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law, geography of |
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The relation between the places and spaces of social life, and the enactment, interpretation and contestation of law, both formal and informal.
There has been a heightened interest in exploring the law-geography link recently, although this should not be seen as unprecedented given an earlier lengthy engagement with legal-geographic questions. Previous research can be broadly divided according to emphasis. An older body of writing, concerned with mapping the regional diversity of law, tends towards an account of the geographic environment as a vital structuring agent of law (cf. region and regional geography). Another, more recent, literature, inverts the relation, and explores the manner in which law affects space. More recently, a \'critical\' perspective on law and space has sought to transcend the unilinear causality of both schools by an exploration of the complex interrelations of the legal, the spatial and the social.
Although an interest in the regional geography of law can be traced as far back as the sixteenth-century writings of Jean Bodin and the eighteenth-century treatise of Montes-quieu, perhaps the first academic treatment was given by John Wigmore who, alerted to the geographic diversity of legal systems by a detailed study of Japanese law, produced a three-volume geographical survey of the world\'s legal systems (1928). Along with Albert Kocourek, Wigmore also co-edited a three-volume set on legal evolution, one volume of which included papers by sociologists and geographers. These essays vary to the extent that \'race\' and the natural environment are assumed to determine spatial variations in law. The geographer Ellen Semple, for example, describes the evolution of the \'land-bond\' (defined, broadly, in terms of property relations) that she sees as characteristic of diverse human societies. Evoking naturalistic analogies, she refers to the \'fibres of the land which become woven into the whole fabric of the nation\'s life. These are the geographic elements constituting the soil in which empires are rooted; they arise in the sap of the nation\' (Semple, 1918, p. 223).
In a paper regarded as influential within political geography, Derwent Whittlesey (1935) inverted the law-environment relation by attending to the \'impress of effective central authority upon the landscape\'. Although noting that environmental forces may be important, the thrust of his account is clear; \'phenomena engendered by political forces should have a recognized place as elements in the geographic structure of every region\' (p. 97). Several laws resulting in \'landscape modification\' are identified, including tariffs, property and resource law. As Clark notes (1989), a similar \'spatial impact\' emphasis best characterizes a number of recent geographic analyses of law. These accounts, in tracking the effect that a given law or ruling has on a spatial structure, such as a housing market, are generally applied, pragmatic and non-theoretical, sharing common ground with the orthodox policy-analysis literature.
Although both regional and impact analyses offer useful insights, they were criticized on a number of grounds (Clark, 1989; Blomley, 1994). Most important is the assertion that both perspectives, although with different emphases, assume an analytical separation of law, space and society. The impact analysis literature tends to regard law as acting upon a passive spatial structure, on the assumption that there are two realms, one legal, the other spatial. Similarly, there is a tendency within the regional literature to root law in certain immutable and often naturalized forces. Again, an implicit divide is made between social life and certain non-conditional and asocial legal principles. This is problematic on several counts. For example, the location of law in either an asocial or an aspatial realm, as implied by the impact literature, presents a picture of law as in a higher, \'closed\' sphere, beyond the world of local struggle and politics. Not only can this be questioned on certain theoretical grounds (where, for example, is this uniquely legal realm?), but also in political terms. Similarly, the submergence of law beneath the suffocating effects of the geographical environment implies legal immutability and naturalness.
Both impact and regional analyses make implicit assumptions of the determinacy of legal meaning and the operation of power relations. In terms of the former, an extensive post-structuralist literature has argued that legal meaning is deeply ambiguous, even indeterminate, and that legal interpretation must be understood as situated, occurring with reference to certain implicit (and often disempowering) assumptions concerning social and political life (Hutchinson, 1988; see contextual approach; post-structuralism). The categories and vocabulary of liberalism are often assumed to be important in this regard. Rather than focusing on the production of legal meaning, others have paid more attention to the implication of legal discourses and practices in prevailing power relations, including those that centre on the operation of either class domination under capitalism or patriarchy (Chouinard, 1994). Finally, the legal-geographic orthodoxy has been challenged in terms of its account of the effects of law itself. Law, it is argued, is too often understood exclusively as a restrictive and instrumental code. Such a reading, however, underplays the other dimensions of law, including its power to define or constitute the terms of social life, or to empower certain groups. On this account, law is not simply an external imperative, but is in important senses constitutive of social and political life (Brigham and Gordon, 1996). Law, in this sense, is not confined to the statute book or the law courts but is seen as a much more pervasive (and important) medium through which society and politics are lived, whether in constrained or liberatory ways.
