A Race So Different. Joshua Chambers-Letson

of politics is important to Perucci’s analysis, his primary focus is on the staging and disruption of political power, rather than the law as such. In turn, Cole observes that theater and performance scholars have generally approached the study of legal phenomena, such as South Africa’s Truth and Reconciliation Commissions, by focusing “on theatrical or aesthetic representations of the commission rather than on the commission itself as performance.”¹⁵ She calls on performance studies scholars to bring their expertise to the study of law as performance in order to open up a more robust understanding of legal procedure’s social function. At the same time, by doing so, Cole largely (and understandably) moves away from the analysis of aesthetic objects.¹⁶

      The present study insists that partitioned critical approaches that focus on either legal ritual or aesthetic practices cannot adequately account for the fact that (1) there is an aesthetics to the law, including performance conventions and theatricality, and (2) performance, theater, and art often function as agents of the law. Because performances are embodied acts that occur in quotidian and aesthetic arenas, regularly blurring the spaces between them, the performance studies approach of A Race So Different allows us to understand the process of legal racialization without privileging the law over cultural production, or vice versa. That is, through the lens of performance theory, we can begin to see how racialization occurs in the critical space where law and performance coexist across the individual subject’s body and in the cultural bloodstream of the body politic. As such, this book demonstrates how a performance studies approach to racial formation that accounts for the concurrence of law, politics, and performance aesthetics can contribute to a more robust understanding of the construction of social and racial realities in the contemporary United States.

      In the remainder of this introduction, I articulate the key terms and concepts that frame this study. I show how the law is (1) performative, (2) structured by acts of performance, and (3) mediated through aesthetic performance pieces. Like Bashir, Asian Americans are interpellated into a form of legal subjectivity that is figured as simultaneously included within and excluded from the normative application of the law. I describe this as a state of racial exception. I show how the law does more than project this curious juridical status onto Asian American bodies; it calls on the Asian American subject to perform in a fashion that confirms his or her exceptional racial subjectivity. To be clear, this book does not aim to prove the existence of racial exception. Theories of a simultaneously interior and exterior national subjectivity have already been established in the previous literature on Asian American racialization.¹⁷ Rather, I take the racially exceptional status of Asian Americans as a point of departure in order to demonstrate the mutually implicated role of law and performance in the making of Asian American subjectivity as such. In doing so, I hope to show how the lens of performance can help us to better understand Asian American racial formation in three key ways: (1) it gives us a frame for the historicization of the process of Asian American racialization; (2) it provides us with tools for complicating and contesting Asian American subjectification and subjection; and (3) it highlights the critical role that the racialization of Asian and Asian American subjects continues to play in the racial, political, and legal order of the United States.

      Performance Variations

      Throughout what follows, I use the term performance in an expansive fashion to describe embodied acts of self-presentation. This use is aligned with Erving Goffman’s definition of performance as “all the activity of a given participant on a given occasion which serves to influence in any way any of the other participants.”¹⁸ This broad definition allows us to think of a wide range of presentational and communicative behaviors as performance. This is particularly useful in a study of the law, given the law’s reliance on forms of ritual or legal habitus. Of course, the law is also performative, which is to say that the law is structured by series of speech acts that produce a doing in the world. But this doing ties the performativity of the law to performance insofar as legal performativity is given form when the law manifests itself in and on the body through expressive acts. The spaces of everyday life are stages on which people perform for the law and, as such, become subject to the law. But if we are to think of performance in such a broad fashion, how can we differentiate between specific modalities of performance? How can we account for the difference between the representational acts of a lawyer before a military tribunal in Guantánamo and Cowhig’s fictional representation of one Guantánamo detainee’s life?

      Even in the expansive use of the term performance, it carries a trace of its commonsense root: dramatic or theatrical aesthetics. This book does not set out to clarify the difference between quotidian forms of performance and aesthetic forms. Rather, it shows how the confusion between the two plays a significant role in the exercise of the law and in the making of legal and racial subjectivity. For definitional clarity, I describe everyday acts of self-presentation, including legal habitus, with the term quotidian performance. In turn, performances that are characterized by their nature as aesthetic works of cultural production are referred to as aesthetic performances. This includes theatrical works such as Lidless as well as performance art and popular music. The term is also used to discuss objects normally assessed within the frame of visual culture, such as a website or a series of photographs. Such objects may serve to document past performances or function as performances in their own right. Aesthetic performances are usually a step removed from everyday forms of self-presentation and are often self-consciously representational in nature. Audiences and spectators are meant to encounter them as aesthetic experiences.

      This book is made up of a series of critical cross-maneuvers, navigating through various phenomena including legal performatives and legal rituals, acts of political and legal self-presentation by Asian American subjects, and Asian American aesthetic practices. In moving between and across these spaces, the reader will note that the distinction between quotidian performance and aesthetic performance is at times muddied and collapses entirely at other times. A Race So Different emphasizes the points at which the distinction between the legal and the aesthetic break down, pushing against the strict division or opposition of the two that is sometimes maintained by traditional disciplinary approaches in both the humanities and the social sciences. By organizing my study under a broad definition of performance, while attending to the specific impact of different modalities of performance, I aim to demonstrate not simply that the law has both a performative and an aesthetic dimension but that aesthetic performances often take on a legal function by serving as agents of the law. Before I can move forward with a discussion of the intersection of law and aesthetics (or performativity and performance) in the making of Asian American subjectivity, it is important first to articulate the specific conditions that define Asian American racialization.

      “A Race So Different”

      Bashir’s contention in Lidless that the “iguanas were lucky [because the] Endangered Species Act was enforced” translates the actual legal conditions that occurred in Guantánamo. It is indicative of a state in which the racialized subject is at once drawn into the regulatory apparatuses of the law while the law itself exists in a state of suspension. In the Supreme Court’s landmark 2008 case Boumediene v. Bush, the High Court disappointed both Congress and the Bush administration by determining that Guantánamo detainees have the right to access and petition US courts for a writ of habeas corpus, or the right to appear before a judge and petition for release from detention.¹⁹ Lawyers for the Justice Department asserted that Guantánamo, which is technically in Cuba, is not a part of the United States and therefore not subject to US law. Two pages into a lawyer’s brief filed on behalf of one of the detainees, a Jordanian national of Palestinian descent named Jamil El-Banna, El-Banna’s lawyers refuted the government’s position by simply stating, “U.S. law applies at Guantanamo.”²⁰ In order to illustrate this contention, the brief cited the Endangered Species Act and explained, “Animals there, including iguanas, are protected by U.S. laws and regulations, and anyone, including any federal official, who violates those laws is subject to U.S. Civil and criminal penalties.”²¹ In other words, iguanas had more legal protections at Guantánamo than the prisoners did. So while the law “applies” in the prison, its force is suspended in relation to the bodies of the detainees. Translating this phenomenon into a theatrical medium, Cowhig’s play gives this paradox flesh and form, allowing an