Valverde (2010) Practices of Citizenship and Scales of Governance PDF

Practices of Citizenship and Scales of Governance
Author(s): Mariana Valverde

Source: New Criminal Law Review: An International and Interdisciplinary Journal, Vol. 13,
No. 2 (Spring 2010), pp. 216-240
Published by: University of California Press
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P R ACT I C E S O F C I T I Z E N S H I P A N D S CA L E S
O F G OV E R N A N C E
Mariana Valverde*
Theoretical developments in two fields not generally used by criminal law

scholars—citizenship studies and legal geography—can be used to clarify con-
cepts and elaborate fruitful research questions for those interested in the
criminalization-citizenship nexus. Going well beyond the static notion of
citizenship as either a legal status or a philosophical concept, current research
in citizenship studies focuses on analyzing the interactive practices that consti-
tute groups. This type of work is much more useful for sociolegal studies than
the either legalistic or philosophical discussions of citizenship, as will be
demonstrated in this article by analyzing how coercive legal mechanisms con-
stitute different types of citizenship interactions. Secondly, along with other
scholars interested in the governance of space, legal geographers have recently
paid much attention to questions of scale. This is relevant to the study of crim-
inalization because both the criminal law itself and criminal law scholarship
tend to presuppose the scale of the nation-state. Research seeking to illuminate
the networked policing of criminals, migrants, “strangers,” and citizens could
advance by asking questions about scale—and about the related but not coter-
minous legal mechanism of jurisdiction, which has been oddly neglected by le-
gal geographers. Together, citizenship studies and interdisciplinary analyses of
the scalar nature of governance can help to elaborate research questions shed-
ding light on the temporally and spatially specific practices that connect citi-
zenship and criminalization.
*University of Toronto, Centre of Criminology, 14 Queens Park Crescent West, Toronto,

Ontario M5S3K9, Canada. m.valverde@utoronto.ca.
New Criminal Law Review, Vol. 13, Number 2, pps 216–240. ISSN 1933-4192, electronic
ISSN 1933-4206. © 2010 by the Regents of the University of California. All rights re-
served. Please direct all requests for permission to photocopy or reproduce article content
through the University of California Press’s Rights and Permissions website, http://www.
ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/nclr.2010.13.2.216.
216 |
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C ITI Z E N S H I P AN D G OVE R NAN C E | 217
I N T R O D U CT I O N
Many legal and sociolegal studies have focused on the relations between
criminalization (taken by many to include all coercive uses of law) and the
processes of political and social inclusion and exclusion that go under the
banner of “citizenship.”1 The recent proliferation of such practices as im-
migration detention and the deportation of those convicted of certain
crimes throughout the global North has made it clear that crime control is
not separate from migration control and the regulation of citizenship.
Policing and punishment were never monopolized by the formal criminal
justice system, even in the heyday of the pre-EU nation-state; but in recent
years, it has become very obvious that certain cultural minorities and mi-
grant groups have become increasingly policed by means of administrative
measures that amount to criminalization. The processes of border control
and the granting of citizenship rights have become more security- and
crime-oriented, and thus borders have become “thicker” for many groups,
even as they have become thinner and almost disappeared for certain other
groups (e.g., those governed by NAFTA and the Schengen treaty).
Relatedly, many governments have deliberately blurred the lines separating
state officials who govern citizenship and immigration from police forces
enforcing the criminal law, narcotics laws, and antiterrorism laws. The U.S.
Department of Homeland Security is the most obvious example of such a
merging of governmental functions. In other countries the networked
policing of criminals and migrants is mainly done through interagency co-
operation rather than by setting up a whole new ministry, but common
governance trends are visible despite differences in institutional design.
This article begins by noting that, since we now have a large number
of studies of the relations linking the formal criminal justice system to
other regulatory systems, specifically those that either grant or deny citi-
zenship and those that regulate migration, the time is ripe for a theoret-
ical contribution that seeks, first, to clarify what we have learned and,
1. See, e.g., Kitty Calavita, Immigrants at the Margins: Law, Race, and Exclusion in
Southern Europe (2005); Susan Coutin, Denationalization, Inclusion, and Exclusion:
Negotiating the Boundaries of Belonging, 7 Indiana J. of Global Legal Stud. 585 (2000);
Cecilia Menjivar, Limited Legality: Salvadorean and Guatemalan Immigrants’ Lives in the
U.S., 111 Am. J. Soc. 999 (2006); Anna Pratt, Securing Borders: Detention and Deportation
in Canada (2004).
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second, to facilitate further research and analysis. A useful framework that

can help refine future research, I will argue, does not take the form of a
hypothesis to be tested or a static model in the sociological tradition, but
rather the more modest form of an organized set of questions.
The framework presented here has been elaborated by putting to one
side the usual theoretical resources of criminal justice/law scholarship
(philosophy, political theory) and engaging instead with two less tradi-
tional areas: studies that focus on the role of scale in governance, whether
or not carried out by geographers, and “citizenship studies.” Whether bor-
rowing methods and ideas from these sources will indeed prove useful is
of course a question whose answer cannot be given in advance. But two
preliminary remarks may help to justify the choice of theoretical resources.
First, because empirical and legal studies of the crime-migration nexus re-
veal that functions and jurisdictions regarded in formal law as separate are
increasingly intertwined, networked, or in many cases, simply mixed—for
example, with city police being asked to do work for national immigration
or security forces—recent work on “multiscalar” governance (by legal ge-
ographers and others2) is worth borrowing.
The second preliminary point is that because “citizenship studies”3 dis-
tinguishes itself from conventional political theory by studying existing
practices of citizenship, on-the-ground processes of inclusion and exclu-
sion, this literature is very useful for those legal and criminological schol-
ars who seek to understand the actual workings of legal and policing
mechanisms. Doctrinal scholarship proceeds as if criminal law could be
studied independently from administrative law and from regulatory prac-
tices; in contrast, raising the question of the relation between criminaliza-
tion and citizenship already suggests a broader, nondoctrinal perspective.
Therefore, drawing on literature that understands citizenship as a set of of-
ten contingent and uncoordinated interactive politico-legal processes
(rather than either as a static legal status or as a philosophical concept) is
likely to be helpful.
2. See, e.g., Saskia Sassen, Territory, Authority, Rights: From Medieval to Global
Assemblages (2006).
3. The term “citizenship” is commonly used in a very broad sense in political theory,
and in a narrower sense in immigration law research. Here I do not use the term “citizen-
ship studies” in either of these senses, but rather to refer to the kind of interdisciplinary
studies of governing through citizenship that are exemplified in the journal Citizenship
Studies.
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Citizenship studies routinely include the criminal law in lists of state

