Illegal migrants receive really mixed messages; they stay here and work, and they do the jobs that nobody else wants to do, and they do what their employers tell them to do so that their employee records will make them appear legal. So all of these people are looking the other way, even though their employers know that they are undocumented. This creates a sense amongst illegal migrants that maybe they are sort of legal. So on the one hand, people are afraid all the time because they are illegal; on the other hand, it's hard not to get this mixed message. There is real injustice in the way that the system plays out, because it works in an arbitrary and sometimes really targeted way, and people can sense that injustice. — lawyer interviewed in Nashville TN, 2005 How and when can law be fictional ? I contend that there are situations of a legal nature in which the law invoked to justify an action follows a series of actions that are so discretionary as to render the law for which the punishment is eventually justified arbitrary. In these cases, law is no more real than the series of haphazard circumstances that led to its being invoked, so what characterizes the law is not any formal quality, but rather its arbitrariness; it is neither formalized, predictable nor linked to the actions that eventually occur, and so it is, for all intents and purposes, a fiction. Those of us interested in breaking down disciplinary boundaries by working on "law and literature" or "literature and law," need to consider eliminating these sometimes arbitrary classifications altogether. We need to break new ground by suggesting that sometimes law isn't like fiction, in the way it is interpreted or in the issues it raises, but is a fiction, and the real-world consequences that occur in its name are as arbitrary as the discretionary conditions that led to its being invoked in the first place. To illustrate this, I will be referring to material gathered for a research project on migrant incarceration in the Southern US.1 It will be seen that repeatedly, the discretionary and the arbitrary so outweigh the formal application of law that one could say that the cases are often not "legal" or related (except by name) to the law. To convey the urgency underlying the study of law and literature, one has only to think of the millions of people living "illegally," or, "without papers" in this country. These may be people who have been in the US for a few minutes, or for a few decades, having grown up, married and raised children who are American citizens. They may have worked [End Page 116] for large corporations like Wal-Mart, or they may run their own businesses, paying taxes, employing US citizens, and contributing to the community. They may have lived as long as they can remember in this country, confident that their US-born children will not live in the betwixt-and-between world that they themselves inhabit. They can, in short, live out the American Dream, and may very well be more successful here than they could have been "back home"—assuming, of course, that a range of existing local, state and federal laws don't some day join forces to prosecute them. How could this happen? It could start with a traffic violation—pulled over for a burnt-out tail light, flagged down by a zealous cop unsatisfied by the driving certificate issued to certain people in Tennessee in lieu of a regular license. They could then be taken downtown for being "illegal," be unable to meet bail fast enough to avoid the prison paper-pusher who makes late-night phone calls to Homeland Security or Immigration and Customs Enforcement (ICE), be sent to a holding institution (jail, penitentiary) to await deportation, and, a few days or months later, find themselves "back" in a country that some of them cannot even remember. If...
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Sep 7, 2010
Robert Boyd 
Open Access
