Law And Geography Research Paper

1. Regional Studies Of Law

The earliest ‘legal geographies’ were concerned with the description and explanation of the regional diversity of legal systems. Thus defined, eminent eighteenth century scholars such as Montesquieu (1748 1949) could be classified as early ‘legal geographers.’ Regional studies of law, however, were to come into their own in the early years of the twentieth century, with the development of comparative law and the sociology of law. The American comparative legal scholar John Wigmore, in particular, undertook an extensive three-volume survey entitled A Panorama of the World’s Legal Systems (1928) He also co-edited a collection on legal evolution in 1918 (see Picard 1918), including papers written by lawyers, sociologists, and geographers, which perhaps is the definitive summary of the regional field.

The central claim among these authors appears to be that spatial variations in law are a function of local environmental factors. For some, the latter is defined as the physical environment. Picard (1918), for example, points to variations in climate, soil, forest cover, and distance from the sea as important in explaining legal diversity: ‘All these and other variations of land and atmosphere show their traces in the jural system … Brazil and Russia, because they are different geographic regions, will therefore have many differences in law’ (p. 170). In keeping with the assumptions of the day, other scholars point to ‘race’ as an explanatory factor in legal variation. Similar regional schools also seem to have developed in interwar France and Germany. While regional studies have fallen into disfavor, at least within geography, Grossfeld (1984) proves that the determinism of this sensibility is not dead. He argues in uncompromising terms that ‘geography is fate … not only for a country but also its culture and the law’ (pp. 1512–3).

2. Impact Analysis

If regional studies read from geography to law, an influential paper by American geographer Whittlesey (1935) was to invert this relationship in his call for the exploration, as he put it, of the ‘impress of effective central authority on the landscape.’ Trade tariffs or embargoes, land tenure systems and the regulation of resource exploitation were all identified as laws that result in ‘landscape modification.’ Thus, in understanding a particular region, geographers were urged to consider those ‘phenomena engendered by political forces’ (p. 97). The geographer’s task, it seems, was now to focus on law’s spatial ‘impacts,’ while taking law itself as an external ‘given.’

Such a definition of the relation between law and geography (which Clark 1989 terms ‘impact analysis’) proved influential until the late 1980s. The tendency has been to treat space as a surface upon which laws instrumentally impact. For Wije (1990, pp. 26, 30), for example, ‘Law is a means of achieving social control by regulating behavior or by altering behavioral incentives while geography can study the spatial ramifications of this behavior…. Law can be considered as a geographic… variable.’

Both traditions offer specific insights. A regional analysis is useful to the extent that it reminds us of the ways in which law, despite appearances of homogeneity, can in fact be different and diverse. There are similarities to Clifford Geertz’ (1983) fascinating discussion of Balinese law, which proves unsettling to the extent that it alerts us to the internal coherence and logic of systems which, from a Western perspective, can appear entirely alien. In reminding non-lawyers of the undeniable importance of laws on social life and spatial forms and patterns, impact analyses are also useful. We only need to reflect on the direct and indirect ways in which, for example, the urban landscape is a product of countless legal decisions, rulings, and mediations, relating to real property, administrative law, and so on. Yet some commentators have found these analyses partial and limited in terms of the way in which they theorize law, space, and their inter-relation (cf. Clark 1989, Blomley 1994).

3. Critical Legal Geography

The last decade has seen the emergence of a third school of legal-geographic enquiry which, in building upon but departing from the above, attempts to redefine both law and space, and also moves beyond the dualistic thinking that relates one to the other. This school of ‘critical legal geography,’ which one can trace within geography, law, socio-legal studies, anthropology, sociology, and elsewhere, is far from unified. Yet it is probably fair to identify a number of foundational claims concerning law, space, and their mutual relationship.