mechanisms that produce exclusion in both the literal, legal sense and the
broader social sense. But perhaps because of the dearth of legal scholars
within citizenship studies circles, little work has been done on the specific
ways in which legal tools that exercise coercion also, simultaneously, con-
stitute not only exclusion in general but specific forms of citizenship, in-
cluding “normal” or hegemonic citizenship. Although processes of social
and political exclusion generated by the intersection of migration control
and criminal justice have been documented, what still requires much at-
tention is how legal mechanisms constitute forms of citizenship not only
among those convicted, deported, excluded, or stigmatized but also
among the respectable insiders—the native-born and law-abiding heads of
family that in the Western world represent the paradigm form of citizen-
ship.4 Using citizenship studies in general as inspiration, and Engin Isin’s
work more specifically, in the following section I will sketch out some
questions that may be useful for further research on the criminalization-
citizenship nexus. The analysis of citizenship practices will lead into the
second part, which focuses on the importance of scale in the governance
of coercive legal processes.
I. FR I E N D S, E N E M I E S, AN D STRANG E R S: TH E ROLE
O F C O E R C I V E L E G A L TO O L S I N C O N S T I T U T I N G
FOR M S OF CITI Z E N S H I P
Studies of citizenship, migration, and criminalization tend to focus on in-

clusion and exclusion, with these two categories often treated as a binary.
The term “binary” is often thrown around in critical discourse, so a brief
definition may be helpful. A binary in the deconstructive sense is a two-
fold distinction that is mutually defining and exhaustive, and that is taken
as describing an important if not essential characteristic. For example, gen-
der can be regarded as the archetypal binary because every government
form assumes that (a) it is important to know someone’s gender, and (b)
everyone in the world is either male or female, but not “both” or “neither.”
A third feature of binaries is that the distinction is never symmetrical.
4. See Lauren Berlant, The Queen of America Goes to Washington: Essays on Sex and
Citizenship (1997).
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If “male” and “female” were perfectly equal as classifications, gender

would no longer be organized through a binary, though femininity and
masculinity would by no means have been abolished. Ever since the Old
Testament defined “woman” as “a rib taken from Man,” it has been clear
that this binary organizes power as well as bodies.
Distinctions that are not perceived quite as natural or exhaustive as
gender can still function as binaries. For example, a state or a culture could
define itself more as “northern” than as “western”—and in any case, “the
West” is a category that is obviously relative to the speaker and hence
highly imprecise; but nevertheless the imperialist distinction between East
and West functions as a global binary, no matter what geographers say.
Like all the other binaries that make up what is called “culture,” the
twofold East-West distinction is freighted with a very large amount of cul-
tural baggage, such that one side (the West) has been constructed as pri-
mary or original, with the other side appearing literally as the Other, as
that which is different—whether the Other is Other and evil or Other and
interesting, exotic, diverse.5
As a final caveat on binaries, it should be clarified that despite all the cur-
rent talk about deconstructing binaries (as if one could demolish the gen-
der system by the power of one’s headaches), from the deconstructive point
of view there is nothing intrinsically wrong with using twofold distinctions.
Drawing distinctions is necessary for human thought, and sometimes it is
most useful to draw twofold distinctionsl. The problems begin when such
distinctions are elevated to the level of myth (in Roland Barthes’s sense),
such that they have the effect of erasing all in-between possibilities and sub-
ordinating one side to the other in an ahistorical manner.
Within political discourse and in some analyses of citizenship, the dis-
tinction between inclusion and exclusion is often treated as a binary in this
fairly precise sense. “Inclusion” is taken as the norm, as the unmarked
term. A web search using social science databases reveals many articles and
books with the word “exclusion” in the title, whereas the converse process
of “inclusion” is largely taken for granted—with the exceptions of litera-
tures on “whiteness studies” and “masculinity studies,” though these tend
to focus on normalization and hegemony rather than on inclusion as such.
The analytical focus on “exclusion” as the Other of the “normal” condition
of inclusion is not simply the result of the researchers’ preferences, however.
5. Bonnie Honig, Democracy and the Foreigner (2001).
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Like all binaries, inclusion/exclusion is not a merely discursive construction: it

is a cultural-empirical fact that cannot be abolished by critical analysis. And
indeed, this binary can be very useful when making political interventions.
Leftist activists and scholars have long pointed out that social welfare or pro-
bation programs that claim to include and/or rehabilitate may in fact stigma-
tize and exclude, and feminists have long pointed out that women who are
neither migrants nor criminals are still in some ways not quite full citizens.6
Such critiques depend on people assuming that if a group is not included, then
it is wholly excluded, and that inclusion is the norm or the unmarked term
and exclusion is unusual and/or bad.
Political binaries (male/female, global North/South, freedom/oppression,
and so forth) are highly useful in tactical political engagements precisely be-
cause they trigger the ancient good-versus-bad, light-versus-darkness imagi-
naries that are found in Greek as well as Christian sources and that continue
to structure both politics and entertainment. The well-worn but still effective
trope with which an eloquent speaker tells an audience that “you were told
that you are free, but in fact you are in chains” is useful as a tool of persua-
sion and mobilization precisely because it is simple, binary, and static. Within
such a framework, if one convincingly argues that something is not actually
included, or included only in a marginal manner, then it follows that one is
justified in denouncing its exclusion. Throughout the 1970s and 1980s, fem-
inism made great strides among ordinary women as well as in intellectual cir-
cles precisely by deploying the “nominally free but actually oppressed” trope
also used by Black civil rights activists and numerous other groups.
But speeches in the public square have different criteria of success and
failure than analytical frameworks: they are different genres, governed by
different rules. As an intellectual field develops out of activist practices, the
rhetorical moves of the agora of course shape early intellectual analyses
(the work of Catherine MacKinnon being exemplary in this regard). But
as time goes on, it becomes possible for intellectuals (and not only those
in the academy) to develop analytical tools that are specifically designed to
explore issues in a more complex, more historically grounded manner than
is possible when engaging in immediate, tactical speech or when taking a
structuralist perspective to denounce patriarchy or capitalism—the latter
rhetorical moves being the intellectual version of the “lose your chains”
6. Carol Patemen, The Sexual Contract (1988).
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rhetoric of radical public politics. This was the case with both the feminist
theory that began in the 1960s and the queer theory that began with 1970s
gay liberation. Today, many feminists and queer scholars are experiment-
ing with ways of analyzing the role of gender and sexuality in political
governance that begin by carefully avoiding any deployment of the inclu-
sion-exclusion binary.7
Within the literature on migration, cultural difference, and citizenship,
some theorists have developed conceptual tools that take us well beyond
the limited insights generated by the inclusion-exclusion binary.8
Empirical and legal studies of criminalization and citizenship, however,
have not thus far drawn on these more sophisticated analytical resources
(at least not to my knowledge). It is thus time now to ask: how can those
working on the criminalization-citizenship nexus from a sociolegal or le-
gal perspective begin to go beyond the inclusion-exclusion binary and de-
velop more fine-grained questions about how coercive law constitutes
(and is constituted by) various forms of citizenship?
A. Coercive Law and the “Stranger”
One issue that is highlighted both by Engin Isin’s historical sociology of

