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# Sovereignty, Law, and Democracy
## Law and Exception
The Bush Administration’s detention and rendition programs
foregrounded the ways law mediates relations among sovereignty,
citizenship and space. Both extra-territorial detention and rendition
are spatial fixes to the entanglements of rights and responsibility
that attach to legal territory. These entanglements define the very
relations between citizens and state, subjectivity and authority.
In conventional liberal understandings, the modern state is a
container of sovereignty. The boundaries of the state define largely
undifferentiated conditions for citizenship and sovereign authority
within [@agnew:1994:territorial; @agnew:2005:sovereignty]. This notion
of ideal containerized sovereignty brings with it a universalist and
essentially aspatial perspective on citizenship and statecraft. Both
sovereignty and citizenship, then, become ideal states, rather than
differentiated and dynamic social-historical conditions.
Notwithstanding the universalist ideals of liberalism, the
historical-geography of actually-existing liberalism has always been a
profoundly uneven one [@marston:2004:citizens]. To the degree that
liberalism has always defined certain privileged subjects as model
citizens, it has done so in relation to a range of less-than-citizens
[@darcus:2006:boundaries; @isin:2002:being]. This uneven terrain of
citizenship is a product of both representational and material work,
played out in both geographical imaginations and concrete
practices. If the abstract disembodied individual of liberal
citizenship floats free of geography and geographic attachments, the
Others within are often characterized by their grounded relations to
place: the welfare mother of the inner-city ghetto, migrant youth in
the banlieues of urban France, etc.
Post-9/11, scholars have increasingly refocused on the notion that
sovereignty is not some modernist container of rights, but that it is
a practice worked out through an uneven and dynamic space constituted
by highly-differentiated social identities, relationships to the state
and so forth [@agamben:2005:exception; @brown:2006:aversion;
@butler:2006:precarious]. This more critical position focuses on
sovereignty less as a binary condition rooted in universal law than on
a social practice that involves ongoing decisions on contextual
exceptions. The German jurist Carl Schmitt famously declared
“Sovereign is he who decides on the exception”
[@schmitt:1985:theology], by which he meant to critique the liberal
view and promote one that emphasized a conflictual and dynamic
perspective on both law and sovereignty.
## The Territory and Topography of Law
The liberal state, then, is a spatial medium whose architecture
involves an uneven field of rights, duties, and identities. Yet there
is a long history of spatially-fixing citizenship rights, and with
that sovereignty itself. Law provides just such a more-or-less
crystallized form to citizenship by way of a rational set of
conventions that regularize rights and duties within container of the
state [@taylor:1994:container]. Like liberalism more broadly, law is a
simultaneously universalizing discourse and a particularized practice
that gives shape and structure to citizenship and democracy.
The most elemental of liberal rights can be understood as spatial
rules that govern the proper relation between citizen and state. The
_Magna Carta_, for example, includes recognition of *habeas corpus*,
which remains among the most basic principles of modern democracy: the
notion that an Executive may not detain people without
review. Detention itself is a spatial practice where a representative
of the state apprehends a person at some (often public) place, and
then physically moves them to a bounded space, from which they cannot
leave. In this sense, the legal principle of *habeas corpus* constitutes
a kind of spatial rule that structures relations between citizen and
The differentiation of public and private spaces is also central to
the spatial dimensions to law. In an ideal sense, privacy carves out a
sphere of individual shelter from state intrusion
[@mitchell:1995:park; @kohn:2004:brave]. It assigns a personal
sovereignty to an expanse of space, and limits the sovereignty of the
state within that space. Likewise, public space is often understood to
mean the absence of the capacity to exclude, either by the state or by
private owners [@Blomley:2004:unsettling]. In this sense, fundamental
democratic legal principles such as free speech or freedom of assembly
come with crucial historical ties to concrete spaces. The legal rules
that structure those relations can be conceptualized as constituting a
qualitatively uneven space.
To give this notion of legal-spatial differentiation some conceptual
definition, then, I suggest a basic distinction within law and legal
rights: the *territorial* and what I will call the *topographical*. By
topography of law, I refer to the internal differentiation of legal
space, based largely on ownership, access, visibility, and so forth
[@kohn:2004:brave]. The legal-spatial distinctions I note above, for
example, create an uneven topography that shapes the conduct of both
state power and citizenship. They constrain what kinds of practices of
statecraft can be applied to which kinds of spaces. More basically,
they condition who may do what, where, in whose name. The topography
of law thus can be conceived as an uneven three-dimensional space that
gives form to particular conditions and possibilities of citizenship.
