On the Duty to Host in International Law: Jacques Derrida and Political Literature

I. Introduction

The second decade of the 21st century is governed by issues of displacement and refugee crises. The United Nations High Commissioner for Refugees (UNHCR) reports that one in every hundred and thirteen people on earth is an asylum-seeker, internally displaced or a refugee. In the years 2015 to 2016, over 8,000 men, women and children went to their death while trying to cross the Mediterranean to Europe, and 65.3 million people globally were displaced at the end of 2015, ¹ making the refugee crisis of the utmost political urgency. ² But images speak louder than words and numbers; the photo of three-year-old Syrian boy, Alan Kurdi, who drowned when his family tried to cross the Mediterranean Sea from Turkey to the Greek island of Kos, captured the essence of the helpless refugee in need of protection. ³ In fact, this image played a significant role in the 2015 Canadian federal election, as the Liberal party pledged to bring 25,000 Syrian refugees to Canada by the end of 2015. ⁴ The Liberal party won the 2015 elections and delivered on its promise. According to Prime Minister Justin Trudeau “Canadians get it. This is about doing the right thing, about living up to the values that we cherish as a country.” ⁵ Trudeau’s statement embodies the sense of ethical solidarity and echoes the UN mandate to assist and protect refugees.

The phenomenon of the refugee, the human being who is forced to leave everything behind and flee to save his or her life, is an image that exists in the chronicles of war since antiquity. Beginning with the Bible, the refugee manifests the person most helpless and therefore the person most in need of protection. While refugees are an inseparable part of modern history, it was after World War II that the international community created a legal regime that acknowledges the right of displaced people for a sanctuary. Mandated by the UN General Assembly in 1951, the UN Refugee Convention created a legal framework that demands signatories to assist and protect refugees. The 1951 UN Refugee Convention was the international community’s attempt to control and regulate the political state and legal status of refugees. ⁶ The convention’s protocols define the term refugee and outline refugees’ rights and the importance of safeguarding these rights. Obscure in their definitions, the UN Refugee Convention and its following protocols left room for jurists around the world to interpret the status of refugees in various ways and offer different legal protections and statuses rather than a uniform response.

This article looks at the phenomenon of refuge and international law with a fresh set of eyes, exploring Jacques Derrida’s idea of hospitality using imaginative literature. Derrida’s theory of hospitality explores the ethical and political dimensions of hospitality and concludes that all acts of hospitality eventually lead to a struggle between the need to sustain self-interest of both the hosts and guests, and the deeper ethical obligation to accept the “other” in its complete “otherness.” This struggle is, according to Derrida, what we call politics. Humanitarian International Law dealing with refugees is a natural place to examine the relationships between the outside traveler, the passer-by or guest, and the insider, the resident or host, and how these relationships move on the continuum of hospitality. However, the lack of clarity on determining who is a refugee and what the criteria for granting such status are often results in decisions being made based on biases and unequal treatment. For example, article one of the 1951 UN refugee convention treaty defines refugee as:

Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. ⁷

But a comprehensive research examining asylum decisions in the U.S. showed extreme discrepancies. The research was based on: 133,000 decisions by 884 asylum officers over a seven year period; 140,000 decisions of 225 immigration judges over a four-and-a-half year period; 126,000 decisions of the Board of Immigration Appeals over six years; and 4,215 decisions of the U.S. Courts of Appeal during 2004 and 2005. The analysis reveals significant disparities in grant rates. In many cases, the only criterion controlling the asylum case decision was which asylum officer or immigration judge were randomly assigned the case.

J.M. Coetzee’s novel Disgrace is used here to explore how the host–guest relationship breaks down. ⁸ The novel contextualizes Derrida’s argument by exploring post-apartheid South Africa. Hospitality, or “Ubuntu,” is a recurring theme in Disgrace, as is human suffering due to the fallibility of the relationship of guest and host which can quickly turn into one of predator and victim. As growing waves of refugees and displaced people from conflict-stricken areas around the world are forcing the international community into disarray, imaginative literature allows us to suspend the events of the day and look beyond ourselves to lives that resemble our own and to acknowledge ways in which political ideas register in our daily lives. ⁹ In a manner that mimics legal interpretation, novels seek to contextualize human affairs. Although characters and places in novels are fictitious, the ways readers experience them are not. While the law often progresses slowly, is highly technical and hard to communicate to the public, novels are free to supplement intellectual rigor with speculative data and emotional appeals. Coupling social and political subject matters with familiar daily experiences, novels are a socially and politically conscious body of work that hold “more latitude and fewer restrictions,” ¹⁰ thus teaching us something about the political world in which we live. A prime example of this approach is found in the writing of Jacques Derrida who explored the political dimensions of literature in a multitude of ways and created the framework we will be using here to critique the theory of refugee law.