citizenship practices and by Bonnie Honig’s work on the foreigner as both
a resource and a problem for host societies concerns the role of coercive
law in constituting not only the included and the excluded but also the
finer-grained distinctions separating citizens from outsiders on the one
hand and from “strangers”9 or immigrants on the other.10 As Marianne
7. See, e.g., Judith Butler, Antigone’s Claim: Kinship between Life and Death (2000);
Wendy Brown & Janet Halley eds., Left Legalism/Left Critique (2002); Berlant, supra n.
4; Davina Cooper, Governing Out of Order: Space, Law and the Politics of Belonging
(1998); Iris M.Young, Justice and the Politics of Difference (1990).
8. See, e.g., Honig, supra n. 5; Engin Isin, Being Political: Genealogies of Citizenship
(2002).
9. Many contemporary theorists of citizenship use versions of Georg Simmel’s influen-
tial notion of “the stranger,” which in Simmel’s work is carefully distinguished from the
friend-enemy binary drawn by other political dividing lines. Simmel uses the term
“stranger” to refer to “the fundamentally mobile person” who “comes in contact, at one
time or another, with every individual [of a host society], but is not organically connected,
through established ties of kinship, locality, and occupation, with any single one.” George
Simmel, The Stranger, in The Sociology of George Simmel 403 (Kurt Wolff transl., 1950).
Strangers are neither friends nor enemies.
10. Honig, supra n. 5.
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Constable’s work on the mixed jury shows, the criminal law’s jurisdiction
is now fully territorialized, such that even casual visitors to a country can
be tried by that country’s system without any modification taking the vis-
itor/stranger status into account. But this was not always so.11 Constable’s
mixed juries (composed of half citizens and half foreigners from the same
country as the person being tried) have largely or totally disappeared; but
some contemporary legal forms and techniques can be found that enact
something like Georg Simmel’s “stranger.”
In Canada, for example, the criminal law is the same across the nation-
state (unlike the civil law, for which Quebec is allowed to use French-style
civil law instead of the common law). Despite official bilingualism and
multiculturalism, the composition of juries in criminal trials is not ad-
justed for noncitizen accused persons or for cultural minorities. (Although
the provisions made for French-language trials in certain parts of the
country do affect jury composition, in general, cultural minorities are pro-
vided with court translators, but not with jury members or judges of their
own kind.) And in general, Supreme Court of Canada jurisprudence is
wedded to the idea that the criminal law ought to be nation-wide in every
respect: for instance, the community standards test used to adjudicate ob-
scenity and indecency cases has been repeatedly confirmed to be nation-
wide, rather than responsive to local differences or cultural specificity.
Despite this longstanding belief in the uniformity of the criminal law ap-
paratus, however, recent developments have recognized the distinctness
and otherness of one particular group that has long been constituted by
law as strangers. These are those who are strangers in their own land, not
strangers in Simmel’s sense or foreigners in Bonnie Honig’s sense12: the
aboriginal inhabitants of the lands now known as Canada.
The legal constitution of aboriginal Canadians as strangers in their own
land is not consistent across legal processes (a fact that, among other
things, demonstrates that the inclusion-exclusion binary is not helpful if
one wants to understand particular situations). Aboriginal people are sim-
ply persons—or perhaps more specifically, offenders like any other—at the
point of conviction. The guilty/not guilty distinction is meant to be per-
formed without any regard to culture or race, in Canada as in every other
11. Marianne Constable, The Law of the Other: The Mixed Jury and Conceptions of
Citizenship, Law, and Knowledge (1994).
12. Honig, supra n. 5.
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legally liberal jurisdiction. However, at the point of sentencing, aboriginal

“difference” has been recognized for quite some time, and this recognition
has been institutionalized and formalized since the Gladue decision of the
Supreme Court,13 which compelled trial judges to consider the history of
collective aboriginal oppression, not merely individual experiences of
racism, before sentencing aboriginal offenders.14
R v. Gladue thus created an interesting assemblage of citizenship. At the
point of conviction the verdict continues to constitute the nation-state of
Canada as unified whole with a single moral standard, in line with classic
criminal law theory from Beccaria onward. But the special sentencing
process demanded by the Gladue decision then goes on to constitute abo-
riginal offenders, at the point of sentencing only, as different from the
norm by reason of culture/race, that is, as a particular kind of “stranger.”15
Aboriginal people are obviously not immigrants—indeed, it is ironic
that they appear as strangers, since they are the only people in Canada who
are not immigrants. Neither are they “enemies” in the Schmittian sense—
or at least, they have not been enemies for quite some time (perhaps since
the unsuccessful Riel rebellion of the 1870s). And yet, they are not full
Canadian citizens either, since the well-meaning Gladue process necessarily
treats them as Other, as the kind of cultural minority that in Europe would
consist of foreigners and their descendants. And the existence of Gladue
courts is not a wholly new governance invention; for instance, Canadians
with official Indian status could not vote in federal elections until the
1960s, clearly another marker of a “stranger in their own land” status.
Therefore, overall, for some purposes (such as voting and being convicted),
aboriginal Canadians with official Indian status are ordinary Canadians
now; but for other purposes, they form a very particular kind of stranger,
one that is estranged not by virtue of having traveled anywhere but by the
fact that a large number of other people traveled into their land.
The differential sentencing provided for aboriginal Canadians through the
Gladue decision is but one example of the way in which legal mechanisms
rooted in the criminal law constitute not only offenders/outsiders, not
13. R v. Gladue, 688 S.C.R. 1 (1999)

