Table Of ContentCLAMOURING FOR LEGAL PROTECTION
In this novel approach to law and literature, Robert Barsky delves into the canon
of so-called Great Books, and discovers that many beloved characters therein
encounter obstacles similar to those faced by contemporary refugees and undocu-
mented persons.
The struggles of Odysseus, Moses, Aeneas, Dante, Satan, Dracula and Alice in
Wonderland, among many others, provide surprising insights into current discus-
sions about those who have left untenable situations in their home countries in
search of legal protection.
Law students, lawyers, social scientists, literary scholars and general readers
who are interested in learning about international refugee law and immigration
regulations in home and host countries will find herein a plethora of details about
border crossings, including those undertaken to flee pandemics, civil unrest,
racism, intolerance, war, forced marriage, or limited opportunities in their home
countries.
Clamouring for Legal
Protection
What the Great Books Teach Us About People
Fleeing from Persecution
Robert F Barsky
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PREFACE
Grant them removed, and grant that this your noise
Hath chid down all the majesty of England;
Imagine that you see the wretched strangers,
Their babies at their backs and their poor luggage,
Plodding to the ports and coasts for transportation,
And that you sit as kings in your desires,
Authority quite silenced by your brawl,
And you in ruff of your opinions clothed;
What had you got? ….
William Shakespeare1
What can the Great Books, and authors such as Miguel de Cervantes or William
Shakespeare, teach us about the plight of vulnerable migrants? My p rovocative
answer is that reading selected passages from the so-called classics not only
complements the study of immigration and refugee law, it can provide us with an
appropriately multi-layered understanding of border-crossing that exceeds what
we might learn by reading the complex rules, regulations and laws governing the
many ways in which people seek, approach and cross borders. Despite the array
of legal categories encompassed by the term ‘vulnerable migrant’, the common
denominator is that migrants are generally deemed ‘foreign’, ‘displaced’, ‘irregular’
or even ‘illegal’. As such, they are usually relegated to the margins, either officially
or unofficially, and can they suffer the wrath of fawning politicians who stoke fear
into voters by speaking of the threat that they pose to the host country.
None of this is new, of course. Between 1330 and 1550, some 64,000 foreign-
ers came to England in search of better lives. This created tension, particularly
amongst those who believed that these newcomers might take away their jobs.
Tensions boiled over in London on 1st May 1517 when riots broke out and Thomas
More, the then Deputy Sherriff, tried to calm the crowd. The events of this so-called
1 These are a portion of the 147 lines that Shakespeare contributed to The Book of Sir Thomas
More, and they represent the only surviving literary text written in Shakespeare’s own hand. Comment-
ing on Shakespeare’s words, Michael Doyle notes that states’ compliance to treaties that promote and
protect international mobility ‘call upon reserves of ethical solidarity “enforced” by common decency
and ethical responsibility (plus in the background naming and shaming). No one has expressed this
better than did William Shakespeare in Sir Thomas More, a play by Anthony Munday that Shakespeare
was called in to improve. The background was 1590 anti-immigrant riots that resonated with an earlier
set of riots in 1517 confronted by Sir Thomas More, when he was sheriff of London.’ Michael W Doyle,
‘The Model International Mobility Convention: Beyond Migrants and Refugees 1’ (2019) Proceedings
of the American Philosophical Society 163.3, 260–70, 269.
vi Preface
‘Evil May Day’ were depicted in a play called The Book of Sir Thomas More,2 which
is believed to have been written between 1596 and 1601.
Three writers were called to edit the manuscript, one being William Shakespeare,
who contributed lines of More’s monologue, which continue as follows:
….You’ll put down strangers,
Kill them, cut their throats, possess their houses,
And lead the majesty of law in lyam
To slip him like a hound. Alas, alas, say now the King,
As he is clement if th’offender mourn,
Should so much come too short of your great trespass
As but to banish you: whither would you go?
What country, by the nature of your error,
Should give you harbor? Go you to France or Flanders,
To any German province, to Spain or Portugal,
Nay, anywhere that not adheres to England,
Why, you must needs be strangers. Would you be pleas’d
To find a nation of such barbarous temper
That breaking out in hideous violence
Would not afford you an abode on earth.
