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The jurisdiction of difference : groups and law Kaushal, Asha Pearl 2013

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THE JURISDICTION OF DIFFERENCE: GROUPS AND LAW  by Asha Pearl Kaushal  B.A., McGill University, 1998 M.Sc., London School of Economics, 1999 LL.B., Osgoode Hall Law School, 2003 LL.M., Harvard Law School, 2008   A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  December 2013  ? Asha Pearl Kaushal, 2013   ii Abstract  The diversity represented by group difference in liberal democracies is the source of significant philosophical and legal concern. This thesis examines how the law encounters and tolerates this evident diversity. It argues that law responds to group difference as a matter of course by sorting and ordering the group into ostensibly obvious categories. The concept of jurisdiction ? understood as the moment in which law speaks to itself about the limits of its authority ? grounds the inquiry. It opens the vista onto a broader theoretical understanding of law?s attachments and it provides a lens through which to interpret law?s acts of ordering. Drawing together jurisdictional and geographical insights, the thesis explores territorial manifestations of group difference in three legal orders: international law, national law, and sub-national law. Each of these scalar orders prescribes a distinct jurisdictional logic which governs the group. The optic of jurisdiction permits attention to the circumstances in which law reaches group difference and the scope and content it assumes once there. The nature and extent of this competence is examined through consideration of how group difference is scaled and adjudicated in the jurisprudence.     The scrutiny of jurisdictional theory reveals the discontinuities between jurisdiction as a technicality in legal theory and jurisdiction as a mode of governance in social theory. This thesis unites these jurisdictional modes of analysis by clarifying the pervasive political character of jurisdiction. This politicized concept of jurisdiction is then placed in conversation with the scalar governance of group difference. The motif of governance is important because it is the potential ungovernability of the group, specifically the enclave, which underlies liberal anxiety about group difference. Jurisdiction ultimately casts a long shadow over diversity. It is beholden to sovereignty and established legal forms of constituting the group, including statehood, constitutional federalism, and liberal individualism. Attention to the legal threshold reveals that one way that law treats groups is by not grouping them. Jurisdiction reinscribes the boundaries of each legal order, forging different legal objects ? nation-states, minorities, cultures ? in such a way that these manifestations are not perceived to be part of the same category at all.    iii Preface  This dissertation is original, unpublished, independent work by the author, Asha Kaushal.    iv Table of Contents  Abstract ................................................................................................................................................. ii	 ?Preface .................................................................................................................................................. iii	 ?Table of Contents ................................................................................................................................ iv	 ?Acknowledgements ............................................................................................................................. vii	 ?Chapter 1: Introduction ...................................................................................................................... 1	 ?1.1	 ? The Problems of Group Difference and the Law ...................................................................... 1	 ?1.2	 ? The Jurisdictional Lens: Categories, Technologies, and Territories ........................................ 3	 ?1.2.1	 ? On Categories .................................................................................................................... 4	 ?1.2.2	 ? On Territories .................................................................................................................... 5	 ?1.3	 ? The Concepts and Terms: Definitions and Delimitations ......................................................... 7	 ?1.3.1	 ? On the Group ..................................................................................................................... 7	 ?1.3.2	 ? On the State ..................................................................................................................... 10	 ?1.4	 ? The Contributions and Structure of the Dissertation .............................................................. 12	 ?1.4.1	 ? The Contributions of the Project ..................................................................................... 12	 ?1.4.2	 ? The Structure of the Dissertation ..................................................................................... 13	 ?Chapter 2: On Jurisdiction: Concepts, Theories, and Methods .................................................... 16	 ?2.1	 ? Overview ................................................................................................................................. 16	 ?2.2	 ? Conceiving Jurisdiction: What Does ?Jurisdiction? Mean? .................................................... 17	 ?2.3	 ? Politicizing Jurisdiction .......................................................................................................... 20	 ?2.3.1	 ? The Politics of Origins ..................................................................................................... 20	 ?2.3.1.1	 ? Inaugural Jurisdiction ............................................................................................... 20	 ?2.3.1.2	 ? Jurisdiction in the State of Exception ....................................................................... 23	 ?2.3.1.3	 ? From Sovereign Exception to Jurisdictional Limit: Political-Legal Binding .......... 31	 ?2.3.2	 ? Contemporary and Technical Jurisdiction ....................................................................... 34	 ?2.4	 ? Mapping and Scaling Jurisdiction .......................................................................................... 37	 ?2.4.1	 ? Mapping the Reach of the Law ....................................................................................... 38	 ?2.4.2	 ? Scale, Shot Through with Power ..................................................................................... 42	 ?2.5	 ? Theorizing Jurisdiction: Reconciling Three Conceptions ...................................................... 46	 ?2.5.1	 ? Law?s Jurisdiction from the Beginning ........................................................................... 47	 ?2.5.1.1	 ? The First Conception: Jurisdiction as Territory ....................................................... 51	 ?  v 2.5.2	 ? The Political Theory behind Jurisdiction ........................................................................ 55	 ?2.5.2.1	 ? The Second Conception: Jurisdiction as Inclusion/Exclusion ................................. 58	 ?2.5.3	 ? The Practice of Jurisdiction as a Technology .................................................................. 61	 ?2.5.3.1	 ? The Third Conception: Jurisdiction as Governance ................................................. 65	 ?2.5.4	 ? Mobilizing the Political Modalities of Jurisdiction ......................................................... 67	 ?2.6	 ? Thinking Jurisdictionally ........................................................................................................ 69	 ?2.6.1	 ? On Categories, Technologies, and Territories ................................................................. 71	 ?2.6.2	 ? Methods of Jurisdiction ................................................................................................... 76	 ?2.6.2.1	 ? The Jurisdiction to Determine Jurisdiction .............................................................. 78	 ?2.6.2.2	 ? Jurisdiction as Autonomy ......................................................................................... 79	 ?2.7	 ? Conclusion .............................................................................................................................. 81	 ?Chapter 3: The International Legal Order ...................................................................................... 84	 ?3.1	 ? Overview ................................................................................................................................. 86	 ?3.2	 ? The Conceptual Categories of the International Group .......................................................... 88	 ?3.3	 ? How Jurisdiction is Parcelled Out in the International Legal Order ...................................... 92	 ?3.3.1	 ? The Sovereign Equality of States .................................................................................... 93	 ?3.3.2	 ? Territory as International Infrastructure .......................................................................... 96	 ?3.3.3	 ? The Dichotomy of Inside/Outside ................................................................................. 100	 ?3.4	 ? The Logic of Self-Determination .......................................................................................... 103	 ?3.4.1	 ? The Legal Texts of Self-Determination ......................................................................... 104	 ?3.4.2	 ? The Indeterminate Content of the Legal ........................................................................ 108	 ?3.4.3	 ? The Political Aspects of Self-Determination: Secession and Recognition ................... 110	 ?3.5	 ? The Case Law on Jurisdiction ............................................................................................... 113	 ?3.5.1	 ? The ?land Islands (Commissions of League of Nations, 1920) ................................... 114	 ?3.5.2	 ? Western Sahara Advisory Opinion (International Court of Justice, 1975) ................... 117	 ?3.5.3	 ? The Badinter Commission (European Community, 1992) ............................................ 120	 ?3.5.4	 ? Case Concerning East Timor (International Court of Justice, 1995) ............................ 126	 ?3.6	 ? Jurisdictional Governance: Relationships, Contradictions and Incommensurabilities ......... 129	 ?3.6.1	 ? On External and Internal Self-Determination ................................................................ 131	 ?3.6.2	 ? On Minority Rights ........................................................................................................ 132	 ?3.7	 ? Conclusion ............................................................................................................................ 135	 ?    vi Chapter 4: The National Legal Order ............................................................................................ 138	 ?4.1	 ? Overview ............................................................................................................................... 141	 ?4.2	 ? The Conceptual Categories of the National Group ............................................................... 143	 ?4.3	 ? How Jurisdiction is Parcelled Out in the National Legal Order ........................................... 148	 ?4.3.1	 ? The Constitution of Authority ....................................................................................... 148	 ?4.3.2	 ? The Authority of Nation ................................................................................................ 154	 ?4.4	 ? The Logic of Constitutional Federalism ............................................................................... 159	 ?4.4.1	 ? Constitutionalism ........................................................................................................... 162	 ?4.4.2	 ? Federalism ..................................................................................................................... 165	 ?4.4.3	 ? The Legal Texts of Group Difference ........................................................................... 168	 ?4.4.3.1	 ? The Constitution Act, 1982 .................................................................................... 168	 ?4.4.3.2	 ? The Legal Architecture of Minority Nationalism ................................................... 173	 ?4.5	 ? The Case Law on Jurisdiction ............................................................................................... 176	 ?4.5.1	 ? Reference re Secession of Quebec (Supreme Court of Canada, 1998) ......................... 177	 ?4.5.2	 ? Minority Language Rights ............................................................................................. 183	 ?4.5.3	 ? Minority Religious Education Rights ............................................................................ 187	 ?4.6	 ? Jurisdictional Governance: Relationships, Contradictions, Incommensurabilities .............. 190	 ?4.6.1	 ? The Work that Territory Does ....................................................................................... 190	 ?4.6.2	 ? Group Difference All the Way Down ........................................................................... 193	 ?4.6.3	 ? Constitutional Logics of Identity ................................................................................... 195	 ?4.7	 ? Conclusion ............................................................................................................................ 196	 ?Chapter 5: The Sub-National Legal Order .................................................................................... 199	 ?5.1	 ? Overview ............................................................................................................................... 201	 ?5.2	 ? The Conceptual Categories of the Sub-National Group ....................................................... 202	 ?5.3	 ? How Jurisdiction is Parcelled Out in the Sub-National Legal Order .................................... 208	 ?5.3.1	 ? Liberalism ...................................................................................................................... 208	 ?5.3.2	 ? Multiculturalism ............................................................................................................ 214	 ?5.4	 ? The Logic of Individual Rights ............................................................................................. 216	 ?5.4.1	 ? The Right Not to Belong ............................................................................................... 219	 ?5.4.2	 ? Where Rights Blend Into Sovereignty ........................................................................... 221	 ?5.4.3	 ? The Legal Texts of Group Difference: The Charter ...................................................... 224	 ?5.5	 ? The Case Law and Case Studies on Jurisdiction .................................................................. 226	 ?  vii 5.5.1	 ? Alberta v. Hutterian Brethren of Wilson Colony (Supreme Court of Canada, 2009) ... 226	 ?5.5.2	 ? Rosenberg v. Outremont (Quebec Superior Court, 2001) ............................................. 233	 ?5.5.3	 ? Shaughnessy and Kerrisdale (British Columbia, 1990s) ............................................... 238	 ?5.5.4	 ? Richmond (British Columbia, 1990s-Present) .............................................................. 241	 ?5.6	 ? Jurisdictional Governance: Relationships, Contradictions, Incommensurabilities .............. 243	 ?5.6.1	 ? The Meaning of Re-Territorialization ........................................................................... 243	 ?5.6.2	 ? The Group Outside of Law ............................................................................................ 245	 ?5.6.3	 ? From Individual to Collective and the Place of the Self ............................................... 248	 ?5.7	 ? Conclusion ............................................................................................................................ 251	 ?Chapter 6: Conclusion ..................................................................................................................... 253	 ?Bibliography ..................................................................................................................................... 260	 ?1.1	 ? Treaties, Legislation, Declarations, Resolutions, Reports .................................................... 260	 ?1.1.1	 ? International Treaties ..................................................................................................... 260	 ?1.1.2	 ? International Declarations, Resolutions, Reports .......................................................... 260	 ?1.1.3	 ? National Legislation ...................................................................................................... 261	 ?1.2	 ? Case Law .............................................................................................................................. 262	 ?1.2.1	 ? International Cases ........................................................................................................ 262	 ?1.2.2	 ? National Cases: Canada ................................................................................................. 263	 ?1.2.3	 ? National Cases: Other Countries ................................................................................... 264	 ?1.3	 ? Secondary Sources: Books ................................................................................................... 264	 ?1.4	 ? Secondary Sources: Journal Articles and Book Chapters ..................................................... 271	 ?1.5	 ? Secondary Sources: Other ..................................................................................................... 286	 ?1.5.1	 ? Reports, Research Papers, Conference Papers, Websites .............................................. 286	 ?1.5.2	 ? Newspaper and Magazine Articles ................................................................................ 288	 ?    viii Acknowledgements  The process of researching and writing a dissertation is a long and solitary one. It is also a process filled with glimmers of light and occasional insight. In a tribute to his own supervisor, Ronald Dworkin, Jeremy Waldron characterized the essence of their relationship as ?learning what it was like to argue seriously, learning what it meant to be responded to as someone worth arguing with?. This is the heart of the scholarly enterprise and I am grateful for Waldron?s expression of what underlies these words on paper.    To Catherine, who agreed to supervise this project from the very beginning, at which point it was already some distance from her domains of law. Over the years, she came to skillfully inhabit the space of our own threshold ? between supervisor and friend, between teacher and colleague ? and yet she always knew which side of the threshold was required. She has read these words more times and more closely than anyone else and I am most grateful to her for thinking through these chapters alongside me.  To Nick, whose enthusiasm for the radical potentiality of jurisdiction is, I suspect, unmatched by most others in the academy. As someone who works in two disciplines, he likely understands well the fear of being on the outside looking in, leaving fingerprints on the glass. It was his willingness to discuss geographical concepts, from their simplest incarnations to their most complex forms, which shepherded this dissertation to a place of deep interdisciplinarity.   To Jeremy, for being there at the beginning, to suggest the concept of jurisdiction as a way into the subject of enclaves. It was the notion of jurisdiction that invited comparisons between types of groups and spaces, and ultimately shaped the scalar legal orders that became the framework of this dissertation. He read this draft with an eye for nuance and guided it toward a more subtle and careful, if not ever final, resting point.   To Mary, whose abiding concern for keeping the concept of enclaves in the frame has helped me to do precisely that. She has held me to the implications of my language and probed the normative underpinnings of the project, both of which forced me to consider carefully the vision of the world that lies underneath.     