Wrestling with law


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Considering these geographer's attempts to grapple with law as a body of literature one is struck at once by the diversity of approach. Some of the contributors have chosen to give primary emphasis to law as an instrumentality, others accord significance to legal institutions and yet others conceive of law as being mostly (or, entirely) about ideology, culture, discourse, or discursive practices and struggles. The particular categories of law which are of primary interest to these scholars include penal, regulatory, constitutional, and administrative.
Yet, despite this apparent dissensus as to what exactly law is (and what is important about it) each of these geographer's approaches is thoroughly distinct from traditional notions of law and legality reflected in the bulk of legal writing. These unique emphases render this a "body" of literature which is both important for legal scholars and deeply subversive of law as we know it. To the extent subversion is a necessary consequence of "geo-jurisprudence" it should be welcomed by lawyers, legal scholars and citizens for it is a subversion which is deeply humanizing in its demand that society be recognized as something more than "a homogeneous plain peopled by an abstract homo juridicus" (Blomley and Clark, m/s 19).
The common threads which run through these essays are many. Each author specifies that a thorough appreciation of "context" is an important prerequisite to developing any plausible analysis whatsoever. There is a repeated emphasis on the importance of recognizing not only historical specificity but also the multiple specificities of territory, locality, community, place. Not surprisingly perhaps geographers emphasize diversity, variation, spatiality ("its geographic variations, its complexity, its scattered and often unconnected populations" - Kirby, m/s 12) in contrast to the lawyers' two-dimensional world of a-social, rational economic maximizers acting in a placeless, cultureless environment.
These emphases produce a further consequence for the geographical conception of law: geographers are much more likely than lawyers to resist the temptation to reify law. The above essays employ a wide range of metaphors to emphasize the fluidity and socially contested nature not just of legal rules or legal systems but, indeed, of the idea of law itself. Hence, law is variously conceived of by geographers as a contested terrain, a fluid embodiment of ideology, a form of discourse, or discursive struggle. The lawyer's common insight that words contain a necessary "open texture" (Hart) and that this creates a degree of discretion in the exercise of judicial decision-making is quickly superseded in geographical research by the more profound perception that more is at issue than just the interpretation of words: lawyer's word games are merely components of a larger process of the working-out of social meaning, the attribution of significance, the development of the foundational categories which permit us to understand, the rendering visible or invisible of issues, peoples, problems. The practice of law is truly about cultural practice. Lawyers are "conceptive ideologists" (Cain, 353; see also Pue, 1989b, 180) whose lives are imbricated with the places in which they live and work; organic intellectuals constituted, constitutive, constantly making, remaking and being remade.
It follows from this - though it is not always acted upon in geographical scholarship about law - that the very language which permits us to speak of "law," "legal scholarship," or a developing field of "law and geography" misleads. Categories such as "law/non-law," "geography/other" must be transcended in what Audrey Kobayashi (in another context) has called the "quest to overcome Cartesian dualism, and to interpret the world through synthetic understanding... to recognize the fundamental recursiveness of social conditions and to transcend the simplistic dualisms" that allow us to create knowledge yet trap us within their logic (Kobayashi, 1989, 165). Like all categories of thought, the radical separation of legal from non-legal deceives. Categorizations "cabin and distort our immediate experience, and they do so systematically rather than randomly" (Kennedy, 1979: 215). If neither law nor legal practice can be taken for granted then, I think, geographers must go further than they have to date in embracing legal pluralism (Pue, 1990). A geo-jurisprudence cannot consistently confine itself to study of state institutions or privileged legal discourses amputated from others. "Legal doctrine" must be studied but must not be allowed to constitute a categorical quagmire from which the geo-jurisprudential researcher cannot escape. Courts are important but perhaps only superficially so.
There is a need to study the workings-out of state law not just in London, Toronto, Ottawa and New York, but in Idaho and in Alberta; in Calgary and Edmonton, Lac La Biche, Smoky Lake and Kikino: the economies, people, and cultures are widely varied and legal texts will not be imbricated in diverse local societies in the same way. Peripheries as well as metropolitan "cores" need to be studied.
If geographical work touching on "law" is to take account of the emphasis contemporary social theory places on the processes by which "knowledge" is constructed, diffused, and reconstructed it is necessary to go the next step of recognizing that all social actors - whether they know it or not - are producers as well as "readers" of legal knowledge. It is necessary of course to focus attention on the work of actors who are traditionally privileged in the creation and dissemination of legal knowledge - judges, practicing lawyers, law professors, legal scholars. Their work-a-day worlds must be accessed as well as the most obvious judgments/ articles/ briefs. If "law-in-action" (as opposed to "law-in-the-books") is honestly of concern it is important to expand the range of actors studied beyond the "great-men" and women of law to consider the practices of magistrates, small-town lawyers, and individuals marginalized in the professional mainstream by place, gender, class origins, "race," language, religion, education, political affiliation, sexual orientation, etc. Beyond this, it is important to direct attention to the victims, subjects, or audiences of the state's law: Dworkin's liegemen as well as the oracles must be heard in scholarship. This is not a call for the employment of any crude "conflict" theory of legal knowledge (though that may be helpful at particular times and places) as a plea that the multiple levels and many tongues of legality be recognized as research agendas are formulated. In the "street theater" of law the audience is the play. (Cf. McLaren, 1989).

