so that no one comes in. When the train departs, the building goes back to being a public space anyone can enter. But until then, you can only wonder how it looks: the interview room, the rules for entering it.

V

I am fascinated by the architecture that you describe. It seems to me that the building becomes opaque the moment the doors close. Before that, as you put it, it is part of the public space. It’s a transitory space that is permeable. You can move in and out freely and are not disconnected from the city space. But when the doors close it becomes opaque and impermeable, as you cannot enter and you cannot see inside because of the Venetian glass. As such, the building becomes like a riddle that you have to solve in the few hours you 92

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have before you are required to board the return train to Brest. Additionally, I find the deactivation of the doors highly symbolic. The technology is such that it is supposed to recognize you as a person and open the doors to allow you to enter. But even this basic form of embodied personhood is denied the refugees at their moment of arrival.

S

This should be the place for hearing stories, and the officer should determine their legal significance. The facts should reach the sphere of the law.

K

Jasper, in your opinion, what does “the facts should reach the sphere of the law” mean? What are the facts?

V

The problem with facts is that they, too, have to fit a certain framework in order to be recognized by law. What we think of as facts in our everyday lives—i.e. something that is true, something that really happened—are not necessarily considered to be facts in the eyes of the law. Facts, first of all, have to be supported by certain types of evidence. And what I think is even more important is that they have to add up to a plausible narrative which has to be coherent and complete, even though human experience is usually messy and not always comprehensible to others.

K

According to law, one can gain shelter when certain facts acquire a certain probability. This protection is the matter of the first investigation and this is what reveals the discrepancy Jasper has just mentioned. Starting from “technical” requirements, how are the grounds described in the law?

S

Legal protection should go to people who plausibly demonstrate that they have been exposed to oppression in their country of origin, for their political or religious convictions, for example. Yet the border 93

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control officers don’t determine this; they are only meant to listen to the submitted requests during the “initial questioning.” K

Precisely what are the politics of this hearing? I mean, it seems to be less an application submission than a threshold: the moment you “declare the intention” to submit it you cross the line of visibility in the eyes of the law—as an asylum-seeker.

S

That’s no easy matter, I have seen the wad of tickets myself—proof of sixty-six failed attempts to cross the line. For this officer, a person is nothing more than someone without a valid visa. That is why it was imperative for us, as advocates, to be present at those first procedures, at the passport check-in. That did not happen, however.

K

We can speculate on the strategies adopted in crossing the border of invisibility: taking up this interview, the “initial questioning,” in order to recount circumstances justifying that protection be granted. You also adopted strategies to get inside. You studied the map of the crossing, trying to translate this image of time and space. Submitting the application itself can be a long process, but first comes that moment of identification.

S

True, we had maps and information from NGOs that supported our project, such as the Helsinki Foundation, the Association for Legal Intervention, and Human Constanta. We tried to get a fix on the building entrance, to make contact with the clients. We monitored all three “side” entrances, afraid that we’d miss making contact just because we were waiting at the wrong door… Apart from power of attorney, we applied to be admitted to all administrative procedures. Some of us were told that these should be submitted in a different building, in another part of town. One person took all our applications to witness the administration of this other border control building, and I remained at the border crossing. In divvying up the tasks, we ensured 95

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that at least some of us would be with our clients. Two attorneys were admitted to witness the client procedures, but the remaining attorneys were not. The officials claimed there was a lack of space. The rest of we attorneys had no direct contact with the clients at all. We were merely handed the published verdicts refusing our clients entry when those same clients were already on the train back to Brest—long after the “initial questioning.” It was vital to us that we were there for the moment of the passport check. This was a chance to cross the line you mentioned, between visibility and invisibility. It is during the first interview that the “initial questioning” occurs, and the aim of the trip is defined. V