To the Liu Institute, for the supportive physical and mental space and for my office among the trees. To all of my colleagues in the Liu Migration Network, and especially to Shauna Labman, Laura Madokoro, and Erin Tolley, who organized and studied (often in that order) so that we could find out how geography mattered for the meaning of citizenship. To the UBC Faculty of Law, old and new, and its Graduate Program, for the moral and intellectual support. To SSHRC, for the financial support that makes dissertations possible.  To my friends, near and far, and especially to Francesca Strumia, without whom I may not have been brave enough to embark on this journey. Standing on her shoulders, and always striving to ask the right questions, I have often made myself sit one more hour at my desk.   To my family, for allowing me to stay in school almost forever. And, to Abbas, Rohan, and Zo?, for always providing the light.  1 Chapter 1: Introduction  It is only possible to identify the different sites as different units if we already acknowledge that the underlying symbolic work involved in representing each of these sites as units - and so also as unities - requires a different way of knowing and ordering, a different epistemic starting point and perspective with regard to each unit(y); and that so long as these different unities continue to be plausibly represented as such, there is no neutral perspective from which their distinct representational claims can be reconciled.1   This dissertation is about the jurisdiction of group difference. It examines the role of law in ordering the group. The concept of jurisdiction connotes regard to the legal threshold between law and non-law and focuses attention on the terms of law?s reach or retraction. It is best summed up as the moment that law speaks to itself about the limits of its authority. The concept of group difference refers broadly to group identities which are held in common. The groups examined in this project concern religious, ethnic, and cultural identities. My thesis is that law perpetually encounters and adjudicates group difference, and that it manages that difference by sorting and scaling it between legal orders. The lens of jurisdiction permits attention to both the terms of that organization and the extent to which it constitutes a framework of governance. The dissertation relies on a blend of legal scales and cases in which territory, the group, and law dance in a configuration choreographed by jurisdiction.  1.1 The Problems of Group Difference and the Law The core of this dissertation lies in the relationship between law and group difference. It evolved out of the burgeoning interest in enclaves in Canada and other countries of immigration. An enclave is a space that is numerically dominated by a particular group and which has spawned corresponding services and institutions.2 The recent census in Canada has shown a marked increase in enclaves from 6 in 1981, to over 260 in 2006. Enclaves are notable in part for their symbolic heft: they have emerged as paradigmatic emblems of diversity in liberal-democratic societies. Both public discourse and private murmurings reveal concerns about their representations. There is disquietude about the isolation of enclaves, their model of neighbourhood segregation and laissez-faire integration into mainstream society, and their long-term effects on belonging. Enclaves mark a shift toward                                                    1 Neil Walker, ?The Idea of Constitutionalism? (2002) 65 Mod L Rev 317. 2 For more extensive evaluation of enclaves, see Chapter 5, Section 5.2.   2 residential separation as a voluntary choice, one that is no longer associated with poverty or forced exclusion. In all of this, it is clear that the root of discursive concern is about the terms of constituting the polity: who is included and on what terms.   As emblems of diversity, though, enclaves indicate a larger shift, and it is this shift which underlies the work of this dissertation. Enclaves are symbols of a new social order. In this world, countries of immigration across the globe are experiencing massive demographic dislocation. Aging populations and falling birth rates have made immigration a demographic necessity for these countries in order to simply maintain their populations.3 In settler states, it is already possible to see the effects of these changing demographics.4 These include larger numbers of visible minority immigrants on the ground, some of whom settle in enclaves, pressures in the public sphere surrounding integration and tolerance, and tensions in the legal sphere between equality and religious freedoms. This is a new landscape for group difference and for society, one that insists upon a revisiting of the terms of group difference in the legal frame. This dissertation is that revisiting. It is an effort to take stock of how the group is identified, claimed, adjudicated, and settled in law. We are, in an important sense, after international law now. It may contend with new issue areas and certainly new challenges but, for the most part, its sources and institutions are determined. We are equally in a post-Charter era, thirty years after its passage. It may also confront new subjects, but its rights and interpretative principles are delimited and exhaustive. Yet we are in no sense post-identity groups. So it seems appropriate to ask how various legal orders deal with difference and what they reveal about law?s values, predispositions, and commitments.  This inquiry started with a close examination of the legal architecture of group difference. It examines group difference in three legal orders ? international, national, and sub-national ? to map how the rights and entitlements to difference are distributed. This led to the observation that groups are treated differently by law depending on their location. The lens of jurisdiction is employed to analyze this differential treatment. Claims about group difference are made against the background of a legal landscape which privileges some categories of groupness. Placing these legal categories and                                                    3 Anthony M Messina & Gallya Lahav, eds, The Migration Reader (Boulder: Lynne Rienner Publishers, 2006). In Western Europe, nearly all labour force growth is due to immigration, as is about 40 percent of such growth in North America. See: Philip Martin, Manolo Abella & Christiane Kuptsch, Managing Labor Migration in the Twenty-First Century (New Haven: Yale University Press, 2006) 23. 4 Statistics Canada projects that by 2031, one in three Canadians will belong to a visible minority. See: Joe Friesen, ?The changing face of Canada: booming minority populations by 2031?, Globe & Mail (9 March 2010).   3 concepts into conversation across scales turns out to be profoundly disruptive of the prevailing narratives about group difference. Moreover, it turns out that enclaves embody this categorical disarticulation. They reveal both the extent and terms of law?s reach, and so they represent the difficulties with legal categories and the law of groups.  The tale that law recounts is that it has come to terms with group difference. It has wrestled with difference and, in the post-human rights era, difference has secured its place among rights. In the international legal order, there are individual minority rights and self-determination; in the national legal order, there are bilingualism, multiculturalism, and the unwritten constitutional principle of minority rights; in the sub-national legal order, there are individual rights and reasonable accommodations. But built into this narrative are several distinctions: between declarations of statehood and recognition, between national groups and minority groups, between historical groups and immigrant groups, between religion and culture. These distinctions undercut law?s treatment of group difference. They keep the law from deep engagement with both the complex nature of the group and the theoretical and political meaning of its demands on the state. Indeed, the more accurate account suggests that law has not overcome group difference; it has exacerbated it by recognition.  1.2 The Jurisdictional Lens: Categories, Technologies, and Territories Jurisdiction itself has many meanings and is invoked in many different settings. The first chapter contends with these myriad theoretical and technical invocations of jurisdiction. In this dissertation, jurisdiction means the moment in which law speaks to itself about the limits of its authority.5 It denotes a sphere or a moment that is a precondition for the juridical as such, for the law to come into effect. Temporally, then, jurisdiction is located in a moment before the law. This is part of its value: it focuses attention on the moment between law?s invocation and legal decision. It invites us to consider the conditions for law?s entry. The modes or manner of coming into law, of belonging to law, are always jurisdictional and thus always invoke the law at the limit of its competence. It is a threshold and at that threshold, jurisdiction defines the operations of law.  It turns out that the jurisdictional moment is full of information about why and how law organizes itself around some kinds of difference, some kinds of groups, and not others. It assembles questions                                                    5 Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of the Common Law, 1509-1625 (Chicago: University of Chicago Press, 2007).   4 about which claims succeed, which tropes and constructs each scale relies upon to police the boundaries of their group containers, how the constructs of each scale inform group difference in each frame, and how group claims jump scales. The answers to these questions provide a robust picture of groups and law. Part of this picture is that law sorts difference in part by scaling it ? some manifestations of difference merit international self-determination, others are hemmed in by constitutional principles of secession, still others are considered organic phenomena outside of law?s reach ? and it performs this scaling using jurisdiction. Legal actors mobilize scale to shift and sort the group between legal planes to maintain its place at the very edge of law?s jurisdiction.  1.2.1 On Categories Jurisdiction invokes the idiom of categorization. This is helpful because it directs attention to what might be at play in the jurisdictional threshold. Law is ?the practice of perceiving problems through categories?.6 The act of categorization has important consequences for what is being categorized as well as for the meaning of the category. This project relies upon the notion of legal categories as organizing law and social life. In particular, it approaches jurisdiction as the concept that polices the boundaries and content of legal categories. The study of jurisdiction is the study of how law sorts and attaches to categories. If what law is sorting out is categories, then identifying and analyzing the jurisdictional threshold becomes a task of ?reading the categories?: figuring out which categories are permitted, which are precluded, and how a case is shunted between them.7   Placing the legal orders into conversation and trying to map their categories is revealing. The meta-categorization is scalar ? does this case fall to the international, national, or sub-national legal order? In other words, may the claimant invoke self-determination, exceptional national minority rights, or individual human rights? Scale is a category about categories: it tells which set of legal categories may be invoked. Then, the categorizations that follow have to do with fields of law and typologies of the group. Yet discontinuities and movement demonstrate that there is slippage between the categories in the chapters. In the international chapter, the conceptual categories are tightly mapped, but this overlay loosens and disintegrates as the dissertation progresses to the sub-national legal order. There are different legal categories in the scalar orders, and their modes of                                                    6 Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell: Cornell University Press, 1990) at 1. 7 Geoffrey C Bowker & Susan Leigh Star, Sorting Things Out: Classification and Its Consequences (Cambridge: MIT Press, 1999).   5 categorization differ as well. Moreover, these categories are in motion; they are revised and remade to varying degrees through legal claims and decisions.  There is one further point to make about the categories of groupness examined in this dissertation. These categories run the gamut from statehood to minority groups to religious groups. They are all united by their concern with group difference. It is evident that aboriginal groups matter deeply for group difference and for jurisdiction: they inhabit and invoke territory, sovereignty and self-rule, and law in obvious ways. They figure throughout this dissertation, informing the discursive landscape and the categories of groups, yet they are not its focus. In Canada, the courts have characterized aboriginal rights as sui generis, a Latin term meaning ?of its own kind?.8 While it is important to recognize that the designation of an entire set of rights or relationships to territory as different is its own legal categorization, I nonetheless follow this separation. States treat aboriginal groups differently from other groups in law, often employing special territorial designations and constitutional categories. This is partly because of their unique position: they are the original inhabitants of states, colonized but never decolonized, and so their claims register grievous historical injustices. Perhaps most importantly, aboriginal groups have sought to distinguish their claims from other groups based on these and other factors. For all of these reasons, aboriginal claims merit their own examination and this dissertation simply cannot perform that task. Accordingly, aboriginal groups figure in this project as a constitutive part of the legal environment, and they are occasionally brought to fore to illuminate the operation of jurisdictional claims to groupness, but they are not the subject of extensive analysis.  1.2.2 On Territories  It is sometimes difficult to find material representations of jurisdiction until it has already done its work. Territory is an exception to this difficulty. Territorial jurisdiction is one way that jurisdiction is commonly understood. It renders legal authority coextensive with territorial boundaries. Territory is a pivotal concept in this project for the work that it performs in categorizing, scaling, politicizing, and sorting the group and the law. Perhaps the most useful way to conceive of territory at the outset is as land. Then it is possible to conceive of the land of each scalar legal order and of all of the groups as overlapping. This is sometimes described as verticality or nested territories such that the                                                    8 See: John Borrows & Leonard I Rotman, ?The Sui Generis Nature of Aboriginal Rights: Does It Make a Difference?? (1997) 36 Alta L Rev 9.   6 community nests within the sub-state unit which nests within the nation-state and so on.9 The point is that these territories mean differently in each of their nestings and this directs attention to the relational aspect of territory. Territory always implicates something else. These ideas are explored in more detail in the subsequent chapters. At this point, I simply want to explain the history of jurisdiction to situate this project in time and space.  The history of jurisdiction is a narrative in which territory comes to stand in for jurisdiction. Stuart Elden explains how territory emerged as a category in political thought through legal interpretation: in the later Middle Ages, the rediscovery of Justinian?s Corpus Iuris Civilis provided the basis for linking the original Latin term territorium (understood as a synonym for land) to jurisdiction.10 Justinian?s text was discovered five hundred years after its promulgation, and so required reconstruction and interpretation. The task was to understand Roman law in the evolved context of ?popes, emperors, kings, and independent cities?.11 It was the interpreter Bartolus of Sassoferrato who explicitly joined territorium to jurisdiction. Elden explains:  He is taking the notion of land, or land belonging to an entity, as the thing to which jurisdiction applies, thus providing the extent of rule. The territorium then is not simply a property of the ruler; nor is jurisdiction simply a quality of the territorium. Rather, the territorium is the object of rule itself.12   This marked the shift from the personality of law to the territoriality of law.13 This moment still far precedes the Peace of Westphalia in 1648, but it demonstrates the continuous nature of the relationship between rulers and their constituent parts.  Historically, then, territory was a bounded space under the control of a group; now, territory is the very extent of political power.14 This is the trajectory of how territory comes to stand in for the political and how it becomes part of the                                                    9 David Delaney, Territory: A Short Introduction (Oxford: Wiley Blackwell, 2005) at 13. 10 Justinian was a Byzantine Emperor in the 6th century who had codified Roman law up to his time. Stuart Elden, ?Territory Part I? in John A Agnew & James S Duncan, eds, The Wiley-Blackwell Companion to Human Geography, 1st ed (Malden: Wiley-Blackwell, 2011) at 264-65. 11 Ibid at 265. 12 Ibid at 265. 13 This shift is also the basis of Richard T. Ford?s article, see Chapter 2, infra, but he focuses on what this shift means for state administration, while Stuart Elden and John Agnew, among others, conceive of the shift to territorial jurisdiction as shoring up sovereignty and statehood. 14 Elden, supra note 10.    7 existential identity of the state. It is a story that is inextricably bound to jurisdiction. It is also the reason why the category of territory can only be understood in relation to sovereignty and the state.15  Yet, the dominance of territorial jurisdiction belies the existence of other, non-territorial forms of jurisdiction. In this dissertation, these forms are referred to as generic-conceptual jurisdiction. They include, for example, the jurisdiction of courts and tribunals. Although jurisdictional deliberations often refer back to territory, territory is no longer (if it ever was) the only appropriate modifier for jurisdiction. Instead, jurisdiction should be conceived more broadly as the threshold of law which invokes the political, and attention should be paid to jurisdictional technologies to see how jurisdiction goes about its work.  1.3 The Concepts and Terms: Definitions and Delimitations 1.3.1 On the Group As part of the story of law and society, this dissertation parses the work that law performs as a body of theories and rules in constructing and regulating the relationship between law and groups. Groups are a key part of the ?society? part of law and society. From families to communities to organizations, social life is an amalgam of various kinds of groups. It is a key contention of this dissertation that law does not squarely meet society in the context of group difference. Not only does law lack the resources to consider these complex social solidarities, but also the jurisdictional threshold does not reach this far. When jurisdiction approaches social solidarities, it becomes a choice between law and non-law ? between law and the social ? rather than between applicable laws.  In light of the examination of group difference that lies at the heart of this project, it is necessary at the outset to explain the meaning of ?group?.16 The social group ? whether in the form of community, ethnic group, people, or nation-state ? is an enormously contested category in social theory. This project is committed to a concept of group that acknowledges the role of social                                                    15 Ibid.  16 I have chosen not to similarly define ?difference? because I use it more as a motif than a defined term. It is meant to convey visible difference and to carry the theoretical weight of the Other as a site of foreignness and incommensurability. As a category, it does not have firm boundaries but instead appertains to any individual or group who finds him or herself outside of mainstream categories. This includes but is not limited to visible minorities, immigrants, national minorities, religious groups, and, in other contexts, gender groups and sexuality groups. And, like all boundaries of the group, their meaning and composition shifts and varies.   