Some at least (I think all) of these consequences flow from the very idea of producing a geographically informed legal studies. If this is so, geography is tantamount to insurrection in the "legal" world (meaning here the world of law schools, courts, legislatures, and law offices). It is central to the "rule of law" that like cases should be treated alike, that legal rules applied in one context should be applied with similar effect in analogous cases (Fuller xxx; Dicey, xxx; Hart, xxx; Waddams, 10). The trouble, as R. v. Dudley and Stephens shows, is that lawyers can be total idiots in determining what constitutes analogous circumstances. Although any reasonably informed commentator knows that analogies are not naturally occurring (e.g. Harari, 5-18), in a world where the rule of law(yers) is taken for granted pointing this out passes for radical political activity (Kelman, 1984).

Geography as insurrection occurs in several ways. First, in its insistence on place, context, locality, spatiality, geography is the very denial of any abstract principles of the type that the formal legal rationality of modernity presumes (Weber, xxx; cf. Kirby, m/s, 15). "Geography" is, in this sense, fundamentally corrosive of "law" and implies both a rejection of totalizing legal systems8 (cf. Arthurs) and a transcendence of limited visions of legal order.
Less dramatically, geography's insistence on the specificity of context raises inherent challenges to the continuance of any number of abstract legal "rules" in particular fields. A thousand lights will shine as geographers confront legislators and judges with an aggressively put demand that spatiality be heeded in areas as diverse as gun-control, water law, local government law, zoning, federalism and economic union, gender equality, racism and so on. This is tantamount to a geo-jurisprudential practice of insurgency (see Brickey and Comack) if not full-fledged insurrection.
Third, geography is insurrectionist in the context of legal education by its insistence that relevant legal knowledge is context-specific rather than "given" within a professional sub-culture. All of the hall-marks of professional training in common-law countries would be swept away if this geographical whisper were taken to heart by legal educators: gone would be the case-method, Socratic teaching, obsession with judge-made law, the myopic focus on courts (and appellate courts), contempt for the work-a-day world of "law"; the public-private distinction, the over-emphasis on commercial law subjects, the transmogrification of humans into mere self-interested maximizers of personal wealth, the privileging of "law in the books," denial of "law in action," denial of history and place, the amputation of law from social sciences (and social discourses), the denial of humanity, and all of the spoken and unspoken cues in "training for hierarchy" (Kennedy, 1982).
The fourth and most important point follows from this. Geography raises fundamental challenges to claims of "legal" expertise as a distinct form of knowledge deserving of public deference. Emel's arguments in this journal in the area of "water law" can and must be taken further. All assertions of "expertise", privileged knowledge and the like barely conceal the professional's central claim: "don't bother me; don't tell me who you are or what you think or know or feel; I know best and will do it to you. Be my subject, not my coequal." Lawyers, whose daily work is the normative languages of state, whose work reflects and constitutes knowledge of what it means to be human, who exercise and influence the exercise of power, whose mundane labor is politics in action make shockingly anti-democratic claims to deference (Ericson and Baranek; Rosenthal; Mandel, ix). Geography stands in fundamental opposition to this antinomy of "placeless power and powerless places" (Kirby, m/s, 21, drawing on Henderson).
By demanding that geography be taken account of, geographers deny the central claim to expertise which underpins the legal profession, courts and the legal academy. Specificity wrestles with abstraction and citizens, localities, and "place" win when specificity is victorious. Geography empowers the "liegemen" of law by demanding that they be taken account of, heard; by insisting on a developed "geography of the mundane" (Kobayashi, m/s, 2).

