Legal geography I

I Introduction

Arguably, when Nick Blomley wrote Law, Space and Power in 1994 there was no such named thing as legal geography. Since the publication of The Legal Geographies Reader (Blomley et al., 2001) much has changed. That volume gathered together articles published over the preceding decade. Now, a far greater number of quality contributions appear in a given year than were included in The Reader. The number of topics examined has expanded significantly and, more importantly, the project has seen an increase in the number of participants, especially younger scholars. The last few years have also seen the publication of a number of theoretical and methodological interventions that have increased the depth of engagement. These will be discussed in subsequent reports. In fact, it has recently been advocated that the time has come to move ‘beyond legal geography’ (Braverman et al., 2014). That was quick!

A fairly thorough overview of the genealogy of the project was published earlier this year in the book The Expanding Spaces of Law: A Timely Geography (Braverman et al., 2014) and need not be repeated here. Suffice it to say that one of the principal aims of the project is bringing the insights and resources associated with one field to bear on the interests and concerns of the other. A second is bringing the sensibilities of a now distinctive legal geographic mode of inquiry to broader social and social-theoretic questions. Perhaps, because this fairly new endeavor emerged as a result of a heightened valorization of interdisciplinarity, it has not congealed into either a subfield of human geography or an institutionalized specialization within legal education. Instead, it is characterized by a rather high degree of multi-disciplinary collaboration. That said, while I will be discussing the work of non-geographers, because this is a disciplinary specific journal I will emphasize work written by human geographers or published in geographical journals and address the wider community of human geographers. Finally, even though more established scholars whose names may be associated with legal geography continue to produce work of the highest caliber, I will also emphasize contributions of younger scholars and newer voices. My intention in this report is to convey a sense of the expanding scope of legal geographic research, to briefly sketch what bringing law to geography brings, and to examine a set of key assumptions that, while perhaps not constituting a paradigm as such, do underpin much of the recent corpus of legal geography.

II What does bringing ‘law’ to legal geography bring?

While most work in legal geography does refer to the distinctive practices associated with statist institutions (legislatures, international organizations, administrative agencies, courts, the police, and so on) there is also an interest in other non-state actors, events, and expressions of the legal such as forms of ordinary legal consciousness (Bennett, 2011), customs (Nagarajan and Parashar, 2013; Robinson, 2013), norms (Konsen, 2013), and even the house rules of an English pub (Hubbard, 2012). At the same time, when attention is paid to statist legal institutions there is a pronounced suspension of belief in ‘The Law’ as such and in its self-authorizing claims of unity and coherence. For legal geographers, as for socio-legal scholars more generally, law is less a thing – like a giraffe, say, than a dynamic, shifting, often contradictory, multi-point process – like the movements of a swarm of hornets.

For most of its professional existence human geography was essentially lawless. Even now, many of the discipline’s major journals remain lawless for years at a time, free of concern for the legal. This is perhaps most striking in work that examines neoliberalism insofar as one could argue that whatever else this term means it refers to fundamental transformations in legal rules, relationships, and modes of governance associated with so-called privatizations and deregulations (Barkan, 2011). I hasten to add that this lawlessness in geography is not in itself a problem. Not every piece of scholarship can touch all of the bases. The point here is simply that, in this or that study, attending to the legal with greater scrutiny allows researchers to discern how things of interest to geographers happen (or fail to happen), and that this can open up fruitful lines of inquiry that foregoing the legal forecloses. Cultural geographic examinations of ‘home’ might be enhanced by taking account of the myriad ways in which ‘the home’ is legally constituted, how different kinds of homes are legally differentiated, and the experiential consequences of this (Delaney, 2010). Work on corporations and globalization could be deepened were scholars to go beyond the mere fact that ‘the corporation’ is a legal creature to investigate how ‘it’ was created and the effects of how it is continuously re-created through distinctive, often technical legal operations (Barkan, 2011; Pendras, 2011). Fuller appreciation could be fostered for the fact that environmental law consists of so much more than substantive rules, regulations, and policies but includes technical internal ‘rules of engagement’ such as ‘standing’, ‘mootness’, and ‘ripeness’, the practical deployment of which may have significant material consequences in the world (Benson, 2014). Again, the point is that many entities that we take to be of central concern to the broader project of human geography are not a-, pre-, or extra-legal things or processes. Rather, entities such as the home, the corporation, the environment, along with ‘the city’, ‘the state’, ‘the citizen’, ‘the worker’, ‘the market’, ‘money’, ‘war’, ‘necessary suffering’, and so much more including ‘law’ itself, are legally constituted and reconstituted. They are made meaningful in distinctively legal ways and practically situated with respect to distinctively legal manifestations of relations of power. Disclosing the hows, whys, and so-whats of these profoundly significant social processes is what legal geography is largely about. A review of the recent literature in legal geography shows that across the wide range of topics, locations, scales, and practices from sex (Prior et al., 2013), stray dogs (Srinivasan, 2012), satellites (Collis, 2009), and e-waste (Lepawsky, 2012) to torture (D’Arcus, 2014) one distinctive feature of this scholarship is a fine-grained, detailed attention to the complex processes of legal constitutivity and a desire to understand the reciprocal or mutual constitutivity of the legal and the spatial.