8 solidarities and culture in constituting human life.17 This does not mean that groups are pure, stable, and precisely bounded units. The criticisms of the inherently fluid and politicized nature of groups do not make their groupness less important; they simply make them more complex and problematic.18 This section reviews the terms of the debate, looking for ways to retain the analytical value of the group without falling into the trap of constituting the very phenomenon that is the object of study.   But ? and this is a big but ? even if one believes, with Rogers Brubaker, that groups are instrumental and political, or, with Seyla Benhabib, that groups are dynamic and shifting, this dissertation still renders productive insights. The point of this project is to use the lens of jurisdiction to examine how law governs group difference. It is uncontroversial to suggest that groups are embedded in a larger context. This context includes law, politics, economics, and several other axes of significance. It does not matter much what this group difference may have looked like before it was politicized and claimed because the group that law adjudicates is always, already touched by society, politics, and law.19 The very act of making a legal claim categorizes members, draws boundaries, and sets collective goals. Indeed, the notions of sharp boundaries and established group composition are themselves partly constitutive of group identity and solidarity.20 It is not clear that groups are ever ?entirely pre-political?.21 The group may be more or less loose; members may be bound only by their desire to exercise certain rights in common or they may be bound by deeply constitutive ?webs of significance?.22 The point is that they present as a group and the ambition of this project is to pay attention to how law hears and interprets that presentation.                                                     17 Craig Calhoun, ??Belonging? in the Cosmopolitan Imaginary? (2003) 3 Ethnicities 531 at 535. 18Ibid at 547. 19 Even religious enclaves which seek to excise themselves from their larger societal context are partially constituted by law and sometimes seek it out to sanction the terms of that excision. See, e.g., the Satmar Hasidic Jewish sect in New York state, which employed law to carve out its own school district jurisdiction (Board of Education of Kiryas Joel Village School District v Grumet, 512 US 687 (1994); Judith Lynn Failer, ?The Draw and Drawbacks of Religious Enclaves in a Constitutional Democracy: Hasidic Public Schools in Kiryas Joel? (1997) 72 Ind LJ 383),  and the Amish and Hutterite sects which have used law to appeal for exemptions from compulsory schooling and from driver license photographs, respectively (Wisconsin v Yoder, 406 US 205 (1972); Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567.  20 Calhoun, supra note 17 at 547. 21 Ibid.  22 This is Clifford Geertz?s formulation of culture. See: Clifford Geertz, ?Thick Description: Toward an Interpretive Theory of Culture? in The Interpretation of Cultures (New York: Basic Books, 1973) at 5.   9 Social theorists, whatever their bent, are concerned with how to use the group in social theory and analysis. There are two relevant strains of criticism to be disentangled. Rogers Brubaker has mounted a thoughtful appraisal of the tendency to reify groups, which he calls ?groupism?:  The tendency to take discrete, bounded groups as basic constituents of social life, chief protagonists of social conflicts and fundamental units of social analysis.23  The core of his critique is that constructivism has pressed the category of identity into meaninglessness: trotting out the standard constructivist tropes about fluidity and multiplicity lacks analytical purchase and leaves scholars unable to study the ?power and pathos of identity politics?.24 This critique is closely aligned to the critiques of scale explored in the first chapter: they are both concerned with the treatment of scale or the group as real, substantial ?things-in-the-world?. Instead, the critique goes, they are perspectives on the world. The solution, for Brubaker, is not individualism ? ?groupist idioms are as flat as individualist ones? ? but to think in ?relational, processual, and dynamic terms? about groupness as an event.25 From another direction, there are the qualms of the post-modernists and the liberal cosmopolitans, who charge that group identity is ephemeral, constantly in motion, and defined by its hybridity and impurity.26 The necessary implication is that it cannot be pinned down for its members, let alone for theoretical or empirical analysis.   These lessons are valuable, but they give up too much when it comes to group identity. We see all around us that group identities mean something to people. This meaning matters for law because groups use law to claim and defend their groupness. Scholarship about group identity that forgoes analysis of what groups have in common, what they say about themselves, and what claims they make, misses too much about both the constitution of the self and the nature of power and authority in society.27 To study group identity as an ontological concept that matters does not require succumbing to some notion of flattened and essentialized groupness. There is no compulsion to                                                    23 Rogers Brubaker, Ethnicity without Groups (Cambridge: Harvard University Press, 2002) at 8. 24 Frederick Cooper & Rogers Brubaker, ?Beyond Identity? (2000) 29 Theory & Soc'y 1 at 1. 25 Rogers Brubaker, ?Neither Individualism nor Groupism: A Reply to Craig Calhoun? (2003) 3 Ethnicities 553. 26 Homi Bhabha, The Location of Culture (London: Routledge, 1994); Salman Rushdie, ?In Good Faith? in Imaginary Homelands: Essays and Criticism 1981-1991 (New York: Penguin Books, 1992); Seyla Benhabib, The Claims of Culture: Equality and Diversity in a Global Era (Princeton: Princeton University Press, 2002); Kwame Anthony Appiah, The Ethics of Identity (Princeton: Princeton University Press, 2005). 27 Dismissing the group out of hand has important political and legal consequences: it neglects the effects of ascription (and discrimination) as determinants of social identities and the extent to which people are implicated in social actions that they did not choose, and it undermines attempts to redistribute benefits across groups in the social order. See: Calhoun, supra note 17.   10 presume the universality and unity of the group subject; it is possible to engage with intersectionality, to acknowledge that identities are based on exclusion, even, with Judith Butler, to agree that identities belong to the imaginary, all without giving up the task of studying them in their legal and political modes.28 In the tension between claiming and taking apart identities that characterizes social theory, then, the groups in this dissertation are concerned with their claiming.29  This is the second point: the claim of this work is not that the underlying nature of the groups studied is the same (for example, that they could all be or even aspire to be nation-states), even though it may sometimes seem to suggest a leap of imagination to that effect. The claim of this dissertation ? that law sorts groups and that this is best analyzed through jurisdiction ? only depends upon the reader agreeing that these are all groups. Each chapter spends some time analyzing the categories of groupness that inform the logic of each legal order with a view to showing that these categories both conceal commonalities and inform the legal resonance of them. In trying to demonstrate that the categories are theoretically collapsible but also legally determinative, the point is not that the groups are the same in kind, but rather that there is something common to their claims and that law governs groups according to distinctions underpinned by those categories. The point, in other words, is to demonstrate that these are all groups yet they are governed by profoundly different legal technologies.  1.3.2 On the State It may seem obvious at this point that a project focused on jurisdiction would also focus on the nation-state as the ultimate source of legal authority. It is nonetheless important to defend this focus in light of the realignments of state authority and functions in all directions. These realignments raise questions about the nature of statehood itself and so they deserve attention. This project is sympathetic to scholarship concerned with supra-state and sub-state reconfigurations, but it nonetheless comes to rest on the state.                                                      28 For the original formulation of intersectionality, see: Kimberle Crenshaw, ?Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color? (1991) 43 Stanford L Rev 1241. For the notion that identities are imagined and performed, see: Judith Butler, Bodies that Matter (New York: Routledge, 1993). 29 I owe this formulation to Joshua Gamson. See: Joshua Gamson, ?Book Review of Craig Calhoun, Social Theory and the Politics of Identity? (1995) 24 Contemp Soc 294.   11 The first point to make is that the state never enjoyed ?untrammelled sovereignty?, and so realignments of sovereignty and jurisdiction, capacity and competence, can continue to be accommodated within the framework of statehood.30 The state continues to be the organizing category for understanding political and legal authority. It remains the case that the powers to exclude and to define and enforce rights remain the purview of the state.31 Indeed, Wendy Brown has argued that thinking about power without or outside of the state misses ?the extent to which the state remains a unique and uniquely vulnerable object of political accountability?.32 The state?s legitimacy concerns matter for at least some portion of political life and become acute in the context of group claims: ?it is not that the state is the only source of governance or even the most important one; but where it is involved, the question of legitimacy is immediately at issue?.33  The second point is that the categories of self-rule, recognition, and rights that are at the heart of the intersection between groups and law are state categories; rather like the rules of international jurisdiction, they depend upon the state for their prescription and enforcement. They are squarely about the exercise of state authority. The group is frequently seeking to exercise some form of state power for itself or (and these often amount to the same thing) seeking to be exempt from some form of state power. Indeed, it is worth noting that references to ?law? throughout this text are frequently shorthand for references to law that pertains to groups. Moreover, theories about statehood are an important source and justification for law?s reach and retraction. These range from theories about recognition to theories about democracy. The group is in conversation with the state about access to and limits on statehood, self-rule, and rights.   This dissertation is thus focused on the ordered structure of law associated with states and the international system of states. The state is the axis upon which the jurisdiction of the group turns. Although the modern nation-state emerges as a particular form of jurisdictional organization, it is the most legally powerful one and thus the orienting frame for this project.                                                     30 On untrammelled sovereignty, see: Stephen Tierney, Constitutional Law and National Pluralism (Oxford: Oxford University Press, 2006) at 73; on capacity and competence, see: Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003). 31 Elden, supra note 10; Loughlin, supra note 30. 32 Wendy Brown, ?Power After Foucault? in John S Dryzek, Bonnie Honig & Anne Phillips, eds, The Oxford Handbook of Political Theory (Oxford: Oxford University Press, 2006) 65. 33 Ibid.   12 1.4 The Contributions and Structure of the Dissertation 1.4.1 The Contributions of the Project This is a project of expansive reach, delving into legal theory, drawing from geography, and crossing three scalar legal orders. As such, it relies on the work of innumerable other scholars and does not always approach the depth of their expertise. It is, first and foremost, a meditation on legal theory and group difference, and, hopefully, a prolegomenon to new ways of doing both. In terms of jurisdiction, this dissertation aggregates and analyzes the disparate scholarship on the subject, reveals the disruptions, and then seeks to reconcile them based on the concept of political jurisdiction. The dissertation uses this concept of jurisdiction to unite the analysis of group difference across legal orders. By following the jurisdictional threshold and jurisdictional imaginings in the case law of different legal orders, the governance of group difference is revealed. This turns out to be a cataloguing of jurisdictional technologies. Ultimately, the categories of territory and the political carry their meanings across theory and doctrine to sort and sift groups into scalar orders. This sorting buries incommensurabilities, paradoxes, and contradictions. The frame for some groups is statehood; the frame for other groups is constitutional; the frame for still other groups is liberal individualism. Part of this exercise is to consider that groups or group claims might share something across scales. As set out above, this is not to say that groups are the same in kind across scales or legal orders; groups differ qualitatively from one another in all kinds of ways. Rather, it is to posit that we can glean something insightful from thinking about groups in this way, thinking about what scalar legal orders render opaque and how this is accomplished.  The contributions of this dissertation thus lie primarily in its substantial critical assembly of concepts, theories, and cases across theoretical, scalar, disciplinary, and legal fields. It moves between various levels, shifting from theoretical scholarship to legal doctrine and back again. From one angle, this is a law and society project, concerned to demonstrate how law deals with social groups. This makes a contribution to the law of groups ? that extensive body of scholarship about group rights, recognition, and self-rule that straddles political philosophy and law. It reveals that neither law nor philosophy has come to terms with the nature of the self or the balance between the collective and the individual. From another angle, this project represents a deep engagement with legal theory, concerned to reveal the theoretical logics that matter for group difference. Here, the project finally gives jurisdiction its due, pulling together a vast and disparate body of scholarship on jurisdiction, which stretches from local government law to conflicts of laws to social theory to Shakespearean   13 literature, to make sense of its connections and discontinuities. From yet another angle, this is a doctrinal project, concerned to read jurisprudence for the legal commitments that live in the jurisdictional threshold. This is a contribution to legal doctrine, rendered principally in insights about how law is interpreted and applied to group difference and what kinds of jurisdictional technologies are employed in these legal decisions. Finally, this is an interdisciplinary project, concerned to bring the weight of geographical insights on territory and scale to bear on law. This is a contribution to law and geography scholarship that greatly extends token references to territory and scale into the deep recesses of law. It builds on the notion of territory as relationships and scale as a jurisdictional technology to generate insights that may be used in other legal contexts at other times. Together, these contributions tell a rich story about how law conceives, theorizes, and regulates group difference.   As a final contribution, this dissertation speaks to the ethics of space or spatial justice. It seeks to counter the notion that space is neutral by showing the political and legal commitments that reside in the various spaces of group difference. It thus contributes to the literature on the ethics of difference and the geographies of resistance by bringing to the fore the tension between the liberal democratic commitment to difference, ensconced in theories of pluralism, toleration, and recognition, and the equally compelling liberal democratic commitment to universalism, embodied in theories of equality, sameness, and the nation. In short, by isolating and examining the legal landscape of group difference, it gestures toward other modalities of doing jurisdiction and performing difference.    1.4.2 The Structure of the Dissertation The dissertation proceeds in six parts. This Introduction is followed by Chapter One, which explores the theory and methodology of this project. I explore the theories of jurisdiction, draw out their gaps and discontinuities, and offer a theoretical and methodological resolution. Following this, there are three substantive chapters on different legal orders. Chapter Two traces jurisdiction through group difference in the international legal order. It focuses on the norm of self-determination. Chapter Three examines group difference in the national legal order. It focuses on Canadian constitutional federalism. Chapter Four explores group difference in the sub-national legal order. It focuses on religious and cultural enclaves. The final chapter is the Conclusion.     14 In terms of the legal order chapters, I begin with the international legal order for two reasons. First, one of the tools for analysis in this dissertation is scale and scale is produced at different orders of magnitude. It is helpful to start at the largest order of magnitude, which is also the site of the ultimate legal form of the group: statehood. The relationship between the group and law is most easily grasped when its referent is statehood. Second, jurisdictional analysis ? even in the other legal orders ? turns around the axis of the state and so it is helpful to have this analysis in hand at the outset. The national legal order is addressed next for similar reasons, as well as because it encompasses the attempt to make a group coterminous with a nation-state. This is the work of nation and the project of constitutional theory. The sub-national legal order, or the legal order invoked by groups such as enclaves who are not recognized by the constitutional text, follows next. The reasons for this ordering and for the selection of Canada are intertwined.   The national scale focuses on Canada for two reasons. First, it is where my inquiry began and my intuitions are strongest. Enclaves were not a public and academic issue in Canada first, but it is today the site of hundreds of robust enclaves. Moreover, the discursive field for enclaves is not as mistrustful in Canada, as compared to the United Kingdom or France. Canada has not experienced incidents similar to the 7/7 terrorist attacks on the London underground, orchestrated by individuals born in the United Kingdom, nor has it experienced overlaid class distinctions similar to those that mirror the urban/banlieue distinction in France.34 This makes the discourse surrounding enclaves more purely about group difference and space in the nation-state because the debate is not also configured by the trumps of security or class or intersectionality. The corollary of this is the perception of Canada as a robust protector of groups. Here, there is Canada?s official policy of multiculturalism, which is considered to be part and parcel of its national identity. While all of this makes Canada a fitting site for the study of law and territorial group difference, the broader analysis is not intended to be limited to this context.  By examining these legal orders as part of one project, several insights are gleaned. Three are mentioned here. First, it is possible to see how the delimiting concepts in one legal order repeat as the emancipatory concepts in the next. So, for example, minority rights guarantees are used to hem and hedge group claims to self-determination in the international legal order, but they are the pinnacle of                                                    34 This is not to suggest that Canada has not had terrorist threats in its recent history or that there is no indication of poverty in some urban enclaves, but rather that these concerns have not overwhelmed the more banal aspects of enclaves.   