I also read in another report that there was a case in which two lawyers tried to accompany their clients by traveling with them in the back of the train and waiting with them in line with the other asylum seekers. But as they were standing in line, both of them were “recognized” by the officers (even though the officers did not know who they were) and asked to step out of the line and into the building. After they were brought inside they asked the director of the facility why they were singled out. And they were simply told that it is the protocol of the facility. This raises the question of what that moment of recognition consisted of. In that moment they were not recognized by what they were, namely lawyers, but by what they were not, namely asylum seekers. I am reminded of a quote by the cultural theorist Sara Ahmed, about the stranger. She says that the stranger is not simply someone we don’t know, but rather someone whom we know to be a stranger. I think something similar can be said in this situation. It is not simply that the personhood of the refugees is not recognized, but rather that they are recognized as not having personhood. This is an important distinction.

K

I think this distinction between not being recognized and being recognized, but not as a person, is very important. There is also another 96

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deadlock, which Costas Douzinas and Ronnie Warrington address in their text “A Well-Founded Fear of Justice,” calling it the “double bind.” Either applicants are in fear, or not. If they are inarticulate and cannot explain the “objective basis” of their fear, they are deemed to be “not in fear.” And if they can explain it then the immigration officers, for their part, conclude that the applicants appear to be in good health, and alert, and so have no genuine grounds for an asylum application. V

I believe that the applicants also find themselves in a kind of double bind with regard to how they are supposed to appear and behave. Since they find themselves at this point in a state of rightlessness, they cannot claim any rights. Since this is not a criminal or civil court, they cannot demand justice or restitution, they can only ask the state for protection, but this is not something that can be claimed; it can only be granted. There is a very uneven power relation here, because in order to ask the state for help, you have to appear to be helpless. You have to show the state that you are destitute and without agency. At the same time, it requires a tremendous amount of agency to make the journey to those border spaces. This discrepancy casts the refugees as always under suspicion. This suspicion is also aggravated by the fact that rights are often framed as scarce resources. We know that giving someone else rights doesn’t mean our own rights will be diminished. But often this is the fear that people have. They fear that the more people are included within civil society, the more constraints will be placed on their own rights, liberties, and access to resources.

K

I guess this mistrust towards the passengers, not-yet-refugees, takes various forms. But mostly it happens face to face, during the first interview. I was thinking about this tension between a spoken claim that is then referred to in another form—in a written decision, a denial of entry. What kind of traces might we have? Is there any writing prepared, any protocol? 97

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S

The act of writing is interesting here. After a guard hears the declaration of intent to submit an application, they should fill in a form with the foreigner. Yet it often happens that in the initial interview stage, questions are asked concerning the purpose of the trip, e.g. if the chance to work in Poland should arise, would the foreigner take it. If the response is positive, the border control officer interprets this as a trip for economic purposes, even though no one has claimed this to be true, and the question was purely hypothetical and abstract. The application can only be made in person. It cannot be sent in by mail. An attorney cannot submit it on behalf of the foreigner. It must be submitted in person, at the border crossing.

K

This introduces a paradox. The persons are physically present at the border crossing yet because they must be there “in person,” no trace remains of their attempt. This condition in fact precludes crossing to the other side… it increases the odds of remaining invisible… Jasper, what does it mean for you, this demand to be there “in person” in such circumstances? Should persons, in that case, be seen as evidence of their own self?

S

This is also a paradox: that a person is more in danger of being invisible when they are at the border crossing “in person” than they would have been if they had sent their claim by post (because the post needs to be registered, etc., but the talk with the guard is not registered; the guard just makes one side note about this meeting, and the situations are such that the guards can write whatever they want in the note, also outside of the framework of their conversations with the person seeking protection).