III Constitutivities

An enormous number of usually unarticulated assumptions may be elided by recourse to the formulaic expression of ‘mutual constitutivity’. As is the case with its kin-term dialectics, it can be used with greater or lesser precision. As referred to here, ‘to legally constitute some entity X’ (space, the home, the corporation, appropriate sex, persons, events) means much more than to shape or influence it. In the strongest sense it is to call it into being or modify its social significance through the distinctive practices of naming, classifying, ruling, governing, or ordering associated with law most broadly conceived. It is to invest entities with distinctively legal signifiers (rules, rights, obligations, prohibitions, facilitative regulations, and so on) that situate these entities within networks or constellations of power which strongly condition actual performances and events with respect to these entities. Usually constitutive moments are iterative and responsive as entities are successively reconstituted in open-ended, often contested processes. As Joshua Barkan has shown, law also continuously constitutes and reconstitutes itself as an autonomous ‘domain’ through its constitutive operations on other domains such as ‘the political’, the market, ‘the private’ as other-than and beyond the law. ‘[T]he law works’, he notes, ‘as a discourse and practice that not only binds itself, through practices of legal closure, but also polices the spheres of politics and the economy while mediating their interrelation’ (Barkan, 2011: 603). Such techniques of self-limitation and deference may be no less consequential than are direct interventions. Law also constitutes much of modern reality through its relentless, if inconsistent, reiterations of divisions between ‘the public and private’, ‘the domestic and foreign’, ‘the domestic and international’, ‘subjects and objects’, moves in ‘the game of jurisdiction’ (Valverde, 2009), and so on. But again, in the sense largely assumed by legal geographers, there is no such thing as ‘the law’ that is capable of doing these things. Rather, legal constitutivity can be observed through the practical activities of situated social actors. Some are positioned within networks of power as ‘state actors’ who are empowered (constituted) by law to undertake formal legal constitutive practices – legislators, prosecutors, street level bureaucrats, housing inspectors, judges; but some are positioned within the field of socio-legal signifiers as ‘private’ actors, most commonly as ‘owners’.

If, among geographers, the primary interest is in understanding more clearly the legal fabrication of geographical phenomena, it may be useful to distinguish what are taken to be the discipline’s core concerns such as space, place, landscapes and nature/environment, and other entities of geographical interest. Only a relatively small proportion of scholarship is solely concerned with the former. Most research is directed toward the geographical significance of something else, and most legal geography is about some third term as well. It is easy to show how law is constitutive of space or implicated in social spatializations, most obviously through legal territorializations of different kinds at various scales. ‘Law’ draws lines, constructs insides and outsides, assigns legal meanings to lines, and attaches legal consequences to crossing them. Recent work has investigated the legal constitution of individuated spaces of interdiction (Beckett and Herbert, 2010), therapeutic intervention (Moore et al., 2011), legitimated torture (D’Arcus, 2014), sexual citizenship (Hubbard, 2012), water citizenship (Perramond, 2013), appropriate defecation (Braverman, 2009), cultural protection (Benson, 2012), private governance through emotions (Delaney, 2014), prison visitation (Moran, 2013), and regulated consumption (Layard, 2010). Law as ‘rules and rights’ underpins spatial tactics such as confinement, exclusion, expulsion, and coerced mobility. Law carves life-worlds into innumerable boxes and assembles and reassembles them in ways that structure experiences from the most mundane to the most extra-ordinary. As it does so, it channels power throughout relational worlds, human as well as other-than-human.

In aggregate, these innumerable spatially constitutive episodes are clearly fundamental to the makings and unmakings of places, both in terms of the distinctive characteristics of places and with regard to their affective and psychological textures. While much legal geography is relatively placeless or concerned more with generic places, much is also quite place sensitive. Recent studies have illuminated the legal constitution of specific locations in New Mexico (Perramond, 2013), Ottawa (Walby and Lippert, 2012), Galilee (Forman, 2011), Hmong villages in Thailand (Robinson, 2013), brothels in Sydney (Prior et al., 2013), and pubs in England (Bennett, 2011; Hubbard, 2012). Recent work that engages with landscape theory includes that by Howe (2008) on legally contested and constituted religious landscapes, Braverman (2010) in her critical analysis of the political-arboreal landscapes of Israel/Palestine, and Delaney (2013) on the aesthetic landscapes of tort law. In short, in our world, there is nothing in the world of spaces, places, landscapes, and environments that is not affected by the workings of law: the inscription of rules and regulations, the recognition or withholding of rights, and enactments of the privileges of authority at all scales. The assumption behind constitutive thinking is that these inscriptions, their animating ideologies and their practical ambiguities often matter to the very whatness of the entities so inscribed, and so to how they are enrolled in the unfolding of relations of power in the world.

