The Politics of Jurisdiction
| Author | Asha Kaushal |
| Date | 01 September 2015 |
| DOI | http://doi.org/10.1111/1468-2230.12143 |
| Published date | 01 September 2015 |
The Politics of Jurisdiction
Asha Kaushal*
Jurisdiction is a central concept in the framing of the legal world but it has received short shrift
in mainstream legal theory. This article examines the prevailing conceptual forms of jurisdiction
in order to retrieve space for the political. The study of jurisdiction is also the study of the political
community that it invokes and authorises. The first part of the article examines the three forms
that jurisdiction takes in contemporary scholarship (territory, community, governance) to show
that each form overlooks some implication of the political community that is tethered to
jurisdiction. The second part of the article flips the inquiry to demonstrate the oversight of
jurisdiction in theories of sovereign exception. The emergent understanding of jurisdiction as
political provides an anchor for the study of jurisdiction going forward and highlights the potential
role for jurisdictional arrangements in contemporary public law and constitutional law settings.
INTRODUCTION
Jurisdiction is a central concept in the framing of the legal world and it is starting
to pique scholarly interest. This interest has come from various quarters but they
all seem to hold in common that jurisdiction is more than a technicality.
Jurisdiction sets the original terms for the existence of law, and then for its entry
and exit. 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 compe-
tence.1In these guises, jurisdiction is the labourer of law. Yet jurisdiction as a
concept has received short shrift in legal theory. There is little scholarship about
jurisdiction in mainstream legal theory circles and less still that pulls together the
various threads of scholarship about the subject. It is mostly conceived as falling
under the purview of specialised sub-fields such as conflicts of laws or civil
procedure. To the extent that there is a nascent field of jurisdiction studies, it
primarily emanates from postmodern critical theory.2This scholarship is diverse
but it tends to recommend jurisdiction as a productive lens for considering
how law is expressed and given form, and how those forms matter for legal
subjectivity. This article undertakes a different project: it examines the prevailing
*SSHRC Post-Doctoral Fellow, University of Toronto. The author gratefully acknowledges the
support of the Social Science and Humanities Research Council. Special thanks to Catherine
Dauvergne, Jeremy Webber, Nick Blomley, and the reviewers for valuable comments.
1 S. Dorsett and S. McVeigh, ‘Questions of jurisdiction’ in S. McVeigh (ed), Jurisprudence of
Jurisdiction (New York, NY: Routledge-Cavendish, 2007) 3; B. Cormack, A Power to Do Justice:
Jurisdiction, English Literature, and the Rise of the Common Law, 1509-1625 (Chicago, IL: University
of Chicago Press, 2007).
2 See, eg, S. Dorsett and S. McVeigh, Jurisdiction (New York, NY: Routledge, 2012); E. Mussawir,
‘The Activity of Judgment: Deleuze, Jurisdiction and the Procedural Genre of Jurisprudence’
(2010) 7 Law, Culture and the Humanities 463; M. Valverde, Chronotopes of Law: Jurisdiction, Scale
and Governance (New York, NY: Routledge, 2015); D. Matthews, ‘From Jurisdiction to
Juriswriting: At the Expressive Limits of the Law’ (2014) 10 Law, Culture and the Humanities 1.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(5) MLR 759–792
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conceptual forms of jurisdiction in order to retrieve the space for the political in
the study of jurisdiction.
This inquiry provides an anchor for jurisdiction studies in legal theory. The
study of jurisdiction is also the study of the political community that it invokes
and authorises, and failure to attend to the political leaves blind spots and gaps.
By examining the nature of the community bound by law, the political aspect
of jurisdiction is brought to the fore. This political aspect of jurisdiction and
its implications have been neglected by scholars studying origins and sover-
eignty, on the one hand, and those studying jurisdiction itself, on the other
hand. The task of this article is to examine the existing scholarship about
jurisdiction through the lens of political community. Here, jurisdiction is
understood as the moment in which law speaks to itself about the scope and
content of its own authority. This examination joins together the jurispru-
dential theorisation of jurisdiction with its tangible legal manifestations.