II. Derrida’s Hospitality and International Law

Derrida’s method of deconstruction aims to uncover the latent axioms underlying ideologies. Once uncovered and understood, a new political development can be offered or constructed. Derrida’s method finds fruitful ground in literature, and his ideas move freely from imaginative literature to philosophy and politics. ¹¹ In fact, literature allows Derrida to perform the activity of deconstruction in its totality and retest some of the assumptions underlying political ideas. ¹² According to Derrida, the human condition is governed by our responsibilities to the others surrounding us. Therefore, the “other” (tout autre) has an important role in Derrida’s political thought. The existence of others is what makes our social life an ongoing attempt to navigate conflicting responsibilities within different hierarchical positions. In the name of this hierarchy, an individual must make choices that will damage the “other others” for the sake of responsibility. ¹³ In 1996 Derrida examined the idea of political responsibility through the lens of guest–host relationships in a seminar he gave in Paris. In this seminar he described the guest–host relationship, aptly named the politics of hospitality, as dialectic system of tension and interdependence between hosts and guests that can result in an act of total rejection of the guest on the one hand, or in the turning of the host into a hostage on the other hand. ¹⁴ In doing so, Derrida joined other scholars who used the image of an “unexpected traveler” as a platform for raising questions about immigration policies, political and legal statuses of refugees, or even political tolerance toward cultural minorities. ¹⁵ We wish to use this discussion to explore an alternative normative framework for the existing refugee law.

The question of hospitality emerges with the arrival of a stranger, a potential guest, into one’s state, city, village or home. Hospitality, says Derrida, has two distinct aspects. The first is the ethical (unconditional) aspect of hospitality in which a state, village or householder maintains an open door for all visitors. In Derrida’s words,

Pure and unconditional hospitality, hospitality itself, opens or is in advance open to someone who is neither expected nor invited, to whomever arrives as an absolutely foreign visitor, as a new arrival, non-identifiable and unforeseeable, in short, wholly “other.” ¹⁶

Practically, however, the act of hospitality is often based on the second (conditional) aspect which introduces political elements into the act hospitality. The second stage begins when conditions or restrictions are attached to the hosting of travelers. For example, immigration to the United States requires a process that involves an unveiling of the prospective immigrant’s life. The immigrant is asked about his or her past, including military service, criminal history and many other questions that ascertain what legal status should be granted. We accept this regulatory process and its associated requirements: proof of good standing, familial ties in the hosting country, personal background check, statement of intentions, sufficient funds and so on. The requirement to obtain a visa for immigration, a work or study permit or even a travel visa represents a method through which a sovereign state puts the principle of hospitality “into practice … Whence the ‘conditions’ which transform the gift [of hospitality] into a contract, the opening into a policed pact … since immigration must, it is said, be controlled.” ¹⁷ Thus, the act of hospitality encapsulates the tension between the needs and rights of the self, and the needs and rights of, and responsibility for, the “other.” ¹⁸

This tension becomes real when regulatory authorities redefine the line between the public and private spheres. Legal means, such as laws of immigrations, allow for scrutiny of personal medical records, social connections, political or religious affiliations which serve as a basis for entry. While some immigration practices can be justified from the perspective of public safety (e.g., preventing the entry of persons carrying contagious and dangerous diseases), it nonetheless puts the act of hospitality in a state of aporia: an irresolvable internal tension between the ethical realm of hospitality and its economic realm. ¹⁹ Immigration laws and practices will always circumvent the unconditional principle of hospitality as they are put in place, by definition, to implement ownership and control over the guest. Therefore, says Derrida, “wherever the ‘home’ is violated. Wherever, at any rate, a violation is felt as such, you can foresee a privatizing and even familialist reaction, by widening the ethnocentric and nationalist, and thus xenophobic, circle.” ²⁰

The politics of hospitality is as relevant today as it was in ancient Western or African cultures. ²¹ How did unconditional acts of hospitality become central to our culture even though they are incredibly hard to regulate and control? Derrida finds his answer in biblical stories where hospitality governs the ethos of humanity and therefore “It is inscribed in a right, a custom, an ethos, and a Sittlichkeit.” ²² The biblical stories of Genesis, for example, provide a powerful and robust basis for the duty to host. These narratives of hospitality explain in a vivid way the essential duty to host is in our social interactions, and more importantly it is essential to our political experience. In fact, it is so central that violating it brings about the demise of society.

