Blog post by Irene Manganini. This post is part of the blog series on feminist theory in refugee law.
“I know now that a studied evasiveness has its own limitations, its own ways of inhibiting certain forms of happiness and pleasure. The pleasure of abiding. The pleasure of insistence, of persistence. The pleasure of obligation, the pleasure of dependency. The pleasures of ordinary devotion. The pleasure of recognizing that one may have to undergo the same realizations, write the same notes in the margin, return to the same themes in one’s work, relearn the same emotional truths, write the same book over and over again—not because one is stupid or obstinate or incapable of change, but because such revisitations constitute a life.”
― Maggie Nelson, The Argonauts
Introduction: feminist engagements with international law between resistance and compliance
When approaching the study of international law through a feminist lens one is likely to stumble onto what since the last ten years feminist international lawyers have referred to as the “between resistance and compliance” debate. Such debate, which largely owes its theorisation in international law to the book Feminist Perspectives on Contemporary International Law, Between Resistance and Compliance? (Kuovo and Pearson, 2014), relates to ‘[t]he tension feminists face when working within the international legal system, seeking change from within, versus working beyond the constraints of that system to completely reimagine international law’ (Jones, 2023). In the words of the authors, feminist and other critical thinkers who try to navigate the ‘contemporary, crisis-driven hegemonies of international law’ (Kuovo and Pearson, 2014) in these times of anxiety and multiple crises, face the danger of being ‘caught between resistance and compliance: using the law for change while also knowing that there is a need to think beyond the law as the law holds limited promise for radical change’ (Kuovo and Pearson, 2014).
If I research the ways in which international law is embedded in patriarchal, unequal and sexist power relations between states and between individual players – feminist legal scholars may ask themselves – then how do I try and subvert these power imbalances if I take myself out of the conversation? Where do I draw the line between modes of engagement which I see as problematic but that I accept as part of a broader scheme and those which I simply cannot lean in to? How do I remain radical in a discipline that often mirrors the same power structures that states build upon to obtain even more power, such as colonialism, imperialism, sexism and the like? Similar questions will sound familiar to those approaching international law through a feminist lens – and to many other critical legal scholars. The very human question of where one draws the line in the ideological engagement with one’s own work is an understandable concern for whomever works in international law with at least some form of idealism or belief that certain things should be changed and strongly or even mildly feel about how those changes should happen.
Framing these internal tensions as “being caught between resistance and compliance” does in my view provide at least the concepts through which one can articulate this sense of discomfort, if not sometimes of hypocrisy or ethical incoherence. It does not, however, provide the solution to the problem (if there is a problem at all). If one in fact leans too much towards the resistance side, actively dismissing any form of collaboration with or participation in a system which one deems unacceptable, one risks becoming completely excluded from the conversation, therefore also often from the concrete possibility of changing things to one’s own understanding of the better. If one leans too much towards compliance, one risks lending the name of feminism to practices which many feminists strongly oppose. Overly compliant actions which are carried out under the name of feminism risk calling and legitimising as “feminist” certain movements, laws and institutions which perpetuate systemic oppressions such as patriarchy, sexism and heteronormativity. This “approach” is sometimes referred to as “governance feminism”. In the words of the authors,
‘the tensions feminists face between working to change international law from within versus wanting to resist the normative and gendered structure of international law are complex. The dangers of working within problematic systems of power must be balanced against the potential gains to be made through working with powerful institutions. In the meantime, the take up of some feminist ideas by the international system has worked to ensure that liberal and dominant feminist perspectives have been given a platform in international law, this occurring at the expense of alternative feminist visions of ‘unorthodox, outsider ideas’ including, for example, postcolonial or queer feminism’ (Halley, Kotiswaran, Rebouché, Shamir, 2018).
Between resistance and compliance across different areas of international law
While this is certainly not a debate that can only be found in the realm of international law, scholars of this discipline have been persistently struggling with it. There is more and more scholarship, in fact, which points to this existing tension, particularly critical scholarship coming from postcolonial, queer and feminist philosophical bases. In discussing LGBTQIA+ human rights jurisprudence, for example, Mazel addresses precisely how this tension seems to play out in LGBTQIA+ law reform projects, where certain rights which LGBTQIA+ communities fight to have recognised (for instance, the right to marry) are seen by some critical scholarship as reinforcing sexuality and gender categories and normalising power relations and privileges found across the institutional structures in which these communities live. Falling under a wider discussion on mechanisms of homonormativity (Duggan, 2002), this claim is however punctually contested by Mazel, who, implicitly pointing to the “resistance vs. compliance” debate (and perhaps to its ultimate unsolvability), argues instead how some of these hard-won battles have been ‘acts of courage and defiance, commitments to carving a space in international human rights law where there had been none before. These queer jurisprudents sought not to dilute their differences, but to embrace them, disrupting established norms about who is inside or outside of the law, who the law is for, and how it operates. These were queer, creative, and radical acts’ (Mazel, 2022).