Whet their detested knives against your throats,
Spurn you like dogs, and like as if that God
Owned not nor made not you, nor that the elements
Were not all appropriate to your comforts,
But charter’d unto them? What would you think
To be thus used? This is the strangers’ case
And this your mountainish inhumanity.3
It’s appropriate that these words are directed to the crowd, and to the King, because
most actions relating to immigration are taken by authorities and enforced by a
broad array of actors, often under pressure from their constituents. Most of these
actions have little to do with the law, even today, except in some rather narrow
set of cases relating to refugees or people granted relief from deportation on
account of laws relating to trafficking, torture or established legal principles, such
as non-refoulement.
As a practical consequence, those who can approach the border, gain legal
admission, stay for prolonged periods, access social services in the host country,
and gain any kind of status are for the most part in the hands of the politicians
and frontline authorities, including border guards, police officers, and other
officials. Even the realm of international refugee law, which is founded upon
principles set forth in treaties to which most countries in the world are party, can
be defied by actions undertaken by authorities at the borders of host countries.
2 ‘The Book of Sir Thomas More: Shakespeare’s Only Surviving Literary Manuscript’ (British Library),
available at www.bl.uk/collection-items/shakespeares-handwriting-in-the-book-of-sir-thomas-more.
3 Ibid.
Preface vii
Three cases in point are Australia, which turns away virtually all potential asylum
seekers and conducts them to offshore processing centres on Nauru and on Papua
New Guinea’s Manus Island; Europe, which has signed agreements with Turkey
and Libya to keep potential asylum seekers off its territory; and the US which,
particularly under the Trump administration, has found ways to virtually disman-
tle two longstanding pathways to legal status, asylum and resettlement, while
deporting hordes of undocumented people whose roots in the US often go back
decades. We will explore all of these issues in these pages, with reference to regula-
tions, laws, treaties, policies and actions taken on the front lines by officials in a
broad array of host countries.
Taken from the literary side of the equation, we can explore different but
related questions, pertaining to the power of narrative, storytelling and literary
theory, as a means of moving students and practitioners beyond the type of cold
and impersonal legalistic reasoning that often prevails in legal settings:
The law-and-literature movement is, in part, based on the notion that the engagement
of law students and lawyers with literature about law and lawyering can help develop
or maintain ethical sensibilities. Examples include requiring that first-year law students
read Harper Lee’s To Kill a Mockingbird, assigning Dickens’ Bleak House in a course
on law and literature, requiring (as I do) that Professional Responsibility students
view a video production of Shakespeare’s Henry V, and studying the text of Faulkner’s
Intruder in the Dust with attorneys in a continuing legal education ethics program.
In each case, the goal is usually to use literary images of law and lawyers–usually bad
images–as a point of reflection on legal ethics, professionalism, and moral responsibility.
The strength of Atticus Finch’s convictions in the face of social injustice, the picture
of Chancery in Bleak House as sluggish (and of lawyers as cold and impersonal), the
legalistic interpretation of Salic Law (i.e., you can make it say anything you want) in
the opening scene of Henry V, and the enlightenment of Gavin Stevens (under the
unlikely, for him, guidance of a woman, a child, and a person of color) at the end of
Intruder in the Dust each raise ethical questions for lawyers. Obviously, there are no
guarantees that reading novels and plays automatically ensures ethical practitioners, but
law-and-literature studies do seem to provide an opportunity, albeit non-exclusive, to
gain some distance from everyday legal discourse and practice.4
These kinds of reflections have produced valuable work in the overlapping space
between law and literature, where issues of power, self-representation, translation,
gender and social justice can be explored with reference to tools that exceed purely
legal approaches. This book contributes to that field with regards to border-cross-
ing by addressing an array of questions: What can an approach to the Great Books
that focuses upon border-crossing teach us about immigration and refugee law?
What purpose does it serve to read canonical works from the perspective of migra-
tion? And why is it interesting, even for general readers, to approach such works as
the Bible, The Divine Comedy, Paradise Lost, Frankenstein, or Alice in Wonderland,
4 David Caudill, ‘Law-and-Literature, Literature-and-Science, and Enhancing the Disclosure of
Law/Science Relations’ (2008) 27 Journal of the Legal Profession 1, 8–12.
viii Preface
imagining that major characters described therein endure similar challenges and
face similar obstacles as contemporary migrants? My proposal is that through the
lens of migration and border-crossing, many, if not most, of the so-called classics
from the tradition of ‘Great Books’, and many of the most memorable characters
represented therein, can provide precious insights into the challenges of displace-
ment and the quest for protection from persecution. Indeed, whatever one thinks
about the canon of classical works, it may turn out to be enriching to (re) accustom
ourselves with the challenges faced by characters as familiar to us as Odysseus,
Moses, Dante, Satan and Dracula as a means of better understanding their plight,
and as a way of better understanding migration.