15 group emancipation in the national legal order. Second, the role of territory as an orienting concept and physical space is revealed in each frame. Group claims ultimately all involve the same underlying land, scaled and sorted differently. As the lens moves in closer, the territory morphs from state to province to enclave. Territory turns out to be a modulating concept in jurisdictional theory, one that is closely aligned to the form of the state. Third, studying the legal orders together demonstrates how group difference is always already governed. Jurisdiction, especially territorial jurisdiction, is a term that is loosely bandied about but its specific meaning as the limit of law?s authority focuses the study on where that limit lies for groups in different settings. The point is to show the nature and extent of group difference when it comes to law. Ultimately, it comes back to the terms of inclusion and their allegiance to the construct of the nation-state.    16 Chapter 2: On Jurisdiction: Concepts, Theories, and Methods  Listening for how the law goes about doing what it does at the limit of its competence, we come to hear also all that it also lets in.1   2.1 Overview This dissertation is an inquiry into how the law treats groups. More specifically, it asks how the law treats territorially-manifested group difference across various settings. The answer turns out to be contextual and multivalent, but a larger point emerges from the inquiry itself: there has been no robust, comprehensive analysis of group difference in the legal frame. I suggest that one reason for this lacuna is that lawyers and scholars have heretofore lacked the vocabulary to analyze different manifestations of group claims. In fact, these different manifestations ? nation-states, peoples, ethnic groups, communities, and enclaves ? are not perceived to be part of the same category at all.    This dissertation proffers the vocabulary of jurisdiction, understood as the moment in which law speaks to itself about the scope and content of its own authority. Territorial manifestations of group difference are treated differently depending on their conceptual and geographical location, and this location is materialized through jurisdiction. The framework of jurisdiction permits the assembly of similarities and the comparison of differences between categories of group rights and claims. In short, it enables the grouping of groups in law. Not only does this yield insights on its own terms, but it also suggests that one of the ways that law treats groups is, in fact, by not grouping them. Law uses jurisdictional scale to sift and sort, thus fixing the group and keeping difference in its place.   The project aims to identify and bridge the disarticulations in jurisdictional theory and discourse, and to use the resulting conceptual framework to analyze how the location of the group matters for its treatment in and by law. It aims to unite sites that are substantively the same but formally different. It begins with the concept of jurisdiction that animates the dissertation. Jurisdiction is a term that is well understood at the level of high abstraction (as legal extensions of legitimate sovereignty) and at the level of technical doctrine (as connections to territory and nationality), but it is harder to apprehend in between. It seems to mean different things in different circumstances. The crux of this                                                    1 Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of the Common Law, 1509-1625 (Chicago: University of Chicago Press, 2007).   17 chapter, then, is to analyze the various meanings and invocations of jurisdiction, to reconcile its different dimensions, and to propose a conceptual definition and method. It comes to terms with jurisdiction and begins a conversation about how to use the substance of jurisdictional theory.  The chapter begins with an overview of the juridical and academic meanings of jurisdiction. It then reaches back historically to examine the origins of jurisdiction. This examination takes place in the context of a larger focus on the structures of law associated with states and the international system of states. It thus entails an interrogation into the relationship between sovereignty and jurisdiction. It is in the founding moment that the political nature of jurisdiction is revealed. This observation, that jurisdiction is political, is the basis for uniting jurisdiction?s myriad meanings. This insight is then employed to examine the canon of jurisdictional scholarship to see what might lie beneath. In reviewing the contributions and gaps of this literature, I underscore three conceptions that inform all jurisdictional theories and analyses. I then identify the discontinuities across them, and suggest the important role that categories and territory play. Finally, the chapter sets out a jurisdictional method that acknowledges the theoretical and technical schools of jurisdictional thought and tries to add rigour to the concept of jurisdiction as the limit of the law.  2.2 Conceiving Jurisdiction: What Does ?Jurisdiction? Mean? The term ?jurisdiction? conjures the terrain of cartography: its imagery relies on territories with palpable borders, sovereigns with territorial laws, and occasional transgressions by people and acts that cross the places of the map. This reference to cartography reminds us that jurisdiction is both a legal and a geographical category that situates legal authority in our imaginations, practices, and spaces.  The etymology of jurisdiction derives from ius, meaning ?law?, and dicere? meaning ?to speak?. Jurisdiction, then, is the speaking of law, or, more precisely, ?the speaking of the sovereign law of the community?.2 It is immediately apparent that law has a foundational relationship with jurisdiction: jurisdiction is a reference back to law?s authority and thus an expression of sovereign                                                    2 Emile Benveniste, Indo-European Language and Society (London: Faber and Faber, 1973); Shaun McVeigh, ed, Jurisprudence of Jurisdiction (New York: Routledge-Cavendish, 2007).    18 legitimacy. The concept of jurisdiction designates the authority to speak the law and this authority presupposes a separation of the legal from the non-legal.3  Jurisdiction is the ?signature canon in law?.4 It tells us where law can speak and shows us where law is authoritative. In a general sense, jurisdiction denotes the ?scope? or ?reach? of a thing or activity. It incorporates the idea of the state?s power to govern, understood as its general authority over all persons and things in its territory. Various scholars have described it as ?the legal power or competence of States to exercise governmental functions?, ?a State?s authority to subject persons (natural or juridical) and things to its legal order?, ?the rights and powers of the nation over its inhabitants?, and ?the administrative principle that orders power as authority by defining the scope of a particular power over a matter or territory?.5 Justice Holmes wrote that jurisdiction is concerned with the State?s right of regulation, with the right ?to apply law to the acts of men?.6 It does not matter whether the jurisdiction act travels through legislative, judicial, or executive channels.   The nature of jurisdiction as a many-headed hydra is obvious to those who study the phenomenon. It is a word of ?many, too many, meanings?.7 Jurisdiction can be a territorial space (this side of the border is Michigan; that side is Ontario), a status (Canadian nationality; EU citizenship), a technical legal doctrine (the ?real and substantial connection? test), a political concept of legitimate authority (John Locke?s jurisdiction based on tacit consent), an expression of the reach of sovereign law (international law rules on extraterritoriality), and a preliminary inquiry into law?s attachment (a court?s capacity to hear the case).  Jurisdiction has been accurately called an omnibus term because it incorporates several principles, both theoretical and doctrinal, about authority over persons, places, events, and things, not all of                                                    3 Maria Drakopoulou, ?Of the founding of law?s jurisdiction and the politics of sexual difference: the case of Roman law? in Shaun McVeigh, ed, Jurisprudence of Jurisdiction (New York: Routledge-Cavendish, 2007) 33.  4 John Brigham, ?Seeing Jurisdiction: Some Jurisprudential Issues Arising from Law Being ?...All Over?? (2009) 31 L & Pol'y 381. 5 Cedric Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press, 2008); James R Crawford, The Creation of States in International Law, 2nd ed (Oxford: Oxford University Press, 2006); Cormack, supra note 1. 6 FA Mann, ?The Doctrine of Jurisdiction in International Law? in Studies in International Law (Oxford: Clarendon Press, 1973) 1. 7 United States v Vanness, 85 F 3d 661 (CADC 1996).   19 which are neatly related.8 For example, jurisdiction can refer to both the adjudicatory capacity of a court to hear a case as well as to a territorially located electoral district ? qualitatively different phenomena with equally different measures for determining jurisdiction. In Lipohar v. The Queen, the High Court of Australia aptly described jurisdiction as follows:  The term ?jurisdiction? here, as elsewhere, gives rise to difficulty. It is a generic term... . It is used in a variety of senses, some relating to geography, some to persons and procedures, others to constitutional and judicial structures and powers.9  Most of these meanings of jurisdiction have been subjected to some degree of scholarly analysis. Significant ink has been spilled on the technical jurisdictional doctrines for various settings, all of which derive from variations on the definitions set out above. These tests are most developed in the fields of international law and conflict of laws, where state assertions of jurisdiction conflict. While technical jurisdictional tests necessarily refer back to an abstraction of the concept ? to jurisdiction as a legitimate assertion of legal authority ? they do not expressly address the abstraction. The abstraction that is jurisdiction has not received much attention. Theorizing jurisdiction as jurisdiction, as a concept, has been rare, and largely confined to looking behind doctrine to find the political or social theory sheltered there. In its theoretical and technical forms, jurisdiction is a concept that starts to crumble when one shifts to the other foot. The theoretical form collapses into questions of origins, while the technical one re-projects foundational concerns onto questions of scope.  The crux of the confusion around jurisdiction lies in its multivocality. Jurisdiction looks different in different places and it has different meanings in different circumstances. There are infinite ways to arrange these meanings. The approach of this dissertation is to reorient the inquiry by focusing on what jurisdiction does and how jurisdiction does it. It is through jurisdiction that ?a life before the law is instituted, a place is subjected to rule and occupation, and an event is articulated as juridical?.10 On the ground, jurisdiction allocates legal authority. In the books, jurisdiction creates different forms of law and different legal objects; it establishes different networks of facts and different legal orders.                                                    8 Ian Brownlie, Principles of Public International Law, 6th ed (Oxford: Oxford University Press, 2003); Lipohar v The Queen (1999), 200 CLR 485 (High Court of Australia). 9 Lipohar, ibid.  10 Shaunnagh Dorsett & Shaun McVeigh, ?Questions of jurisdiction? in Shaun McVeigh, ed, Jurisprudence of Jurisdiction (New York: Routledge-Cavendish, 2007) 3.   20 It is necessary, then, to both theorize and explain the processes and technologies of jurisdiction and to theorize jurisdiction itself. The latter task is the primary focus of this chapter.  2.3 Politicizing Jurisdiction 2.3.1 The Politics of Origins 2.3.1.1 Inaugural Jurisdiction It is here, at the beginning, that the meaning of jurisdiction becomes intelligible, that the fraught relationship between sovereignty and jurisdiction is clearest, and thus that jurisdiction can be recast for productive analysis. This section necessarily locates jurisdiction among its conceptual and institutional bedfellows ? sovereignty and territory ? but it tries to avoid dwelling on questions about the origins and validity of law.11 Although jurisdiction and sovereignty travel much of the same terrain, the jurisdictional approach locates questions about state power elsewhere, in quotidian legal practice, rather than in political theology.12 However, given the vast theorizations of the subject of sovereignty, it is necessary to unpack this claim and to review the relationship between sovereignty and jurisdiction.  Starting with sovereignty directs attention to jurisdiction?s ancient, even inaugural, roots. By ?inaugural?, I refer to the ushering in of law?s authority to bear upon the matter, territory, or individual at hand. There are two categories of inaugural jurisdictional acts. The first manifestation of jurisdiction as inaugural concerns the metaphysics of law: the original act in which law emerges as law.13 Here, there is the act through which the collective is brought into existence and then law?s founding moment.                                                      11 In this, it only partly succeeds: these questions about the inauguration and origins of law turn out to be essential. See: Costas Douzinas, ?The metaphysics of jurisdiction? in Shaun McVeigh, ed, Jurisprudence of Jurisdiction (New York: Routledge-Cavendish, 2007) 21;Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, translated by George Schwab (Cambridge: MIT Press, 1985); Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, translated by Daniel Heller-Roazen (Stanford: Stanford University Press, 1998);  Giorgio Agamben, State of Exception, translated by Kevin Attell (Chicago: Chicago University Press, 2005); Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001).  12 Justin B Richland, ?Hopi Tradition as Jurisdiction: On the Potentializing Limits of Hopi Sovereignty? (2011) 36 Law & Soc Inquiry 201. 13 The term ?metaphysical? is used by Shaun McVeigh and Costas Douzinas to describe the foundation and authorization of jurisdiction. See: Cormack, supra note 1. Douzinas, supra note 11.   21 This implicates jurisdiction in the original act in which law institutes itself.14 For metaphysical jurisdiction, the union of sovereignty and jurisdiction is a constant. Jurisdiction depends upon a sovereign community for both justification and form. It is this articulation that brings law into existence and allows law?s emergence as law.15  Jurisdiction contains the ?motif of a declaration that gives now and prospectively reproduces the power of law as always linked with a polity and a politics?.16 In short, sovereignty haunts both jurisdiction and the group, demanding that the ultimate form of community is statehood, and that the community give law to itself.  Costas Douzinas describes the domains of law as constituted and reconstituted against the backdrop of the linking of the juridical and the political. In all legislation, but particularly in constitution-making, which is the inaugural act of the power to legislate, the political (as decision, act or judgment) attaches to law as the precondition of law?s coming into being.17 The political and the juridical are not exactly contemporaneous but they are co-generative:  But for the law to come into existence, it must declare itself to be the law of a specific community and attach to a particular polity. The juridical too links itself to the political, to the polis as its constituting provision.18  Sovereignty, then, always comes first and it lingers in the frame.19 As a result, metaphysical jurisdiction is intricately bound up with sovereignty, and with the relentless problems of origins and political representation.   Before parsing that binding more thoroughly, it is productive to turn to the second category of inaugural jurisdictional acts. These concern the conditions of attachment of an individual, place, or event to a legal and political order, or what Shaun McVeigh calls ?the modes or manner of coming into law and of being with law?.20 In this incarnation, each jurisdictional attachment is inaugural, each instance of coming into law marks the extension of law?s authority to that particular person,                                                    14 Douzinas, supra note 11. 15 Jean-Luc Nancy, A Finite Thinking (Stanford: Stanford University Press, 2003). 16 Douzinas, supra note 11 at 23. 17 Ibid. 18 Ibid.  19 This account is true for the structure of law associated with states, but it may not hold for forms of non-state law. It is also true of liberal democracies or aspiring liberal democracies, but not necessarily of other forms of community such as monarchy or theocracy. I am indebted to Mary Liston for this point. 20 Dorsett & McVeigh, supra note 10.   22 place, object, or event. It marks what is capable of belonging to law. This is the other course by which jurisdiction inaugurates law.  Bradin Cormack, in his brilliant theoretical introduction to jurisdiction in the literary context, looks to jurisdiction as the place where the limits of any legal order become ?explicit, discursive, and contestable?.21 The point is this: the modes or manner of coming into law are always jurisdictional and thus always invoke the law at the limit of its competence. Jurisdiction defines the operations of law, and in so doing, sets the parameters for attachment to the legal order in question. It is at the jurisdictional threshold that the law speaks to itself.22  Cormack wants to show that jurisdiction is deeply implicated in political philosophy discussions about the impossibility of grounding the juridical order within itself, but he refuses to treat legal scenarios as instances of the state?s need to continually mystify and secure its own legitimacy.23 Instead, he argues, jurisdiction sidesteps the question of its original source of authority by re-projecting the problem onto technical questions of scope.24   The law functions by keeping the source of its authority in fixed view as, insistently, the merely technical (and for that reason discursively unassailable) image of its own jurisdictional scope and operation.25  Here, Cormack is claiming that jurisdiction permits the eclipse of sovereignty by focusing on concerns about the scope and content of law. In other words, the law projects its source of authority as technical, not political. He shows how jurisdiction constantly produces law?s authority through articulating its limits.26 The focus, Cormack contends, must be on ?the discursive work undertaken at the boundaries of any one legal authority, or jurisdiction, to enable the extension of its operations, or to contest the extension of another?.27                                                      21 Lorna Hutson, ?Review of Bradin Cormack, A Power to do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509-1625? (2010) 22 Law & Lit 508. 22 Cormack, supra note 1. 23 Ibid at 6. In this, Cormack is reading against Jacques Derrida?s The Force of Law, and trying to move beyond the vertical account of a juridical norm in search of its origin. See Jacques Derrida, ?Force de Loi: Le ?Fondement Mystique de L?Autorite?? (1989) 11 Cardozo L Rev 920. 24 Cormack, supra note 1. 25 Ibid at 7. 26 Hutson, supra note 21. 27 Ibid at 509.   23 It turns out that boundaries and limits are the very precondition of law?s power. Jurisdiction delineates a sphere (spatial, temporal, or generic) that is a premise for the juridical as such, for the capacity of law to come into effect.28 Jurisdiction inhabits the threshold between law and non-law. This is what Nicholas Blomley means when he says that jurisdiction is interstitial; it is located in between.29 It is in the space before the law decides, either refusing to reach the matter or extending its authority there, that jurisdiction resides. Cormack calls this the ?root liminality? of law. These images of interstitiality and liminality seem to be both spatial and temporal and this is helpful in conceiving of the threshold. They signal that jurisdiction is located a moment before law?s extension or retraction and they suggest a metaphorical spatial boundary or edge where law?s commitments are sorted out. However, they do not get to heart of what lies in that moment or limit.   