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Does the Rule of Law Require Complete Control of Borders?

By Jonathan Simon

The recent battle over immigration reform has revealed a profound anxiety among many portions of the American polity over the apparent porousness of the border. On the right vigilantes self-styled as "minute men" have taken to patrolling portions of the Mexican border. On the left, Paul Starr recently wrote in American Prospect that:

Conservatives have a legitimate point when they say that offering citizenship to people who have come here illegally creates an incentive for others to violate the law. The only way to address that concern is to adopt serious measures for enforcement, including, for example, biometric identity cards and serious penalties for employers who hire illegal workers. These are crucial for making a new law successful where the 1986 immigration reform failed.

Behind both perspectives is a view of the rule of law as anchored in sovereignty understood as the uniform exercise of jurisdiction operating continuously and without gaps over an entire territory. From this perspective, the inability to assure that all those who enter the United States do so with legal authorization undermines the whole structure of legal accountability on which political and civil relations depend.

Law and society research from its inception has been all about documenting the incompleteness of jurisdiction, the places, not just on the border but all over society, where action takes place outside the requirements of the law. Of course, such research can do little to allay the anxiety created by the incompleteness of sovereignty, indeed it can only contribute to that anxiety.

There is, however, another model of law and power which might be seen as an alternative to the model of a uniform jurisdiction operating continuously and completely across an entire territory. The alternative is the model of towns (or cities) and courts. In this model, courts operate in towns and cities and provide law for those who come (or are brought) before them. Drawn by the social and economic engines of urban life, people bring their disputes and problems to courts.

In this model, the existence of an imperfectly controlled border is not troubling. Law is sustained through the actual dispute and problem solving capacity of courts which in turn draw on the intellectual and practical creativity of the city to produce effective results.

While the model of towns and their courts predated the formation of territorial sovereignty by decades, they also became integral to the constitution and operation of territorial sovereignties, and in particular that of the modern nation state.

It is interesting that the last time the US experienced massive immigration, in the period from 1870 through 1920, much of the governmental innovation developed to cope with the resulting social challenges and popular anxieties took the form of new urban based courts (see, Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (Cambridge, 2003)

It might be productive to consider whether a model of cities and courts could do more to alleviate the practical problems and popular anxieties being produced by the renewal of very high immigration rates to the United States since the 1980s (both legal and illegal). Already the formation of a wide range of new "problem solving" or "collaborative" courts around issues like drugs, domestic violence, and mental or behavior health suggests a promising beginning.

Full post as published by Berkeley Jurisprude on June 30, 2007 (boomark / email).