III. The Duty to Host in the Hebrew Bible

The Hebrew bible presents several stories that focus on hospitality. The first two stories are found in the book of Genesis. Abraham, the knight of faith who is the first to proclaim the unity of God, leaves his place of birth and goes to the land of Canaan as a foreigner. He is not treated as a guest in his wandering; in fact, it is quite the opposite. When he reaches Egypt his wife, Sarah, is taken away and, perhaps to counter the treatment he received, he makes it a point to welcome his guests. ²³ He is seen sitting in the heat of the day waiting for guests:

And the LORD appeared unto him by the terebinths of Mamre, as he sat in the tent door in the heat of the day; and he lifted up his eyes and looked, and, lo, three men stood over against him; and when he saw them, he ran to meet them from the tent door, and bowed down to the earth, and said: “My lord, if now I have found favour in thy sight, pass not away, I pray thee, from thy servant. Let now a little water be fetched, and wash your feet, and recline yourselves under the tree. And I will fetch a morsel of bread, and stay ye your heart; after that ye shall pass on; forasmuch as ye are come to your servant.” And they said: “So do, as thou hast said …” ²⁴

This episode introduces Abraham as an unconditional host. Abraham does not expect reciprocity and offers hospitality to his guests, complete strangers, with no knowledge of their origins or intentions. This is a prime example of the ethos Derrida is analyzing, an ethos that puts the experience of hosting as one of the foundations of the human experience. The rabbis of the Talmud note that the first verse mentioned that God appeared to Abraham but the storyline was abruptly cut off and moved on to the three guests; this led the Talmud to deduce that Abraham cut short the dialogue with God, so he can greet his guests. This explanation indicates that ethos of hospitality is so central that even a prophet is postponing his conversation with God for the sake of the hospitality. ²⁵ One commentator observed that for Derrida the relationship between God and the individual is that of hospitality; God hosts all creation unconditionally and the believer hosts God in his heart. This, too, is an unconditional hospitality, since religious faith is an unconditional acceptance of God’s laws. ²⁶ This reading of the Hebrew bible suggests that hosting is a duty to all human beings. The same unconditional hospitality that God gives creation is to be mimicked by humans.

The Hebrew bible also supplies us with an analysis of the consequences for those who betray their duty to host. The ethos of hospitality is challenged soon after, when the three guests, who turn out to be angels, continue in their mission to destroy Sodom and Gomorrah. There, they are welcomed by Lot, Abraham’s nephew, who invites them to be his guests. They initially refuse, but he insists and welcome them to his home. Lot’s act of hospitality is met with anger by the people of Sodom. Lot’s house is surrounded by the men of Sodom, both young and old. They call to Lot, “where are the men who came to you tonight? Bring them out to us so that we can know them.” ²⁷ “Know them” is used here as a euphemism for sexual intercourse. To which Lot replies,

No, my friends. Don’t do this wicked thing. Look, I have two daughters who have never slept with a man. Let me bring them out to you, and you can do what you like with them. But don’t do anything to these men, for they have come under the protection of my roof. ²⁸

Lot’s plea with the people of Sodom falls on deaf ears, even when he offers his daughters for rape in exchange for the safety of his guests. The mob rejects his negotiations and moves forward to break down his door, further arguing that Lot himself “came here as a foreigner, and now he wants to play the judge! We’ll treat you worse than them.” ²⁹

Lot is accused of betraying the customs of the place. His act of hospitality is seen as tantamount to treason, an illegal action that must be punished. Since the community sees the strangers as a danger, the punishment is both to the host and the guests. His allegiance with the strangers shows that he too is not a true member of society, and therefore he faces the same fate as his guests. The people of Sodom violated the sacred ethos of hospitality and therefore are punished by annihilation. Lot flees in time to see the city destroyed for its sins. Lot’s story immortalizes the centrality of the ethos of hospitality and by juxtaposing Abraham’s act of hospitality to that of the people of Sodom, the Hebrew bible exemplifies the result of respecting this sacred ethos and the outcome to those who disregard this duty. Equally important, the story of Lot and his guests creates a link between the collapse of hospitality and sexual violence.