V

Since no one is allowed to make a claim in advance, by post, or through their lawyers, the law compels people to move through time and space and put their bodies in harm’s way. I agree with you, Agnieszka, that having to be there, in person, makes being rendered invisible even 98

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easier. Not only is there no written record of your claim, but also you can more easily be misrecognized and misheard. Since you cannot write your statement yourself, you have to rely on the officers to faithfully record what you tell them. But there will often be mistranslation. This mistranslation can be either willful or inadvertent (and in these particular cases I would say it is mostly willful), but it will almost inevitably occur. Additionally problematic in rendering the body as evidence is, that it requires the victims not only to relive the violence they have endured over and over again, but also to risk further violence being done to them. The applicants are expected to give an honest account of their experiences (again, this narrative has to be consistent and complete), but the circumstances in which they find themselves at the border are not conducive to truthfulness. What if your suffering is not deemed to be enough? What if it is not the right kind of suffering? What if the facts you disclose about yourself put you in even more danger? The rightless are among the most vulnerable groups of people. Asking them to disclose their deeply personal history in a hostile and impersonal environment is violent in itself. S The border control guards should keep minutes of their procedures, to reflect the circumstances and events detailed by the foreigner. By law, the person seeking protection should not be obliged to tell their personal story at this stage (but in practice, they are asked about it). By law, the fact that they claim out loud that they need protection and asylum should be enough to start the procedure of registration—by law, this one sentence should suffice—but, in reality, this claim, this cry for help, is totally ignored (heard, but not listened too); and this, too, is frustrating. This system based on the power of one institution can cause harm to people, and it results in them being deprived of their rights. Often, the foreigner’s statements are not included in the minutes; and in the majority of cases, no minutes are taken, only notes, which is not in keeping with the law.

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K

It’s surely no accident that this happens repeatedly.

S

On the day I spent at the border control at Terespol, around 150 people tried to cross the border, while allegedly only around five people submitted an application for international asylum. The remaining people who were refused entry to Poland mostly came from Chechnya, and we are well aware of the political situation there.

V

Agata, I would also like to turn Agnieszka’s original question back to you at this point: Where do you see the distinction between the obvious human rights abuse that is happening in Terespol and, on the other hand, the violence that is inherent to the law?

S

Jasper, I wouldn’t say that violence is always inherent to the law. In this case the implementation of the law proves the existence of structural violence. There is structural violence, as an institution is declining to respect certain people’s right to be protected according to international standards. This is an example of institutionalized negation of the basic needs of those seeking protection.

K

All these factors add up to create the bigger picture: the train arrival time, the architecture, the initial interview, the access to the form together constitute a sequence of events… They are the threshold to subsequent administrative procedures. This law is of a special nature, we are not dealing with conflict or contradiction, as in civil affairs. And yet we see resistance, Jasper outlines this conflict—and how do you see it, from your research perspective? On the one hand, we might say that this is an infringement of procedures, but on the other, no procedure has yet been initiated.

V

As I said before, since this is not a criminal or civil case, they cannot make demands, they can only appeal to the state for protection. But for this they are dependent on the goodwill of the state and, 101

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by extension, of its officers. Administrative law is not about resolving conflict, but about filing applications based on rules and criteria. These criteria are highly standardized. Not only that, it also works through a logic of separation. In my own work, I call this a diagnostic logic. Diagnosis works in such a way that by answering a standardized set of questions (or undergoing a standardized set of tests), the truth of your condition will be revealed. But one condition excludes the other. As in the example of the question of whether the applicant would take a job in Poland if the opportunity should arise, giving a positive answer to this question places the applicant in the category of “seeking economic gain,” which is a contraindication to “seeking asylum,” which is a different category. You cannot be in both categories. Administrative law does not allow for multiplicity. What administration does then, is cut up complex phenomena into manageable parts. Thus in order to make a successful claim, you have to fit your complex experiences into a standardized mold. But in order to do so, you have to have a vast knowledge of how the system operates. K

Talking about the nature of administrative law, I would inquire more about the administrative law and conflict. At first glance, we don’t have the contradiction we would have in criminal or civil law. But administrative law also makes decisions over life and death. In that regard one must ask: Has a huge amount of violence, partly arising from opposing interests, been cleverly hidden? Hidden in the proceedings, in how they are organized, in the requests you are allowed to make, in when to come in and come out, in some of the protocol… the officer’s commands? This reminds me of Elias Canetti’s Crowds and Power. Each command is a little death.

