Partition by Degrees: Routine Exceptions in Border and Immigration Practice between the UK and Ireland, 1921–1972
| Author | C. R. G. MURRAY,DANIEL WINCOTT |
| Published date | 01 October 2020 |
| Date | 01 October 2020 |
| DOI | http://doi.org/10.1111/jols.12246 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, ISSUE S1, OCTOBER 2020
ISSN: 0263-323X, pp. S145–S163
Partition by Degrees: Routine Exceptions in Border and
Immigration Practice between the UK and Ireland,
1921–1972
C. R. G. MURRAY∗and DANIEL WINCOTT∗∗
Using archival materials, we reflecton the legal process of creating (and
mitigating) a border in Ireland after partition in 1922 and interactions
between those laws and the people whom they affected. After 1922,
superficially durable exceptions developed to the territorial state’s
distinctions between citizens and foreign nationals under the aegisof the
Common Travel Area. They survived the 1930s UK–Ireland ‘Economic
War’, were sustained (if in a restricted form) during the Second World
War and were rebuilt in its aftermath. These arrangements proved
beneficial for both countries, providing an outlet for surplus labour for
Ireland and a resource for the UK economy. We nonetheless explore
how far practice reflected this overarching cooperative framework,
particularly given the complications introduced by the policies of
Northern Ireland’s institutions.
I. INTRODUCTION
Within their territorial boundaries, liberal democracies present themselves
as treating their citizens with a measure of equality, restraining officials
from the arbitrary exercise of powers and limiting the use of force by their
agents. Borders, and the imagined national communities that they bound,
circumscribe these rights and protections. In recent decades, scholars have
reassessed these supposed hallmarks of Western states, particularly in their
∗Newcastle Law School, Newcastle University, 21–24 Windsor Terrace,
Newcastle, NE1 7RU, England
colin.murray@ncl.ac.uk
∗∗ School of Law and Politics, Cardiff University, Law Building, Museum
Avenue, Cardiff, CF10 3AX, Wales
wincottd@cardiff.ac.uk
The ESRC supported Murray’s contribution withGrant ES/S006214/1 and Wincott’s with
Grants ES/R007500/1 and ES/P009441/1.
S145
© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
responses to the 9/11 attacks. The ‘War on Terror’ has arguably made
‘the exception’ a ubiquitous feature of Western governance. Accounts of
the exception as brief – consisting of time-limited responses to particular
crises – are giving way to more dynamic analyses of illiberal aspects of
democracies and their legal orders.1Rick Abel’s magisterial Law’s Wars and
Law’s Trials showcasedthe signif icance of the exception in the legal discourse
of the United States (US).2Comfortable assumptions about the nature of
legal systems in liberal democracies, and a sharp distinction between law
and politics, have become increasingly difficult to sustain, and prompted a
renewed attention to how some exceptions have become entrenched.
Alongside illiberal legalities, we also need to consider liberal exceptions
to standard assumptions about ‘domestic law’. In this article, we interrogate
the exceptions that emerged in the rule of law and the deployment of political
power in the decades that followed Ireland breaking away from the United
Kingdom (UK). Territory – particularly in relationship to identity – is a
neglected aspect in the literature on the exception. Conventional nation-state
accounts assume that national socio-political identities and state institutions
share territorial boundaries.3Anglo-Britain’s imperial history is a poor fit
with these accounts, and its influence on the UK’s borders and governance
is frequently glossed over. In particular, the twin process of Ireland’s
independence and partition have produced complex, evenparadoxical patterns
of exceptionalism.
For the half-century after partition, Northern Ireland’sgovernance order and
legal system maintained systematically illiberal features, and its authorities
often treated its minority Catholic community as an existential threat.
Similar, if less extreme, criticisms can be levelled at governance in Ireland
in the same period. Despite this tension, the UK and Ireland permitted
each other’s citizens to engage in various practices usually reserved for
‘home’ citizens, including voting in general elections and claiming social
benefits. Although it has become commonplace to hear populist politicians
talk of an ‘assault on borders’ by supra-national entities,4the history of
partition offers considerable evidence of sovereignstates’ willingness to make
expedient departures from ‘pure’ conceptions of their borders. Centralized
UK institutions found themselves obliged to adopt a complex ‘policy of
1 D. King, In the Name of Liberalism (2003) on illiberalism in social policy.
2R.Abel,Law’sWars: The Fateof the Rule of Law in the US ‘War on Terror’ (2018); R.
Abel, Law’s Trials: The Performance of Legal Institutions in the US ‘War on Terror’
(2018).
3 D. Chernilo, A Social Theory of the Nation-State: The Political Forms of Modernity
Beyond Methodological Nationalism (2007); C. Jeffery and D. Wincott, ‘The
Challenge of Territorial Politics: Beyond Methodological Nationalism’ in New
Directions in Political Science: Responding to the Challenges of an Interdependent
Wor l d , ed. C. Hay (2010) 167.
4 See the writings of Dutch Forum for Democracy leader Thierry Baudet: T. Baudet,
The Significance of Borders: Why Representative Government and the Rule of Law
Require Nation States (2012) 79–87.
S146
© 2020 The Author. Journal of Law and Society © 2020 Cardiff UniversityLaw School
To continue reading
Request your trial