Another biblical story that draws an interesting parallel between hospitality and sexual violence is the story of the concubine of Gibeah. Judges chapters nineteen and twenty introduce the reader to an unnamed woman and man, and their troubled relationship: a Levite residing in the mountains of Ephraim who has a concubine from the tribe of Judah. When their relationship takes a bad turn, the woman is accused of fornication and flees to her family’s estate in Judea. The Levite comes to Judea to retrieve her. On the way back to the mountains of Ephraim he refuses to spend the night in the city of Jebus; it is inhabited by non-Israelite and he does not expect to be hosted there; instead, he prefers to continue to the town of Gibeah in the vicinity of the tribe of Benjamin. The people of Gibeah do not wish to host the couple, and they camp on the street in the middle of the town until they meet an old man, originally from the mountains of Ephraim, who takes them in. The people of Gibeah reject the ethos of hospitality and the actions of a former foreigner who is willing to host strangers. Here the text bears a striking similarity to that of Genesis 19:

As they were enjoying themselves, and behold, the men of the city, men of wickedness, surrounded the house, (and were) beating at the door. And they spoke to the man, the elderly master of the house, saying, Bring out the man that came into your house, so that we may be intimate with him. And the man, the master of the house, went out to them and said to them, “No, my brothers, do not do so wickedly now. Since this man has come into my house, do not commit this disgraceful deed. Here is my virgin daughter, and his concubine, I will bring them out now and (you should) afflict them, and do with them as you please, but to this man do not do this disgraceful act.” ³⁰

Once again we see the link between hospitality and sexual violence. Indeed, the story of the concubine of Gibeah is reminiscent of the account of Sodom and Gomorrah, and as such it revolves around the consequences of not fulfilling the obligation to take in the stranger. ³¹ However, in contrast to the story of Lot and his guests, God does not play a role in the case of the concubine of Gibeah. The responsibility for punishing those who fail to be hospitable is solely at the hands of society.

Unlike the angels who pull Lot inside and close the door behind him, the Levite pushes the woman outside the door and closes it behind her. The woman is brutally raped and left to die. The crime committed by the people of Gibeah is so outrageous that all the tribes of Israel unite to fight the tribe of Benjamin and almost destroy it completely. The people of Israel see the attack on the guests and the rape of the woman as a rejection of the fundamental prerequisite of functional society, their social contract. The magnitude of the sin of the people of Gibeah is so immense, so outrageous, that it can only result in the expulsion of the men of Benjamin from the political community of the Israelites. Further, the men from the tribe of Benjamin who survived the war are not allowed to marry women from other tribes as retaliation for the rape and murder of the concubine. The duty of hospitality is so important and the transgression so deviant, that God sanctions as a punishment a civil war among the Israelites for this egregious sin that almost leads to the total annihilation of the tribe of Benjamin.

These stories lend themselves to Derrida’s claim that hospitality governs our social and political experiences. Like many other moral tales these stories are meant to warn us against deviating from the basic moral duties of our social contract, emphasizing the price that is paid for overlooking the sacred duty to host. The Hebrew bible gives an account of the ethos of hospitality and defends the punishment that ensues should one fail to live up to it. This ethos of hospitality is much wider than international humanitarian law; it posits that hospitality is not a privilege to the refugee but a duty of the host. The preamble of the 1951 UN convention tries to capture some of this ethos, but focuses more on the conditions of the host state than the duty to host:

considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation, expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States. ³²

This was the prevalent language in 1951 after the horrors of World War II. Today, Derrida’s vision of hospitality seems even more utopian and impossible to follow in the face of new global terrorism, refugee warriors, rising nationalistic leaders and the return to the politics of fear and separatism. ³³ Disgrace continues the thread of hospitality and sexual violence presented in Genesis. It questions the political implication and feasibility of “Ubuntu” – the southern African principle of showing kindness to all – that was so central to the political ideology of Nelson Mandela. In doing so, Disgrace helps to shed more light on the practical difficulties of the implementation of Derrida’s political hospitality and forces a discussion on a more realistic vision of hospitality in the modern political arena.

IV. Conditional Hospitality and the Failure of Multiculturalism in Disgrace

Disgrace tells the story of David Lurie, a 52-year-old communications and romantic poetry professor at Cape Technical University who is fired after refusing to express remorse for an affair with a student. He seeks shelter at the small farm owned by his daughter, Lucy. The turning point of the novel occurs when three strangers rape Lucy in her house, kill her dogs, beat David and steal his car. David suspects Lucy’s hired hand, Petrus, of setting up the attack in an attempt to take over the farm. Lucy is impregnated by one of her assailants; during his daughter’s pregnancy, David spends much of his time working in an animal clinic, euthanizing diseased and unwanted dogs. Relations among characters in the novel demonstrate various degrees of tension between hosts and guests. All the events in the novel take place after one character appears at the door of another, raising questions regarding hospitality and its boundaries: What does this person want? Under what terms should I let a stranger into my house? In several instances the answers directly address sexual relations: spying on a prostitute David used to visit; his affair with a student; and Lucy’s rape. Acts of violence illustrate the general problem of hospitality and the specific and irresolvable tension between South Africa’s democratic vision and its actual political environment. The rape scene extends beyond the text to challenge readers on the topic of offering hospitality and raising questions regarding vulnerability of the “other.” The novel echoes a reality in which post-apartheid South Africa rejects the “other,” be it white or black. ³⁴

