The jurisdiction of difference : groups and law
University of British Columbia
Doctor of Philosophy - PhD
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.
Attribution-NonCommercial-NoDerivatives 4.0 International
Law, Faculty of