Benjamin Goold (Professor of Law, University of British Columbia, Canada) 

Not so Exceptional? Understanding the Canada-US Border as a Place of Law

With the steady, global movement towards the securitization of borders in the aftermath of the September 11, 2001 attacks, scholars across various disciplinary fields have analyzed state borders as ‘states of exception,’ sites in which, as Giorgio Agamben provocatively describes, ‘a temporary suspension of the rule of law on the basis of a factual state of danger, is … given a permanent spatial arrangement, which as such nevertheless remains outside the normal order.’ This paper argues against this approach. It suggests that the ‘state of exception,’ as described by Giorgio Agamben and Carl Schmidt, does not properly account for the legal and material realities of contemporary state borders. The paper advances this argument by analyzing how legal power is organized, asserted, and exercised along the Canada-US border. In addition, it seeks to develop a set of criteria by which claims of exceptionalism at the border might be tested, and compares the border with other sites―such as prisons―which also have the potential to become states of exception. In doing so, it strives to develop a site-specific understanding that better illuminates the legal implications of the policies and practices that currently govern the Canada-US border, and to ensure that current debates properly recognize the role of law in constructing the border.