Similarly, Kapur engages with this tension in her seminal work on the human rights apparatus, where she argues for the need to stop holding on to human rights as an emancipatory project, highlighting how human rights law is used to uphold patriarchy, colonialism and capitalism. In her words, ‘[w]hile the rights apparatus may be viewed as a successful mode of emancipation for liberal advocacy, in real terms it may serve to further bind the disenfranchised through the overtly and covertly normative and regulatory functions of the project’ (Kapur, 2018). To counter this movement, Kapur searches for alternative understandings of freedom found in epistemologies of the non-liberal Global South. However, while the author notes the inherent problems of the law and the law as a violent governance structure, she also highlights that the law can still be useful, calling not for abandonment of human rights law but that it be understood for what it is: a mechanism of governance as opposed to a freedom project.
One more example comes from environmental law: in an engaging conversation on anthropocentrism and international law, Otto and Jones ask each other similar questions of resistance and compliance in relation to the rights of nature. When Otto asks: ‘Either way, isn’t the strategy of granting rights to nature risking its incorporation into the hierarchical humanism of the existing system of international law?’ (Jones and Otto, 2020), Jones replies: ‘I completely agree: neo/liberal legalism is the limit of the legal personality for nature model. The problem with the neo/liberal legal frame which underpins much of the dominant global lawscape is its ability to mould everything, including projects of potential resistance, into its frame of the law’ (Jones and Otto, 2020). Similar reflections from feminist and queer international legal scholars on how this tension runs along specific subsets of international law can be found for example in discussions on reparations (Gonzalez-Salzberg, 2022) or antimilitarism (Jones, 2023).
The absence of this debate in refugee law and a personal recollection of ethical discomfort
When it comes to international refugee law, however, nobody has to my knowledge framed this debate in these exact terms. Deeply implicated, and increasingly so, in considerations of states’ abuse of power and human rights infringements, and yet a strongly principled area of international law, I have no doubt that many refugee law scholars have found themselves anxiously grappling with this conundrum, all the more so in a historical time in which states’ policies tend to become more and more restrictive and yet preserving a form of academic and policy-level dialogue seems to be the only way to at least save what could be saved.
In my personal experience as refugee law scholar and participant with voting rights in first instance panel decision-making asylum adjudication, I was early on confronted with the obvious awareness that those debates which can be “thought-provoking and stimulating” in theory can turn into terrible headaches in practice – all the more so, in my case, when one needs to put one’s own signature under many asylum claims’ rejections to try and preserve a balance and push for others to be accepted. Often in this job, I had to actively decide which (almost hopeless) cases could be “sacrificed” to preserve the panel’s trust and push for others which I knew could have more chances to “make the cut”, in a sort of realpolitik mentality affecting asylum-seekers’ lives. Coming from a full no-border, activist background and ideology, such stance is hard to maintain, and where my (personal? general?) line between resistance and compliance needs to be drawn has become a daily consideration of mine. In a discipline such as international refugee law, in which many scholars are also practitioners in a way or another, I am sure such an ethical dilemma is widespread.
This headache, and the lack of guidance I found across refugee law scholarship, was however key in changing the lens I use in my work as researcher. Working on queer asylum-seekers and their legibility in the asylum law system, I used to want to unveil the oppressive tenets that make such asylum-seekers illegible. Certain queer asylum-seekers are illegible to the system, I kept repeating to myself, and this is problematic and should be resisted, and if I write anything detaching from this reality I am complacent with the oppressive asylum tenets which create asylum-seekers in the first place. Now I see that this has always been true but that it was, in the way I was framing my analysis, particularly useless. Then I started working in asylum adjudication, and a crack opened in my stubborn radicality. I eventually stumbled upon Sedgwick’s reparative practices (thanks to Odette Mazel for facilitating this stumbling; Mazel, 2022), and more light entered: I started looking for the accountability to the real (Sedgwick, 1993).
