Suffering and the law: idioms and contradictions in asylum seeking

Abstract

The institution of asylum brings together two professional discourses: the Law and the Clinic. Each understands and constructs their subject, the asylum seeker, differently. This research suggests that ‘suffering’ is a common language between the discourses of the Law and the Clinic and the experience of the asylum seeker. The three groups construct suffering differently. The Law increasingly co-opts the Clinic but their separate disciplinary intentions may produce contradictions and the concepts which they deploy are sometimes mutually unintelligible. Using an ethnographic approach, conducting participant observation, interviews, questionnaires and discussions with asylum lawyers and asylum seekers, this research sets out to examine this disjuncture. This work first analyses the tenets used by the Law to deal with suffering in the asylum context - well-founded fear, persecution, torture and inhuman treatment - and juxtaposes them to those of the Clinic which in particular privileges ‘trauma’. It looks at how these play out in the practice of the lawyers who are ‘doing human rights’. It then adds the voices of the asylum seekers suggesting that their language and agency form an essential component of this tripartite relationship. In the current mis-match between the discourses of the Law and the Clinic and the subjectivity of the asylum seeker a new terrain can be envisaged. Mapping this provides an opportunity for creating a new space in which to implement human rights.