The study of migration and border crossing is a broad field that is not, and not
even primarily, the stuff of law. In fact, law generally plays a minor role, except
in very specific cases, as compared to broader themes like adventure, escape,
exoticism, belonging, protection, or the satisfying of a longstanding craving to
experience the world through new eyes. For readers who love literature, or have
fond memories of well-known canonical works, like Dickens’ A Christmas Carol,
this book offers new ways of returning to well-worn volumes, and wonderful
stories. It’s great fun to revisit Scrooge, as he journeys through past, present and
future worlds, in search of appropriate enlightenment. And it’s fascinating that in
tagging along with his former partner, Scrooge follows in a long tradition of char-
acters who embark on challenging voyages as a means of saving themselves from
anguish and suffering: Dante, for instance, undertakes a similar quest thanks to
Virgil and Beatrice in The Divine Comedy, as does Odysseus thanks to Athena in
The Odyssey. Along the way, this book also offers enticing glimpses at lots of other
stories about flight and the search for protection that might be less familiar, but
are no less amazing, such as Aeschylus’ Suppliant Maidens, Mary Shelley’s The Last
Man, or John Steinbeck’s The Grapes of Wrath.
It’s also fascinating to consider that many canonical authors were themselves
travellers, and could even be described using contemporary terminology, such
as ‘refugees in search of safe haven’. This applies to seminal Romantic writers,
including: Mary Shelley, for her views of the role that women should play in
English society; her lover (and then husband) Percy, on account of his views
about organised religion; their mutual friend Lord Byron, because of his sexual
proclivities; and even to Byron’s doctor, John Polidori, for the actions that he
engaged in with his friends. They all crossed borders, from England to France
to Switzerland to Italy, in search of inspiration, and to escape the stultifying
and frankly dangerous legal mores of early nineteenth century England. Many
other refugee artists and writers have undertaken similar voyages, and found safe
havens, officially or not, in places like New York, Geneva, Ascona, Zurich, Paris,
Rome or else some faraway place that’s untouched by the long arm of the perse-
cuting authorities.
From the visitors to Monte Verità in Ticino, to the Lost Boys and Beat
Generation writers in Paris, to DH Lawrence in Germany, Switzerland and Italy,
and Simone de Beauvoir in the US, the quest for knowledge is very often a story
Preface ix
as well about escaping, seeking safe haven, and trying to integrate. To read some
canonical works through this lens calls attention to the importance of refugee-
like situations, even in what is now considered in the most widely-known novel
in the history of the world: Frankenstein. I’ve described its author as a refugee,
her lover as a refugee, and their friend as a refugee; but so too is Dr Frankenstein
himself, who ventures away from the stultifying Geneva for the Alps; his monster,
who escapes justice by finding refuge above Chamonix; and the Prussian family
that Frankenstein’s monster lands up assisting, which has fled the long arm of the
Prussian law by taking up residence in the high French Alps.
At the end of the day, I am hoping that people interested in immigration law will
find in these pages a virtual encyclopedia of essential ideas, terms and legal issues,
and that people reading this book because they adore canonical literature will
find joy in rediscovering passages they love, as they set out in search of adventure,
like Sancho Panza alongside of Don Quichotte.
Figure 00.1 Plate I of Gustave Doré’s illustrations to Miguel de Cervantes’ Don Quixote
(London, Cassell & Co, 1906). ‘A world of disorderly notions, picked out of his books,
crowded into his imagination’, from Chapter I
Source: https://commons.wikimedia.org/wiki/File:Gustave_Dor%C3%A9_-_Miguel_de_Cervantes_-_
Don_Quixote_-_Part_1_-_Chapter_1_-_Plate_1_%22A_world_of_disorderly_notions,_picked_out_
of_his_books,_crowded_into_his_imagination%22.jpg.