14. In at least some parts of Canada, there are special “Gladue courts” that only do sen-
tencing and are linked to aboriginal-specific social services and rehabilitation programs.
15. Efforts have been made to apply the Gladue logic of collective oppression to other
groups, most notably Black women. But no other group has been provided with a whole
machinery of special sentencing courts.
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only disenfranchised felons and deported foreigners, but also other expe-
riences and identities that can be regarded as falling under the capacious
category of “stranger.” In Canada as in other countries of the global
North, numerous governmental programs and legal tools set up forms of
what Coutin has called “liminal” citizenship.16 There are agricultural la-
borer temporary visas for Jamaican and Mexican workers who are em-
ployed only during harvest season; there are “live-in caregiver” visas that
allow foreigners (mainly Filipino women) to apply for permanent resident
status but only after providing menial work for “Canadian” families for
two years; there are numerous others. In general, legal systems are full of
mechanisms that create such in-between, peripheral categories. These
forms of liminal citizenship should be distinguished, I would argue, from
the transitional forms provided for people who will likely become full cit-
izens and are envisaged as citizens-in-training. Legal permanent residents,
particularly if they belong to suspect cultural groups, may well experience
many legal disabilities as well as prejudice during their permanent resident
period, but analytically it is best to distinguish the citizens-in-training
from those groups that are not even on the escalator to full citizen status,
such as the Roma people in Europe or aboriginal Canadians in Canada.
Legal practices are of course also involved in the constitution of forms
of citizenship that are less peripheral or liminal. Practices that deport, dis-
enfranchise, or otherwise radically exclude people from the political com-
munity have been well documented in empirical and legal studies of
immigration and refugee law, as well as in studies of “felon disenfran-
chisement” in the United States, a kind of internal deportation or out-
lawing. But less attention has been paid to the role of such coercive legal
mechanisms in the constitution, imaginary and practical, of the insider
group, the body of citizens who are authorized to represent the collective
and who think of themselves as free and virtuous citizens, the select group
that allows itself to debate the meaning of justice.17 Since Beccaria at least,
16. Coutin, supra n. 1. It would be interesting to compare the liminal forms of citizenship
elaborated by liberal legal systems to other peripheral or liminal forms of citizenship that are
created by nonliberal legal and political systems. Mechanisms of full inclusion and full ex-
clusion differ significantly between liberal and nonliberal states; but based on nonexpert
knowledge of fascist states as well as of contemporary developments in Russia and China, it
seems to me that the mechanisms of liminal citizenship may exhibit more similarities across
the liberal-nonliberal divide. But that is a question only future research can answer.
17. Isin, supra n. 8, at 1.
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criminal law scholars have acknowledged that the institutions that deliver
punishment play a crucial role in the continued reproduction of the vir-
tuous citizen identity; but although this point is acknowledged at the level
of theory, few empirical studies show precisely how coercive legal tools—
or media representations of the state’s use of such tools—actually consti-
tute the law-abiding, insider citizen.18
B. Games of Citizenship as Interactive Processes
Utilizing Simmel’s notion of the stranger not as a sociological concept but

as a lever to displace the inclusion-exclusion binaries can help sociolegal
research on the policing of migrants, cultural minorities, and immigrants.
Nevertheless, there is a significant risk that the stranger—or any other
form of liminal citizenship—will in turn come to be treated as a static
concept, a category that is one element in a static classification system.
From the point of view of conceptual clarification, the question of which
categories one uses—insider/outsider, stranger/friend/enemy, alien versus
citizen, citizen versus outlaw, among others—is not as important as the
epistemological status of the terms one uses, whatever those are. As has
been noted by some weary governmentality scholars,19 even Foucault’s
terms, which were designed explicitly to be mobile and site-specific aids to
research (very much in contrast to the static classifications of sociological
models) have ended up being used as cookie-cutters, as substitutes for ob-
serving and thinking. The Nietzschean tradition has long (if unsuccess-
fully) argued that when events in the world are pigeonholed by being
quickly subsumed under existing categories, the result is not new insights
but rather the reproduction of the ready-made categories themselves.
In relation to citizenship, migration, and criminalization, a
Nietzschean-Foucaultian approach would lead us to think about the crim-
inalization-citizenship nexus dynamically. We would attempt to describe
what is going on rather than ignore what is new and different by means of
18. Studies of media representations of crime and punishment have pursued this line of
thinking, but mainly by drawing inferences from the representations themselves, rather
than empirically studying how consuming various media representations (as news or fic-
tion) shapes political practices. See, e.g., Mariana Valverde, Law and Order: Signs,
Meanings, Myths (2006).
19. Nikolas Rose, Pat O’Malley, & Mariana Valverde, Governmentality, 2 Ann. Rev. L.
& Soc. Sci. 83 (2006).
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the pigeonholing process. This would require taking citizenship not as a

status or even as a set of subject positions, but rather as a possibly helpful
but necessarily misleading umbrella term for a whole host of different and
always interactive processes that are continually evolving and thus never
adequately captured by any model or classification scheme.
In Being Political, a book that to some extent draws on Foucaultian
methods, and that has had significant impact within citizenship studies,
Engin Isin proposes that rather than thinking about citizenship as a set of
identities (strangers, citizens, aliens), we could think about interactive citi-
zenship practices. In his view, some of these practices have a “solidaristic”
logic, some have an “agonistic” logic, and some have an “alienating” or ex-
clusionary logic, and many have two or three of these simultaneously.20
Without taking this threefold distinction as any kind of exclusive frame-
work, the approach that generated it is, I think, useful for the kind of re-
search that this special issue seeks to foster. One key feature of Isin’s
approach is that particular legal technologies can be seen as enacting dif-
ferent logics simultaneously—thus avoiding sterile debates about whether
law X is essentially inclusionary or exclusionary, good or bad. For example,
any health insurance scheme enacts a solidaristic logic for those who be-
long, but because even national, public health insurance is not necessarily
provided to all inhabitants of the territory, even the most “universal” pro-
grams can be shown to harbor contradictory logics of governance. Along
the same lines, the granting of passports can be seen as simultaneously sol-
idaristic, insofar as a citizenry is literally brought into being through the
shared passport, and alienating, insofar as the inspection of passports at the
border literally alienates those who do not have the proper documents. To
draw from another sphere, the legalization of same-sex marriage can be
seen as a process mobilizing Isin’s three logics: solidaristic for the gay and
lesbian couples involved, alienating for gays and lesbians who prefer multi-
ple partners, and agonistic for those groups (such as the Anglican Church)
in which same-sex marriage turned into an apple of discord.21
20. Isin, supra n. 8, at 22.

21. Isin actually means something different by “agonistic”—something like “overlap-
ping subject positions”—but I prefer to revise “agonistic” to capture the metapolitical
process by which citizenship practices themselves become the topic of general political dis-
cussion, a discussion that passionately involves many who are not personally affected and
who are not making decisions.
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I do not refer to Isin’s terms in order to defend his terminology against

