An Examination of the Customs Act by Fuller and Agamben

The topic I chose to write about for the term paper involves an analysis of the Customs Act in Canada, in particular Section 13. As many people know, the Customs Act has been a consistently challenged and contested area of legislation. Additionally, many people do not actually realize what the authorities, both mandated and discretionary, of Canada Border Services Agency (CBSA) officers are while they are conducting their duties with relation to enforcing the Act. I intend to analyse this law from both the view of Fuller and that of Agamben. Ultimately, I seek to convey that although many may suggest that the Customs Act is a detrimental invasion of privacy and promotes a normalized “state of exception,” it is actually vital to protecting Canada’s border integrity and the citizens residing in Canada from threats to public safety and national security. A government report will demonstrate supporting statistics.

Under Section 13 of the Customs Act, people who are seeking entry to Canada or who are in a Canadian customs-controlled area are obliged to do the following:

13. Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall

(a) answer truthfully any question asked by an officer with respect to the goods; and

(b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine.

Many legal challenges have arisen with relation to the Canadian Charter of Rights and Freedoms as a result of seizures made by CBSA officers while exercising their authorities under the Customs Act. Those who challenge the legality of the seizures namely reference Section 8 of the Charter, which states:

8. Everyone has the right to be secure against unreasonable search or seizure.

Lon Fuller would explain the Customs Act by saying that lawmaking is a craft that has an “internal morality.” The main purpose of the law is to both act as an instrument for social control while also remaining as a facilitator of human interaction. Just as the Canadian Charter of Rights and Freedoms, the Customs Act is a law that has been created through rational activity for a distinct purpose and is governed by internal morality. The distinct purpose of the Charter is to protect what has been decided to be the inherent rights of people within Canada and in the process, has become the measure to which all other laws are compared to. However, the Customs Act deliberately contradicts the Charter by allowing anyone to be searched and have their good seized, with the distinct purpose of finding any threats that may be attempting to enter the country. A journal article will be used to support Fuller’s approach.

Giorgio Agamben would explain the Customs Act by saying that the government is exercising its power to circumvent the law (e.g., the Charter) in an attempt to resolve a certain issue (e.g., drug/people smuggling, threats to national security and public safety). Agamben would consider a Customs-controlled area as being a space of normalized exceptionality. A journal article will be used to support Agamben’s approach.

In the discussion, I will evaluate Fuller and Agamben’s approaches by comparing lawmaking as a craft and states of exception. The conclusion will be a brief overview of the two analyses and my suggestions for any possible further areas of interest.

References:

Pavlich, George. “Chapter 2.” Law & Society Redefined. Don Mills: Oxford UP, 2011. 27-39. Print.

Pavlich, George. “Chapter 10.” Law & Society Redefined. Don Mills: Oxford UP, 2011. 152-166. Print.

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1 Comment

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One response to “An Examination of the Customs Act by Fuller and Agamben

  1. First, I think that you have selected a fascinating topic and two interesting theoretical approaches. Immigration, citizenship, customs, and border enforcement practices are receiving a lot of attention in the law & society community right now, in part because they are fertile ground for interdisciplinary scholarship.

    Your application of Fuller seems to be on the right track. It will be important to demonstrate the ways in which Customs Act – and its enforcement – reflect the internal morality of law. You reference the protection of national security as the driving purpose behind the Customs Act. This reflects a contemporary discourse. Historically, customs laws – including Canadian laws – were crafted for the purpose of managing populations and commerce, with ‘security’ (as we currently use the concept) being a peripheral concern. Smuggling of goods has always been a central concern, for example. You can legitimately say that the current enforcement of the Customs Act is informed by concerns about national security, but you cannot claim that these concerns are the raison d’etre of the Customs Act.

    I’m not sure that Agamben – used on his own – is the best theorist to use for your second approach. It would be more fruitful to use the broader constellation of ideas associated with ‘states of exception’. Your Pavlich chapter offers a good overview. I think that Butler (on petty sovereigns) and Ericson (on counter-law) could be useful here. Agamben’s notion of normalized exceptionality is definitely useful. There is an extensive socio-legal studies literature on the border as a ‘zone of exceptionality’.

    Looking great so far. I look forward to reading your completed paper!