The attack happens when David and Lucy return from a walk with Lucy’s dogs. Three strangers (two men and a boy) approach them on the path. After a short series of political questions – Where are you from? What do you want? – Lucy lets them enter her house to use the telephone. Following the violence that ensues, we get a glimpse at David’s thoughts:

It happens every day, every hour, every minute, he tells himself, in every quarter of the country. Count yourself lucky to have escaped with your life. Count yourself lucky not to be a prisoner in the car … [or] with a bullet in your head. Count Lucy lucky too. Above all Lucy. A risk to own anything: a car, a pair of shoes, a packet of cigarettes. Not enough to go around … too many people, too few things. What there is must go into circulation, so that everyone can have a chance to be happy for a day. That is the theory; hold to the theory and to the comforts of theory. Not human evil, just a vast circulatory system, to whose workings pity and terror are irrelevant. That is how one must see life in this country: in its schematic aspect. Otherwise one could go mad. Cars, shoes; women too. There must be some niche in the system for women and what happens to them. ³⁵

The choice of depicting rape in Disgrace is intentional. The international community recognizes acts of rape during ethnic conflicts or warfare as war crimes; notorious examples during the past two decades include Bosnia-Herzegovina, Rwanda, Congo and Darfur. Although the novel takes place in democratic post-apartheid South Africa and not during the preceding period of violence, the attack cannot be dismissed as a criminal act only. The fact that “it happens every day, every hour … in every quarter of the country” emphasizes the sense of moral decay that did not perish with the historic reversal in South Africa. ³⁶ Despite Lucy’s attempts to adapt to the modest life of a farm settler, to understand village life and to comprehend her relationship with her hired hand Petrus, she remains a foreigner who is described by one of her neighbors as “merely a transient.” ³⁷ Petrus can never be the partner that Lucy imagines, since in his “vision of the future … people like Lucy have no place.” ³⁸ To a greater degree than partnership, relations among neighbors are based on moral obligations that communities accept and share. ³⁹ David is correct in his suspicion that Petrus hired the strangers to attack Lucy in her home. The attack suggests that neighborly moral obligations could never exist between Lucy and Petrus.

A few days after the attack, Lucy tells her father, “It was so personal … It was done with such personal hatred … why did they hate me so? I had never set eyes on them.” David replies, “It was history speaking through them … It may have seemed personal, but it wasn’t. It came down from the ancestors.” ⁴⁰ Lucy represents the white post-colonial South African who is despised not for her personal actions, but due to past events. Lucy and David’s inability to achieve legitimacy and equal status in the new South Africa spotlights the country’s failure to manifest Mandela’s vision of a multiracial democracy and “Ubuntu.”

By implying that South Africa has learned nothing from its past atrocities, the novel touches on the issue of black tribalism in response to the immoral and strict laws of white supremacy. That the attack affects two individuals willing to aid strangers intensifies the conflict between the ethical and political that stands at the center of the hospitality act; their presence as foreigner undermines the political law of the place, thus rendering impossible Lucy and David’s desire for legitimacy and equality. ⁴¹

By echoing the connection between sexual violence and hospitality portrayed in the biblical narratives on hospitality, Disgrace transports the failure of hospitality from the mythical level to a more concrete, political one. Therefore, the overarching theme in Disgrace – the abuse of the guests – can be read as a direct criticism on the multicultural version of post-apartheid South Africa and its philosophy of “Ubuntu.” The attack on Lucy and David indicates that the transition to democracy, a multiracial populace and the moral course espoused by Nelson Mandela and Desmond Tutu has not yet taken root. Disgrace argues that a society founded on sexual exploitation and violent repression will need many decades to achieve true liberation from its past. It is worth noting that the breakdown of hospitality in Disgrace is not one-directional. The novel points to a constant reversal of roles between the guests and the hosts, the perpetrator and the victim. Such a reversal took place at a recent event in Cologne, Germany when scores of young women reported being sexually harassed on New Year’s Eve by men described by the authorities as having “a North African or Arabic” appearance. ⁴² The magnitude of this event and its sexual nature caused many in Germany to seek to put an end to Angela Merkel’s open-door policy toward immigrants and refugees.