First, in keeping with much recent scholarship, law itself is defined as more than a set of positive, external commands, but is understood as implicated in an array of social relationships. For example, law can be productive of many social and political effects, being able to define relationships, confer status, and selectively empower, or is argued to define dominant social meanings. There is clear social selectivity to this for many legal scholars. Far from being socially neutral, law is necessarily rooted in, and protective of, prevailing social inequalities around class, race, and gender. Second, to that extent, law is ‘socially produced,’ rather than being transcendent and a-social; that is, law is formed under particular historic conjunctions by social actors, informed by conditional understandings of society, the State and the individual. Critical legal scholars, or those informed by feminism, for example, have clarified the ways in which broadly liberal understandings of society have informed the common law legal systems of the UK, the USA and Canada in ways that while potentially liberating (Unger 1983) can also prove confining and oppressive, naturalizing hierarchy and limiting progressive alternatives (Peller 1985). Yet, third, law is also ‘socially produced’ to the extent that it provides an important vocabulary for everyday life. Socio-legal writers consider the manner in which, as Geertz (1983) notes, law can become a form of ‘local knowledge’ that is drawn upon by people in their relationships with other individuals and the wider social and political world. Rose (1994), for example, explores the manner in which property discourse provides a vital vocabulary by which not only powerful interests, but also individual property holders communicate with one another. Again, this can prove enabling, for example, when oppressed individuals are able to lay claim to a legal right (Laclau and Mouffe 1985), yet can also prove confining. Nedelsky (1990) argues that the tendency to regard others as a threat to our individual autonomy rather than a potential source for freedom is a product of the liberal-legal imagination. Finally, debate has turned on the broader question of legal meaning. Most immediately, the issue is one of textual interpretation—what is the meaning of statute or precedent? Poststructuralist legal theorists have argued that the quest for an essential or stable meaning (which is implicit, for example, to impact analyses) is not only chimerical but also politically dangerous, given the manner in which interpretation is context specific and meaning itself is always referential and endlessly deferred (Tushnet 1984). The ‘meanings’ of law, from this perspective, must be sought in both dominant ideologies and representations, and also in everyday social practice, where oppositional legal meanings may possibly be discerned.

What then of space? Recent geographic scholarship on law has been critical of both regional perspectives and impact analyses for their tendency to reduce geography to a limited set of variables (for example, by thinking of space as purely a matter of regional diversity) or in presenting space as an objective, autonomous, and neutral variable that, like law, is set apart from society. In tandem with recent legal scholarship, ‘critical’ geographers have insisted that the effect is not only analytically misguided, given the claim that space is both socially produced and socially constitutive, but also politically problematic, given the claim that space ‘is political and ideological. It is a product literally filled with ideologies’ (Lefebvre 1979, p. 31).

Examples of the social and political dimensions of space can be traced at various levels of inquiry. For example, simple reflection reveals the ways in which interpersonal spatial categories such as ‘near’ and ‘far’ are not abstract concepts, but socially contingent, being very different for men and women, for example (as the concept of ‘personal space’ reveals), as well as being culturally diverse. Straight Italian men may publicly embrace in a way that would be frowned upon amongst men in Northern England, for example. However, the categories are also more complicated. The workings of racism, for example, depend in part upon spatial arrangements that place racialized groups identified as unlike ‘us,’ at a spatial remove from those we hold ‘near and dear.’ Or, for another example, we need only think about the ways in which Western urbanites find it relatively easy to engage in economic practices that can prove destructive to the everyday lives of ‘distant strangers,’ such as campesinos displaced from their lands by multinational fruit growers, perhaps because of the ways in which distance hides the ethical consequences of our actions from us.

With the claim that both law and space are therefore socially and politically implicated, ‘critical legal geographers’ have sought to think through the ways in which the relationship between the two might be understood. Rather than treating law and space as autonomous categories, and then tracing the effect of one upon the other, both are understood as socially produced and socially productive. To that extent, the dualism between the two is recast as one of complicated recursive relations; put simply, law can shape space, yet at the same time can itself be shaped by the geographic structures of social and political life. The effect, ultimately, is to dissolve the binary split between the two. This scholarship is ‘critical’ not only in its attempt to go beyond the traditional categories of more mainstream social science, but also in its more engaged political and ethical stance, given the claim that prevailing legal and spatial arrangements and understandings are associated with hierarchical forms of oppression and domination, including those that center on class domination or patriarchy (Chouinard 1994).