What exists in the moment before law, or even between law and non-law, is sovereignty. Thus, theorizing jurisdiction as the legal threshold that sets the conditions for law?s attachment ? not as the metaphysics of law ? does not entirely avoid questions about the origins and grounding of law. It might well be the case that re-projecting foundational questions as technical issues of scope pushes the matter to the background. However, by highlighting notions of power and authority produced at the limit, the exercise implicates the scholarship about conceptions of sovereignty at the limit, and thus the nature of sovereignty itself.  2.3.1.2 Jurisdiction in the State of Exception One of the most enduring conceptions of sovereignty comes from Carl Schmitt, for whom the sovereign is ?he who decides on the state of exception?.30 Schmitt?s state of exception is a general concept in his theory of the state. The power to declare the exception is the sine qua non of statehood. His organizing principle of the political is based on the friend/enemy distinction; accordingly, the exception is the moment when that relation intensifies so that the sovereign order                                                    28 Cormack, supra note 1. 29 Nicholas Blomley, ?What Sort of Legal Space is a City?? in Andrea Mubi Brighenti, ed, Urban Interstices: The Aesthetics and the Politics of the In-between (Burlington: Ashgate, 2013). 30 Schmitt, supra note 11. The definitional challenges of sovereignty are tremendous. Sovereignty consists of ?a plausible claim to ultimate authority made on behalf of a particular polity? (Neil Walker, ?Sovereignty and Differentiated Integration in the European Union? (1998) 4 Eur LJ 355. It does not require that power must be vested in one place; it is constituted by the form of the political relationship between the state and citizens. I follow Martin Loughlin in describing sovereignty as a relational activity encapsulated in the relationship between government and people and law and politics (Stephen Tierney, ?Sovereignty and the Idea of Public Law? in Emilios Christodoulidis & Stephen Tierney, eds, Public Law and Politics: The Scope and Limits of Constitutionalism (Aldershot: Ashgate, 2008) 15.    24 must face the enemy.31 The exception is ?a case of extreme peril, a danger to the existence of the state, or the like?.32 Schmitt explores the state of exception through the dual elements of norm and exception, the latter underwriting the former.   The rule proves nothing; the exception proves everything: It confirms not only the rule but also its existence, which derives only from the exception.33  What characterizes the exception is ?principally unlimited authority? which ultimately entails the suspension of the entire existing order.34 The state remains, but law recedes. The result is a paradoxical situation in which the law is legally suspended by sovereign power.35   Despite Schmitt?s problematic support for the Third Reich, his conception of sovereignty retains currency.36 This is in part because it interfaces with modern constitutionalism?s preoccupation with the grounding of legal authority, particularly in a post-9/11 era of exception.37 Schmitt?s theory highlights decisive political action as the manner in which a nation defines itself.38 It is apposite here for its conception of juristic sovereignty. This directs attention to the nature of the legal which might remain when law recedes. In the paragraphs that follow, I develop Schmitt?s theory to argue that this legal residue is properly understood as jurisdiction. This reverses the emphasis of the standard script, which suggests that ?legal? modifies the noun of sovereignty to posit instead that ?sovereign? modifies the noun of law. Seen from this perspective, the state of exception reveals not only the political underpinnings of law, but also its encompassing jurisdictional framework.                                                     31 Jeff Huysmans, ?The Jargon of Exception - On Schmitt, Agamben and the Absence of Political Society? (2008) 2 Int'l Pol Soc 165. 32 Schmitt, supra note 11 at 6. 33 Ibid at 15. 34 Ibid at 12. 35 Bonnie Honig, ?The Miracle of Metaphor: Rethinking the State of Exception with Rosenzweig and Schmitt? (2007) 37 Diacritics 78. 36 Indeed, the implications of Schmitt?s support for the Third Reich are visible in some of the problematic aspects of his theory of the strong state, including a tendency toward dictatorship and anti-democratic and anti-rule of law preferences. I am grateful to Mary Liston for this point. See also Jeremy Webber, ?National Sovereignty, Migration, and the Tenuous Hold of International Legality: The Resurfacing (and Resubmersion) of Carl Schmitt? in Oliver Schmidtke & Saime Ozcurumez, eds, Of States, Rights, and Social Closure (New York: Palgrave Macmillan, 2008) 61. 37 David Dyzenhaus, ?Schmitt v Dicey: Are States of Emergency Inside or Outside the Legal Order?? (2006) 27 Cardozo L Rev 2005. 38 Webber, supra note 36 at 68.   25 On first reading, Schmitt appears to read the exception as revealing the autonomy of the political from law. This is based on the threshold between the norm and the exception. At this threshold between the legal norm and the sovereign exception, it is the sovereign who decides. ?The decision parts here from the legal norm, and (to formulate it paradoxically) authority proves that to produce law it need not be based on law?.39 Yet Schmitt is not merely claiming that the exception is political; his account retains a role for law, suggesting that political authority, itself outside of law, ends up producing a legal condition. It is this ? the juristic significance of the exception ? which is the basis for a theory of jurisdiction. This is how Schmitt describes the order that remains:  Because the exception is different from anarchy and chaos, order in the juristic sense still prevails even if it is not of the ordinary kind.40  The essence of sovereignty, juristically defined, is not the monopoly to coerce or to rule but the monopoly to decide. The result seems to place the sovereign somewhere between law and non-law: ?the state of exception is itself a legal condition of alegality?.41 The sovereign?s political decision has the force of law, such that the juridical order is preserved even when law is suspended.   For Martin Loughlin, Schmitt?s exception is really just a dramatic presentation of the concept of political sovereignty.42 He reads Schmitt?s contention ? that although the sovereign stands outside of the normal legal system he nevertheless belongs to it for he is the one who decides whether the constitution needs to be suspended in its entirety ? as his primary juristic insight.43 For Loughlin, though, Schmitt?s error lay in then finding that the fact that the exception was not rule-governed meant it was resolved through arbitrary will.44 Indeed, in The Foundations of Public Law, Loughlin seems to intimate something like what I am describing as jurisdiction. He describes the question of emergency as lying within the field of public law. For Loughlin, in the state of exception, ?positive law recedes, but droit politique remains?.45 However, this claim relies on Loughlin?s articulation of public law, and for this reason, it cannot be squarely transplanted here. The reason is that jurisdiction and public law do not connote the same commitments. Jurisdiction cannot abide by an internal                                                    39 Schmitt, supra note 11 at 13. 40 Schmitt, supra note 11 at 12. 41 Honig, supra note 35. 42 Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003) at 68 43 Schmitt, supra note 11 at 7; Loughlin, supra note 42. 44 Loughlin, supra note 42 at 69. 45 Martin Loughlin, Foundations of Public Law (Oxford: Oxford University Press, 2010) at 401.   26 distinction between positive and fundamental law, or between technical and sovereign law. Jurisdiction casts a wider net. Nonetheless, Loughlin?s alignment of the state with droit politique in the state of exception, substituting the latter for Schmitt?s formulation, is a useful harbinger to jurisdiction.   In fact, Schmitt himself refers briefly to jurisdiction. It is implied in Schmitt?s theory but it seems to perform no role.  The precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited. From the liberal constitutional point of view, there would be no jurisdictional competence at all.46    This mention of jurisdiction conjures the insight that jurisdiction continues to govern the exception. Yet, for Schmitt, jurisdiction was a non-starter. It existed as a feeble and irrelevant technicality insofar as it was either unlimited or non-existent. The effort, then, is to reclaim the place for jurisdiction in the theory of the sovereign exception.  For Schmitt, the applicability of law is not itself a matter of jurisprudence. Whether something is an exception to the law is a matter to be decided by the sovereign. Norm and exception are matters of state power. The limit of the juridical order is marked by sovereignty. In short, the threshold of the legal order and its applicability are distinctly non-legal, falling instead to politics and the sovereign. For Schmitt, the decision on the exception parts from the law and (paradoxically) proves that to produce law, it need not be based on law.47 Indeed, Bull describes the state of exception as, ?in itself, a purely formal device which allows ?the state to exist even as the law recedes??.48  But what lives between law and non-law if not jurisdiction? What concept governs whether law is applicable if not jurisdiction? What polices the limits of the legal order if not jurisdiction? If jurisdiction amounts to the delimitation of a sphere that is the precondition for the juridical as such, then surely this is its work. This jurisdiction is not apolitical, it does not only manage technical legal rules. It is robustly implicated in politics and sovereignty, part of the original constitution of the polis                                                    46 Schmitt, supra note 11 at 7. 47 Ibid at 13. 48 Malcolm Bull, "States don?t really mind their citizens dying (provided they don?t all do it at once): they just don?t like anyone else to kill them" London Review of Books (2004).   27 as well as its ongoing reconstitution. Despite Schmitt?s complex claims about the imbrications of law and sovereignty and his attention to the threshold between general norm and exceptional decision, he misses the work that the concept of jurisdiction does in both of those realms, likely in part because of the neglected political aspect of jurisdiction.49 The value of Schmitt?s theory lies in its rendering of law?s underpinnings and this point is well-taken. Law?s ambit rests on the sovereign. Yet, due in part to his focus on the political, Schmitt neglects to consider the law as jurisdiction, rather than as constitutional rules.  For Giorgio Agamben, the shortcoming of Schmitt was that his state of exception failed to call into question the very threshold of the political order itself.50 Since Agamben relies heavily on Schmitt?s theory of sovereign exception, it is useful to briefly articulate how his theory intersects with jurisdiction. For Agamben, sovereign power is concerned with the threshold of the political order, produced at the limit between the juridical order and its own suspension.51 He explains sovereignty as constituted by the legal exception:  If the exception is the structure of sovereignty, then sovereignty is not an exclusive political concept, an exclusive juridical category, a power external to law (Schmitt), or the supreme rule of the juridical order (Hans Kelsen); it is the originary structure in which law refers to life and includes it in itself by suspending it. ... [This is the] potentiality of the law to maintain itself in its own privation, to apply in no longer applying.52   As Malcolm Bull paraphrases, ?it is all very well having a legal system, but sovereignty cannot finally repose in the law if someone is able to decide that the law is no longer in force?.53   For Agamben, the exception is a kind of exclusion. It is the decision to abandon life, to place it beyond law, which is the decision on the exception which constitutes the law.54 This is bare life or homo sacer. The modern condition is marked by the ?inclusive-exclusion? of bare life in the political                                                    49 Schmitt, supra note 11 at 13.  50 Agamben does not develop an account of jurisdiction although State of Exception briefly recounts the historical states of exception in terms of jurisdiction: see Shaun McVeigh, ?Subjects of jurisdiction: the dying, Northern Territory, Australia, 1995-1997? in Shaun McVeigh, ed, (New York: Routledge-Cavendish, 2007) 202. 51 Agamben, supra note 11.   52 Ibid at 28. 53 Bull, supra note 48. 54 Agamben, Homo Sacer, supra note 11 at 18.   28 order.55 Agamben executes the link between sovereignty and bare life by bringing Michel Foucault?s distinction between juridico-political power and biopolitical power inside sovereignty.56 Here, it is law that ?refers to life and suspends its juridical and political status as a bearer of rights?.57 The result is that homo sacer is included in the juridical order solely in the form of its exclusion. This ?relation of exception? involves the ?inclusive-exclusion? of the life which is excluded from the normal juridical order. As Stewart Motha describes:  The question of whether a person is inside or outside the law is not only a question of law?s ?application?, but also a more complex case of being ?abandoned?, ?inclusively excluded? by the law.58   It is not the decision to apply law, but the decision to abandon life that constitutes Agamben?s juridical order. Motha reminds us that the etymological root of ?abandon? is ?bandon?, which means ?jurisdiction and control?.59 In his discussion of the habeas corpus case law arising from Guantanamo Bay, Motha argues that abandonment is not properly conceived as an instance of absolute sovereignty or the condition of being unmediated by law.60 Habeas corpus, whether used to intern or free, is a ?mode of binding subjects to the law?.61  So too with the abandoned being. To be banished from a particular jurisdictional order is also to be subject to that order. The abandoned life ?lies at the limit-point of jurisdiction?.62 For Motha, nothing is closer to jurisdiction than the abandoned figure.  Yet the terminology of the ?limit-point of jurisdiction? is not the language used by Agamben. Despite its fixation on sovereignty and law, Agamben?s theory does not name jurisdiction. Cormack suggests that theorists of sovereignty overlook jurisdiction as a site for theory because jurisdiction is too far inside the juridical order that they seek to counter, too implicated in its discourse and technology to be challenged, and too captive to an order past.63 For Cormack, Agamben?s reconceptualization of                                                    55 Agamben takes this further, suggesting that as bare life moves from the margins to the centre of the political realm, it creates a ?zone of irreducible distinction?. See Agamben, Homo Sacer, supra note 11 at 9. 56 Ibid at 6. 57 Stewart Motha, ?Guantanamo Bay, abandoned being and the constitution of jurisdiction? in Shaun McVeigh, ed, Jurisprudence of Jurisdiction (New York: Routledge-Cavendish, 2007) 63. 58 Ibid at 74. 59 Ibid at 79. 60 Ibid at 79. See also the discussion in Kal Raustiala, ?The Geography of Justice? (2005) 73 Fordham L Rev 2501. 61 Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Michigan: University of Michigan Press, 2003). 62 Motha, supra note 57 at 79. It is worth pointing out that this dynamic is also true of law more generally: each legal decision not to regulate or reach an issue is also an act of state power. 63 Cormack, supra note 1 at 7.   29 sovereignty ? in which bare life is scarcely included in the political through juridical inclusion ? is ?far removed? from the threshold between areas of judicial competence.64 I am not sure that this is quite right: jurisdiction is more than simply the infrastructure of the juridical order or part of the configuration of legal authority. It is the very extension of state power in the form of legal authority; it is how legal authority gets done ? how it is extended, reconceived, and abbreviated. This makes jurisdiction a conceptual powerhouse with the capacity to remake legal categories. Conceived properly, jurisdiction is the political heart of the juridical order.  In order to be a life mediated by law, one must be within the jurisdiction of the sovereign. Indeed, as Hannah Arendt taught us, the quintessential measure of being a subject whose life is mediated by law depends on being a citizen (thus, within the jurisdiction) of a nation-state.65 The other measure, of course, is territory. The state of exception occurs when the sovereign identifies and polices the threshold between inclusion and exclusion. When bare life is excluded, when the law refuses authority over homo sacer, this is properly understood as a jurisdictional act. Agamben, in other words, was partly theorizing the jurisdictional nature of the state of exception. The value of jurisdiction in this frame lies both in focusing the inquiry on the threshold and in the tools it offers for analyzing inclusion and exclusion.  Both Schmitt and Agamben neglect jurisdiction, but Schmitt?s theory is the more helpful basis for understanding the politics of jurisdiction and its overlap with sovereignty. Due to Agamben?s focus on the state of exception as the paradox of inclusion/exclusion, his theory is ultimately a theory of sovereign exclusion.66 The sole purpose of the threshold for Agamben is to exclude. Jurisdiction, however, is not only the binary of inclusion/exclusion. Legal authority presumes a separation of the legal from the non-legal, but this encompasses other jurisdictional acts and technologies, such as categorization and delineation. In other words, Schmitt?s theory takes jurisdiction beyond the binary of inclusion/exclusion to parse the additional terms of the jurisdictional threshold.   The value of jurisdiction for Schmitt?s sovereignty is equally visible when we approach the matter from the direction of jurisdiction itself. Loughlin describes the relationship between sovereignty and jurisdiction succinctly:                                                     64 Ibid at 7. 65 Hannah Arendt, The Origins of Totalitarianism (San Diego: Harcourt, 1979). 66 I am indebted to Jeremy Webber for this point.   30  Jurisdictional questions of competence ultimately rest on political issues of capacity, the norm on the exception.67  By tying jurisdiction (competence, to use Loughlin?s word) to Schmitt?s concept of the exception, Loughlin pushes the political aspect of jurisdiction further, to the legal threshold where law speaks to itself about the limits of its authority. The politics of sovereignty both underlie and constitute metaphysical and quotidian jurisdictional decision making. It is not only that jurisdiction?s primordial loyalties are to sovereignty68, but also that jurisdiction is itself political. Attention to the political conjures a legal-political binding at the heart of jurisdictional analysis which moves this dissertation past the stalemate between sovereignty and jurisdiction as distinct spheres, which occupies dozens of legal texts, and jurisdiction as merely technical, which is the dominant projection. The conceptual centre of jurisdiction is a place where the legal is lashed to the political, and their uneasy coexistence is continually rearticulated in a jurisprudence of precedent.      The problem is that Loughlin is committed to a strict separation of political and legal sovereignty. For both Schmitt and Loughlin, sovereignty (or at least political sovereignty) is indivisible.69 Loughlin explains this indivisibility by recourse to legal sovereignty, or jurisdictional competence, which may be divided or delegated. Yet Loughlin does not spend much time here, preferring to focus on the relationship between public law and political sovereignty. The result is that a robust account of political jurisdiction remains to be developed. This requires a shift from looking for law in the political to looking for the political in law, and it reveals that the lack of constitutional law or public law or specifications of competence does not mean the absence of jurisdiction.  