Kathleen R. Arnold - Arendt, Agamben and the Issue of Hyper-Legality

In the Origins of Totalitarianism, Hannah Arendt famously argued that the stateless were so rightless, that it was better to be a criminal who at least had some rights and protections.

In this book, Kathleen R. Arnold examines Arendts comparison in the context of post-1996 U.S. criminal and immigration policies, arguing that the criminal-stateless binary is significant to contemporary politics and yet flawed. A key distinction made today is that immigrant detention is not imprisonment because it is a civil system. In turn, prisoners are still citizens in some respects but have relatively few rights since the legal underpinnings of cruel and unusual have shifted in recent times. The two systems immigrant detention and the prison system are also concretely related as they often house both populations and utilize the same techniques (such as administrative segregation). Arnold compellingly argues that prisoners are essentially made into foreigners in these spaces, while immigrants in detention are cast as outlaws.

Examining legal theory, political theory, and discussing specific cases to illustrate these claims, Arendt, Agamben and the Issue of Hyper-Legality operates on three levels to expose the degree to which prisoners rights have been suspended and how immigrant policy and detention cast foreigners as inherently criminal. Less talked about, the government in turn expands sovereign, discretionary power and secrecy at the expense of openness, transparency, and democratic community. This book will be of interest to scholars and students of contemporary political theory, philosophy and law, immigration, and incarceration.

Kathleen R. Arnold teaches political theory and immigration law at DePaul University. Her research interests are in statelessness, homelessness, and immigration.

A marvelous achievement, Arendt, Agamben and the Issue of Hyper-Legality uncovers the dark subtext to a democratic idealism that masks brute racism. Deeply researched and powerfully written, Arnolds book takes us through a disturbing but increasingly necessary examination of a country where law has become handmaiden to the worst excesses of stigma and criminalization.

Colin Dayan, Professor at Vanderbilt University and author of The Law is a White Dog and With Dogs at the Edge of Life

With a wide-ranging, sophisticated, and critically compassionate exploration of deep dilemmas within the U.S. immigration, anti-terror, and criminal justice systems, Kathleen R. Arnold offers important insights and thoughtful proposals relating to sanctuary and due process. This book will be of great interest to those who seek to understand the realities and (overlapping) fates of migrants and disenfranchised citizens in the United States.

Daniel Kanstroom, Professor of Law, Boston College Law School

Arnold deftly illuminates how the state manipulates law and geography to further suspend the rights and diminish the personhood of those already on the margins of membership: prisoners, noncitizens, and immigrants. This timely book is both an astute work of political theory as well as a cutting political commentary on the increasing convergence of immigration and criminal law.

Monica W. Varsanyi, City University of New York

ARENDT, AGAMBEN AND THE ISSUE OF HYPER-LEGALITY

In Between the Prisoner-Stateless Nexus

Kathleen R. Arnold

First published 2018

by Routledge

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2018 Taylor & Francis

The right of Kathleen R. Arnold to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

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Library of Congress Cataloging in Publication Data

Names: Arnold, Kathleen R., 1966- author.

Title: Arendt, Agamben, and the issue of hyper-legality : in between the prisoner-stateless nexus / Kathleen R. Arnold.

Description: New York, NY : Routledge, 2018. | Includes bibliographical references and index.

Identifiers: LCCN 2018001449 | ISBN 9780815381051 (hardback) | ISBN 9780815381068 (pbk.) | ISBN 9781351211246 (epub) | ISBN 9781351211239 (mobipocket/kindle)

Subjects: LCSH: Illegal aliens--Government policy--United States. | Illegal aliens--Civil rights--United States. | PrisonersGovernment policy--UnitedStates. | Prisoners--Civil rights--United States. | Detention of persons--United States. | Statelessness.

Classification: LCC JV6483 .A73 2018 | DDC 325.73--dc23

LC record available at https://lccn.loc.gov/2018001449

ISBN: 978-0-8153-8105-1 (hbk)

ISBN: 978-0-8153-8106-8 (pbk)

ISBN: 978-1-351-21126-0 (ebk)

In gratitude to Tara Magner and Sara Wohlleb, who have each shaped my understanding of immigration in such important ways and always to Hannah, my beautiful daughter

In order to keep this text at a manageable size, I have not cited sources widely but I would like to acknowledge the debt I owe to political theorists who work on Hannah Arendt, ranging from Mary Dietz to Dana Villa to Jeff Isaac and many others. The Hannah Arendt Center (run by Roger Berkowitz) has also been an invaluable on-line resource. I also feel indebted to legal theorists such as Austin Sarat and Nasser Hussain (who has now passed away) for carving out intellectual space for the intersection of theory and the study of law. Please know that if I have neglected to mention someone here or in the body of the text, it was not for lack of appreciation.

The idea for this project first came about as I was teaching immigration law and discussing my approach with my student David Bryant, a McNair scholar. The class is rooted in an understanding of the plenary power doctrine and how immigration policy has largely been conceived of as a civil system, in opposition to the criminal justice system. Treating immigration in this manner further reminded me of Arendts famous comparison between the stateless and a criminal, as she argued that a small theft would paradoxically give legal recognition to a stateless person, conferring some rights that a refugee would not have (if refugee and stateless can be used interchangeably, which I assume is true). I have taught my class as if Arendts comparison were still true and there is enough evidence that it is nevertheless, the two systems have converged in the United States since at least the mid-1990s, even if they are also separate. David and I decided to pursue this line of inquiry in further depth over the summer, as I became his faculty mentor for his McNair project. Davids interest was more focused on prison conditions and reform while mine has been more on immigration, until recently. Although, we never managed to write anything together, it was this relationship that propelled my own writing on the prisoner-stateless nexus and so I am grateful to David for choosing me as his mentor and for the conversations and sources we shared. My immigration law students have always challenged me in this way and I am grateful for all of them particularly in our (failed) efforts to ask our university to declare itself a sanctuary campus. Thank you in particular to the founding members of the petition drive: Emily Herrmann, Enrique Mendoza, and Megan Osadzinski.