It is hard to generalize about this research, which is still diverse and often unconnected. Scholarship has explored all spatial scales, whether particular localities (e.g. Clark 1985), national legal systems (Engel 1990), and international law (Darian-Smith 1995). Substantive areas covered include crime and policing (Herbert 1997), racism (Ford 1994), the city (Cooper 1998), gender (Sanger 1995), and property (Coombes 1995). That said, some broad areas have received attention.

3.1 Law And Place

The relationship between law and place is considered in a number of ways. For example, some writers point to the ways in which modern Anglo-American law, at least, has historically sought to distance itself or detach itself from local contexts. Blomley (1994) traces the ways in which English common law moved very consciously away from the local communities that had traditionally been the source of its meanings and interpretations to emerge in the sixteenth century as that law which was ‘common’ to all. This can have direct political consequences. Frug (1980), for example, explores the implications for the legal disempowerment of the city, and raises broader issues concerning local democracy. More generally, Pue (1990) condemns judicial interpretation as ‘anti-geographical’ in its refusal to recognize local contextual conditions. The insistence on the spatial contextuality of law is not only important in analytical terms. Such a claim can be a direct challenge to what has been termed ‘legal closure,’ that is, the dominant assumption that legal knowledge and interpretation is detached from the vagaries and politics of social and political life, operating according to its own closed logic. As noted, critics argue that legal closure is not only nonsensical, given the social nature of all discourse and meaning, but also ideological, naturalizing what are fundamentally political claims about society.

That said, in at least two ways place retains its legal importance. First, there has been a number of attempts to argue that formal legal interpretation is, in fact, not as detached from the locality as it claims. American constitutional law, for example, wavers between centralization and a recognition of localized contextual conditions and the integrity of community-based forms of law making and interpretation (Briffault 1990).

Second, in thinking through the relationships be- tween law and place, others recognize that law is much more than formal, judicial decision making. As noted, law emerges as a vital medium and resource for daily life, being called upon in formal and informal ways. Given that, generally speaking, we live our lives out in particular places, that process of legal interpretation could also be said to be localized in some interesting and important ways. In a fascinating series of studies in three US towns, for example, Greenhouse et al. (1994) reveal ‘the place of law and the court in the construction of community and hierarchy,’ noting the ways in which local as well as extra-local conceptions of law and rights are central to the ways in which community and place are constructed. Similarly, Cooper (1998) explores the way in which an appeal to ‘place and belonging,’ as she puts it, is important to legal struggles in particular areas. Thus, an attempt by orthodox Jews in Barnet, London, to build an ‘eruv,’ allowing them to conform to Jewish legal obligations concerning activity on the Sabbath, becomes the spark for conflict with local non-Jewish residents as well as non-orthodox Jews more generally. Cooper traces the way in which this struggle turned on legal and spatial understandings of ‘insiders’ versus ‘outsiders,’ rights to place, and the construction of ‘Englishness.’

3.2 Geographic Dimensions Of Legal Discourse

Closely linked is the study of the geographic claims and representations contained within legal discourse, it being noted that, despite its suspicion of local contingencies, law nevertheless draws upon and helps define a range of spatial patterns, divisions, and associations. These legal representations touch all aspects of legal life, including property, constitutional law, contract, crime, and inter-governmental law. Don Mitchell (1996), for example, outlines the ways in which judges and other legal actors help define the boundaries between public and private space in US cities, and regulate the activities that are deemed permissible in such spaces. This, he notes, has had particularly oppressive consequences for those people who are effectively denied private space — the homeless. Legal action and interpretation in this sense can actively create certain spatial arrangements, practices, or representations. So, for example, David Delaney (1998) analyzes legal decisions concerning the legality of restrictive covenants in the USA, designed to exclude black residents from white neighborhoods. Necessarily, this entailed various construals of urban space on the part of the judiciary. For Delaney, the effect of such apparently objective mappings was to position the judge as an active participant in the construction of ethnic spatial segregation.