that used in different traditions. Hannah Arendt, to give but one example,
elaborated a number of ideas and terms that have been fruitfully borrowed
by many international law scholars, and could also be borrowed by those
working on criminalization and citizenship. What I think is important
about Isin’s work is not the specific terms he uses but rather his method.
In his work,22 citizenship is neither a status nor an identity, and therefore
the game of citizenship is not read as a zero-sum game. Rather, citizenship
is regarded as a term whose essence consists in variously concealing and re-
vealing the multiple, contradictory, and often overlapping processes of
power and domination, solidarity and loyalty, fear and hatred, patriotism
and devotion, through which social and political groups constantly create
themselves. By participating in games of citizenship, groups perform a
number of constitutive tasks: they define themselves through negative por-
trayals of others; they promote one vision of the polis against another;
they attempt to unify a fragmented polis by describing it as actually uni-
fied; they wage ideological or actual battle against those regarded as ene-
mies of the polis or as enemies of civilization in general; sometimes they
also enact mercy and humanitarianism by taking in deserving refugees
from “uncivilized” parts of the world—and so on, as the games of citizen-
ship are extremely varied.
The criminal law, and coercive law in general, is one of the many boxes
of tools that can and have been used in games of citizenship. As many
criminologists have pointed out,23 the criminal law and its various mech-
anisms (sentencing, for example) is often used for many purposes other
than to control crime and punish offenders. Existing work on the crimi-
nalization and quasi criminalization of certain migrant populations has
shown that the games of citizenship that we witness around us can and do
use criminal statutes, quasi-criminal laws, policing mechanisms, sentenc-
ing policies, rituals of shame and punishment, practices of detention, and
last but not least, the idea of the criminal law as such, as elements, as
weapons. And if we accept the view—promoted both by Foucault and by
Bruno Latour and actor-network theory—that no governing technology
has an essential meaning, since the meaning and effectivity of governing
22. See also Engin Isin, Cities without Citizens: Modernity of the City as a Municipal
Corporation (1992).
23. See, e.g., Jonathan Simon, Governing through Crime (2007).
NCLR1302_03.qxd 4/16/10 2:22 PM Page 229
tactics are always dependent on the assemblage within which the tech-
nique is deployed, then we will find it easier to document how we are be-
ing governed and how we in turn govern, or try to govern, ourselves and
other people. In particular, research on the interaction between coercive
legal mechanisms and games of citizenship could explore the variety of so-
ciopolitical effects that flow from the use of certain criminal justice and re-
lated techniques, and that interact in unpredictable ways with the other
cultural, emotional, legal, economic, and material bits that are deployed as
resources in political and social struggles.
Such research may benefit from asking two kinds of questions:
1. How do mechanisms of coercive law construct different varieties
or forms of citizenship, either by design or through unintended
effects? Do some legal discourses, inventions, or mechanisms
construct different and even contradictory kinds of citizenship at
the same time? How does marginalization or liminality differ
from exclusion? Should exclusion be treated as a singular process,
or are there theoretically significant distinctions that need to be
drawn? And last but not least, what kind of insider or citizen
identities are produced through coercive law and its associated
mechanisms?
2. How do existing practices of citizenship in turn shape develop-
ments in coercive law and regulation? What are the relations be-
tween political-social developments affecting citizenship and
legal change? Do jurisdictions with different political and cultural
features sometimes rely on the same legal mechanisms to govern
citizenship in its broader sense? How do legal techniques interact
with other techniques of citizenship, concretely? Do progressive
legal-political projects (such as the inclusion of immigrants
within the social welfare system) require liberalizing the formal
legal system, or are there other techniques of governance that
have worked to this end?
I I . TOWA R D A M U LT I S CA L A R U N D E R S TA N D I N G
O F L AW ’ S M A P P I N G
There are different ways of attempting to compare and contrast different

games of citizenship. Isin’s Being Political chooses the perspective of his-
torical sociology: he begins with the Greek polis and goes on, through the
NCLR1302_03.qxd 4/16/10 2:22 PM Page 230
Roman civitas and the urban form he calls “Christianopolis,” all the way
to the present, “Metropolis” and “Cosmopolis.” The historical approach is
refreshing, since in the current race to theorize “spaces of flows” and other
supposedly contemporary situations (from “risk society” to the “abolition
of space by time”), history in the sense of historical experience is often
disregarded, not because it has been shown not to matter but because the
authors are geographers and sociologists who are trained to ignore his-
tory. But a historical perspective and scale do not suffice to answer all our
questions. Partly as a reaction to the historicist tendencies of much big-
picture sociology, many researchers have today turned their attention to
the governance of space—often including the governance of microspaces
and microinteractions. Legal anthropology and legal geography have
flourished in part because of their ability to analyze struggles in and
about space. And yet, the best legal anthropology24 often leaves one won-
dering: Has it always been like this? How did the people managing con-
flicts or solving problems in X city in Y year come to use certain legal
tools rather than others? Given that the turn toward “space” and against
history proclaimed by theorists such as Manuel Castells and Ed Soja is
now already old news, it may be time to ask whether it is at all necessary
to counterpose “spaces of flows” to historical analysis. And it seems to me
that, at least in regard to legal processes, it is completely unnecessary to
make an a priori choice privileging space rather than time (or the other
way around).
One way to avoid having to choose between history and postmodern
geography, between time and space as dimensions of analysis, is to note
that, as Saskia Sassen has recently reminded us, scale is a key feature of
temporal as well as spatial processes.25 Along similar lines, although I am
very sympathetic both to historical sociology and to Foucaultian genealo-
gies, I will show that it is not necessary to choose between space and time,
between historical sociology and legal geography, when borrowing con-
ceptual tools to analyze legal processes. Most literature on law and scale
treats scale as purely spatial,26 but there is no reason why temporalization
24. See, e.g., Boaventura de Sousa Santos, The Law of the Oppressed: The
Construction and Reproduction of Legality in Pasargada, 14 Law & Soc’y Rev. 5 (1977).
25. Sassen, supra n. 2.
26. See, e.g., Boaventura de Sousa Santos, Law: A Map of Misreading: Toward a
Postmodern Conception of Law, 14 J. of Law & Soc’y 279 (1987).
NCLR1302_03.qxd 4/16/10 2:22 PM Page 231
cannot be included in an analysis of the role of scale in governance and in

law, as Sassen does, or at least tries to do.27
A. Temporal and Spatial Scales
Let us briefly discuss the scales of temporalization in relation to law, and

then return to the joint consideration of spatial and temporal scales.
When posing questions about the temporalization of legal governance,
two different dimensions of temporality must be considered. The first di-
mension is the historical one. History may be repressed or transmuted into
a “time out of mind” in many legal discourses,28 but scholars examining the
workings of particular legal mechanisms can certainly benefit from under-
standing how legal tools have changed historically. And, perhaps more im-
portantly, many legal discourses do themselves explicitly consider the
historicity of law. This is most often done in an evolutionist Whig-history
manner, as when judges congratulate themselves that old moralistic views
of the criminal law have been replaced by the modern harm principle (the
standard trope of Canadian appeal court jurisprudence on morals offenses).
But however history appears in political and legal governance, history both
in the sense of formative events in the past and in the sense of how we think
about the past matters a great deal. A critical scholar examining the inter-
action of citizenship mechanisms with coercive legal tools needs to have a
good understanding of the history of legal mechanisms themselves, and
also needs to understand what we could call the subjective dimension of the
historicity of law, that is, the way in which authorities today think of the
nation’s history or the history of the common law.29
27. Sassen’s vast and erudite account of the major shifts in the Western governance of
citizenship begins with medieval cities and the medieval legal invention of the corporation,
a choice that, among other things, puts the legal mechanisms of “globalization” in histor-
ical perspective. However, I do not think that medieval and early modern governance can
be adequately understood under the banner of “rights.” An analysis of the difference be-
tween governing through privileges/licences, as premodern kingdoms and cities did, and
governing through rights, as modern liberal regimes do, would have improved Sassen’s ac-
count, empirically, and would help to shed light on current mechanisms of liminal citi-
zenship that make use of the ancient category of the “privilege” (as in “the privileges of the
corporation”), even though they avoid the word.
28. Peter Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (1990).
29. See J.G.A. Pocock, The Ancient Constitution and Feudal Law: A Study of English
Historical Thought in the Seventeenth Century (1957).
NCLR1302_03.qxd 4/16/10 2:22 PM Page 232
The second dimension of temporalization concerns the more immedi-