Stumbling upon Sedgwick’s paranoid vs. reparative readings
The rock I stumbled upon was an essay titled Paranoid Reading and Reparative Reading; or, You’re So Paranoid, You Probably Think This Introduction Is About You (Sedgwick, 1997). In this complex, articulate and hopeful essay, Sedgwick reflects upon a number of queer readings of fiction and literature which form part of the journal’s special issue she was invited to edit. What she finds most surprising across these works is ‘how distant many of them are from a certain stance of suspicion or paranoia that is common in the theoretical work whose disciplinary ambience surrounds them’ (Sedgwick, 1997). The author suggests that these essays may be characterised – to her surprise given the intellectual moment she was living in – by a ‘fresh, deroutinized sense of accountability to the real. Live and learn. By accountability to the real I mean in the first place the many, diverse, but very marked turns these essays take away from existing accounts of how “one” should read, and back toward a grappling with the recalcitrant, fecund question of how one does’ (Sedgwick, 1997).
Sedgwick then goes on to show how this accountability to the real provides for a grounded, solid and hopeful alternative to what she sees as the methodology of paranoid reading which was omnipresent in intellectual work, and particularly so in queer literary work. In her view, put in simple terms, a paranoid reading attempts to definitively understand and categorize a text, wanting to define a text as either good or bad, problematic or progressive. Such impulses represent, according to the author, a defensive, anticipatory position, since the act of reading paranoidly entails an ‘aversion to surprise’ (Sedgwick, 1997) and embodies a ‘unidirectionally future-oriented vigilance’ (Sedgwick, 1997). In other terms, paranoia works to prevent surprises, looking to anticipate the future before it happens. ‘Anything you can do (to me) I can do first’ (Sedgwick, 1997). To show where this can be seen across critical work, Sedgwick takes three major queer theoretical works, including her own, to show how paranoia can hide in queer-critical attempts to go beyond a concept, to unveil systemic oppressions, to expose and reveal the truth behind any given situation. Basically: anticipating violence, exposing falsehoods before one even gets the chance to actually verify if they are real.
What is remarkable is how she then claims that reading texts (and the world surrounding us) through the paranoid lens is a choice which has come to be associated with critical methodology. A choice that is not based on the premise of wanting to turn a blind eye to cruelty and to violence – a choice, on the contrary, that is very premised on what is real. ‘[Sedgwick’s] bill of particulars against paranoid reading – her longtime friend Janet Halley recounts – does not include a claim that the things it detects —“systematic oppressions,” deep contradictions, and immemorial antagonisms—don’t exist; they do and in fact they are often pretty obvious. Her concern instead is that they should not be allowed reappear as our only methodology for reading them. We can also read otherwise’ (Halley, 2017). In other words, ‘whether or not to undertake this highly compelling tracing-and-exposure project represents a strategic and local decision, not necessarily a categorical imperative. […] In a world where no one needs be delusional to find evidence of systemic oppression, to theorize out of anything but a paranoid critical stance has come to seem naive, pious, or complaisant. […] It seems to me a great loss when paranoid inquiry comes to seem entirely coextensive with critical theoretical inquiry, rather than being viewed as one kind of cognitive/affective theoretical practice among other, alternative kinds’ (Halley, 2017). What Sedgwick in fact shows in her essay is how, from the encounter between feminist thought and psychoanalysis, the absence of any guaranteed-nonprejudicial point of beginning ‘has led to the widespread adoption by some thinkers of an anticipatory mimetic strategy whereby a certain, stylized violence of sexual differentiation must always be presumed or self-assumed – even, where necessary, imposed – simply on the ground that it can never be finally ruled out’ (Sedgwick, 1997). Put in simpler terms, the fact that we know that a certain form of sexual (and heteronormative) violence exists and can happen puts us in a position to always anticipate it, foreclosing all other possibilities of engaging with reality. I entirely see how still nowadays, critical legal work seems to be entirely centred on this paranoid “tracing-and-exposure” exercise.