The manner in which such legal constructions of space are contested are locally reworked by marginalized groups is also receiving attention; see, for example, Azuela’s (1987) discussion of the ways in which squatters in Mexico City redefined concepts of property. Such legal understandings and representations of space, in other words, are not simply the provenance of formal legal actors. Blomley (1998) explores the way in which struggles over gentrification in Vancouver, Canada, entailed competing conceptions of property rights and land that, in turn, entailed specific representations of the landscape of a local area. For groups representing the poor of the area, opposed to gentrification, the buildings, parks, hotels, and streets of a local area were imbued with legal and political meanings, serving as a physical monument to past acts of oppression and displacement, but also a means by which a collective claim to a neighborhood could be figuratively staked out. In other words, to understand the conflict it was necessary to think about both the importance of contesting claims to property and at the same time, to explore the ways in which those claims were expressed in, and dependent upon local spaces, that were both material and representational.

3.3 The Politics Of The Law–Space Relationship

As already noted, critical scholarship in law and geography begins with the claim that the two are deeply political. That is, legal–spatial relationships can serve to reproduce prevailing inequalities in power and resources, yet can also serve as a site for struggle and resistance to such forms of domination. Santos (1987), for example, borrows from critiques of cartography to argue that state law deploys particular scales, projections, and symbols that can serve to advance dominant interests. Similarly, Peters (1997) has documented the ways in which law has been used to geographically ‘place’ (and hence ‘displace’) First Nations in Canada —both by spatially locating Native peoples in marginal reserves and by socially and politically locating them within Canadian society. In a related vein, Borrows (1997) documents the manner in which dominant forms of Canadian legal knowledge have no place for indigenous understandings of place and nature. Others seek to turn the political tables. Chouinard (1989) focuses on local law clinics in Ontario as a site for class-based resistance while Kobayashi (1990) opposes legal closure in relation to racist legal practices.

4. Future Research

While suggestive, the critical legal geography literature is still in a state of formation. To date, it has (perhaps fortunately) avoided a clear self-identity. While the work of many scholars is legal and geographic, most would not necessarily identify themselves in those terms. This is thought to be a good thing, encouraging the sort of truly interdisciplinary inquiry that is called for. That said, these writings have managed to begin to pose some suggestive and novel questions. Yet many issues still await careful inquiry. More generally, the theoretical basis for critical inquiry into law and geography is still somewhat undeveloped, despite some attempts (e.g., Clark 1989, Blomley 1994, Chouinard 1994). Some have embraced the postmodern turn, focusing attention on discourse and the construction of meaning. Others have worried at the degree to which this constitutes a rejection of political– economic and socialist–feminist insights (Chouinard 1994). Similarly, a focus on the meanings and discourses of law has meant the neglect of its more practical dimensions. To that extent, careful engagement with ‘impact analyses’ might be productive. Detailed, empirical accounts of the workings of law within particular locales are also still needed. Revisiting the regional school might again be useful here, if only as a counterpoint. The relationships between law, space, and nature, another traditional area of geographic concern, have only just begun to be explored. The ethical dimensions of law—for example, the complicated politics of rights—are also worth thinking about, particularly given recent geographic scholarship in the area. While some work has been done, the manner in which social and spatial differentiation and inequality along axes such as class, ‘race’ and gender are expressed in, facilitated by, or reconstituted through law also calls out for careful analysis. The geographic relationships between law and other socially and politically powerful forms of knowledge, such as planning, or medicine, could also be profitably considered. More generally, the manner in which law represents the monopoly of organized violence has not been thought through, particularly from a geographic perspective.

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