ate and everyday questions about time and timing. “Time” in this more
everyday sense is clearly an integral component of legal inquiries. “When
did Mr. X know fact A?” is a straightforwardly legal question routinely
asked in both civil law and criminal law contexts, not to mention in in-
quiries into political corruption. If when someone bought a gun or read a
memo or made a phone call is crucial to the legal process, then surely time
matters, even if “time” is here a prosaic experiential category quite re-
moved from Saint Augustine’s ruminations.
Both modes of legal temporalization exhibit marked scalar effects.30
Historically, adopting a grand scale leads to asking big questions about
phenomena that were barely apparent to those who lived through them.
The transition from status to contract and the decline of patriarchal fam-
ily authority are two of the narratives that have been told at this scale;
within the Marxist tradition, the transition from feudalism to capitalism
is another narrative told at this scale. But like all scales, this scale hides cer-
tain developments precisely because of its focus on the kind of phenom-
ena that only become visible from one century to another. The transition
from the postwar welfare state to our own neoliberal times is a well-known
narrative that can only be told by adopting a somewhat more modest scale
(more modest historically, at any rate—geographically, the narrative about
the rise of neoliberalism is usually highly ambitious).
Similarly, time becomes important for legal processes in the second,
more everyday sense at different scales, and not only in the quantitative
sense of the amount of time involved or in the police-procedural sense of
who did what when. The legality of a visitor’s visa, to give an example
from the realm of citizenship in the legal sense, is a temporally specific le-
gal entity, one that has both a beginning point and a fixed end point. Legal
terms and techniques that include temporality as an essential ingredient
(such as visas, but also prison sentences) could perhaps be subject to scrutiny
by critical scholars who experiment with what geographers call “scale shift-
ing.” Why does the United Kingdom set a standard length of six months for
visitor visas? Why not six years? And why are different scales applied to dif-
ferent kinds of migrants? In Canadian law, for example, a Chinese person
contemplating emigration who qualifies for immigrant status has to spend
30. See Andrew Herod & Melissa Wright, Geographies of Power: Placing Scale (2002).
NCLR1302_03.qxd 4/16/10 2:22 PM Page 233
a year or two waiting for a permanent resident visa in China, and then at
least three years being a resident of Canada before becoming a citizen; but
a Chinese girl adopted from an orphanage by a Canadian family becomes
fully Canadian as soon as she enters Canada. In the end both Chinese-
born people will end up with a Canadian passport, but the different tem-
poral scales of citizenship may well constitute them as different kinds of
citizens, perhaps permanently.
Integrating questions about larger historical shifts with attention to the
details of temporally specific regulatory tools such as visas and passports
would be productive. For instance, to go back to the example of Chinese
Canadians, historians have documented many of the xenophobic devel-
opments that marked Chinese immigrants as different from European im-
migrants for most of the country’s history; they have also noted that the
Chinese exclusion laws were much more gender-specific than was the case
for other immigrant groups. Existing studies of Chinese Canadian legal
history could be made more relevant to understanding some of today’s
specific legal techniques if the two dimensions of legal temporality were
kept in mind. Questions about spatial governance could then be incorpo-
rated into the analysis. In the case of Chinese Canadians, the urban tech-
nology of the “Chinatown,” which persists today even though Chinese
people are by no means confined to ghetto-like spaces, is to some extent a
practice of citizenship (no doubt encouraged, if not produced, by legal
mechanisms such as specific zoning bylaws for commercial laundries and
restaurants) whose history may shed light on other sociolegal mechanisms.
As Kay Anderson’s exemplary work on Vancouver shows, the specific tem-
porality of Canadian law regarding Chinese immigration (a temporality
that for many decades prevented those Chinese laborers imported to build
the railways from bringing their wives and children, in sharp contrast to
northern and southern European groups that came as families) and the
quite specific sociolegal spatiality of “Chinatown” shaped Chinese
Canadian practices of citizenship even after legal mechanisms such as the
head tax were abolished.31
In general, attention to the temporal scales of legal mechanisms, as well
as the temporality of discourses about the law, may well help to pose new
31. Kay J. Anderson, Vancouver’s Chinatown: Racial Discourse in Canada, 1875–1980

(1991).
NCLR1302_03.qxd 4/16/10 2:22 PM Page 234
questions about legal regulation, coercion, and citizenship. Legal anthro-

pologists as well as legal historians have amply documented the ways in
which time as well as space shape the meaning and the effects of law—
”time” both in the sense of historical time and in the everyday, police-
procedural sense. Time may have become unfashionable by comparison
with space,32 but if we are to avoid the distortions caused by following
fashion, considering “law’s mapping” 33 will have to involve paying atten-
tion to temporal as well as spatial scales.
It may seem that the examples of possible research questions given thus
far are somewhat trivial. Does it really matter whether visitor visas are given
for six months rather than six years? And since few would disagree that his-
tory matters, does talking about the historical scales of law really tell us any-
thing new? It may thus be helpful to raise the more clearly theoretical
question of the importance of scale (in general) in governance. Why is scale
being proposed as a useful category of analysis in the present context?
Legal theorists generally agree that one of today’s key challenges is
grasping and understanding the layered processes of governance that result
not only from globalization but also from the proliferation of new private
jurisdictions, from international commercial arbitration to Internet law.
Work that pays attention to scale can be particularly fruitful in helping
us to understand how private jurisdictions, national jurisdictions, and
transnational jurisdictions can all be proliferating at the same time, ap-
parently without difficulty. That legal power is not a zero-sum game, and
that the rise of new scales of governance (mainly global ones) has by no
means diminished the importance or the size of state machineries, has
been observed by many.34 Scale shifting is one mechanism that enables le-
gal orders working at different scales to coexist.
However, a cautionary note is in order. Recent work on scale and scale
shifts tends to assume that scales exist in a zero-sum relation, such that us-
ing one (say, the scale of “seeing like a state”35) means that another (say,
32. The 2009 meeting of the Law and Society Association featured at least six sessions
on “law and space” or “legal geography,” along with a miniplenary and a research network
meeting. Legal historians were not completely invisible, but they did not seem to have the
same collective presence or prestige.
33. Santos, supra n. 26.
34. See, e.g., Sassen, supra n. 2.
35. James Scott, Seeing Like a State (1998).
NCLR1302_03.qxd 4/16/10 2:22 PM Page 235
the scale of walking around one’s own neighborhood36) will be aban-