The movement Sedgwick suggests to counter this paranoia is the reparative position, which ‘brings into focus individual experience as the locus of inventiveness. It is a turn to one’s own resources to assemble or “repair” in an effort to nourish and comfort. It is how ‘disenfranchised people find ways of empowering themselves within a dominant culture that is unsupportive of them’ (Mazel, 2022). Sedgwick calls this reparative reading, ‘the act of reading texts and semiotic practices in terms of their empowering and productive capacities, rather than for their deficient or problematic elements’ (Mazel, 2022). According to the author,
‘[t]o read from a reparative position is to surrender the knowing, anxious paranoid determination that no horror, however apparently unthinkable, shall ever come to the reader as new: to a reparatively positioned reader, it can seem realistic and necessary to experience surprise. Because there can be terrible surprises, however, there can also be good ones. Hope, often a fracturing, even a traumatic thing to experience, is among the energies by which the reparatively positioned reader tries to organize the fragments and part-objects she encounters or creates’ (Sedgwick, 1997).
Paranoid reading is committed to unveiling oppressions and anticipating surprises, knowing well that violence and oppression may be hiding behind those veils. This brings us to the consequence, however, that paranoid reading ‘can never be surprised by joy. Reparative reading—reading in search of pleasure, positive affect, and ameliorative possibilities—is made more necessary, more urgent and more impossible by the affective tautology of paranoid styles’ (Halley, 2017).
An invite to read refugee law reparatively
What this stumbling meant for me is that it allowed me to rethink my work also in the search of joy in the realities I was analysing. I realised I was being paranoid in my way of looking at everything I was encountering just to unveil the systemic oppression behind it. Again, oppressive systems do exist, and I find it fundamental to look at them reparatively. A reparative position on my work is currently taking the form of leaning more towards what I perceive as a “compliance-oriented” research, looking for existing legal places where queer asylum-seekers may and do find their space rather than unveil the reason behind this problematic (and sometimes unfounded) lack of legal places. Reading my asylum adjudication work reparatively, in turn, also meant that many of the asylum-officers I work with and write about, whose queerphobia I was so ready to combat and anticipate, turn out not to be queerphobic at all but rather genuinely interested in improving their understanding of queerness. They still participate in a queerphobic, oppressive system, of course, and this complexity is a trouble I am happy to stay with (Haraway, 2016). To conclude, an invite to the refugee law academic community, and particularly to feminist scholars, comes from Halley’s reflection on her own work: ‘I now see that we were being paranoid about feminism. And we sounded paranoid about law. Eve asked me to detach myself from these errors, and—though it is sometimes impossible to do so—I try’ (Halley, 2017).
References
– Lisa Duggan, ‘The New Homonormativity: The Sexual Politics of Neoliberalism’ in Materializing Democracy: Toward a Revitalized Cultural Politics (2002) 10, 175–194.
– Damian Gonzalez-Salzberg, ‘Queering Reparations Under International Law: Damages, Suffering, and (Heteronormative) Kinship’ (2022) 116 AJIL Unbound 5–9.
– Janet Halley, Prabha Kotiswaran, Rachel Rebouché, Hila Shamir, Governance Feminism: An Introduction (University of Minnesota Press 2018).
– Janet Halley, ‘Paranoia, Feminism, Law: Reflections on the Possibilities for Queer Legal Studies’ in E. S. Anker and B. Meyler (eds), New Directions in Law and Literature (Oxford University Press 2017).
– Donna J. Haraway, Staying with the trouble: Making kin in the Chthulucene (Duke University Press 2016).
– Emily Jones, Feminist Theory and International Law: Posthuman Perspectives (Routledge 2023).
– Emily Jones and Dianne Otto, ‘Thinking through Anthropocentrism in International Law: Queer Theory, Posthuman Feminism and the Postcolonial – A Conversation between Emily Jones and Dianne Otto’ (20 January 2020) <http://www.lse.ac.uk/women-peace-security/assets/documents/2020/Final-Jones-and-Otto-Anthropocentrism-Posthuman-Feminism-Postcol-and-IL-LSE-WPS-Blog-2019-002.pdf>.
– Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl (Edward Elgar Publishing 2018).
– Sari Kouvo and Zoe Pearson (eds), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Bloomsbury Publishing 2014).
– Odette Mazel, ‘Queer Jurisprudence: Reparative Practice in International Law’ (2022) 116 American Journal of International Law 10.
– Eve Kosofsky Sedgwick, ‘Paranoid Reading and Reparative Reading; or, You’re So Paranoid, You Probably Think This Introduction Is About You’ in E. K. Sedgwick (ed), Novel Gazing: Queer Readings in Fiction (Duke University Press 1997).
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.