Taking this argument forward, the rape may be viewed as an act of “genetic imperialism” aimed at creating a new political arrangement in ensuing generations. Claudia Card notes that war rapes result in alienation and division within the society suffering the violence. ⁴³ An embryo conceived by rape – like Lucy’s baby – carries the genetic makeup of the father which can cause cracks in family solidarity. In the novel, the relationship between Lucy and David rapidly deteriorates to the point that they are “like strangers in the same house.” ⁴⁴ Rape can also undermine political and ethnic solidarity by obscuring the identity of the next generation. Rape takes away the intimate control the victim once had over her body and forcefully transfers it to her rapists. In order to find peace and to continue living on her land, Lucy is forced to enter into a pact with Petrus. To gain his protection, she agrees to give him ownership of the land and to become his third wife. ⁴⁵ The decision to situate the novel in post-apartheid South Africa is significant. Coetzee refrains from addressing government transition issues, thus giving strength to the idea that such issues do not serve as sufficient explanations for the social chaos depicted in the novel. ⁴⁶ In other words, explanations are to be found in the new morality of South Africa, not in its political or historical reversals. As with the characters in the novel, South African society is in disgrace; although its black citizens fought against apartheid’s racist and discriminatory laws for decades to achieve the democracy it yearned for, the country is portrayed as having neither a civil society nor a willingness to accept political responsibility. ⁴⁷

A political reading of the rape in Disgrace suggests we think of it as a metaphor for enforcing a new political order and reclaiming ownership of the land. In the novel, the indigenous population’s attempt to obfuscate the memory of apartheid assumes the form of a violent sexual crime that divides, alienates, and blurs the raped society’s identity, subjecting it to immoral norms and creating a new connection in the ensuing generation. Disgrace illustrates what Derrida’s theoretical circle of hosts and guests can become in real life: a society consisting of predators and victims whose roles are constantly changing, so that at some point all become victims. ⁴⁸ We are told that David and Lucy are the only white people at the ceremony marking the transfer of land from Lucy to Petrus, a point worth mentioning because it is the only time in the entire novel that Coetzee makes an explicit reference to the race of his characters. ⁴⁹ That single mention – or perhaps the absence of other racial references in the novel – is vital to the story’s political message. By not mentioning racial affiliation, Disgrace either bypasses or intensifies our psycho-political biases against one race or another, thus forcing readers to make moral judgments toward all of humankind rather than a specific race. The ambiguity emphasizes the collective responsibility of all South Africans for the country’s moral shortcomings; not knowing the formal identities of hosts and guests requires us to focus on all aspects of unconditional hospitality.

V. A Hospitality Inspired Social Contract

The discussion on Derrida’s Of Hospitality and Coetzee’s Disgrace allows for a refreshing look at refugee law. Derrida’s argument suggests we address all political discourses, and in fact human behavior, through the lenses of the duty of hospitality; a duty that traces back to ancient Greece and the Hebrew bible. A close reading of the biblical narrative concerning hospitality portrays the centrality of hospitality; both positively, by showing Abraham who runs to host the strangers in the middle of a discussion with God, and negatively, by suggesting that failure to host will lead to the collapse of existing social contracts, as seen in the story of the concubine of Gibeah. As stated in the beginning of this article, very little of this ethos is reflected in the 1951 UN treaty. Instead, the language of the treaty suggests we think of hospitality as an act of charity rather than an ethical duty. This seems to be an inherent flaw in the humanitarian law discourse regarding refugees, which may result in immigration and refugees policies that are antithetical to the ethos of hospitality. ⁵⁰ In light of this it is even more important to go back to the political discourse at the center of refugee law and to elucidate its theoretical framework; even though the international humanitarian law is mainly derived from treaties, there are opinions that show the existence of principles originating from customary international law. ⁵¹ But beyond customary law, these texts may be useful in reading the existing treaties and case law concerning international humanitarian law.