The reformulation that jurisdiction allows, one in which the state of exception is about the scope of law?s authority, shows the eternal imbrications of sovereignty and jurisdiction. Indeed, the juristic sovereignty that Schmitt and Loughlin describe is simultaneously sovereignty beholden to jurisdiction, which tells of the general norms which constitute the ordinary constitutional order, and jurisdiction beholden to sovereignty, which tells of the political machinations in the legal threshold, even the threshold of exception. Together, they provide a way to see that the state of exception is not                                                    67 Loughlin, supra note 42 at 95. 68 For Loughlin, establishing and maintaining the state is ?the singular undertaking of public law?: see ibid at 91. 69 Schmitt, supra note 11 at 8; Loughlin follows Schmitt on this: see ibid at 84.   31 the eradication of law but rather a statement about the nature of law?s authority. Indeed, Loughlin hints at the implications of Schmitt?s conception when he argues in passing that, in the situation of exception, ?law cannot work solely with the legal-illegal distinction?.70 Jurisdiction permits the possibility that the constitutional failure to enumerate the exception does not render the decision that produces it alegal. The legal suspension of law is a jurisdictional act. The abrogation of law, as much as the constitution and application of law, tells us about what lives in the jurisdictional threshold. This involves a shift away from the juridical relation between sovereign and exception to focus on their meaning, their place, and the modes of their relation to the law.  2.3.1.3 From Sovereign Exception to Jurisdictional Limit: Political-Legal Binding The political-legal binding takes several forms. Jurisdiction is in many senses the ultimate manifestation of sovereignty, both in its original manifestation and as an ongoing recalibration of the limits and extent of sovereign power, as seen through the eyes of law. This is particularly true in an era where the use of force and the ability to declare war ? those quintessentially sovereign acts ? are highly regulated juridical acts. This is Robert Cover?s point when he describes jurisdiction as the judicial articulation of the institutional privilege of force. For Cover, the texts of jurisdiction both conceal the ?naked jurispathic act? and apologize for the state and for its violence. 71 In other words, given the legal character of certain sovereign acts, jurisdiction often functions as the voice of sovereignty.   In another sense, as Douzinas explains, sovereignty is the precondition for jurisdiction. Every jurisdictional act implicates the state: its reach, its content, and its rules. Because jurisdiction is borne of sovereignty and continually dependent on it, even when it speaks past it or ignores it, it is nonetheless policing its limits, adding substance to its categories, and sorting its subjects and objects into legal orders. To some extent, every extension of jurisdiction is also an extension of sovereignty. This is what Loughlin means when he writes that jurisdictional questions ultimately depend upon issues of sovereign capacity. There is little space, then, to separate jurisdiction from sovereignty.                                                     70 Loughlin, supra note 45 at 401. 71 Robert M Cover, ?The Supreme Court, 1982 Term - Foreword: Nomos and Narrative? (1983) 97 Harvard L Rev 4. Although Cover discusses jurisdiction, his project differs from this one: first, he is concerned with adjudicatory jurisdiction, specifically the commitments implicit in assuming jurisdiction by judges; second, Cover is interested in the narrative aspect of jurisdiction (i.e. what stories do judges tell about their own authority? What stories do they rely upon? How do these stories empower and disempower communities and particularly nomos?); third, he suggests a redemptive vision in which judges consciously consider the violence at the root of their acts.   32  A final form is the role of the political in the jurisdiction calculus. By assembling the discourses of jurisdiction, as is done later in this chapter, it becomes clear that jurisdiction does not always see its authority as merely technical issues of scope. In some incarnations, the political-legal linking is crucial to the jurisdictional manoeuvre, and in others, it is essential to understanding contemporary jurisdictional arrangements. Consider, for example, the United Nations, whose jurisdiction over semi-sovereign territories is articulated in legal terms in Chapter XI of the UN Charter, but is constituted by international politics. This is one reason why the United Nations processes for East Timor, Kosovo, and Western Sahara have diverged so sharply. Or consider the right to French schooling in Canada, where the political sovereignty of founding peoples was manifested through the law of constitutional provisions and corollary minority language jurisdictions. These educational sites are a potent mix of politics and law, existing as legal exceptions for political purposes to the equality rights embodied in the constitutional text.72 Law is a way of doing politics, too.  Cormack would probably agree that there is very little space between sovereignty and jurisdiction, and it is certainly my point that sovereignty and jurisdiction are intertwined in complex ways. But it is also the case that sovereignty is not entirely enacted through jurisdiction, which is a claim that Cormack sometimes seems to make.73 Sovereignty is not only law; it is also bare power, politics, and autonomy. It is undoubtedly true that jurisdiction has a ?formal, distributive function that returns the political to the administrative reality?, but it is also true that the political does not stay in that administrative reality, nor is it completely defined by it.74 The political, ever and always, escapes like steam under the doors of law.   So it is that sovereignty must nonetheless remain in the frame. This offers theoretical resolution on two levels. At the practical level, the political-juridical linking at the base of jurisdictional inauguration is the key to some of the theoretical confusion that surrounds jurisdiction. This will become more visible later in the chapter. It offers some congruence for the many meanings of                                                    72 See, infra, Chapter 4, section 4.5.2. 73 Indeed, Cormack?s account suggests that sovereignty is, to some extent, coeval to jurisdiction; for example, in phrases such as ?there is no sovereignty that is not enacted in the register of jurisdiction?. This might be too sweeping ? sovereignty is certainly enacted through legal limits and boundaries, but it is not only enacted this way. This divergent characterization may result in part because his task is different: Cormack is interested in the instability of law and the possibility that legal norms have more than one source. See Cormack, supra note 1 at 9. 74 Ibid.   33 jurisdiction: some manifestations are more aligned with law-making, while others are closer to law-application; it figures into the meaning of territorial jurisdiction, which is a legal manifestation of political decision making; and it embodies the exclusionary aspect of jurisdiction by tracing issues of legal scope back to the original sovereign community. A significant amount of jurisdictional discourse refers back to this inaugural articulation. Moreover, it is an important piece of the methodology of this dissertation, which probes jurisdiction as both the authority of law and the attachment of law. In the end, it turns out that one of the main goals of getting legal jurisdiction is to explode political sovereignty.  At a more abstract level, paying attention to jurisdictional inauguration permits a radical reconsideration of the group. Lurking behind this project is an effort to think about the inaugural gestures of jurisdiction by paying attention to the antediluvian moment before Westphalia, before international law, before constitutions, and before multiculturalism. By occasionally casting back to the primordial jurisdiction that issued from sovereignty, it may be possible to bring new coherence, or at least new lenses, to the disparate body of jurisdictional discourse and to engage with a new kind of jurisdictional analysis. The goal throughout is to acknowledge jurisdiction as the sovereign inauguration of law, to explain some of the theoretical disjunctures in jurisdictional discourse, and to agree that jurisdiction often points back toward foundational questions of statehood and legitimacy, but all without being pulled into the theoretical quicksand that is the political theory of sovereignty.  To conclude on this point, both categories of inaugural gestures ? the metaphysical and the conditions of law?s attachment ? share the underlying notion that jurisdiction expresses the domains of law, and that these domains must be produced originally and reproduced constantly. Jurisdiction shows us the work done at the legal threshold, and in so doing, reveals both the shape of sovereignty and the deep ideology embedded there. It actualizes the law through the process of defining boundaries and testing limits. This moves legal analysis away from questions about law?s interiority ? who has authority over whom and what specific rules this authority imposes ? and toward the acts of separation and delineation themselves and their consequences.75 Putting this theoretical insight into practice requires looking at instances of law?s application and the negotiations that take place around its limits. To follow this analysis through the existing orders that connect ?the very                                                    75 Drakopoulou, supra note 3.   34 possibility of legal authority and judgment? 76 in the context of territorialized group difference thus opens a window onto the distribution of authority and the entitlements to difference in those scaled legal orders. As Lorna Hurston writes, modes and categories of identity and relationship are continually produced at the boundaries of various jurisdictions.77 After all, ?jurisdiction is the language in which, all but impossibly, a juridical order encloses the world?.78  2.3.2 Contemporary and Technical Jurisdiction The content of jurisdiction barrels toward us from all sides: legal theory, public international law, conflicts of law, constitutional law, and administrative law. The literature on jurisdiction is itself sorted into scalar silos.  There is the scant body of legal theory about jurisdiction, and then there are the public international law principles of jurisdiction, the national jurisdictional doctrines, and the private international law tests. A search for scholarship about jurisdiction reveals its primary location in the international law frame, which is replete with typologies, principles, and cases.79 This section sets forth the relationship between these jurisdictional silos and tries to reconcile the content of public and private, international and national, in a way that lays the groundwork for theorizing jurisdiction.    This dissertation relies on a concept of jurisdiction that is inherently public in nature.80  Jurisdiction is, first and foremost, an extension of sovereignty, an exercise of authority that emanates from a sovereign community. The sovereign is indisputably public. On the national scale, jurisdiction manifests itself through the three branches of government. Even when the subject matter is private, such as in the case of enforcement of a foreign arbitration award, the act of jurisdiction ? whether executive, legislative, or adjudicative ? is still public.81 The public nature of jurisdiction is a                                                    76 Bradin Cormack, ?Locating The Comedy of Errors: Revels Jurisdiction at the Inns of Court? in Jayne Archer, Elizabeth Goldring & Sarah Knight, eds, The Intellectual and Cultural World of the Early Modern Inns of Court (Manchester: Manchester University Press, 2013). 77 Hutson, supra note 21 at 509. 78 Cormack, supra note 1 at 9. 79 It is worth noting that the substance/theory aspect of jurisdiction is most considered in the United States in the frame of jurisdiction to adjudicate: see, e.g., Mary Twitchell, ?The Myth of General Jurisdiction? (1988) 101 Harvard L Rev 610.  80 Teresa Scassa & Robert J Currie, ?New First Principles? Assessing the Internet?s Challenges to Jurisdiction? (2011) 42 Geo J Int'l L 1017. 81 An exception might be where private parties agree to private arbitration, essentially contracting out of the public jurisdiction of the courts, although even these mechanisms are regulated by public law jurisdiction. For example, governments may choose to regulate access to them, or may set limits on the enforcement of private awards.   35 constant reminder that the state?s capacity to exercise jurisdiction fundamentally implicates its ability to govern.   On the international scale, it is obvious that the public international law principles of jurisdiction derive from the public, state apparatus. International rules on jurisdiction relate to the exercise of national jurisdiction in the interstate arena. They are customary international law rules on the relations between states. These rules are about the reach of the state?s legal authority.82  In his treatise on international law, Ademola Abass writes:   Jurisdiction is the foundation of the internal order of every State. It is the assertion of a State?s sovereignty over the making of law, the enforcement of law, and the adjudication of legal issues. Since international law involves the operation of the internal orders of all States, jurisdiction plays the most fundamental role in shaping both orders.83  Private international law rules are similarly public in two distinct ways: first, they are best conceived as national laws emanating from the state apparatus: they are ?civil procedure rules for cases with connections to more than one jurisdiction?.84 Second, as F.A. Mann has stated, they are themselves governed by public international law. International law does not prescribe the content of the rules, but it does prescribe the limits within which state rules of private international law may operate.  If jurisdiction is fundamentally public, then how should we understand the relationship between different scales or fields of law? For decades, jurisdiction literature has relied on the division of the state into three spheres for the purpose of exercising jurisdiction. These originate in the international law field but they refer back to the national unit and thus are a useful way to think about the channels through which jurisdiction travels.   There are three types of jurisdiction85:                                                    82 The rules on international jurisdiction are very limited. They are based on state consent, Security Council authorization, and the adjudicatory jurisdiction of the International Court of Justice. See Lori Fisler Damrosch et al, International Law: Cases and Materials, 4th ed (St. Paul: West Group, 2001). 83 Ademola Abass, Complete International Law (Oxford: Oxford University Press, 2011). 84 Stephen Pitel & Nicholas Rafferty, Conflict of Laws (Toronto: Irwin Law, 2010).    85 See American Law Institute, Restatement of the law, third, the foreign relations law of the United States (St. Paul: American Law Institute Publishing, 1987). Damrosch et al, supra note 82. Brownlie, supra note 8. Malcolm N Shaw, International Law, 5th ed (Cambridge: Cambridge University Press, 2003).   36  Prescriptive ? the power to make rules. Prescriptive jurisdiction encompasses the fact that these rules may be made by legislatures, other government institutions, and courts. States have unlimited prescriptive jurisdiction. A legislature may make laws on any subject and covering any person. National courts derive their jurisdiction from these laws.  Adjudicatory ? the authority to subject persons and things to its legal process. Adjudicatory jurisdiction encompasses the judicial sphere and pertains to the power to hear and decide legal matters.  Enforcement ? the power to enforce laws. Enforcement jurisdiction refers to the use of government resources to induce or compel compliance. It is the purview of the executive branch.  Bowett explained the hierarchical relationship between these types of jurisdiction by noting that jurisdiction ?hinges on the power to prescribe?.86 Prescriptive jurisdiction refers to state acts, usually in legislative form, wherein a state characterizes conduct as delictual, such as criminal, civil, commercial codes. Bowett argued that there could be no enforcement jurisdiction without prescriptive jurisdiction; yet there may be prescriptive jurisdiction without the possibility of enforcement jurisdiction.87 Prescriptive jurisdiction, then, is fundamentally national.88  Prescriptive jurisdiction generally refers to state constitutions and legislation in which the state sets the parameters for law. As part of this exercise, the state parcels out jurisdiction to the entities, spheres, and locations set out therein. Enforcement jurisdiction refers to the coercive power of law, the ability to curtail liberty or otherwise rectify the situation. Adjudicatory jurisdiction is really a subset of enforcement jurisdiction, a way to enforce prescriptive jurisdiction or to settle contested claims about it. Yet even this dual typology is blurred because it is the prescriptive acts that authorize the coercion and violence of enforcement jurisdiction; or, if not stated, it is inherent to prescriptive jurisdiction that where enabling legislation does not delimit the powers of the legal actor, there is plenary or policing power.89 There is, in other words, no clear division between prescription and enforcement.                                                      86 DW Bowett, ?Jurisdiction: Changing Patterns of Authority Over Activities and Resources? (1982) 53 Brit YB Int'l L 1.  87 Ibid. 88 Mann, supra note 6. 89 Restatement, supra note 85.   37 This is a fundamental insight ? that all jurisdiction is ultimately national ? one which has been digested by international law, but not taken to its logical conclusion.90 This is partly a function of conceiving jurisdiction as a function of sovereignty.91 Indeed, in 1927, the Permanent Court of International Justice in The  Case of the S.S. ?Lotus? confirmed that:   In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places on its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty?.92   However, the national origins of jurisdiction also refocus attention on the scalar legal orders which purport to separate conceptions of jurisdiction. The logical conclusion is that while the typology might help to categorize state acts and might even help to understand the different jurisdictional silos and spheres, it does not shed light on jurisdictional theory, nor does it offer a principled way to approach technical jurisdictional doctrine. It is a heuristic for both interstate and intrastate cases, but not more.  2.4 Mapping and Scaling Jurisdiction In one sense, I am using jurisdiction as a motif, ?a lens through which to ask more foundational questions? about law?s relationship with group difference in various frames.93 But I am also interested, at the conceptual level, in how jurisdiction is theorized. The few studies of conceptual jurisdiction that exist all describe the concept as overlooked and understudied. Certainly there is no shared discourse, no language of analysis, for jurisdiction. There are two predominant features of theories and formulations of jurisdiction to date: ?the significance of the state and its sovereignty; and the means through which the attachments of jurisdiction proceed?.94 The result is a series of well-worn concepts: the nation-state, sovereignty, jurisdiction, and territory, which are measured against political theory?s metrics of legitimacy and some version of the original social contract.  For both McVeigh and Cormack, separating jurisdiction from sovereignty and the nation-state renders the contours of the concept more visible. For this project, however, the sovereign state                                                    90 See Damrosch et al, supra note 82. Abass, supra note 83.  91 Roger O?Keefe, ?Universal Jurisdiction: Clarifying the Basic Concept? (2004) 2 J Int'l Crim Justice 735. 92 The Case of the S.S. ?Lotus? (France v. Turkey) (1927), Series A, No. 10 1927 5 (PCIJ).  93 Annalise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (Chicago: University of Chicago Press, 2011). 