V

Yes, I believe that violence is inherent to administrative structures. In my research I can see how administrative law can interfere directly with a person’s body. It regulates our mobility, our access to civic entitlements and, in some cases, can require us to make 104

When the facts reach the sphere of the l aw

physical changes to our bodies. The logic of standardization that undergirds all administrative practices is violent in and of itself, as it requires people to adapt themselves to fit a certain mold. Life is messy, complex, and incoherent, which means you have to cut yourself down to the relevant parts in order to be eligible for a specific procedure. But you don’t always know what the relevant parts are. Which comes back to your question about how the facts reach the sphere of the law. It is not always clear which facts will bring you closer to your goal and which will render you ineligible. We have all experienced how rigid administration can be: forms can’t be processed without a phone number, even though you don’t have a phone; you can only fill out one racial category or country of origin, even though you are mixed race, or have a mixed heritage, or dual nationality. Every form you fill out is in some sense fictional, as the standardized questions and formats don’t account for the whole of one’s experience or identity. But when the stakes are as high as life or death, it is particularly disturbing that a decision can come down to what you decide to put down on a form or, in this case, what the officer in front of you decides to record. Finally, to respond more directly to what you are saying about the commands, the administrative system makes a person completely dependent on the officers and administrators they encounter. This stripping away of agency is performatively enacted, especially in those commands and protocols you mention. You cannot choose not to obey the commands directed towards you, if you want to have any hope of receiving the protection you seek. I also want to add that, as Lisa Marie Cacho argues in her book Social Death: Racialized Rightlessness and the Criminalization of the Unprotected, law is dependent on the continued criminalization and exclusion of certain groups of people. This is why rights-based activism always works through the inclusion/exclusion logic. You can include certain people within civil society, often based on some idea of respectability and deservedness, but the law will continue to exclude others.

105

Anca Benera + Arnold Estefan in conversation with Agnieszka Kilian

It Is Time to Draw New Maps

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It is Time to Dr aw New Maps

Kilian

One of your projects, ‘The Equitable Principle’, explores Romania’s territorial disputes regarding Serpent Island, a remote rocky islet set in the northwest of the Black Sea. That particular legal case you worked on has various, overlapping dimensions: historical, geographic and economic. The island, also known as Snake Island, was the subject of contention between the Ottoman Empire and Russia. After the Russo-Turkish war of 1877–78 the islet was ‘finally’ ceded to Romania as reparation for the loss of its southern Bessarabia region. Then, after World War II, things became more complicated... Snake Island has a very rich history of claims and appropriation...

Benera + Estefan

We could consider the Serpent Island case ‘Romania’s Crimea’. Its history is indeed complex and entangled, with many ‘unknowns’ (Serpent Island was first occupied by Nazi Germany during World War II, and later annexed by the USSR), with as many (Greek, Turkish, Russian, Ukrainian, Romanian) versions as there are countries involved, and also different names. Due to its strategic location, it was also an important spot during the Cold War. In 1948 Romania (under Soviet occupation) was forced to ‘agree’ to cede Serpent Island to the Soviet Union, an ‘agreement’ whose validity Romania has always strongly contested, since neither of the two countries ever ratified it. Snake Island would accordingly be de jure Romanian territory. But the Soviet possession of Serpent Island was confirmed by another border treaty signed by the USSR and Romania in 1961. Following the collapse of the Soviet Union in 1991, Ukraine ‘inherited’ control over the island. But Russia has tried ever since to ‘keep an eye on it’. Now, the oil and gas reserves recently found around the island have raised the stakes in this dispute, making it even more of an economic-strategic one, with Russia still trying to maintain its dominance in the region. In 1997, the Romanian government signed a new treaty with Ukraine designed to ‘reaffirm that the existing 183

