Law in Contemporary Society

Borderphobia: Humor and Legal Translation

-- By VictoriaRamosQueneau - 28 Feb 2020

Example on the border

Know your audience; a key axiom for successfully executing any creative endeavor and certainly vital to being creative in legal practice. Although we tend to learn this truism subtly throughout our lives as we receive varying feedback on our attempts to engage interpersonally, this necessary skill embedded itself in my mental processes starkly and early on. It first manifested as a family joke. As a Mexican American kid growing up in a barrio of East Los Angeles, it was common for my family to take weekend trips to Tijuana, not our motherland but familiar enough. After a day of enjoying churros and buying kitsch Mexican novelties, we would make our way back to L.A. Nervous smiles would begin to take shape as we encroached upon the San Ysidro port of entry and we developed what my family would jokingly term “border-phobia.” The notion behind this jocular affliction is that as a Mexican American, the closer you get to the border the increasingly “whiter” you have to sound, out of fear the border patrol would not let you reenter the United States. An example of this phenomenon might begin with a stern border patrol agent, hungry for respect, asking “Where are you guys from?” and my uncle would retort, with exaggerated enunciation, “Golly gee willikers, it perplexes me that you would even ask that question officer?”


Although I giggled at this exchange as a child, the further I interrogated it; I realized the glaring truth that motivated my uncle's imitation. In America, for you to be regarded as a non-threatening legitimate being, you must set aside any expressive conventions that are inherent to your cultural identity and instead assume the linguistic code of the hegemony.


My motivations for practicing as a lawyer spurred from conceptualizing the legal system in a similarly linguistic manner. Being a lawyer is rooted in being an advocate, in speaking on behalf of someone. Lawyers speak and argue for the clients in court, opposing parties speak to each other through their respective lawyers, when facing criminal charges, the public is warned not to speak to law enforcement without a lawyer present. Consequently, as lawyers, we are asked to co-opt people’s voices. And if we wish to be lawyers in an altruistic sense, we are saddled with the trite idiom that espouses true advocacy involves giving a voice to the voiceless. In witnessing those closest to me relentlessly marginalized by the institution it is clear that that effort is as misguided as the condescending martyrs that espouse it. As anyone from an oppressed community can attest to, the “voiceless” already have a voice, they simply need to be heard by those in power.


Therefore, I contend that the truly creative work of a lawyer emanates from her ability to be an effective translator. To effectively translate from language to language, the translator must preserve the integrity of what is being expressed in the original language while ensuring that the receiver fully registers the meaning of what was originally intended. However, before the lawyer can effectively translate, she needs to become fluent in the languages she intends to communicate across. By being born to two teenage immigrant parents in a barrio of East Los Angeles, one could say the language of oppression was my native tongue. And as formidable as that experience was, learning the language of the hegemony as it functions in the legal system has proved much more difficult.

Learning the Language of the Law

Learning the language of the law at Columbia has been a particularly revelatory experience. First, it is an immersive learning experience. An experience that does not care to break down the rhetoric of power to its most essential building blocks, thereby favoring those who matriculated already knowing a hegemonic-adjacent language. Second, it justifies the opacity of its discourse as a byproduct of its effort to be as precise and meticulous as possible. However, history shows that that opacity only functions as a veil under which the hegemony can continue its reign of oppression. Third, and perhaps the greatest source of my disillusionment with this institution, even if a burgeoning lawyer were to become proficient in the language of the law, the gatekeepers of the hegemonic code would never forgive the accent. The shudder towards the accent is seen at almost every level of the law school experience: when the humble self-aware cold call is less warmly received than the arrogance emanating from the smirk adorned in the white-collared Brooks Brothers dress shirt, when the impassioned kinetic moot court competitor is dismissed in favor of the stilted and restrained orator, or when the inquisitively engaged final exam answer is disregarded in favor of the robotic regurgitation.

Humor as a buffer

So how is one to get away with an accent in the language of the law? In thinking back to my uncle’s memorable performance, the best resolution I can find is humor. Humor allows you to let everyone know you see the truth holistically but allows the veil of ignorance to hang in the breeze. It allows you to target your oppressors without risking their disengagement. Most importantly it allows you to alienate them while making them feel like they are being embraced. Humor is the lubricant that helps to assuage the truth too painful for oppressors to swallow. It is through all these allowances humor affords that the translator can preserve the integrity of the message she is seeking to convey. However, a quandary I have yet to resolve is how the lawyer can effectively use humor in a stilted professional environment like the law and not risk becoming a joke herself.

I think this is a terrific start. I have a couple of suggestions only. I think the first half of the draft can be compressed and made more powerful at the same time by increasing its directness. It consists of two points: translation as the activity of the advocate, not "giving voice to the voiceless," and that speaking the language of power is both a power and a disability. I think the borderphobia story is perfect, needing no change, but the space around it can grow tighter and gain from doing so.

I also think that "humor" can be sharpened to "irony," which is the concept I believe you are actually employing and calling for. The second part of the draft can be improved by reckoning with irony not only as the specific approach to dealing with the hegemonic function of the law in your context, but in all contexts. (If you have never read the chapter titled "The Hegemonic Function of the Law" in Eugene Genovese's Roll Jordan Roll, you will find it very valuable.) I tell the lawyers who work at SFLC that the single indispensable component of our law practice is irony. Not for the same reasons it is in yours, but with the same underlying logic, that the law must sometimes be made to do justice against its own grain.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


Webs Webs

r2 - 03 Jun 2020 - 15:25:17 - EbenMoglen
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM