Abstract
Using examples drawn from gender-based asylum cases, this chapter examines how far recognition theory (RT) and discourse theory (DT) can guide social criticism of the judicial processing of women’s applications for protection under the Geneva Convention Relating to the Status of Refugees (1951) and subsequent protocols and guidelines put forward by the United Nations High Commissioner for Refugees (UNHCR). I argue that these theories can guide social criticism only when combined with other ethical approaches. In addition to humanitarian and human rights law, these theories must rely upon ideas drawn from distributive, compensatory, and epistemic justice. Drawing from recent literature on epistemic injustice, this chapter shows how DT and RT illuminate the failure of asylum courts to respect the credibility of women’s testimony and understand their trauma. I argue that the institutional privileges accorded to asylum boards and the interpretative frameworks available within immigration law impose a burden of proof on women asylum applicants that they cannot meet. I maintain that this burden of proof is unjust because it violates the implicit discursive procedures of argumentative fairness and, in addition, disrespects women as privileged witnesses to their own criminal victimization. I conclude that this injustice need not reflect an irremediable tension between competing epistemic and hermeneutical standpoints.
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Notes
- 1.
Interestingly, Rawls himself eschews any cosmopolitan application of his theory in his The Law of Peoples and instead asserts that under ideal conditions of a “realistic utopia,” individuals would have no political or economic incentive to migrate. Appealing to Walzer’s communitarian defense of territorially bounded states as essentially for fostering conditions of civic solidarity, he denies that migrants have a right to enter a people’s territory without their prior consent (Rawls 1999: 39), but also notes that states have a qualified duty to assist refugees.
- 2.
As a part of the Immigration Act of 1990, the United States began admitting asylum seekers entering from designated countries suffering from natural disasters or civil violence under its Temporary Protected Status (TPS) Program. This program does not provide permanent refuge (beneficiaries must apply for extensions), and in 2017, the DHS decided to terminate TPS for six of the ten listed countries (El Salvador, Nicaragua, Sudan, Haiti, Honduras, and Nepal). This decision has been challenged in the courts. Once TPS is terminated, beneficiaries from delisted countries (such as Liberia) can apply for Deferred Enforced Departure (DED). Sweden also provides subsidiary protection to those who do not qualify for refugee status, but beneficiaries of this program, unlike refugees, do not have their costs for family reunification and travel documentation covered.
- 3.
The INS requirement that the harm in question not be inflicted as punishment is also problematic from the standpoint of the UNHCR 2002 guidelines (see below). The guidelines recognize two types of gender asylum claims: one in which the form of persecution is uniquely or disproportionately inflicted on women (such as FGC, forced marriage, and rape), apart from being related to one of the 1951 Geneva Convention grounds, and one in which the reason for persecution is based on gender (or sexual orientation), apart from whether the persecution in question takes a gendered form. Thus, a woman can be denied equal rights to work outside the home, testify in courts of law, or attend school because of her gender. In many cases, both types of gender claims are raised (as when women are raped because of their political activism on behalf of women’s equality). The INS requirement does not appear to recognize as persecution cases in which women are raped or killed as punishment for their activism on behalf of women’s equality.
- 4.
North Koreans fleeing into China are economically and politically oppressed by their government. To regard them as if they were also persecuted—and thus as meriting refugee status—would eviscerate the meaning of persecution and overburden the mechanisms of humanitarian relief available to them (China would be compelled to process thousands of “refugees” while abrogating its treaty responsibilities to the North Korean government). That said, China’s current refusal to recognize North Koreans fleeing economic destitution as refugees (the South Korean government also recognizes them as its own citizens) has led to their repatriation and subsequent imprisonment, torture, and execution as “traitors.” One remedy to this tragic situation would be a change in China’s policy—highly unlikely given China’s reliance on North Korea as a buffer against US geopolitical power—allowing for North Korean escapees to enjoy Temporary Protected Status while transiting to South Korea. I thank Thomas Arms, S.J., for bringing to my awareness the desperate plight of North Koreans escaping to China and the inadequacy of current refugee law to remedy their situation. See his MA Thesis: Escape from China: A Legal and Philosophical Understanding of the North Korean Escapee’s Journey for Freedom (unpublished ms).
- 5.
By presuming the innocence of the accused until proven guilty, criminal trials in Anglo-American jurisdictions already impose a greater burden of proof on the state. As I noted earlier, this burden of proof still inclines courts to give exceptional weight to the eyewitness testimony of living victims. However, the scale of credibility can shift in favor of the accused in some circumstances. For instance, the standard of reasonable fear invoked in determining whether a woman with a long history of suffering spousal abuse can justifiably claim to have injured or killed her assailant in self-defense or out of “irresistible impulse” (as in the case of so-called battered women syndrome) has at times been understood to require courts to adopt the standpoint of the accused, given her unique circumstances as a victim. I discuss the advantages and disadvantages of adopting such a psychopathological conception of reasonableness in Ingram (2006). As I noted earlier, the impact of trauma can distort victim’s memory of their circumstances which, in turn, can cast doubt on the credibility of their testimony (Schweiger 2019).