But the constitutive power of law as it may be of interest to geographers is by no means restricted to these core disciplinary themes. Distinctive legal practices are also involved in ‘making up’ the kinds of persons and non-persons (citizens, consumers, animals, lovers, owners, workers, refugees, children, soldiers, and so on) who live in our world and so how they live. As Srinivasan (2012) has shown, the inscription of British dogs as ‘unowned’ is sufficient to authorize their destruction. Social relationships of many kinds are also distinctively legal relationships. The employment relation, sexual, marital, and familial relationships, political relationships, any relationships involving contract, and relations among strangers are all legally inflected in ways that are often determinative of how the relationships are enacted and experienced.

IV Complexities

Complexity has been a recurrent motif in legal geography since the 1990s especially in monographs. It has become especially prominent in studies of ‘the small’ such as sidewalks (Blomley, 2013), prison visiting rooms (Moran, 2013), and zoos (Braverman, 2011). One dividend of attention to complexity is the heightened recognition that spatio-legal events are not simple one-shot ‘inscriptions’. Of course, no research can disclose the real complexity of any situation or event. This is beyond human comprehension. ‘Complexity’ here is relative to more simplistic, positivist assumptions that a given legal event – signing a municipal ordinance, a trial verdict – will automatically result in the intended effects in the world. A number of recent contributions to legal geography, though, have highlighted complexity in constitutive processes and have thereby facilitated recognition of contradictions, gaps, and slippages in how ‘law makes space’. Here I can simply mention some important examples. Benson’s (2012) study of the legal signification of one place, Mt Taylor, New Mexico, reveals how, by simultaneously seeming to promote mining and cultural preservation, ‘competing conceptions of space that are grounded in different ontologies’ (p. 1445) have produced a landscape imbued with legal – and so practical, material – contradictions. A very different picture of spatio-legal complexity emerges from Collis’s (2009) wonderful extension of ‘the field of legal geography into Space’. In her spatio-legal genealogy of the geostationary orbit, Collis demonstrates the complexity of how ‘International law … makes space, and does not simply govern it’ (p. 48). The story begins with a condition of Space as a lawless environment until the launch of Sputnik in 1957 when ‘Space became an entirely new legal geography; a space beyond state possession’. As with Benson’s study of Mt Taylor, Collis finds the complex constitution of Space rife with legal contradictions and uncertainties. She finds that ‘the GEOs legal geography is based on two contradictory ontologies of law’ (p. 52). One of these is grounded in (a priori) civil law, the other in (a posteriori) Anglo-American common law. Throughout the 1960s and 1970s states, international organizations, and private actors have engaged in numerous contentious acts to render the geostationary orbit legally meaningful. Yet ‘even today … there [is] no legal agreement as to exactly where airspace ends and Space [begins]’ (pp. 55–56).

Complexity is explicitly thematized in Jepson’s (2012) close analysis of the legal processes and events through which the denial of drinking water to Mexican-American colonias in South Texas was legitimated in the 1970s and 1980s. What is of interest here is Jepson’s unraveling of the complexities involving rival interpretations of the entanglements of state water law, district election law, due process, and equal protection clauses of the US Constitution, through a series of trials, appeals, remands, the arguments presented, and reasons given for the disposition of cases through her attention to ‘the micro-geographies of legal reasoning’ (p. 622) and her analysis of the practical transformations that each stage occasioned. A final example of a study that reveals the value of attending to complexities and contradiction of legal geography is D’Arcus’s (2014) article on ‘Extraordinary rendition, law and the spatial architecture of rights’. This work is rich in theoretical insights as well, but for the present what is of note is his analysis of the sequence of legal operations undertaken to remove torturers from both domestic and international legal accountability. One pre-condition of rendition is the prior constitution of desirable targets as ‘unlawful enemy combatants’ which, as the term suggests, is conjured to remove them from the protections of the law of war. D’Arcus discusses how spatio-legal constraints seemingly governing detention and torture were evaded by the Bush Administration to produce a ‘spatially limitless’ field of action (p. 95). While he describes these processes as revealing ‘the annihilation of law by space’, this also exemplifies ‘the annihilation of law by law’.

Case studies such as these provide the merest glimpse into the complexities attending the production of spaces, places, and landscapes through activities associated with the distinctively legal, but they are sufficient to allow broader inferences. When we contemplate the operations of the constitutive power of law more comprehensively across the countless spaces and places of social life over time we can cultivate greater awareness of sociospatial contingency. In a given process, such as those referred to, how many moments were determined in any strong sense? Certainly, legal processes are, by design, constraining, and the field of possible alternative outcomes is restricted. In fact, one of the foundational conceits of adjudicative law is that its outcomes are governed by necessity, that ‘Law’ is necessity. But a process is not a ‘thing’. Any chain of human events involving numerous actors, divergent institutional settings, competing ideologies, interests, motivations, and capacities unfolding over time and implicating multiple scales of action will include slippages, mistakes, mis-transmissions from rule to implementation, and all manner of evasions sufficient to sustain the view that this or that situation, that some unknowable proportion of events, as conditions for subsequent events, could have been otherwise. This means that the entities, relationships, events, power vectors, and so the spaces, places, and landscapes so (provisionally) ‘constituted’, could have been otherwise, in small or big ways, for better or worse.