94 Dorsett & McVeigh, supra note 10.   38 remains the axis upon which jurisdiction turns. As explained above, although the modern nation-state emerges as a particular form of jurisdictional organization, it is the dominant one and the most relevant to this project. This section begins with Boaventura de Sousa Santos? work on inter-legality, a piece that sits in the background of this dissertation, informing its method and approach, as well as its theoretical loyalties. It then surveys the limited set of theoretical contributions to jurisdictional theory, seeking to find their common insights and to locate the remaining gaps.  2.4.1 Mapping the Reach of the Law The origins of this dissertation come partly from Boaventura de Sousa Santos? seminal work on inter-legality. It is worthwhile to dwell for a moment on the place for metaphor, both in the work of de Sousa Santos and in studies of law and space generally. When law meets space (or place or scale or geography writ large), the results are sometimes literal and sometimes metaphorical. These metaphorical representations highlight and reveal common aspects of both realms. In their best incarnations, metaphors are more than the sum of their parts, pointing the way for new ways of imagining and analyzing a subject. Thus, there is much to consider in de Sousa Santos? ?strong metaphor? that:  Indeed, laws are maps; written laws are cartographic maps; customary, informal laws are mental maps.95   He draws out two points here: first, maps inevitably distort reality, and they must do so in order to fulfil their function; and second, maps and laws share a predilection toward abstraction and universality. The map is a springboard for his ?symbolic cartography of law? marked by features of scale, projection, and symbolisation. This theory suggests that different kinds of juridical capital (state, private, sacred, profane) circulate within and across spaces, and that each kind of juridical capital carries specific kinds of actions and symbolic universes.   For the purpose for this project, it is the scale conception of law that matters most. De Sousa Santos describes three legal spaces with corresponding forms of law: local, national, and world. Local law is large-scale legality, national law is medium-scale legality, and world law is small-scale legality. He                                                    95 Boaventura de Sousa Santos Santos, ?Law: A Map of Misreading. Toward a Postmodern Conception of Law? (1987) 14 JL & Soc'y 279.   39 suggests that the coexistence of these various legal systems is facilitated by their operation at different scales.   This means that, since scale creates the phenomenon, the different forms of law create different legal objects upon eventually the same social objects. They use different criteria to determine the meaningful details and relevant features of the activity to be regulated. They establish different networks of facts. In sum, they create different legal realities.96   For de Sousa Santos, then, there are various legal orders operating on different scales. This poses a difficulty for analysis because these legal spaces operate simultaneously not only on different scales but also from different interpretative standpoints. This leads us into de Sousa Santos? concept of legal pluralism, a core concept in his postmodern view of law. This is legal pluralism not conceived as different legal orders ?coexisting in the same political space but rather the conception of different legal spaces superimposed, interpenetrated, and mixed in our minds as much as in our actions?.97   So much is this so that in phenomenological terms and as a result of interaction and intersection among legal spaces one cannot properly speak of law and legality but rather of interlaw and interlegality. [...] Our legal life is constituted by an intersection of different legal orders, that is, by interlegality.98   Thus, legal orders, ?each of which has its own scope, its own logic, and its own criteria for what is to be governed, as well as its own rules for how to govern?, exist in a state of perpetual interaction.99 This is interlegality. For the symbolic cartography of law, what follows from this vision of interlegality is that each scale of legality is associated with certain boundaries (de Sousa Santos calls these regulation patterns, action packages, and regulation thresholds). He is not describing boundaries as physical or even metaphorical borders, but rather as ways to demarcate scales of legality one from another. This is essentially jurisdictional discourse and, indeed, Valverde extends his analysis into the jurisdictional vernacular.                                                      96 Ibid. 97 Ibid at 298. 98 Ibid at 288, 298. 99 Mariana Valverde, ?Jurisdiction and Scale: Legal ?Technicalities? as Resources for Theory? (2009) 18 Soc & Leg Stud 139.   40 For de Sousa Santos, it is more important to trace the relations among the legal orders than to identify the different legal orders themselves. Because this project has other work to do in crystallizing and applying the concept of jurisdiction, it starts with identifying, mapping, and analyzing the legal orders and only then cogitates about how they relate to each other. Several of the cases examined reveal the relations among legal orders: Reference re: Secession of Quebec seeks to answer the question of whether international law or Canadian constitutional law governs the case of Quebec, while Advisory Opinion on Western Sahara is an international case that seeks to distinguish the nature of sovereign, national characteristics from local forms of organization, using one to inform the other.100    De Sousa Santos is aiming toward a ?new legal common sense?, one that uncovers the latent or suppressed forms of legality, whether they are infra-state or supra-state. However, it is his penultimate observation about how different legal orders regulate the same social objects that this dissertation draws upon. He points out that the fragmentation of legality is not chaotic. It is a social construction built according to the rules of scale, projection, and symbolisation. This provides a launching point and a partial explanation for how and why groups look different from different vantage points. De Sousa Santos? base challenge is essentially to map the law, to lay bare how sometimes contradictory and sometimes incommensurable logics and rules coexist. There are many more layers to his symbolic cartography of law and postmodern legal pluralism, but it is his insights into the scales of legality that tip us into jurisdiction and group difference.  It is the work of Mariana Valverde that connects interlegality to jurisdiction, locating the implicit references to jurisdictional scale in de Sousa Santos? work and giving them theoretical mass. She studies how legal governance is accomplished through jurisdiction, and uses this to inform understandings of scale in social theory. For Valverde, questions about scale and jurisdiction can be ?grouped together as questions about the scope of projects?.101 In this relationship, jurisdiction exceeds scale.                                                      100 Reference re Secession of Quebec, [1998] 2 SCR 217; Western Sahara, Advisory Opinion, [1975] ICJ Reports 12. 101 Mariana Valverde, ?Questions of security: A framework for research? (2011) 15 Theor Criminology 3.   41 Valverde builds on the concept of interlegality by deriving the unarticulated insight that legal powers and legal knowledges appear to us as always already distinguished by scale. She then describes the role that jurisdiction plays:  Legal governance, in other words, is always already itself governed; and the governance of legal governance is the work of jurisdiction.  The details of Valverde?s approach will be addressed later; the point at the outset is that de Sousa Santos and Valverde remind us of the importance of answering questions about how we are governed and about the legal forms of public power.102 They draw attention to the effects or consequences of jurisdictional analysis. The international, national, and sub-national scales make up different jurisdictions that govern territorialized group difference. They share some features but not others. There are internal contradictions within each legal order as well as external contradictions between the legal orders.103 Some features of one legal order are incommensurable with the features of another legal order.  These theoretical insights are mobilized in two ways. First, I make them operational by taking the social object of group difference and analyzing it using the tools of scale and jurisdiction. In a sense, I make the objects of legal governance into subjects, tracing their agency and resistance, as revealed through the common law.104 This reveals the different legal orders that regulate group difference. It also maps the terrain of law and group difference. Second, I incorporate the spatial and temporal aspects of each order, which reveal the strict limits of legal ordering, the self-generative aspects of jurisdiction, and the deep challenges to the liberal state that both constitute and animate scalar jurisdictional pluralism. The following chapters endeavour to map the work that jurisdiction does in the setting of territorialized group difference, and to take seriously the interactive aspect of interlegality by focusing on relationships and overlaps.   In one sense, then, this dissertation is primarily genealogical and analytical, tracing the path of jurisdictional manoeuvres over instantiations of group difference. By applying the jurisdictional lens to this subject-matter, the dissertation reveals governing logics for each legal order and demonstrates                                                    102 David Kennedy, International Law Course (Fall 2007), Harvard Law School, class notes on file with author.  103 Valverde, supra note 99. 104 Kevin Walby, ?Contributions to a Post-Sovereigntist Understanding of Law: Foucault, Law as Governance, and Legal Pluralism? (2007) 16 Soc & Leg Stud 551.   42 how jurisdiction sorts difference through and into law. It reveals law?s multivocality and traces the voices of the law and groups in each legal order. In so doing, however, it is necessary to interrogate and add to the scholarship on jurisdiction. In this additional sense, then, the dissertation is also conceptual and theoretical. It is impossible to engage with the nascent field of jurisdiction studies without discussion of foundational terms and concepts. Notions of jurisdiction and scale stemming from legal philosophy, law and society, sociology, and law and geography must be put into conversation with the existing legal frameworks of jurisdiction.  2.4.2 Scale, Shot Through with Power De Sousa Santos? theory of interlegality relies on the concept of scale, a geographical concept that is commonly used to denote the size or level of a phenomenon. Social theorists often speak of the local, national and global scales, among others. There is, however, a raging debate in geography about the nature and utility of the concept of scale.105 This dissertation uses scale as a description of and a method for analyzing different legal assemblages and orders. It defends the position that legal orders may be productively conceived and represented using scalar vocabulary. It also aligns itself with those scholars who believe that scale is an ?organizing epistemology? and that insights may follow when we trace ?how it is put to work and made real, under what conditions, and what work they perform?.106  The issue turns on the ontological status of scale. The central fault line in the debate is between those for whom scale is a wholly social construction and those for whom scale is a series of spaces or spatial units or hierarchical domains.107 The ontological view conceives scale as a structure or thing that exists in the world. This conception is criticized for seeing scales as given, rather than produced,                                                    105 See, e.g., Sallie A Marston, John Paul Jones III & Keith Woodward, ?Human geography without scale? (2005) NS 30 Transactions of the Institute of British Geographers 416; Helga Leitner & Byron Miller, ?Scale and the limitations of ontological debate: a commentary on Marston, Jones and Woodward? (2007) NS 32 Transactions of the Institute of British Geographers 116; Chris Collinge, ?Flat ontology and the deconstruction of scale: a response to Marston, Jones and Woodward? (2006) NS 31 Transactions of the Institute of British Geographers 244; Arturo Escobar, ?The ?ontological turn? in social theory. A Commentary on ?Human geography without scale?, by Sallie Marston, John Paul Jones II and Keith Woodward? (2007) NS 32 Transactions of the Institute of British Geographers 106; John Paul Jones III, Keith Woodward & Sallie A Marston, ?Situating Flatness? (2007) NS 32 Transactions of the Institute of British Geographers 264.  106 Blomley, supra note 29. 107 In addition to the references in fn 105, see also: Peter J Taylor, ?A materialist framework for political geography? (1982) NS 7 Transactions of the Institute of British Geographers 15; John Agnew, ?Representing space: space, scale and culture in social science? in James S Duncan & David Ley, eds, Place/Culture/Representations (London: Routledge-Cavendish, 1993) 251; Neil Smith, ?Scale? in Ron Johnston et al, eds, The Dictionary of Human Geography, 4th ed (Oxford: Wiley Blackwell, 2000) 724.   43 as ?actually existing entities that constitute the spatial context for social action?, as flattening difference, and as fitting the world into limited scalar categories.108 The other views (and there is not only one) conceive scale as a category or heuristic that gestures toward notions of spatial hierarchy. Analysis and solutions range from proposals to incorporate actor network theory to proposals to abolish scale as a concept.109  This dissertation cannot attend to the complexities of the debate but it can reclaim common points of agreement.110   The first of these points of agreement is that scale is an ?epistemological organizing frame?.111 What follows from this is that scale is, as Katherine Jones describes, a ?representational trope?, which means it is a way of framing positions that is not neutral.112 This turns out to be the way that de Sousa Santos and Valverde are using the term: to denote how processes of categorization, such as jurisdiction and scale, bear certain rhetorics.113   The strategies of presentation (how they present ? what is left in and what is left out) themselves construct a particular form of knowing. They both encourage certain meanings and constrain or limit other meanings (Norris, 1987); ?true? meaning can never simply pass through a trope, it is always shaped.114  This dissertation advances the epistemological sense of the concept of scale as ?a mode for apprehending the world?.115 This opens the way to use scale as a kind of heuristic, a tool or a lens                                                    108 Blomley, supra note 29. 109 On actor network theory, see: Kevin R Cox, ?Spaces of dependence, spaces of engagement and the politics of scale, or: looking for local politics? (1998) 17 Pol Geography 1; Peter J Taylor, ?Is there a Europe of cities? World cities and the limitations of geographical scale analysis? in Eric Sheppard & Robert B McMaster, eds, Scale and Geographic Inquiry: Nature, Society, and Method (Oxford: Blackwell Publishers, 2004) 213; Helga Leitner, ?The politics of scale and networks of spatial connectivity: transnational interurban networks and the rescaling of political governance in Europe? in Eric Sheppard & Robert B McMaster, eds, Scale and Geographic Inquiry: Nature, Society, and Method (Oxford: Blackwell Publishers, 2004) 236; On abolishing scale, see: Marston, Jones III & Woodward, supra note 105. 110 Both lack of space and lack of expertise prevent explanations of, for example, networked scalar configurations. 111 See: Katherine T Jones, ?Scale as epistemology? (1998) 17 Pol Geography 25. Blomley, supra note 29. Marston, Jones III & Woodward, supra note 105. 112 Jones, supra note 111. 113 James S Duncan, ?Me(trope)olis: Or Hayden White among the urbanists? in Anthony D King, ed, Representing the City (Basingstoke: Macmillan, 1994) 253. 114 Jones, supra note 111. 115 Ibid.   44 through which to tell the scalar narratives of law.116 Whatever scale is not, it is an organizing representation of the world.   Once we see scale as a way of knowing or apprehending, we find a second point of agreement in the debate. This is the point made by Leitner and Miller, who argue that scale is not merely an epistemological framework or a representational practice: ?it is, above all, a diverse array of material and representational practices, shot through with power?.117 It is not only, as Blomley and Jones agree, that scale is negotiated and constructed, deployed discursively in political struggles, but also that it can put down roots and become a part of an organizing framework. Or, put differently, that the technologies of power employed in the social production of scale deserve close attention.118 One of those technologies of power is law. When it comes to law, scale is a key part of how law is known and apprehended. Part of finding the law (in terms of law on the books) is knowing where to look for it. Some legal issues are international; other legal issues are constitutional; still others are contested or between legal fields. The point is that at least some part of what is true or knowable about law is cast in the frame of scale.  Scale is part of the organizing architecture of law. It is not controversial that the law is divided according to scalar logic: international law, national constitutional law, national administrative law, and municipal codes are all organizing concepts in law. While it might not be accurate to speak of the international scale as a noun, as an ontological thing, it is accurate to speak of an international legal order or international law as a bounded body of law that can be apprehended.119 Students take international law courses, lawyers work in the field of international law, there are international law judges and multiple international law courts and tribunals. Scale is a way to put different legal orders together, to conceive of their relationships, and to trace how they might regulate the same social objects in different ways. Both de Sousa Santos and Valverde tell us that law appears to us as already scaled. Jurisdictional scale ?files down the contradictions? so that legal powers and legal knowledges appear to us as always already distinguished by scale?.120                                                     116 Mitch Chapura, ?Scale, causality, complexity and emergence: rethinking scale?s ontological significance? (2009) NS 34 Transactions of the Institute of British Geographers 462; Jones, supra note 111. 117 Leitner & Miller, supra note 105. 118 Ibid. 119 For the sake of simplicity, this defense leaves aside issues of legal indeterminacy (see, e.g. David Kennedy, International Legal Structures (Baden-Baden: Nomos, 1987)). 120 Valverde, supra note 99.   45  Of course, the logics and modes of each legal order are not static or stuck; logics and modalities are fluid, mutually informed, and mobile. The Reference re Secession case is a good example of this fluid mobility: the Supreme Court of Canada analyzed the international law on self-determination and secession and domestic constitutional law as both potentially applicable to the same facts (Quebec?s secession from Canada) but clearly delineated the spheres of each legal order. In this process, legal arguments about jurisdiction are often attempts to produce or contain or jump or bend scale. These arguments are often competing characterizations and each characterization relies on scalar imagery and categories.  In fact, there are terms for this that come from the politics of scale pioneered by Neil Smith, such as scale jumping whereby ?political claims and power established at one geographical scale are expanded to another?121 and scale bending in which ?entrenched assumptions about what kinds of social activities fit properly at which scales are being systematically challenged and upset?.122 These terms helpfully describe when logics move between legal orders and when incommensurabilities propel revision of legal categories. They also attune us to Marston et al.?s concern that scale smuggles in a variety of other binaries that keep scholarship from interrogating assumptions.123 So, for example, ?global? is affiliated with terms such as cosmopolitan, abstract, open, and produced, while ?local? is aligned with place, difference, authenticity, and culture. Because this project does not start from scale, it is able to analyze how it is deployed and rejected in a variety of contexts of group difference without assuming it is there.  