- 6.
As I remarked in discussing the case of North Korean economic “refugees” (see note 4), this concern about overextending the category of refugees cannot be dismissed, even if it is exaggerated when discussing women as a discrete class of persons who have suffered a distinctive type of persecution.
- 7.
- 8.
DT reconstructs the general normative expectations of persons in performing social roles embedded in social practices that are essential to social reproduction, social cooperation, and socialization. It takes its bearings from social practices that aim to coordinate action based on voluntary mutual consent, what Habermas calls “communicative action.” Communicative action involves the reciprocal raising of claims that arise whenever actors offer and accept invitations to cooperate with each other. Should any claim be challenged, cooperation must be restored by redeeming it with convincing justification or by re-establishing it based on an alternative claim that all parties find rationally compelling. The special kind of action associated with the argumentative disputation and redemption of claims—what Habermas calls discourse—sets in motion mutual normative expectations regarding the freedom, equality, and impartiality of the participants to reach an unconstrained, viz., rationally motivated, agreement that would also include the perspective of all third parties who are also significantly impacted by the terms of the agreement. In sum, what distinguishes discourse theory from mainstream social contract theory is its emphasis on discourse as a collective medium for critical self-reflection and autonomous action (or rational self-determination).
- 9.
RT takes its bearings from a broader range of social practices that go beyond those associated with communicative action to include noncommunicative forms of social interaction, such as relationships of care and concern among intimates and relationships requiring mutual understanding simpliciter. It bears a closer resemblance to virtue ethics, emphasizing the intrinsic psychological and agential good that is realized upon performing institutionalized social roles, insofar as the practices in which these roles are embedded live up to their implicit normative expectations (Ingram 2020a).
- 10.
Resentment toward immigrants and minorities is closely linked to feeling disrespected by government policies that allegedly favor these groups. Showing that such feelings are misplaced requires a critical theory of structural distributive injustices encompassing a critique of capitalist (and racist) globalization (Fraser and Honneth 2003).
- 11.
Earlier in his career, Habermas defended therapeutic discourse as a privileged means for addressing the pathologies of “systematically distorted communication” including ideologically biased forms of understanding that prejudice (constrain) argument subconsciously, despite outwardly conforming to procedures of rational dialogue (Habermas 1971: 218-45). This view, which Habermas has never abandoned, supports my contention that neither discourse theory nor recognition theory, here understood as specifying norms of undistorted understanding, can function independently of the other.
- 12.
For Kristie Dotson, “refusal, intentional or intentional, of an audience to communicatively reciprocate a linguistic exchange owing to pernicious ignorance” (Dotson 2011: 238) amounts to “epistemic violence” insofar as the speaker/listener who is harmed is silenced by another (“testimonial quieting”) or is forced to silence herself because of another (“testimonial smothering”) (Dotson 2011: 242). The presumption that linguistic reciprocation should be the guiding norm in communicative contexts is true as far as it goes, but when it becomes apparent to one of the interlocutors that communication is “systematically distorted” by cognitive prejudices, defense mechanisms, or a shared background of knowledge and linguistic meaning that one-sidedly misrepresents the experience of that interlocutor or one of the other interlocutors, then, as Habermas observes, the exchange must no longer be regarded by that interlocutor as if it were a genuine communication but rather as a provocative, manipulative, or (self-)deceitful action that masquerades as communication. Under these conditions, a person of color, say, is not obligated to listen or respond to the racist comments of a white person.
- 13.
Using discourse or recognition theory to diagnose social pathology is a great deal more complicated. Without delving deeply into the ways in which different institutionalized systems of action, or different institutionalized action spheres and their accompanying recognition orders, can clash with each other, it suffices to note that forms of unjust cooperation and unjust recognition also often produce forms of distorted communication, false “knowledge,” and distorted (self-) understanding, which can decrease a person’s capability for exercising agency.
- 14.
The 1965 US Immigration and Nationality Act ended quotas based on national origin, race, and ancestry that had reserved 70 percent of all slots to the United Kingdom, Germany, and Ireland and very few to Asia and Africa. Unfortunately, the good that came with eliminating a remnant of US racism was counterbalanced by a new set of regional quotas that limited the emission of Mexican work visas to only 20,000, which eventually led to a massive wave of undocumented Mexican migration into the United States.
- 15.
Judges, of course, are obligated to reflect on personal prejudices that prevent them from relating to witnesses as individuals rather than stereotypes. That said, Habermas notes that judicial discourses of application are institutionally bound by precedent legal classifications and traditions of interpretations, so that the scope for any judicial interpretation that radically departs from tradition is severely constrained. By contrast, ethical discourse unbound by institutional constraints requires an unlimited scope for critical reflection on, and radical reinterpretation of, traditional categories and meanings. The distinction between discourse theory in its institutional (legal) and noninstitutional (ethical) forms provides a catalyst for legal reform, as ethical reflection invariably enters into the evolution of law as a progressively inclusive system of rights. Nonetheless, disregarding the exceptional moments of revolutionary legal transformation (as happened, for instance, during the American Civil Rights Movement), the tension internal to law between these distinctive discursive regimes is typically resolved in favor of the institutional regime, so that subaltern experiences of disrespect and misrecognition cannot be sufficiently voiced or acknowledged by the legal system. The kind of injustice referenced here is similar to what Jean-Francois Lyotard designates as a differend (Lyotard 1988; Ingram 2018a).