By territory of law, by contrast, I refer to the horizontal
differentiation of particular rights regimes; to their scalar
containment. In a phrase, I am referring to *territorial
jurisdiction*.[^1] As Richard Ford [-@ford:1999:territory] has argued,
territorial jurisdiction is a legal crystallization of socio-spatial
practices, and serves to carve up territory through clearly-defined
bounded spaces of authority and obligation. At the same time, through
the differentiation and the practice of jurisdiction, states intervene
in the politics of identity and citizenship more broadly. Boundaries
of jurisdiction serve to classify what class of laws apply to what
class of legal subjects, and so formalize distinctions of
citizenship. In so doing, practices of statecraft as worked out
through territorial jurisdiction serve to define relations among
territory, state, and populations.
[^1]: As I will explain later, territorial jurisdiction is one of
three kinds of legal jursidiction. The debates around the legality of
different forms of rendition typically center on different ways of
framing relations among these different types of jurisdiction.
## State of Emergency
To understand what I mean by the “spatial architecture of law,” it
might be best to illustrate with an example. When states encounter
crises, they often invoke a legal condition referred to as a state of
emergency [@agamben:2005:exception]. The state of emergency applies a
general condition to an expanse of jurisdictional space: a
neighborhood, a city, or the entirety of the state. Under this
condition, the sovereign may suspend otherwise fundamental legal
rights: the ability to assemble in space, or to be free from
unreasonable search and seizure and detention. They may impose these
restrictions with different time frames and rhythms; a curfew, for
example, often applies to nighttime hours. States of emergency, in
short, have always involved inheritantly spatial interventions in
geographies of everyday life, as evidenced by El-Masri's harrowing
journey from vacation bus to hotel room, to distant, and hidden
detention in Afghanistan.
From the perspective of law, a state of emergency does two things.
First, it generalizes the objects of state administration within
sovereign territory. The sovereign bars *everyone* from public
assembly, and grants *noone* the right to privacy; either to deny the
entry of a police officer into their home without a warrant, or to
stop them on the street and arrest them, or to challenge their
subsequent detention. In principle, then, *everyone* becomes something
like *homo sacer* [@agamben:2005:exception]; placed outside the normal
certainties of law and subject to the strict security imperatives of
the state.
Second, in so doing, in invoking a state of emergency, states seek to
change the ontology of legal space. In particular, they aim to flatten
the distinctions between public and private. While people may occupy
public space, they may do so only as purely atomic individuals
[@mitchell:2005:suv]. In this sense, the restriction on assembly
obliterates the most fundamental quality of public space: what Kohn
[-@kohn:2004:brave] refers to as its “inter-subjectivity.” In short,
public space ceases to be really public. Likewise, a state of
emergency also radically changes the meaning of privacy. If by privacy
we mean in part the capacity to withhold access to space not just from
other private legal subjects, but also from the state, then the
suspension of *habeas corpus* and the ability for police (and in some
cases military troops) to freely enter homes effectively eliminates a
crucial dimension of private space. Private space is no longer
Under a state of emergency, then, the state transforms a
differentiated legal space inhabited by different kinds of subjects
with different relations and orientations toward the state into an
undifferentiated container of state access and visibility.
Conceptually, then, a state of emergency flattens the topography of
rights. The state transforms public space into a space of state
control, and opens private space to state access. It is not quite that
public space becomes private, or vice versa, but rather the
qualitative boundaries that distinguish them dissolve into a uniform
field of ideal state visibility and access.
These distinctions between citizen and non-citizen, public and
private, and so forth are in turn central to modern notions of
democracy. If we conceive of a dynamic and
socio-spatially-differentiated “citizenship formation”
[@marston:2004:citizenship], then, we might understand law and rights
in similar ways. Through law, states normalize rights; as unevenly
distributed to differentiated legal subjects. The boundaries of
territorial jurisdiction serve both to contain particular rights
regimes, and to exclude others. Explicitly conceptualizing the
relationship between statecraft and law in this way is, I argue,
important for a deeper appreciation of both the political stakes and
the empirical transformations in the practice of American statecraft
after 9/11. As I will argue, it is particularly significant that the
Bush Administration did not invoke a formal state of emergency in the
months and years following 9/11, but instead chose other—more
obviously extra-territorial—means to achieve similar practical
political outcomes.