The centrality of hospitality as a human obligation can be read to humanitarian law as part of the obligation to prevent genocide and crimes against humanity. The 1948 Convention on the prevention and punishment of the Crime of Genocide focuses on the punishment of war criminals; however article one of the text states: “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” ⁵² The scope of the obligation to prevent genocide is not clear. In the opinion of the International Court of Justice decision concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the court ruled that this is not merely an introduction but a “clear obligation” and “a formal promise.” ⁵³ As far as the scope of the obligation is not limited to territory and should be undertaken: “… where-ever it may be acting or may be able to act …” ⁵⁴ The court demanded due diligence from the states in their efforts to prevent genocide. The scope of these actions varies drastically based on the physical and political conditions, ⁵⁵ but the main point is that the parties to the convention are required to take any kind of action they can reasonably take to help stop atrocities. ⁵⁶ In the first UN report on crimes against humanity, several conditions were suggested to define this obligation: “(a) adopt national laws, institutions and policies necessary to establish awareness of the criminality of the act and to promote early detection of any risk of its commission; (b) continually to keep those laws and policies under review and as necessary improve them; (c) pursue initiatives that educate governmental officials as to the State’s obligations under the convention; (d) develop training programs for police, military, militia and other relevant personnel as necessary to help prevent the commission of crimes against humanity.” ⁵⁷

In our opinion, hospitality should be one of the first measures taken by states attempting to prevent genocide. While it is not a deterrent to the forces committing genocide and atrocities, it does help to limit the suffering of victims. The hospitality of refugees allows even states far from the geographical area where the atrocities are taking place to assist with relieving the human suffering without the use of military force. This Derridian reading of the treaties and the case law affirms that hospitality is at the core of the social contract; in this case the social contract in the international arena that creates an obligation to act in the case of refugees.

After proposing a duty to take in refugees based on the duty to prevent war crimes that can be found in many treaties, the question arises: What is the scope of this obligation? Derrida failed to offer a practical solution that will support his vision of a comprehensive obligation to host. Disgrace, on the other hand, offers a sober look at the particularities of the issue by critiquing the vision of “Ubuntu” offered by Nelson Mandela and Desmond Tutu in South Africa. By contextualizing Derrida’s politics of hospitality in light of Mandela’s vision of multicultural democracy in South Africa, Disgrace presents the tension between duty of hospitality and the right of self-preservation during the awakening of a national movement, and highlights the fact that hospitality is always conditional. The novel also spares no criticism of the melting pot model and its attempt to create a vision of an “ideal self,” a bonding agent that will unite society beyond territory and language, and reflect its values and identities. Disgrace, as well as Coetzee’s later novel The Childhood of Jesus, suggests that while using the language of hospitality and inclusion, in reality the melting pot model demands of those who are viewed as guests to completely shed their old customs and join the dominant culture.

Recent global events like the refugee crisis in Europe, the United Kingdom’s withdrawal from the European Union and the rise of protectionist and populist ideologies in Europe and the U.S. show the tension between the duty to host in international law and the legitimate wish to maintain a nation’s cultural heritage, and protect the majority rights at the same time. In his recent book, The Cultural Defense of Nations: a Liberal Theory of Majority Rights, Liav Orgad, a constitutional theorist and comparative immigration law expert, discusses the kind of challenges a liberal model of hospitality will have to overcome:

As long as a liberal state prioritizes ways of life of the dominant majority, it should tolerate other ways of life, which, although not necessarily according to the majority’s taste, are not unlawful or contrary to basic democratic principles. … the ban on the construction of minarets in Switzerland, the handshaking decisions in the Netherlands, France’s blanket prohibition of wearing the burqa in a public place, compulsory mixed swimming lessons in Germany, and social expectations relating to sexual freedom and nudity – leave little room for liberal tolerance. … Judicial approaches such as “this is our norm and migrants must deal with it” – adopted by courts in Germany, Switzerland, and the Netherlands – are an “invitation to the alien to be one of us by being us,” to repeat Joseph Weiler’s words. ⁵⁸

The problem, according to Orgad, is that Western European countries are demanding too much of the refugees when they ask them to shed many of the customs that are integral to their identity. This, according to Orgad is a recipe for further segregation and alienation. Instead, he suggests that liberal countries facing new waves of immigration – whether refugees, transient or permanent migrants – adopt the American model of naturalization. In this model, newcomers to the country are asked to accept the constitutional principles and core values that lie in the foundation of the hosting society. In other words, the guests are accepting legal conditions, not moral statements, as they ask to join the political ethos of the country they wish to join. The duty to host according to Orgad is limited to a physical absorption of the refugees and can be countered with a demand for acceptance of core values vital to the cultural identity of the host state. ⁵⁹

We can see traces of this view in David’s interpretation of the future awaiting Lucy: “Either you stay on in a house full of ugly memories and go on brooding on what happened to you, or you put the whole episode behind you and start a new chapter elsewhere. Those, as I see it, are the alternatives.” ⁶⁰ Lucy is unwilling to accept either one of these two extreme options, based on her understanding of the law of conditional hospitality. In order to go beyond her status as a foreign guest, she feels that she must accept the political terms of the new social order. As she explains to David,