- 16.
Habermas himself repeatedly underscores the “counterfactual” status of institutionalized discursive norms, whose actual functioning is distorted by power relations.
- 17.
Schweiger (2019, 56) notes that asylum seekers can exclude themselves for innocuous reasons owing to the distorting impact that their trauma has on their ability to remember the details of their situation accurately.
- 18.
Alison Wylie observes that persons occupying privileged positions (such as judges) are “invested in not knowing or, indeed, are invested in systematically ignoring and denying” the testimony of those “who are economically dispossessed, politically oppressed [and] socially marginalized” (Wylie 2003, 32). This compounds the systematic ignoring and denying that affects all persons, regardless of background, of testimony deemed by the judge to not respond appropriately (often in simple “yes or no” answers) to questions put forth by officers of the court. Noteworthy in this regard is the fact that adults and persons of privileged backgrounds and educational attainment have a greater chance to represent themselves directly before the judge rather than be passively led (or kept silent) by attorneys who are chosen to speak for them.
- 19.
20 In late March of 2020, the Trump administration used the Covid-19 pandemic as a national security pretext for suspending the processing of all asylum claims, thereby arguably violating international and domestic legal obligations to not repatriate persons who have a credible fear of suffering persecution. Earlier decisions by the Trump administration to deny asylum requests from persons attempting to enter the United States through non-designated ports of entry and persons who have not first applied for asylum in another country while transiting to the United States appear to be legally dubious as well. The Trump administration’s Migrant Protection Protocols (MPPs), also known as the Remain in Mexico Program, overturned the legally recognized practice of allowing asylum seekers to enter and remain in the United States while their cases were being processed. Asylum seekers now had to live in squalid and dangerous camps in Mexico while waiting for their names to be placed on a list for eventual processing. Most disturbing from the perspective of DT and RT were the new rules (“Prompt Asylum Case Review” and “Humanitarian Asylum Review Process”) implemented for screening asylum seekers by poorly trained officers, who are now instructed to interpret and apply the law governing refugees in the narrowest way possible to applicants that are given barely 24 h to prepare for their interviews, with only a mere possibility of discussing their case over the phone with a lawyer. Together, these policies amount to much more than a gross violation of discursive and recognitive norms; they constitute a grave violation of legal due process.
- 20.
The UNHCR must also recognize the competing demands of national sovereignty and humanitarian rescue. The protective confinement of displaced populations is politically preferable to their protective resettlement in a foreign country or their repatriation. As in the case of asylum courts, the UNHCR’s decision to repatriate is often done without consulting those whose lives are at risk, and even when they are consulted, the testimony of government officials and experts often outweighs the testimony of eyewitnesses on the ground (Ingram 2018b: 141–44; Barnett 2010).
- 21.
Urging reconsideration of the usual way in which economic and political categories of government sanctioned endangerment are interpreted does not require abandoning their distinction. Immanent, durable, and severe risk of government persecution (imprisonment, torture, and assassination) targeting specific persons and groups requires urgent action in a way that untargeted and widespread economic suffering caused by government neglect does not. Persons fleeing economic oppression should be afforded temporary protected status but not refugee status (see note 4)
- 22.
In fact, the Syrian refugee crisis implicates a climatological cause—drought—as contributing to the economic and political causes of the Syrian civil war.
- 23.
See the dilemma of misrecognition posed by unaccompanied minors seeking asylum in the United States from Central American gang-related violence (Heidbrink 2013). In defending a prima facie case for prioritizing children for asylum because of their vulnerability (among other reasons), Gottfried Schweiger notes that children are regarded as less reliable witnesses than adults to the circumstances bearing upon their case for asylum (Schweiger 2019: 56–57).
- 24.
This definition adopts the wording contained in the Organization of African Unity’s Convention Governing the Specific Aspects of Refugees in Africa (1974). The Cartagena Declaration on Refugees (1984), adopted in a nonbinding resolution by Mexico and other Latin American countries, builds upon this definition to include “persons who have fled their countries because their lives, safety, and freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other disturbances which have seriously disturbed public order.”
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Ingram, D. (2021). What an Ethics of Discourse and Recognition Can Contribute to a Critical Theory of Refugee Claim Adjudication: Reclaiming Epistemic Justice for Gender-Based Asylum Seekers. In: Schweiger, G. (eds) Migration, Recognition and Critical Theory. Studies in Global Justice, vol 21. Springer, Cham. https://doi.org/10.1007/978-3-030-72732-1_2
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