The problem for jurisdiction is, as Blomley points out, that it reifies scale. He describes a conception of jurisdiction that operates according to a scalar logic. For Blomley, law operates at different scales and each of those scales can be thought of as a jurisdiction. His jurisdiction is a ?Russian doll-like conception of spatial order? in which one scale nests in the next, in an ordered hierarchy.124 Each component of the hierarchy operates at a different analytical scale. Blomley agrees that it is impossible to abandon scale because of the powerful force it exerts in organizing legal practice,                                                    121 Smith, supra note 107. 122 Neil Smith, ?Scale bending and the fate of the national? in Eric Sheppard & Robert B McMaster, eds, Scale and Geographic Inquiry: Nature, Society, and Method (Oxford: Blackwell Publishers, 2004) 192. 123 Marston, Jones III & Woodward, supra note 105. 124 Blomley, supra note 29.   46 particularly through technologies such as jurisdiction. He prefers to see scale and levels as rhetorical deployments. This project is, in part, an effort to show how jurisdictional practices embody scalar rhetorics, employ scalar imaginaries, and produce scalar results: how law as jurisdiction uses space and scale to sort group difference and what images of each are embedded there.   I employ the concept of scale to add to the resources of jurisdiction, to make jurisdictional analysis more robust. It is the construct of scale that is the pivotal basis for the sorting that jurisdiction performs. But jurisdiction is also more than scale. For Valverde, it includes not only hierarchy and levels, but also functionality, certain habits of seeing and governing, and legal doctrines.125 At bottom, jurisdictional scale is the uniting of law and geography, of authority and space. Although scale is not a ?thing? out there in the world, jurisdiction puts scale to work in particular ways and that work generates real legal consequences. In this dissertation, scale is the handmaiden of jurisdiction: it works with existing legal orders to birth the phenomena ? the legal objects and subjects ? that jurisdiction is claiming to govern. This renders certain the legal categories of state and trust territory, province and nation.126  2.5 Theorizing Jurisdiction: Reconciling Three Conceptions In this section, the chapter merges two tasks. On the one hand, it performs a critical literature review that assembles jurisdictional scholarship across disciplinary fields. On the other hand, it sorts and theorizes this literature to forge an organizing conceptual framework. It performs this exercise by locating the three conceptual cores of jurisdictional scholarship. The scholarship is sorted into these three modalities, which coincidentally are also temporally consecutive, appearing from oldest to newest. This permits the section to simultaneously survey the state of jurisdictional theory and unite the scholarship in a conceptual framework. By articulating the theoretical anatomy of jurisdictional thought and locating its three conceptual modes, this section integrates theoretical jurisdiction with the political-legal binding at the heart of jurisdiction. Having surveyed the state of jurisdictional scholarship, the next section of the chapter turns to the task of setting out a method that is both responsive to the scholarship and useful on its own terms.                                                     125 Valverde, supra note 99. 126 I owe a slightly different version of this formulation ? that jurisdiction partially generates the phenomenon that it claims only to govern ? to Josh Lepawsky. See: Josh Lepawsky, ?Legal geographies of e-waste legislation in Canada and the US: Jurisdiction, responsibility and the taboo of production? (2012) 43 Geoforum 1194.   47 2.5.1 Law?s Jurisdiction from the Beginning It is logical to start at the beginning, chronologically, with the first investigations of jurisdiction, and to work forward to the state of jurisdictional theory today. Theoretical scholarship about jurisdiction has grown indirectly out of the law and geography movement, perhaps because the term ?jurisdiction? so clearly evokes the dual domains of space and law.127   The law and geography movement has evolved its relationship to both space and law, coming to rest on conceptions of ?splicing?, or on the mutually constitutive domains of space and law.128 The legacy of critical legal studies is visible in much of this scholarship, which reveals contingent power relations in very different settings.129 Law and geography scholarship has hinted at jurisdiction as a key construct that unites the socio-spatial and socio-legal but it has yet to deconstruct jurisdiction on its own terms.130 Perhaps the exception to this statement is Richard Thompson Ford?s lengthy piece in the Stanford Law Review titled ?Law?s Territory: A History of Jurisdiction?.131 This is a legal history of territorial jurisdiction premised on the emergence of cartography. It tells the story of the administrative state. Despite a lag period, this piece precipitated renewed interest in jurisdiction.132   Ford defines territorial jurisdiction as ?rigidly mapped territories within which formally defined legal powers are exercised by formally organized government institutions?.133 He is interested in jurisdiction as a set of practices that create rules; it is these practices and rules that establish the lines on the map.134 For Ford, the logic of government is the logic of jurisdiction. His central argument is that maps changed the organizing modality of the state so that ?legal authority could follow                                                    127 McVeigh, supra note 2; Valverde, supra note 99; Blomley, supra note 29. 128 Nicholas Blomley, ?From ?what?? to ?so what??: Law and Geography in retrospect? in Jane Holder & Carolyn Harrison, eds, Law and Geography (Oxford: Oxford University Press, 2003) 17. 129 Note, e.g., Nicholas Blomley?s interest in how law is implicated in contingent power distributions; Richard Thompson Ford?s refusal of neutral legal sites; and David Delaney?s construction of nomosphericity, which repositions the spatial and legal as already constitutive of each other and constitutive of power relations. 130 See, e.g.,  David Delaney, Territory: A Short Introduction (Oxford: Wiley Blackwell, 2005).  131 Richard Thompson Ford, ?Law?s Territory (A History of Jurisdiction)? (1999) 97 Mich L Rev 843. 132 References to Ford, ibid, appear in Valverde, supra note 99; Blomley, supra note 29; McVeigh, supra note 2; Cormack, supra note 1.   133 Ford, supra note 131. 134 Although Ford contends that jurisdiction is only a set of practices, not a pre-existing thing in which practices occur or to which practices relate, I counter that it is a pre-existing concept, at least, that implicates the question of origins.   48 territory?.135 They facilitated the transition from status to jurisdiction so that authority was no longer defined by status relationships such as class or race but rather by territorial location.   Ford?s vision of territorial rule is bound up with identities: ?jurisdictions define the identity of the people that occupy them?.136 In this narrative, jurisdiction arose as a tool for instituting a modern subjectivity.137 Although not always specified, Ford seems to mean that territorial jurisdiction constructs individual political subjectivity in a specific manner; namely, as citizen-subjects with particular orientations toward privatism and nationalism.138 In all of this ? from status to jurisdiction and then through to the ideological claims of jurisdiction139 ? Ford maintains that territory is the central feature of modern authority.   This focus on territory as the polestar leads us astray. To be fair, readers of Ford?s work have noted the ideological concerns underlying the piece and that he ?talks about jurisdiction more as mechanisms to legitimate the use of state power than as a matter of lines on the ground?.140 Moreover, Ford?s territory is both a medium and an object of government power. There is, in other words, some distance between jurisdiction as territorial and Ford?s actual analysis. Nonetheless, Ford sees territorial jurisdiction as prototypical in the sense that even when jurisdiction marks legal authority over a matter or object, it will always be defined by an area.141 Thus, ?authority over all oil, wherever found? would not be a jurisdiction, but rather an authority of another kind. This is a problem to the extent that ?legal authority is not always modeled on or secondary to territorial authority?.142  Ford also argues that there is a discursive opposition between organic/authentic communities and synthetic/convenient techniques that underlies jurisdictional practice.143 Organic jurisdictions are those communities resulting from the natural outgrowth of circumstances, conditions and principles that pre-exist the state. Such representations range from the local town government to the ?peoples?                                                    135 Ford, supra note 131. 136 Ibid at 844. 137 Cormack, supra note 1. 138 Ford, supra note 131. 139 Cormack, supra note 1. 140 Mariana Valverde, ?Analyzing the governance of security: Jurisdiction and scale? (2008) 1 Behemoth 3; Cormack, supra note 1. 141 Cormack, supra note 1. 142 Ibid. 143 Ford, supra note 131.   49 that make up the nation-state. In this conception, there is an inviolable link between the group and the territory it occupies and ?non-jurisdictional means? of granting the group authority will not suffice.144  Organic jurisdictions appear as matters of right and are defended against attack in terms of autonomy, self-determination and cultural preservation. ... Liberal societies cherish the principle that social groups should be allowed to exist and flourish, free of governmental interference. The conclusion seems inevitable: the jurisdictions that "house" and protect such social groups are natural and must be respected and preserved.145  Synthetic jurisdictions, on the other hand, are created by an institution in order to serve its purposes.146 They are imposed on people, usually for the sake of administrative convenience, in order to collect taxes or gather statistics or weigh and tabulate votes. They are represented as a territorial container of individuals.  There is no independent reason for their existence; hence no one speaks of rights when and if they are altered or eliminated. Nor can one object to them on the basis of rights. One may have a rights-based claim against the governmental institution that created or altered the jurisdiction, but such a claim would take the form of an attack on the policy or procedure by which subdivisions are created, not an attack on the existence or shape of a particular jurisdiction qua jurisdiction.147  For Ford, this opposition is important because it underlies presumptions that we should tolerate inequalities arising from organic jurisdictions while synthetic jurisdictions are neutral and thus not implicated in social divisions.   There is a tension here. It is difficult to align this distinction between organic and synthetic communities with the notion that territorial jurisdiction is about governmental legal power. Organic/authentic communities are not, in Ford?s lexicon at least, jurisdictions. Jurisdictions are necessarily synthetic; it is inherent in the nature of the word ?jurisdiction? that law and government                                                    144 Ibid at 860. I dispute that such allocations are properly described as non-jurisdictional: although not linked to territory in a formal way, they are nonetheless extensions of the state?s legal authority (e.g. religious tribunals). See: Ayelet Shachar, ?The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority? (2000) 35 Harvard Civil Rights - Civil Liberties Law Review 387. 145 Ford, supra note 131. 146 Ibid. Ford himself admits this opposition is blurred when he points to electoral districts as embodying the notion that geography is a proxy for interest ? there is no obvious reason why the salient interests for voting purposes would be arranged territorially.  147 Ibid.   50 be involved. Ford?s article never gets to the root of what is going on with group difference in law ? through the lens of jurisdiction ? because it fails to acknowledge that organic communities are not imbued with the power of law or government. Of course, there are so-called organic jurisdictions that law has claimed as its own, that are part of the governing apparatus, such as local governments and the nation-state, but this is not how he intends the term (see below). Moreover, organic jurisdictions stand at odds with the proposition that jurisdictions define the identities of the people inside them.  Ultimately, due in part to Ford?s focus on territorial jurisdiction and government to the exclusion of generic-conceptual jurisdiction and law, he focuses on the relationships between national and sub-national territories, both of which are defined by jurisdiction. For him, jurisdiction generally, and the national project in particular, produce and erase local difference in equal measure. In his estimation, jurisdiction does its most important work by producing difference ? by dividing society into distinctive local units that are imposed on groups and individuals. It is the discourse of organic jurisdiction that encourages minorities to seek out territorial autonomy. But, for Ford, this is a false promise since autonomy is not constitutionally protected.   Ford makes some sweeping claims. This dissertation argues against the notion that jurisdictions produce identities, at least some of the time, to suggest instead that sometimes identities produce, or try to produce, jurisdictions, or at least to trouble their boundaries. This is, after all, the theoretical characterization of the ?nation? part of the nation-state, the basis of most claims of self-determination and autonomy, and the project of liberal nationalist philosophers. The relationship between identities and jurisdictions is complex, and rendered more so by the fact that jurisdiction partially generates the phenomena it claims only to govern, but it is nonetheless possible to sustain the argument that identities sometimes seek jurisdiction and that jurisdiction sometimes produces identities. This dissertation also takes issue with the suggestion that group autonomy is a false promise, one that always implicates hegemony and is incapable of bestowing real power or authority. Indeed, it is a premise of jurisdictional analysis that legal authority and power is disaggregated and parcelled out. This does not mean, as Ford rightly points out, that there is no hegemony (the state is clearly the axis upon which the legal world turns) or that territorial autonomy amounts to freedom, but rather that the discourses and practices of jurisdiction may contain emancipatory potential.     51 Law?s Territory makes an enormous substantive contribution to the vernacular of jurisdictional theory and, perhaps most importantly, draws out the social implications of thinking jurisdictionally for identities, for communities, and for politics. There are two key aspects of Ford?s analysis that inform this dissertation. First, inquiries into territorial jurisdiction turn the lens to the boundaries and definition of political community. This entails a focus on territory, boundaries, and exclusion, and thus helpfully provides a lens through which to examine group difference. Second, the organic/synthetic opposition usefully describes two conceptions of jurisdiction that are at play in this project and in the liberal-democratic state more generally. It is organic jurisdictions ? identity groups ? that manifest the type of difference this dissertation is concerned to analyze. Yet it is synthetic jurisdictions ? electoral districts and provinces ? that are commonly understood as territorial jurisdictions. While this opposition does not map neatly onto the Canadian state, which is the focus of Chapter 3, it nonetheless provides a useful heuristic for honing in on how law parcels out authority in particular ways.  2.5.1.1 The First Conception: Jurisdiction as Territory Richard Thompson Ford?s historical account of territorial jurisdiction in Law?s Territory builds upon a more basic concept of jurisdiction as territorial. This is the first conception of jurisdiction in the scholarship, in the dual sense of being first in time and being foundational to other representations of jurisdiction. The key here is to examine territorial jurisdiction for clues about how the state parcels out jurisdiction, how the law is distributed through space and territory. In this section, I analyze jurisdiction as territory in broad conceptual terms and explain its crucial place in the landscapes of law. Jurisdiction as territory is the first conceptual modality. The contours of this first conception are broad:   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.148  Territorial jurisdiction is both an orienting pole and a source of confusion for jurisdictional thought. It is an orienting pole because it is the foundation of modern understandings of the term, and because                                                    148 Ibid.   52 territorial jurisdictions structure the landscape of jurisdictional possibilities. It is a source of confusion because, first, ?[t]erritorial jurisdiction ... is simultaneously a material technology, a built environment, and a discursive intervention?149, and second, it can be difficult to reconcile instances of territorial jurisdiction with other theoretical references to jurisdiction. Jurisdiction is not only or always territorial.150 However, territorial jurisdiction remains the most familiar and predominant form of jurisdiction. The juridical administration of authority is primarily territorial. For this reason, it is helpful to more closely examine the territorial foundations of jurisdiction and to posit the various ways that they play out in this project.  The ubiquitous starting point for territorial jurisdiction is sovereignty. Jurisdiction is a doctrine that emerged in the seventeenth century and came into its own in the nineteenth century. F.A. Mann?s survey of this history reveals the unifying framework of ?sovereignty and its territorial character?.151 He writes:  International jurisdiction is an aspect or an ingredient or a consequence of sovereignty (or of territoriality or of the principle of non-intervention ? the difference is merely terminological): laws extend so far as, but no further than, the sovereignty of the State which puts them into force.... .152   According to the territorial theory of jurisdiction, each state enjoys plenary jurisdiction within and exclusive control over its territory. A state?s plenary jurisdiction over its territory and every person or thing within it is a function of state sovereignty. The connection between sovereignty and jurisdiction is obvious, inevitable and ?almost platitudinous?; to the extent of its sovereignty a state necessarily has jurisdiction.153 Inside the state, there is a finer meaning to territorial jurisdiction, one which helps to sort out the work that the concept performs and provides a resting place for analysis. Intrinsic to the concept of jurisdiction is the general notion of venue or place ? the location, the state, or the district where jurisdiction is said to exist. In R. v. Lipohar, the High Court of Australia noted that the term ?jurisdiction? may be used to locate a particular territorial or "law area" or "law district".154                                                    149 Ibid. 150 See: Valverde, supra note 99; McVeigh, supra note 2; Cormack, supra note 1. 151 Mann, supra note 6. 152 FA Mann, ?The Doctrine of Jurisdiction in International Law Revisited After 20 Years? in Further Studies in International Law (Oxford: Clarendon Press, 1990).  153 Mann, supra note 6. 154 Lipohar, supra note 8.   53 Jurisdiction, then, is given form through its location in space.155 Here, territorial jurisdiction broadly re