Anca Bener a + Arnold Estefan

border between them is inviolable’. Despite this agreement, and probably since the discovery of oil and gas in the region, Romania began to be concerned about the delimitation of its territorial waters. After long years of unsuccessful diplomatic negotiations Romania and Ukraine agreed to disagree on their maritime borders and exclusive economic zones. Because no resolution was reached, the two sides turned to the International Court of Justice (ICJ) for a final ruling. K The definition of the island proved to be one of the most important

questions for the final ruling and thus for the land’s delimitation. To formulate such a definition, one has to relate not only to geography and mapping, but also, and much more so, to a mutually determined understanding—from the legal as well as from the geographic perspective. What are the implications of being an island or an islet? And, inquiring in much broader terms: What does ‘land’ mean? B+E The debate revolved around, not territorial sovereignty over Serpent Island but its recognition as a fully-fledged island as opposed to an ‘islet’ or a ‘rock’. In general, numerous factors can be taken into account to differentiate an island from a rock. The island (islet) in this case is only 0.17 square km, hence too small to be considered an island (it looks more like a cliff-face). But, on the other hand, it does have island-like characteristics: an igneous formation extending 41 meters above sea level; and a population of frontier guard servicemen. However, it lacks fresh water (which is imported by air) and is therefore uninhabitable in the longer term. If it were recognised as an island then the continental shelf around it would have to be considered Ukrainian waters (unless one recognises the pending Romanian claim that Serpent Island is de jure Romanian territory, as discussed above). If it were considered a rock then, in accordance with international law, the maritime boundary between Romania and Ukraine would have to be drawn without taking it into account. Romania could not legally recognise it as an 184

It is Time to Dr aw New Maps

island, because to do so would give Ukraine more sovereignty over the surrounding waters. In the meantime, Ukraine has built a fictitious bank and a hotel (with no running water or infrastructure), and invented a free economic zone, and a fake ID card for the first citizen of Serpent Island. A series of other actions ensued for the purpose of proving its status as a rock or an island. But finally, no verdict was passed on the ‘island’ or ‘rock’ in question. K

What kind of position did the ICJ take in terms of any understanding of it as land?

B+E

The court found that Serpent Island did not form part of Ukraine’s coastal configuration, explaining that ‘to count the islet as a relevant part of the coast would amount to grafting an extraneous element onto Ukraine’s coastline; the consequence would be a judicial refashioning of geography’. The court thus concluded that Serpent Island ‘should have no effect on the delimitation in this case, other than that stemming from the role of the 12-nautical-mile arc of its territorial sea’.

In the vision of the Centre for Land Use Interpretation, land is a cultural product. More precisely, we are interested in territoriality at the intersection of law and economics—in floating territories as extrastatecraft. It is interesting to consider what is going on with the autonomous start-up communities in French Polynesia, such as the Seasteading Institute (an earlier initiative of which was a ship moored off the Californian coast as an extraterritorial base for high-skilled workers). They are trying to develop new possibilities within existing systems by identifying legal loopholes for the creation of new economic zones, hence by redefining the very concept of territory and land.

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K This redefinition makes some use of critical cartography, with land

as a cultural product. Also the visual representation of geography, mapping itself, implies the naming and creation of the world. But as J.B. Harley, one of the discipline’s precursors, once noted, cartography cuts the forest from the tree. This cartographic observation can be applied to law, as Boaventura de Sousa Santos has demonstrated in legal studies, by tracing the relationships between the written law and maps. B+E

What is relevant to us is de Sousa’s reflection on legal pluralism (law in pluralistic terms) and the law as a map of misreading. Boaventura de Sousa Santos is a good example when speaking about critical cartography. He perceives maps as an inevitable distortion of reality. He cites as an example the emperor in the Borges novel who ordered the production of an exact map of his empire; yet the map proved useless because it was the exact same size as the empire itself – and a useful map cannot coincide point by point with reality. Santos names three autonomous yet also interdependent mechanisms that are key factors in the distortion of reality: scale, projection and symbolisation.