doned. Although there are many situations in which one scale does actu-
ally replace another, the fact is that old scales never die. They are sometimes
put on the shelf, but the complex apparatus of overlapping and multiple
scales of governance that has developed (within and intertwined with law)
continues to exist even when only a particular, perhaps new technique or
scale is being used. It is thus best to examine scale (and the related ma-
chinery of jurisdiction) as a whole. To put it differently: instead of focusing
on the outcome of the games of scale and jurisdiction (asking questions
such as, are we living in a global world?, or, does the state still matter?), it
would be more useful to think about the rules of the game of scale. Doing
this will involve recognizing that scale shifting is not merely a clever ma-
neuver that critical scholars perform; it is a game that practitioners soon
learn how to play. Understanding scale shifting is thus important in un-
derstanding how we are governed.
Let us illustrate the games of scale shifting that enable coercive legal
mechanisms to work with some examples. A government that cannot, for
constitutional reasons, recriminalize the status of vagrancy may well en-
courage a variety of officials and/or police to govern disorder at a highly
local scale by providing them with new coercive tools that govern space
and persons in a site-specific manner. As scholars study and analyze such
choices (for example, in the current British debates about Anti-Social
Behaviour Orders), understanding the implications of scale shifts is use-
ful. A national government that is unable to pass new criminal laws tar-
geting a status can easily shift scales and enable municipalities to take
a host of measures that have a similar effect. Those who are implementing
coercive rules that shift the legal scale understand quite well how using a
municipal regulation is similar to but different from using a criminal
statute. Critical scholars too understand that by shifting scale, a governing
authority can quietly shift from one governing apparatus to another with-
out seeming to make a political decision, but this move has not always been
properly conceptualized. Inaccurate statements about the “criminalization
of the poor,” statements that have much political value in the agora, have
sometimes prevented analysts from investigating how governing the poor
through space, and through local spaces in particular, is not quite the same
as what was done in the days of workhouses and the Poor Law.
36. Jane Jacobs, The Death and Life of Great American Cities (1960).
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Scale shifting can be presented by legal and political authorities as a

purely technical move—as a legal technicality or even a technical techni-
cality, so to speak. A judge can say that municipalities are simply not au-
thorized to pass criminal or quasi-criminal statutes (as has happened
repeatedly in Canada, in relation to urban disorder). But the game of ju-
risdiction, which is not coterminous with the game of scale but overlaps
with it to a large extent,37 is a highly political game, as politicians (and
probably judges too) well know. The most important aspect of the games
of scale that authorities play is that, once a particular issue has been allo-
cated to one scale rather than another, it appears as naturally suited to a
particular form of governance.
In other words, the scale (which is often though not always determined
by the jurisdiction) greatly affects the how of governance. For example,
when wife abuse was regarded as a purely intrafamiliar matter, the appro-
priate mode of governance was intervention by relatives. Once wife abuse
was redefined through scale shifting—as a question of criminal harm, a
public issue of national scale—then it came to be governed differently.
Similarly, when a particular risk is redefined as global, a different mode of
governance is thought to be appropriate. Terrorism provides useful exam-
ples here. The Irish Republican Army certainly posed security risks for
many years, in Northern Ireland and in Britain proper, but the IRA was
not seen as a global risk. Airports in Britain took certain security measures
to manage the risk of IRA bombs. In the wake of September 11, 2001, how-
ever, security systems were overhauled in airports far from the United
States, even though those attacks only affected the United States, as the Al
Qaeda risk was seen as global.
As is generally the case, the shift to a global scale involved not only in-
creasing the amount of space or the numbers of people being governed but
also a qualitative transition as well.38 The IRA was global in the sense that
money from the United States flowed to its coffers, but this did not suffice
to legitimate a global system for monitoring all international bank trans-
fers. Only the recent redefinition of one kind of terrorism (Islamist ex-
tremism) as global created the necessary pressures to overhaul the routine
37. Mariana Valverde, Jurisdiction and Scale: Legal “Technicalities” as Resources for
Theory, 18 Soc. & Legal Stud. 139 (2009).
38. On how scale makes a qualitative difference in governance, see, e.g., Santos, supra
n. 26; and Herod & Wright, supra n. 30.
NCLR1302_03.qxd 4/16/10 2:22 PM Page 237
monitoring of financial transactions. A terrorist threat defined as national

does not seem to trigger the same governance moves as threats that are de-
fined as global. Those concerned with the proliferation of security meas-
ures might therefore find it helpful to pose some of their research
questions in terms of scale.
Although many of the examples just discussed featured scale shifts—
from the national to the global, as an example—it is nevertheless crucial
to recall that multiple scales of governance can and do coexist, often on a
single space/time unit. Here it is useful to recall a term introduced by Boa
Santos many years ago: “interlegality.”39 By drawing attention to the coex-
istence of plural legal systems, formal and informal, some overlapping and
some coterminous, Santos reminded us that it is dangerous to focus only
on whichever scale/legal system seems most prominent (for example, to-
day, globalization):
I will try to show that the national (and the international) territory consists
of several social spaces which, though autonomous, interrelate in different
ways. Within each social space and across spaces different kinds of juridical
capital circulate: nationalised or state juridical capitals and private juridical
capitals, sacred and profane juridical capitals, and so on. Each kind of ju-
ridical capital prompts a specific kind of actions and symbolic universes.40
In addition to the coexistence of formal state law with various types of

customary law (including the private legal systems that are set up by and
regulate religions, professions, and sports), Santos draws our attention to
the coexistence of different formal systems of law that are differentiated
and harmonized by scale differences—local, national, and supranational.41
And whereas Santos’s main interest was to document the interaction be-
tween formal state law and customary or informal law, his term for the
complex interaction of heterogeneous forms of juridical capital, “inter-
legality,” can also be used to draw attention to the fact that different scales
of law (such as the local, the transnational, the private, and the national)
that operate on the same space often exhibit very different and even con-
tradictory logics.
39. Santos, supra n. 26.

40. Santos, supra n. 26, at 286.
41. Id. at 287.
NCLR1302_03.qxd 4/16/10 2:22 PM Page 238
What Santos’s analysis of “law’s mapping” does not discuss, however, is