Viewing the scholarship through this lens sheds light on the political nature of
jurisdiction, which in turn provides a mooring for the study of jurisdiction
going forward.
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. This article
analyses the various theoretical invocations of jurisdiction and suggests that they
share the implications of the originary political nature of jurisdiction. This
understanding of jurisdiction as political highlights the role for jurisdictional
arrangements in contemporary public law and constitutional law settings. Juris-
dictional forms are longstanding modes of accommodating diversity of various
kinds, but they are not always considered under that rubric.3The most well-
known arrangement of this kind is constitutional federalism, which divides
jurisdiction among sub-state units in order to maintain the unity of the whole;
other examples include limited autonomy regimes, sub-state and supra-state
specialised regimes, and separate communities. Indeed, the true potential of the
inquiry lies in the lens that jurisdiction offers as both a critical and productive
concept. In the context of religious, cultural, and social diversity in particular,
jurisdiction shifts the emphasis from individual rights to legal authority. This
provides another pathway into the adjudication of difference, one that skirts the
liberal standstill of conflicting rights.
The article begins by introducing some preliminary aspects of jurisdiction to
situate the concept for readers before moving on to interrogate the concept of
jurisdiction through the lens of political community. In the second part, it
examines the various forms of jurisdiction in contemporary scholarship and finds
their common referent of political community. There are three forms: jurisdic-
tion as territory, jurisdiction as community, and jurisdiction as governance. The
arguments for these forms are examined and critiqued both for what they hold
3 A. Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: CUP,
2001).
The Politics of Jurisdiction
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
760 (2015) 78(5) MLR 759–792
up to the light and for what they obscure. Each form ultimately overlooks some
aspect or implication of the political community that is tethered to jurisdiction.
In the third part, the article flips the inquiry, examining theories of sovereignty
and political community to find the place for jurisdiction. Here, the article
explores the work of Carl Schmitt and Giorgio Agamben to demonstrate the
oversight of jurisdiction in their theories of sovereignty, as well as the theoretical
promise of political jurisdiction. Finally, the article concludes by briefly setting
out the potential of the jurisdictional framework for dealing with issues of
diversity and difference.
SOME PRELIMINARY ASPECTS OF JURISDICTION
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’.4It 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 legiti-
macy. It incorporates the idea of the state’s power to govern. Scholars have
described it as ‘the power of a sovereign state to affect the rights of persons’,
‘particular aspects of the general legal competence of states’, and ‘the practice of
pronouncing the law’, and ‘the administrative principle that orders power as
authority by defining [its] scope’.5Justice Holmes wrote that jurisdiction is
concerned with the state’s right ‘to apply law to the acts of men’.6
The concept of jurisdiction designates the authority to speak the law and this
authority presupposes a separation of the legal from the non-legal.7This form of
speaking the law is typically in relation to the scope or reach of a thing or activity.
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 which are neatly related.8In Lipohar vThe
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
4 E. Benveniste, Indo-European Language and Society (London: Faber and Faber, 1973) 7; McVeigh
(ed), n 1 above.
5 J. Beale, ‘The Jurisdiction of the Sovereign State’ (1923) 36 Harvard Law Review 241, 241; Dorsett
and McVeigh, n 2 above, 4; Heller vUnited States [1985] 776 F2d 92 (3d Circ); Cormack, n 1
above, 1.
6 F. A. Mann, ‘The Doctrine of Jurisdiction in International Law’ in Studies in International Law
(Oxford: Clarendon Press, 1973) 1, citing Wedding v Meyler, 192 US 573, 584 (1904).
7 M. Drakopoulou, ‘Of the founding of law’s jurisdiction and the politics of sexual difference: the
case of Roman law’ in McVeigh (ed), n 1 above, 33.
8 I. Brownlie, Principles of Public International Law (Oxford: OUP, 6th ed, 2003); Lipohar vThe Queen
[1999] 200 CLR 485 (High Court of Australia).
9Lipohar vThe Queen ibid at [78].
Asha Kaushal
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 761(2015) 78(5) MLR 759–792
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