It is in response to these sorts of assertions that we can understand the rise of what might be termed a \'critical legal geography\' over the last decade. Influenced by debates within geographic, social, and legal theory, this perspective has a very different reading of law, space and their mutual relation, with a scepticism of existing legal structures and the social relations they embody. The distinguishing feature of this perspective is its refusal to accept either law or space as pre-political or as the unproblematic outcome of external forces. Both are regarded as deeply social and political. Law is seen both as a site in which competing values, practices and meanings are fought over, and also as the means by which certain meanings and social relations become fixed and naturalized, either in oppressive or potentially empowering ways. Similarly, space is regarded as both socially produced and as socially constitutive, with attention being directed to the \'politics\' of space (see spatiality). The relation between law, space and society is redefined and extended in important ways, opening up many new areas to critical geographic enquiry. To date, several areas have been studied, including:
(1) The analysis of the manner in which legal action and interpretation produces certain spaces (cf. production of space). This departs from \'impact analysis\' by virtue of its attention to such things as the complexities of interpretation and the local context of legal interpretation. The role of the legal apparatus — especially the judiciary — is often given prominence, it being noted that court decisions have profound (and often problematic) effects within local settings in both material and discursive terms, given the manner in which legal categories and discourse can come to frame local debates (see state apparatus). Examples include Delaney\'s (1993) examination of restrictive covenants in US cities, or Young\'s (1997) discussion of British asylum law. The manner in which such legal evaluations of space are contested by local groups is also receiving attention; see, for example, Cooper\'s (1996) discussion of law and planning disputes in London and Goodings\' (1994) discussion of the politics of spatial naming in US Indian law.(2) The related study of the situated nature of legal interpretation, it being argued that legal practice and interpretation is often bound up in the locale in which it occurs. For example, in a careful series of studies in three US towns, Greenhouse, Yngevesson and Engel (1994) reveal the \'place of law and the court in the construction of community and hierarchy\' (p. 174), noting not only the manner in which \'community\' is locally constructed so as to frequently marginalize those deemed \'outsiders\', but also underscoring the manner in which local and extra-local conceptions of law and rights are central to that construction. The study of such local legal cultures has a related political implication. If it is accepted that interpretation — including legal interpretation — is necessarily structured by the diverse spatial and temporal settings of social life, then formal legal interpretation, with its claims concerning the autonomy of the individual legal subject and the balance between universal and particularized legal knowledge, implies an untenuous rejection of the situated contextuality of law. Diverse and contingent legal understandings are presented as \'Law\'; a form of higher truth, removed from the vagaries and political and ethical conflicts of \'real life\' (see ethics, geography and). Wesley Pue (1990), in a trenchant critique of the relation between legal discourse and the multiple geographies of social life, argues that law is in this sense \'anti-geographical\', to the extent that legal relations are frequently understood within law as existing in a purely conceptual space divorced from the heterogeneity and contextuality of local legal understandings. It follows that an assertion of the spatiality of legal knowledge constitutes, at least implicitly, a powerful critique of certain widely held legal beliefs and concepts of legal \'closure\' (Blomley, 1994).(3) The study of the geographic claims and representations contained within legal discourse, it being noted that in much the same way that law relies on claims concerning history and time, so it both defines and draws upon a complex range of geographies and spatial understandings. Whilst struggling to make sense of the complexity and ambiguity of social life, legal agents — whether judges, legal theorists, administrative officers or ordinary people — represent and evaluate space in various ways. These juridical representations touch all aspects of legal life — including property, contractual relations, crime and inter-governmental law. The construction of such spaces can be seen, for example, in relation to the designation of boundaries between \'public\' and \'private\' urban spaces (Mitchell, 1996; see private and public spheres); struggle over the meanings of ownership and property rights (Blomley, 1996; cf. land tenure); or struggle with the racialized politics of US local autonomy (Ford, 1994).(4) The politics of the law-space relation. Recent scholarship has maintained that both law and space — in their strategic use and representation — are deeply political. Rather than being simply \'pre-political\' and \'natural\', they are both constituted by, and constitutive of, political struggles. A study of their conjunction, then, is revealing. Santos (1995) notes, for example, that the spatial scale at which law is analysed — local, national and supra-national — is not \'innocent\', but has profound implications for social life. Other writers have similarly explored the \'geo-politics\' of law in terms of local working-class opposition and the delivery of legal services (Chouinard, 1989); as a critique of legal closure (Kobayashi, 1990); or the colonial \'placing\' of First Nations in Canada (Peters, 1997). However useful these insights, recent scholarship on law and geography is still in an undeveloped state. Several issues could profitably be addressed. Most immediately, the theorization of the geographies of law and legal struggles is still undeveloped and somewhat ambiguous. Some have embraced the \'postmodern turn\', focusing attention on discourse and the construction of meaning (Clark, 1989). Others have called for this to be supplemented by political-economic and socialist-feminist insights (Chouinard, 1994). The time is ripe for a self-conscious examination of the particular conceptual insights of a \'critical legal geography\'. With this in mind, several considerations might be useful.
