• Team Lawtsapp


What is a Legal Borderland?

It is often said that a smart person knows ‘where to draw a line’. When a person acts too friendly or intimate with a mere acquaintance, he/she is advised to know where to draw the line. These lines often connoted as boundaries, express discontinuity. Apart from instating points or markers of separation, they also leave space for a lot of ambiguity. When, for example, India was partitioned there was ambiguity in Punjab and Bengal as to where ‘one order of things were morphing into another’. Legal borderlands, as defined by Pedro Rubim Borges Fortes and Ioannis Kampourakis, are “about this ambiguity inherent in a world of multiple normative orders. Ambiguity might result from overlapping jurisdictions and conflict of laws or it might be the consequence of a disjunction between legal and non-legal normative orders.” Since a borderland is understood as the area near the borders, a legal borderland can be a site placed on the edge if the law. Another interesting understanding is given in the research paper ‘Legal Borderlands: Law and the Construction of American Borders, a Special Issue of American Quarterly’; a legal borderland is defined as demarcating “the ideological spaces or gaps, holes in the imagining of America, where America is felt to be "out of place," such as contexts where, in spite of American ideals of democracy and rights, violations of the law are routinized, such as in the space of the prison.”

Clemency as a Legal borderland

In the 21st century, where mankind is living in an inter-connected set up, there are situations where the lines become blur. There is multiplicity of normative orders due to existence of different kinds of laws –customary, international, national etc. This emergence of legal pluralism in turn makes the concept of legal borderlands extremely timely and relevant. Assume that there is a country that upholds ideals of justice, liberty and equality. Now a protest is going on this country against the present government and in those protests certain and conducts and behaviors are against the black letter law. However, the protesters appeal that they are justified on grounds of justice and liberty. This situation is an example of renegotiation of legal borderlands. To ponder upon the borders of law, the dilemma of sovereignty and rule of law comes into the picture. It is very rich to even call it a dilemma since sovereignty and national security enjoys higher priority. The concept of sovereignty often leaves scopes for clemency, which in turn limits laws. This clemency can be construed as executive clemency where people decide who can and cannot be exempted from the purview of law. The debate between right to privacy and government surveillance is of similar nature.

Normative and Legal Pluralism: where to draw the line?

Another major consideration in present times is the existence of pluralist and multicultural societies. As mentioned earlier, the society is governed not by one law but multiple laws. There is hardly any state which is run by only on type/kind of law; even states which were theocratic or governed by religious laws are expanding to human rights and international conventions. Therefore, one major question that arises is of ‘what is legal and what is illegal’. It might as well be that where the boundaries of one law ends, the boundaries of another starts. A religious law might be contradictory to the public policy or vice versa. On this contention Gunther Teubner writes that “it is not up to the arbitrary cognitive interests of the observer to delineate ‘legal borderlands’, but it is up to law itself, as a self-organizing social practice, to produce its boundaries under the pressures of its social environment.”

The Theory of Exceptionality

Lastly, Legal borderlands can also be understood as geographical or physical zones of a state where the ‘territorial and legal limits of the state are being negotiated’. For example, these zones can be part of the United States of America (within the fifty states), or outside in the form of unincorporated territory (Northern Mariana Islands). For example, the prison space is part of the territory of a country, however, liberty, rights and democracy do not extend to prisons; even if they do, they are relatively less and compromised. This brings into the question the theory of exceptionality. These exceptions are examples of legal borderlands. If an action can’t be put in the box of legal and illegal, it is convenient to put it in the box of exception. Interestingly if European nations acknowledge the existence of a ‘European identity’ and relate that identity with principles of justice, rule of law, democracy and freedom; then imperialism and colonization were their exceptions to those principles. Since Britain was the sovereign of many nations and those nations’ territories were part of Britain, all its colonies would have been exceptions to its ‘Britain Identity’.

Author: Harshita Tyagi

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