De Sousa compares law with scale and outlines a so-called ‘symbolic cartography of law’ (the ability to analyse the effect of scale on the structure and use of law), showing that national and international territory consists of several social spaces which, although autonomous, interrelate in different ways. And within each social space and across spaces, different kinds of juridical capital circulate. Scale projection and symbolisation are not neutral. They express certain types of interests and disputes and suppress those of others. The autonomy of law as a specific way of representing, distorting, and imagining reality derives from the operation of these procedures. The modern state is based on the assumption that law operates on a single scale – the scale of the state – and for a long time the sociol186

It is Time to Dr aw New Maps

ogy of law accepted this assumption without question. But we live in a time of porous legality, or of the legal porosity of multiple networks of legal orders that constantly compel us to make transitions and trespass. Boaventura de Sousa Santos starts by analysing the forms of local legality in rural areas, in marginalised urban sectors, in churches, in sports, etc. and terms them forms of ‘infra-state laws’, mostly informal, unofficial, and more or less customary.

Most recently, the research on international economic exchanges has revealed the emergence of a new lex mercatoria, an international legal space in which different types of economic agents operate, whose behaviour is regulated by new international rules and contractual relations established by dominant multinational corporations and international banks. What is striking is how transnational capital has created thus a transnational legal space, a supra-state legality, a kind of ‘world law’ which is rather informal and based on the practices of dominant agents.

Legal pluralism is the key concept for Santos: the conception of different legal spaces superimposed, interpenetrated and mixed in our minds as much as in our actions. Our legal life is constituted by the intersection of different legal orders that he terms interlegality – the phenomenological counterpart of legal pluralism. Santos argues that Western domination has profoundly marginalised knowledge and wisdom that had long been in existence in the global South. In his book Epistemologies of the South, he contends that it is imperative, today, to recover and valorise the epistemological diversity of the world. It is time to draw new maps! K Let’s talk about how you introduced a new map working with the

Serpent Island case. What was your mental map and new law, tak187

Anca Bener a + Arnold Estefan

ing into account that Romania in fact received the bigger part of the disputed area, while the ICJ ruling is supposed to be based on some kind of equitability... B+E

While the judgment drew a line which was ‘equitable’ for both parties in the ICJ’s words (the ICJ tries in general always to be ‘equitable’), Romania received nearly 80 per cent of the disputed area, allowing it to exploit significant—but undetermined—deposits of gas and petrol under the seabed (an estimated 100 billion cubic meters of gas and 15 million tonnes of petrol). Romania sold the rights to the exploration and exploitation of these to foreign companies before the resolution of the trial. What interests us is this set of entangled and elusive types of belonging.

K Taking belonging as the starting point: in your work ‘The Equitable

Principle’ you quote an ancient rule of Roman law: Nemo dat quod non habet meaning No one can give what he doesn’t have. Then there is the parallel to that one: Nemo plus iuris ad alium transferre potest quam ipse habet meaning No one can transfer more rights than he has. B+E

We understand the Nemo dat rule rather as a bona fide questioning than a reciprocity law. In the winter of 2012, we did a performative action to cut out from the frozen waters of the Black Sea the surfaceunit that each Romanian citizen would have received, had the maritime area been equally divided. By calculating the surface area of Serpent Island and dividing it per capita, we realised that each citizen would receive an area of approx. 8 sq.cm of land. In fact, if each Romanian were to go and take away 8 sq.cm of soil, the island would disappear. In our performative action we point out the convoluted corruption case around the Black Sea resources and conceptualise this illusory restitution. State politics always claims to act ‘in the name of the citizens’ but in most cases it doesn’t. We are trying to see what happens when we cease to retain the critical distance of the 188