“Petrus is not offering me a church wedding followed by honeymoon on the Wild Coast. He is offering me an alliance, a deal. I contribute the land, in return for which I am allowed to creep in under his wing. Otherwise, he wants to remind me, I am without protection, I am fair game.” ⁶¹

Lucy believes that the only way to stay on her land without sinking into the depths of either memory or forgetfulness is “to start at ground level. With nothing. Not with nothing but. With nothing. No cards, no weapons, no property, no rights, no dignity.” ⁶² This notion brings us back to Derrida’s deconstructive enterprise, which emphasizes the hierarchies at the core of the human experience. ⁶³ Lucy’s solution is that of a total sacrifice of her previous identity; she joins the majority by becoming one of them at the expense of her previous identity. Coetzee presented a variation of this theme in his recent novel The Childhood of Jesus. The novel tells the story of Simón and Davíd, a middle-aged man and a five-year-old boy, who meet on a boat carrying refugees. It is unclear what or where they escaped from. What is clear, though, is that in their city of refuge there is no room for their past. This is not an ideal solution, but it is a practical solution. The novel is not suggesting this is the epitome of justice and the ideals of human dignity; rather, that it is the most practical solution to the challenge of hospitality. Orgad articulates the problem as focusing on the sense of identity of the majority. A diminishing majority has the right to protect that core identity and has the right to demand conditional hospitality, and from a liberal perspective this hospitality should be conditional upon acceptance of the core values of the host society. ⁶⁴

This solution is echoed in some of the contemporary legal discourse about refugees. For example the 1951 UN treaty mentions in article four a duty to protect the refugees’ religion but nothing else. The treaty deals with the protection of the individual rights and needs of the refugee but when it comes to the group identity, only religious practice is protected. Since modern nationalism is willing to accept diverse religious groups it is not seen as interfering in the host society’s identity, but the national elements of the refugees’ identity are left behind in exchange for security. In this context a liberal majority can demand cultural absorption in exchange for hospitality. It is a limited absorption that requires adherence to the fundamental constitutional foundations of the host society. It is not a perfect solution, since it forces the refugee to give up the most intimate parts of identity, but ultimately it is practical.

As a realistic novel, Disgrace portrays events and characters with all of their limitations, motivations and repulsiveness intact. The novel ends when David decides to euthanize a healthy but unwanted dog, thinking

“What the dog will not be able to work out … what his nose will not tell him, is how one can enter what seems to be an ordinary room and never come out again. Something happens in this room, something unmentionable: here the soul is yanked out of the body; briefly it hangs about in the air, twisting and contorting; then it is sucked away and is gone. It will be beyond him, this room that is not a room but a hole where one leaks out of existence.” ⁶⁵

In his novels Coetzee does not glorify hospitality, he makes it clear that there is no place to idealize hospitality in the world of realpolitik. The only form of hospitality that seems to be working is that in which the guests leave behind their former cultural identity and are absorbed in their new host country.

The 21st century refugee crisis proves the difficulties in creating a political structure that will ease the suffering of millions of displaced people. Attempts in the form of international humanitarian law and other local policies of political powers did not change the reality of war. Derrida’s text points to the importance of the ethos of hospitality in the social contract of Western society. This ethos situates the duty to host as the basic moral foundation of human society. In our opinion this duty can and should be read as part of the duty to prevent genocide. Yet, as Coetzee’s Disgrace shows, it is also important not to romanticize the ethos of hospitality and remember its inherent risks. In return for the refugee being given a secure home, there is an expectation of joining the host’s nation, lock, stock and barrel. As Derrida called for the rejection of a unified European centralized identity, he was also wary of the creation of “a multiplicity of self-enclosed idioms or pretty little nationalisms.” Whether truthful, gloomy or both, the message in Disgrace does not necessarily mean there is no basis for hope for South Africa (or the world for that matter). Instead, it emphasizes the need for a mature and sober recognition of its reality. Disgrace serves two kinds of audiences: those who use legal discourses to justify wrongful acts; and those who believe in utopian efforts to build a new society based on the principles of atonement and regret – principles that are unreal and not comforting to victims, and, most importantly, principles that cannot serve as a basis for a just and moral regime. Disgrace is sharply critical of binary divisions between good and bad, white and black. By maintaining ambiguity toward the racial identity of its protagonists, Disgrace portrays a collective responsibility of all citizens for the country’s moral shortcomings, and by extension to the current state of hospitality around the world.