that the legitimacy of different legal mechanisms, or rather different log-
ics of governance, is to a greater or lesser extent dependent on the scale of
the mechanism in question. A local municipality can legally compel home
owners to paint their houses and weed their lawns and even to clear snow
from the public sidewalk abutting their property, but such demands, if
made nationally, would be regarded as illegitimate and tyrannical. On the
other hand, only a nation-state can legitimately compel citizens to become
soldiers and risk their life—other scales of governance, from the global
(the United Nations) to the local, do not have this particular legitimacy.
Citizens are expected (at least on certain occasions) to give their lives, but
only for their country, not for their city or their world.
The everyday scale shifting that is routinely performed not only by legal
authorities but also by ordinary people contemplating their legal duties is
undergirded, legally, by the mechanism of jurisdiction. Jurisdiction—the
governance of legal governance—is not a structure in the Marxist sense; it
is not hidden from view. But although not hidden, it is rarely subject to ex-
amination. New jurisdictions (such as European Union law) are subject to
a great deal of popular and expert challenge. But once a particular jurisdic-
tional machinery has been in place long enough to have become “black-
boxed,” as Bruno Latour would say, the contradictions between conflicting
modes and scales of governance are no longer noticeable. People do not ask
why it is that immigration matters are federal/national rather than local, for
example, even though in many countries the vast majority of immigrants
choose a specific city as their new home. And people do not ask why cities
cannot ask citizens to give up their lives.
The legal mechanism of jurisdiction—which sets limits on the scale
shifting that authorities can do, and which in turn generates many scalar
effects—has many uses and produces many effects. As has been suggested
in the preceding paragraphs, jurisdiction is extremely useful for the work-
ings of governance generally (not only of the formal law) because it man-
ages the epistemological conflicts among heterogeneous logics of
governance by sorting different kinds of governance into different boxes.
The naturalization of jurisdiction makes it seem “natural” that the na-
tional capital sends officers throughout the land to check the residence
and citizenship papers of the inhabitants and to exercise coercive force, in-
cluding physical detention, on those whose papers are not in order. A lo-
cal authority that attempted to exercise coercive physical force on owners
NCLR1302_03.qxd 4/16/10 2:22 PM Page 239
of homes and businesses whose papers were not in order would not be well
regarded, by contrast: a municipal officer cannot arrest or detain anyone.
Perhaps most relevant to the citizenship-criminalization nexus, a munici-
pal authority cannot deport anyone or in any other way control who
comes to occupy its space. That space works differently for cities than for
nation-states is an observation that might help us to understand the im-
portant differences between “citizen” in the old Greek sense and “citizen”
in the modern national sense.
That the legitimacy of physically detaining someone against their will
or expelling them from a certain territory should be contingent on the
scale of the relevant legal mechanism is a curious feature of the working of
the scales of legal governance. Paying attention to temporal and spatial
scales of legal and political governance may thus help to generate new in-
sights into the relations between criminalization (or coercive law more
generally) and citizenship. Some of the questions that could be asked are:
1. What are the implications of the choices of scale apparent in dif-
ferent legal and political mechanisms? And how do legal orders
that work at different scales coexist? Are there contradictions and
struggles, or do the legal orders divide up the labor of governance
quietly? What happens when citizens challenge not only gover-
nance decisions but the scale of governance?
2. Are different modes of governance associated with different tem-
poral-spatial scales of governance? Does the nation-state govern
more coercively (either through criminal law or immigration law)
than other levels/scales of legal order? Would it be possible to
challenge coercive mechanisms by suggesting a scale shift?
CONCLUS ION
Citizenship studies reminds us that practices of citizenship are not hard-

wired to the scale of the nation-state. Many activist groups work at non-
national as well as national scales—and of course, cities, the original site
of citizens, are still an important site of practices of citizenship. Scholars
and activists interested in documenting and challenging cultural-social
trends that constitute citizen and noncitizen identities in an unjust man-
ner may benefit from combining insights from citizenship studies and
those studies, by geographers and others, that focus on the role of scale in
NCLR1302_03.qxd 4/16/10 2:22 PM Page 240
governance and in citizenship. And at the more strictly scholarly level,

both penal jurisprudence and criminology may benefit from a critical look
at their own default scalar setting, which is of course the scale of the
nation-state. As Saskia Sassen notes:
The national state project was to neutralize other temporalities and other
spatialities. As a result the fact of a constructed temporality has to some ex-
tent remained submerged, an unnamed condition, partly because it is the
given condition, the assumed built-in time of much social science.42
Criminology is probably the most statist of all of the state-centric social

sciences, so Sassen’s critique very much applies. But what Sassen does not
mention is that by the time the social sciences developed, in the middle
and late nineteenth century, the scale of the nation-state had already been
naturalized by a variety of mechanisms, including, in an important role,
the criminal law. If codification was in many countries a great nation-
formation project, noncodification was certainly a national project as well
in England.43 That the criminal law itself, apart from any of its content,
may be functioning to prop up the scale of the state in the face of chal-
lenges by advocates of local autonomy and by preachers of globalization,
is a question that could be fruitfully pursued. Whereas private law happily
adapts to include a variety of new jurisdictions with nonnational scales
(from international commercial arbitration to professional and business
self-regulation), the criminal law remains statist and national in scale either
wholly (in most countries) or to a large extent (in Europe).
This convergence of scales may or may not be a coincidence. But what-
ever the answer may prove to be, asking questions about the scales of differ-
ent practices of citizenship and the scales of different uses of coercive law is
likely to result in some new insights. Governance is always scalar, and prac-
tices of citizenship too are always scale-specific. To that extent, the two di-
mensions of this article—the focus on practices of citizenship and the focus
on scale—are not so different. Studying existing practices of citizenship,
with due regard for scale-shifting moves and the unpredictable interactions
of governing orders working at different scales, may help to deepen our un-
derstanding of crucial political and legal issues facing us today.
42. Sassen, supra n. 2, at 395.

43. Goodrich, supra n. 28.

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Practices of Citizenship and Scales of Governance

Author(s): Mariana Valverde

Theoretical developments in two fields not generally used by criminal law

*University of Toronto, Centre of Criminology, 14 Queens Park Crescent West, Toronto,

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second, to facilitate further research and analysis. A useful framework that

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Citizenship studies routinely include the criminal law in lists of state

Studies of citizenship, migration, and criminalization tend to focus on in-

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If “male” and “female” were perfectly equal as classiﬁcations, gender

5. Bonnie Honig, Democracy and the Foreigner (2001).

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Like all binaries, inclusion/exclusion is not a merely discursive construction: it

6. Carol Patemen, The Sexual Contract (1988).

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A. Coercive Law and the “Stranger”

One issue that is highlighted both by Engin Isin’s historical sociology of

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legally liberal jurisdiction. However, at the point of sentencing, aboriginal

13. R v. Gladue, 688 S.C.R. 1 (1999)

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B. Games of Citizenship as Interactive Processes

Utilizing Simmel’s notion of the stranger not as a sociological concept but

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the pigeonholing process. This would require taking citizenship not as a

20. Isin, supra n. 8, at 22.

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I do not refer to Isin’s terms in order to defend his terminology against

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There are different ways of attempting to compare and contrast different

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cannot be included in an analysis of the role of scale in governance and in

A. Temporal and Spatial Scales

Let us brieﬂy discuss the scales of temporalization in relation to law, and

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The second dimension of temporalization concerns the more immedi-

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31. Kay J. Anderson, Vancouver’s Chinatown: Racial Discourse in Canada, 1875–1980

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questions about legal regulation, coercion, and citizenship. Legal anthro-

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the scale of walking around one’s own neighborhood36) will be aban-

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Scale shifting can be presented by legal and political authorities as a

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monitoring of ﬁnancial transactions. A terrorist threat deﬁned as national

In addition to the coexistence of formal state law with various types of

39. Santos, supra n. 26.

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What Santos’s analysis of “law’s mapping” does not discuss, however, is

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Citizenship studies reminds us that practices of citizenship are not hard-

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governance and in citizenship. And at the more strictly scholarly level,

Criminology is probably the most statist of all of the state-centric social

42. Sassen, supra n. 2, at 395.

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