First, a deeper engagement with legal theory (both in law and in sociology/anthropology) by geographers is needed. Intriguing parallels exist between critical writings in both law and geography. To date, however, little exchange has occurred between the two fields, despite growing interest in questions of space within legal enquiry. Recent legal interest in questions such as resistance or globalization, for example, could be usefully drawn upon. Second, many potential areas of legal/geographic enquiry remain empirically under-explored. For example, detailed empirical accounts of local legal cultures, the legal construction of nature, or a consideration of the importance of space within legal discourse and practice demand more sustained exploration. Third, more careful attention could be given to the \'geographies of liberalism\', including the legal representation of citizenship, property or public and private spaces. Fourth, the connections to other branches of the discipline need to be clarified, such as the geography of crime and policing, recent debates around ethics, or political geography in general (see crime, geography of; justice, geography and; law of the sea; policing, geography of). Fourth, the historical geographies of law demand more careful attention. For example, it could be argued that real property entails not only certain spatial orderings, but also implies certain claims about past and future (Blomley, 1996). Finally, the \'critical\' aspects of this enquiry need to be worked through more carefully (see critical theory). Chouinard (1994, p. 428), in particular, has called for \'meaningful political action in and against the legal system\'. Whether this entails intellectual challenges to legal \'closure\', or grounded and inclusionary research projects concerning law remains an important question. (NB)
References Blomley, N.K. 1989: Text and context: rethinking the law-geography nexus. Progress in Human Geography 13 (4): 512-34. Blomley, N.K. 1994: Law, space and the geographies of power. NewYork: Guilford Press. Blomley, N.K. 1996: The properties of space: history, geography, and gentrification. Urban Geography 18 (4): 286-95. Brigham, J. and Gordon, D.R. 1996: Law in politics: struggles over property and public space on New York City\'s Lower East Side. Law and Social Inquiry 21 (2): 265-83. Chouinard, V. 1989: Transformations in the capitalist state: the development of legal aid clinics in Canada. Transactions of the Institute of British Geographers, NS 14 (3): 329-49. Chouinard, V. 1994: Geography, law and legal struggles: which ways ahead? Progress in Human Geography 11 (5): 415-40. Clark, G.L. 1989: The geography of law. In R. Peet and N. Thrift, eds, The New Models in Human Geography. London: Unwin Hyman, 310-37. Cooper, D. 1996: Talmudic territory? Space, law and modernist discourse. Journal of Law and Society 23 (4): 529-48. Delaney, D. 1993: Geographies of judgement: the doctrine of changed conditions and the politics of judgement. Annals of the Association of American Geographers 83 (1): 48-65. Ford, R.T. 1994: The boundaries of race: political geography in legal analysis. Harvard Law Review 107 (8): 1841-921. Gooding, S.S. 1994: Place, race and names: Layered identities in United States v. Oregon, Confederated Tribes of the Colville Reservation, Plaintiff-Intervenor. Law and Society Review 28 (5): 1181-229. Greenhouse, C.J., Yngvesson, B. and Engel, D.M. 1994: Law and community in three American towns. Ithaca: Cornell University Press. Hutchinson, A. 1988: Dwelling on the threshold: critical essays on modern legal thought. Toronto: Carswell. Kobayashi, A. 1990: Racism and the law in Canada: a geographical perspective. Urban Geography 11 (5): 447-73. Mitchell, D. 1996: Political violence, order and the legal construction of public space: power and the public forum doctrine. Urban Geography 17 (2): 152-78. Peters, E. 1997: Challenging the geographies of \'Indianness\'; the Batchewana case. Urban Geography 18 (1): 56-61. Pue, W.W. 1990: Wrestling with law: (geographical) specificity vs. (legal) abstraction. Urban Geography 11 (6): 566-85. Santos, B. 1995: Toward a new common sense: law, science and politics in the paradigmatic transition. New York: Routledge. Semple, E.C. 1918: The influences of geographic environment on law, state and society. In A. Kocourek and J.H. Wigmore, eds, Formative Influences of Legal Development. Boston: Little, Brown and Company, 215-33. Whittlesey, D. 1935: The impress of central authority upon the landscape. Annals of the Association of American Geographers 25: 85-97. Wigmore, J. 1928: A panorama of the world\'s legal systems, 3 vols. St Paul Minnesota: West Publishing Company. Young, C. 1997: Political representations of geography and place in the United Kingdom Asyhum and Immigration Bill (1995). Urban Geography 18 (1): 62-73.
Suggested Reading Blacksell, M., Watkins, C. and Economides, K. 1986: Human geography and law: a case of separate development in social science. Progress in Human Geography 10 (3): 371-96. Clark, G.L. 1985: Judges and the cities: interpreting local autonomy. Chicago: University of Chicago Press. Clark, W.A.V. 1991: Geography in court: expertise in adversarial settings. Transactions, Institute of British Geographers NS 16: 5-20. Frug, G. 1996: The geography of community. Stanford Law Review 48: 1047-8. Herbert, S. 1997: Policing space; territoriality and the Los Angeles Police Department. London: University of Minnesota Press. |
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