It is Time to Dr aw New Maps

citizen but instead assume a position of power, even if only symbolically, as a form of ‘poetic justice’. K In their text Feminist Perambulations [an extract from which is re-

printed in this reader, see p. 194.] Anne Bottomley and Hilary Lim discuss embodied geography and continuously re-embedding the law in our everyday practice... B+E These are all interesting questions and reflections on political ge-

ography and embodied geography in terms of gendered intersection between the law and land because ‘to take the law for a walk’ appears in Bottomley and Lims’ Feminist Perambulations. Our approach is taking the law for a walk on a slightly different path. Land (as much as law) is a construct and thus imagined—a moving concept of imminent spatiality which produces its own knowledge. The line is the dot that went for a walk in Paul Klee’s vision. This was probably Bottomley and Lims’ inspiration—using Klee’s aesthetic vision to reflect on the law. It is interesting that, in the legal context, the words imagination or aesthetics (within which art operates) are associated with manipulation, emotional or illusionary trickery, a lack of seriousness. Imagination and aesthetics are antithetical to the legal conception of truth as a simple and objective given. On the other hand, all forensic practitioners (Forensic Architecture might be a good example) are aware of the paradox that imagination is essential to the investigative and interpretative labor necessary for the production and presentation of any claim to truth.

more: https://www.seasteading.org/

189

imprint

This book was published on the occasion of the exhibition ‘Dreams & Dramas. Law as Literature’ 10 March – 7 May 2017 neue Gesellschaft für bildende Kunst The publication Dreams & Dramas. Law as Literature is part of the nGbK-project (exhibition lectures, performances) in 2017. Financed by Lotto Stiftung Berlin. In cooperation with Hit Gallery, Bratislava – financially supported by Slovakian Ministry of Culture.

nGbK

neue Gesellschaft

für bildende Kunst e.V.

Oranienstr. 25 10999 Berlin, Germany Tel: +49 30 61 65 13-0 Fax:+49 30 61 6513-77 ngbk@ngbk.de www.ngbk.de

HIT Gallery in Bratislava

Hviezdoslavovo námestie 18 Bratislava 811 03, Slovakia galeriahit@gmail.com www.galeriahit.com

Project Group Dreams & Dramas : Anna Bromley (since January 2017), Wojtek Gąsiorowski (till December 2016), Kaja Gliwa, Agnieszka Kilian, Paulina Olszewska (till January 2017), Alicja Rogalska, Jaro Varga TASK AREAS : concept: Agnieszka Kilian, Jaro Varga (in collaboration with Alicja Rogalska) visual communication : Kaja Gliwa organisation : Jaro Varga, Agnieszka Kilian program : Agnieszka Kilian Budget: Paulina Olszewska (till January 2017), Anna Bromley Artists & Speakers : Carlos Amorales, Anca Benera + Arnold Estefan, Patrick Bernier & Olive Martin (in collaboration with Sebastien Canevet and Sylvia Preuss-Laussinotte), Monika Drożyńska, Marina Gržinić Sylwia Gregorczyk-Abram, Debora Hirsch & iaia filiberti, Avi Feldman, Ivan Jurica, franck leibovici & Julien Serrousi, Grzegorz Królikiewicz, Bruno Latour, Rupali Patil, Kaja Puto, Oliver Ressler, Alicja Rogalska, Agata Stajer, Mateusz Stępień

imprint

nGbK Board : Ingo Arend, Kathrin Busch, Çağla İlk Office: Managing Director : Lilian Engelmann Accountancy: Nazan Albay, Vivien Witte Office : Katja Rein Press and Communications :

Benita Piechaczek Program and Publishing :

Wibke Behrens Trainee : Vincent Schier Assistance : Hartmut Schulenburg Publication : Published by: nGbK / HIT Gallery Book concept: Agnieszka Kilian Editors : Agnieszka Kilian in collaboration with Joerg Franzbecker and Jaro Varga Translation : Soren Gauger COPYEDITING : Jill Denton Proof reading : Jill Denton, Aeddan Shaw Catalogue design : Kaja Gliwa Print:

Know-How 500

Print Run :

Publishing company: Distributor :

nGbK nGbK + HIT Gallery

Berlin 2017 ISBN 978-3-938515-67-9 Printed in Poland. All rights reserved. © nGbK © for texts Ernst Bloch, pp. 20 © MIT Press Costas Douzinas, p. 28 © Springer Karla Holloway, p. 37 © Duke Press Ran Hirschl & Ayelet Shachar, p. 78© SAGE Evgeny Pashukanis, p. 112 and p. 152© Taylor and Francis Group LLC Books Gerald Torres & Kathryn Milun, p. 134© Taylor and Francis Group LLC Books Anne Bottomley & Hilary Lim, p. 194 © Routledge-Cavendish Bruno Latour, p. 224 © Polity Press © for all others texts, the authors © for images, the copyright holders © for the graphic design, Kaja Gliwa © for the concept, the nGbK ‘Dreams & Dramas’ project group The nGbK would like to thank the Senate Department for Cultural Affairs and Europe for their support and the LOTTO -Stiftung Berlin for financing.

Supported with public funding by Slovak Arts Council

Table of

na zwisko

6

Introduction. Dreams & Dramas

I On the Body and Its Personhood

64

Marina Gržinić

Is There Any Escape from Injustice? On Migration, Necrocapitalism, Civil Bodies and ‘Legal Slaves’

20 Ernst Bloch

It Is a Third Who Decides / The So-Called Sense of Justice

II Citizenship & Property 78 Ayelet Shachar

28

Costas Douzinas

& Ran Hirschl

Human Rights and Postmodern Utopia

36 Karla Holloway

88 Agata Stajer

Henrietta’s Haunting

Citizenship as Inherited Property

& Jasper Verlinden

in conversation with Agnieszka Kilian

42 Jasper

Verlinden

When the Facts Reach the Sphere of the Law

Body

46

Colin Dayan

108 Ann Lee Wang

Civil Death

Violence 258

112 Evgeny Pashukanis

Commodity and Subject Part One 118 Patrick Bernier

A Tale for Creating Legal Precedence

124 Agnieszka Kilian

Expropriation

III Storytelling: Territory and Its Bodies 130 Agnieszka Kilian

Having a Right

134 Gerald Torres & Kathryn Milun

Stories and Standing. The Legal Meaning of Identity

Contents t y tuł

152 Evgeny Pashukanis

Commodity and Subject Part One 166 Kieran Dolin

Mabo’s Case. On the End of Terra Nullius in Australia

IV Text and Its Performance (or: One Sets the Rules)

Legal Fiction

& Hilary Lim

Feminist Perambulations. Taking the Law for a Walk in Land. 206 Carlos Amorales

176 Agnieszka Kilian

Property & Possession

182 Anca Benera + Arnold Estefan

modified extract

from video 

transcript

Supprimer, Modifier et Préserver

Agnieszka Kilian

It Is Time to Draw New Maps

Whose Law Rules Under the Rule of Law and Who are the Governors of Good Governance?

220 Danilo Mandić

Movement

224 Bruno Latour

How to Make a File Ripe for Use 240

250

Biographies

Image Credits

254

in conversation with

194 Anne Bottomley

172 Mateusz Stępień

216 Issa G.Shivji

212 Valerio Nitrato Izzo

The Law as a Score 259

Imprint + Acknowledgments

na zwisko

The reader develops the main axes of the exhibition “Dreams & Dramas”: the body, community, territory, and property. By juxtaposing the various materials−  text, conversations, and drawings−  it reflects on law and justice. In parallel, it examines the tools used by the law, such as cut and montage, indirect speech, and legal fiction. This brings to light the narrative nature of the law and, pertinently, the matter of which stories are heard and which are not.

nGbK 260 ISBN 978-3-938515-67-9