Law's territory (a history of jurisdiction).

Author:Ford, Richard T.
 
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Pop quiz: New York City. The United Kingdom. The East Bay Area Municipal Utilities District. Kwazulu, South Africa. The Cathedral of Notre Dame. The State of California. Vatican City. Switzerland. The American Embassy in the U.S.S.R. What do the foregoing items have in common?

Answer: they are, or were, all territorial jurisdictions. A thesis of this Article is that territorial jurisdictions -- the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions -- are relatively new and intuitively surprising technological developments. New, because until the development of modern cartography, legal authority generally followed relationships of status rather than those of autochthony. Today jurisdiction seems inevitable, but, like death, it is "a habit to which consciousness has not been long accustomed."(1)

Surprising? We are now accustomed to territorial jurisdiction so much so that it is hard to imagine that government could be organized any other way. But despite several hundred years of acclimation, people continue to be disoriented, baffled, and thrilled by the consequences of jurisdictional legality. We are filled with sometimes grudging admiration when the latest Esmeralda evades the territorial reach of the pursuing constable. Examples abound, both historical and fictional (or perhaps syncretic). Consider the trek of the musically gifted von Trapps to the safety of neutral Switzerland,(2) the bootlegger's run of Burt Reynolds's "Bandit" who stopped just over the county line long enough to thumb his nose at "Smokey" Sheriff Buford T. Justice,(3) the heroic and desperate journey on the fugitive slave's underground railroad, the once heroic, now demonized, pregnant foreigner who struggles over the border in time to give birth on American soil and thereby guarantees her child American citizenship.

This last example illustrates another thesis of this Article. Territorial jurisdiction produces political and social identities. Jurisdictions define the identity of the people that occupy them. The jurisdictional boundary does more than separate territory; it also separates types of people: native from foreign, urbanites from country folk, citizen from alien, slave from free.

To some extent, jurisdictional identities are chosen; in some cases, an individual can move between jurisdictions and thereby adopt the identity of her new location. Many commentators have suggested that this type of mobility makes territorially based relations akin to voluntary contracts. The mobile individual "shops" for a jurisdiction just as a suburban shopper roams the mall looking for the right Christmas gift.(4) But in important ways territorial identities cannot be freely chosen. Even if physical presence alone will establish membership, one is forced to accept a "bundle" of jurisdictionally linked items. I cannot live in San Francisco while paying Los Angeles taxes and receiving Los Angeles's package of services, nor can I pick and choose among the San Francisco services I wish to receive and pay for. While economic markets generally resist bundling, the jurisdictional "market" always bundles.

More importantly, many territorial "locations" are simply not "for sale." One cannot, for instance, become a British subject simply by deciding to move to the United Kingdom. And even within a nation-state, mobility is limited by legal rules that restrict the availability of housing in certain jurisdictions, often for the explicit purpose of controlling in-migration.(5) These types of restrictions are justified as necessary to maintain community character -- a rationale somewhat at odds with the aspiration that membership in jurisdictions be freely chosen. Hence, territorial identities are in an important sense remnants of the era before the modern hegemony of contractual social relations chronicled by Sir Henry Maine.(6) Like the social positions of the family, they are largely involuntary relationships of status.

The word "remnants" is somewhat misleading: it suggests that these territorial identities are survivors of a bygone era. To the contrary, this Article will suggest that territorial identities were recently invented and grew in importance just as other status relationships were in decline -- in fact, in some instances, territorial identities displaced other statuses. Territorial identities developed and matured along with the advance of modern, scientific cartography. Once cartography made the production of precisely demarcated legal territories possible, territorial relationships quickly became dominant. The territorialization of social relations served important institutional purposes more effectively than did the older status relationships. Hence the famous historical shift from status to contract was accompanied by an equally significant shift from status to locus.

Jurisdictions define both national and sub-national territories. This Article will primarily deal with sub-national jurisdictions. It is fairly obvious that the creation of national territories and national identities has been a major project of national governments. Nation building is commonly understood as, in part, the process of national institutions asserting control by destroying smaller territorial divisions and affiliations. But the production of sub-national territories and identities has also been an important part of national development. The centralization of formal power in national governments is not necessarily inconsistent with the existence of sub-national territorial divisions. In fact, this Article will argue that the production of local jurisdictions and local cultures was and is often a by-product of the centralization of political power. Indeed, the production of local difference can be an effective strategy for consolidating and maintaining centralized power. Therefore, this Article will interrogate and disrupt a facile but misleading opposition between centralization and local autonomy.

Part I of this Article will discuss territorial jurisdiction as a spatial structure and as a "governmental technique"(7) as then-Associate Justice Rehnquist once referred to it. It will introduce two opposed rhetorical descriptions of territorial jurisdiction -- organic and synthetic -- both of which correspond to a distinct type of political subjectivity.

Part II will present a partial history of territorial jurisdiction, tracking the emergence and development of legal territories in several socio-historical contexts. This history calls into doubt the common intuition that territorial jurisdiction is a timeless feature or foundation of government. Instead, jurisdiction was invented at a specific historical moment and deployed to advance certain identifiable projects. Jurisdiction transformed both the way government operated and, ultimately, the structure of government itself.

Part III will argue that jurisdiction establishes a form of status identity. Specifically, it will explore in greater detail the territorial construction of political subjectivity that occurs through jurisdiction. It will argue that even seemingly natural or organic territorial communities are often the products of larger governmental strategies that produce a hierarchy of political subjectivities. This gives us reason for caution when tempted to assert territorial group solidarity in order to obtain autonomy for minority groups. Too often the mirage of autonomy hides the bleak reality of social quarantine.

Part IV will argue for a theory of jurisdiction that treats jurisdictional arrangements as the architecture of government. It will argue that such a theory of jurisdiction would allow us to see many contemporary legal conflicts in a new light.

Part V is a short conclusion.

  1. THE BOUNDARIES OF DEMOCRACY

    1. Space Oddity(8): A Tale of Two Jurisdictions

      I would like to introduce territorial jurisdiction in the context of a relatively mundane legal dispute.

      Holt is a small, largely rural, unincorporated community located on the northeastern outskirts of Tuscaloosa ... Alabama. Because the community is within the three-mile police jurisdiction circumscribing Tuscaloosa's corporate limits, its residents are subject to the city's "police [and] sanitary regulations." Holt residents are also subject to the criminal jurisdiction of the city's court, and to the city's power to license businesses, trades, and professions.... [The Holt residents] claimed that the city's extraterritorial exercise of the police powers over Holt residents, without a concomitant extension of the franchise on an equal footing with those residing within the corporate limits, denies [them] rights secured by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.(9) Holt Civic Club v. City of Tuscaloosa presents a seemingly intractable problem: what non-tautological justification exists for any particular limitation of the franchise? A typical answer is that the geographical limits of the jurisdiction in which the elected body is authoritative provide a justification. But, as Holt demonstrates, this simply displaces the problem. Rather than expressing the conflict in terms of the franchise, one could as easily describe it in terms of the jurisdictional boundaries. Why, in this instance, should the boundary of the City of Tuscaloosa not include the residents of the community of Holt?

      The specificity of the jurisdictional question is highlighted in Holt precisely because there is little else at stake. Although the community of Holt is "governed" by Tuscaloosan institutions, it seems that few of these institutions make controversial substantive decisions. Local courts and police enforce state law while sanitary and business regulations are relatively technical in nature and are not generally a source of political conflict. Thus, rather than focusing on a substantive harm, Holt centers on the definition of political community...

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