Being Illegal: Ideology and the Law

For the past fifteen years I have been teaching a class on work. This class has undergone many changes throughout the years. Readings have circulated in and out. I always try to add something new, whether this be Elizabeth Anderson, Sarah Jaffe, or Jason Smith and Aaron Benanav.  Somethings remain a constant, like John Locke, Adam Smith, Marx, and Kathi Weeks.  The things that change the most are the movies that I pair with the class. I have taught Office Space, Clockwatchers, Sleep Dealer, Sorry to Bother You, and The Assistant to name a few. 

In one early version of the class I used Ken Loach's Bread and Roses. These days I mainly remember the odd number of celebrities that make cameos in the film.  The film is mainly a fictionalized account of the SEIUs Justice for Janitor's campaign to organize the cleaning staff of Los Angeles office buildings. As such most of it focuses on the risks associated with solidarity. However, the film also deals with immigration in one subplot, as well as health insurance, it is unapologetically didactic. The film opens with Maya (Pilar Padilla) crossing the border into the US to find work. Despite the film's didacticism, or maybe because of it, its central conflict is between those who engage in collective action to improve their conditions and those who attempt to pursue an individual strategy to improve their life. One of Maya's friends and coworkers is taking college courses to get a degree. I am a little hazy on what exactly happens, but something about his involvement with the union jeopardizes this when he does not have enough money to pay to register for classes. Maya takes it upon herself to steal some money from a cash register to help him out. You can watch the whole film below for the rest of the plot. She is later arrested during a union protest and the police match her prints from the cash register. 

What I do remember is how a student reacted to this subplot. After Maya is arrested she is basically given the choice, well really a forced choice, to be deported rather than face sentencing. At the end of the film she is sent back to Mexico. I remember a student in the class exclaiming with surprise and horror "But she is illegal!" I was not sure what he meant by this, and I asked him to clarify. It became clear that he did not understand how someone who was illegal was granted any legal proceedings at all, any presentation of evidence, any plea bargain, even when those proceedings resulted in her deportation. An illegal person was outside the law, and the law did not apply to them, apparently. I tried to explain the fundamental problem of having a portion of the population denied due process by pointing out the problem that once you deny some people due process you effectively deny everyone due process because determining who does or does not deserve due process is itself a legal process. Honestly, I could have done better in the moment, and should have paired the film with some readings about the place of undocumented workers in the economy. That is partly what I think about when I remember this incident, but mostly what I think about is how commonplace this student's view has become now, some fifteen years later. Illegals are presented as people who are outside the law, and do not deserve any legal consideration is practically the official position of the United States government now. That may be even putting it too nicely. Feeding every undocumented person to alligators is pretty much the official government position. 

This response opens up a massive gap between the actual legal matter of "illegal" or undocumented immigration. As it stands now, but this will unfortunately change, being undocumented, which includes people who overstay their visas or those who, as in the case of Maya in the film, cross the border with the help of smugglers, is a relatively minor offense, a violation of the civil code.  Yet such a violation is often treated as if it was not just a violation of the law, but a violation of the very idea of legality. Spinoza in the Tractatus Theologico-Politicus argues that law is said in many senses, there is the law taken in its absolute sense as the way something necessarily acts in one and the same determinate manner, what we would call a natural law, and there is law in its narrow sense, "a rule of life which man prescribes for himself or for others or for some other purpose." To which I would add that there is another sense of law, the Law, the idea not of this or that existing rule, but of the very nature of rule. This is the law that is invoked when people say law and order, emphasis on the latter; not this or that law, which we all know can be changed, but the law, which cannot. The law is part of the symbolic order (on this point, on the idea of a Spinozist theory of the symbolic order, I should say that I am indebted to Frédéric Lordon and Sandra Lucbert's Pulsion, which I am currently reading and will have more to say about it when I finish it) 

This raises the question, how does a law come to stand in, almost metonymically for the Law, for the very idea of "law and order." I believe that a clue to this can be found in Walter Benjamin's well known "Critique of Violence." In that text Benjamin writes about how criticisms of capital punishment are often understood to be assaults on the law as such. As Benjamin writes, 

"...capital punishment has provoked more criticism than all others. However superficial the arguments may in most cases have been, their motives were and are rooted in principle. The opponents of these critics felt, perhaps without knowing why and probably involuntarily, that an attack on capital punishment assails not legal measure, not laws, but law itself in its origin. For if violence, violence crowned by fate, is the origin of law, then it may be readily supposed that where the highest violence, that over life and death, occurs in the legal system, the origins of law jut manifestly and fearsomely into existence. In agreement with this is the fact that the death penalty in primitive legal systems is imposed even for such crimes as offenses against property, to which it seems quite out of "proportion." Its purpose is not to punish the infringement of law but to establish new law. For in the exercise of violence over life and death, more than in any other legal act, the law reaffirms itself. But in this very violence something rotten in the law is revealed, above all to a finer sensibility, because the latter knows itself to be infinitely remote from conditions in which fate might imperiously have shown itself in such a sentence. Reason must, however, attempt to approach such conditions all the more resolutely, if it is to bring to a conclusion its critique of both lawmaking and law preserving violence." 

Following Benjamin it is possible to say at every given moment a specific a specific law stands in for the entirety of the legal order. I tried to make this point earlier, when the Black Lives Matter protests were understood to be protests of the very idea of the law, or of order. This is not too different from the reaction to protests against the death penalty, in each case law is being identified with the violence of its enforcement. Of course the element of enforcement hangs over this idea of the "illegal immigrant" as well, enforcing the border is understood as a necessary condition of the nation, of a society. The focus on the border, however, brings in another element. As Etienne Balibar writes, "the border is the nondemocratic condition of democracy." The border functions as the limit to all those supposed truths and rights that one takes to be self-evident or created by God. It taints the universality of rights and liberties with the particularity of nations and peoples. Or, put differently, if one thinks of the democratic revolutions as in some sense a revolution against hierarchies established by birth, first against the hierarchy of caste or family in the revolution against aristocracy; then against the hierarchy of race in the struggle for reconstruction and civil rights; followed by the revolution against the hierarchy of sex and gender in the feminist revolutions and movements for queer liberation, then it can all be considered in terms of revolutions against a natural hierarchy determined by birth in favor of an ideal of equality and liberty, of the same rights for all regardless of birth. The insistence on the border and the nation as a condition for any right, any consideration, is a Thermidor, or even a counterrevolution to these interlocking revolutions,  it is an attempt to  maintain one place where differences of birth matter more than democratic principles. As an exception to the ideal of equaliberty, to use Balibar's term, it is often the trojan horse for the introduction of other hierarchies of birth, such as race and gender. Which is why Balibar writes, 

"For my part, I consider the demarcation between democratic and liberal policies and conservative or reactionary policies today to depend essentially (if not exclusively) on attitudes towards ethnic discriminations and differences of nationality on whether pride of place is given to national belonging or emancipatory goals (the rights of man or citizen)."

Or to put it simply, to argue that the border is synonymous with the law, that a violation of it is a violation of law and order, is to ultimately posit that law and order is inseparable from a hierarchy decided by birth. It is an identification not with the ideal of law as equality, as applicable to all, but to the reality of law as that which enforces hierarchy. This seems to me to be the right way to look at this obsession with the border and with undocumented workers, it is not, as some pundits like to claim, a possibly skewed look at a nonetheless pressing issue, at something all reasonable politicians must address, so in the world of US politics the only difference between parties is between one that openly celebrates cruelty and one that quietly accepts the necessity of it. Rather, it is an assault on the very idea of equalities and freedom that underly democracy, an attempt to turn them back rather than expand them.