Because "law" matters it is crucially important that geo-jurisprudence not only develop within the academic discipline of geography but that it penetrate deeply into legal scholarship. The inherent insurrectionism of geography will be welcomed by much of the new legal scholarship and is similar in emphasis to portions of the new legal history and critical legal studies which have begun to take hold in the sanctuaries of law. As a lawyer I implore geographers to pursue geo-jurisprudence as an area of inquiry, to do so in a fashion that is informed by social theory and to take their work on evangelizing missions to the seminaries and sanctuaries of LAW! Be aggressive. Be demanding. We need to hear you.


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1 I am grateful to Dr. Tony Lemon for fostering my interest in geography and to a number of geographical colleagues at Carleton University, across Canada and in the U.S.A. and Britain for encouraging my preliminary explorations with regard to the overlap between law and geography as academic disciplines. Special panels on "Law and Geography" at the Canadian Law and Society Association Annual Meetings in Windsor, Ontario in 1988 and at the Canadian Association of Geographers in Chicoutimi in 1989 provided invaluable forums for the exchange of ideas. I am indebted to Nick Blomley, Tullio Caputo, and Gordon Clarke for comments on a draft version of this paper.

2 Dudley v. Stephens is in these respects only one manifestation of a larger nineteenth century attack on legal pluralism (or, the place of law) which is documented by Arthurs, 1985.

3 Consider also the geographical visions of the Supreme Court of Canada in constitutional adjudication: Harry Glasbeek and Michael Mandel, "The Legalization of Politics in Advanced Capitalism," in R. Martin, ed., 2 Socialist Studies, 84-124, at [xxx230; 237 of Elliott Public Law materials.]

4 It is not just the British who view law in this way. At the time of writing U.S.A. troops have invaded a sovereign state under the pretense that they are simply enforcing U.S. anti-narcotics legislation. They have invaded the embassy of a third state while assaulting another with continuous loud-speaker broadcasting of popular music including "I fought the law and the law won." The irony is lost on most U.S.A. citizens. It appears the invaders - acting in violation of innumerable standards of international law - view themselves as in some way upholding some homogeneous legality in this widely different place.

5 Amongst others, these include: Canadian Journal of Law and Society; Journal of Human Justice; Journal of Law and Society; Law and Social Inquiry; Law and Society Review; Journal of Legal History; Law and History Review; American Journal for Legal History; Windsor Yearbook of Access to Justice; Canadian Journal of Women and the Law; Law in Context; The Journal of Legal Studies; Law and Policy; Internation Journal of the Sociology of Law; Australian Journal of Law and Society; The Journal of Law and Economics; International Journal of Law and Psychiatry; Oxford Journal of Legal Studies; Criminal Justice History.

6 Abel, Richard L. and Philip S. C. Lewis, "Putting Law Back into the Sociology of Lawyers," in Abel and Lewis, eds., Lawyers in Society: Comparative Theories (Berkeley: University of California Press, 1989), 478-529, at 506: "Lawyers gain entry by their ability to distance themselves from ordinary common sense and ideas of fairness; they learn special techniques of reasoning and a `universalizing attitude'."

7 Sugarman and Rubin, 1984 at 107 argue that "...all research is dependent upon (frequently implicit) hypotheses and therefore theories, ... facts are categories at a lower level of generality than those composing the theory, ... the difference between theory and history becomes one of degree rather than kind; and both are inseparable." (As quoted in Binnie, 1988, at 38).

8 Focussing on the state legal system of Canada, two commentators have observed: "since courts must be neutral and vindicate rights instead of pursuing policies, they must justify their decisions on abstract, and not on concrete grounds. Therefore, they must typically deny the relevance of class, not as an empirical proposition, but as a matter of a priori assumption. The legalisation of political discourse, therefore, is the substitution of abstract for concrete justifications." (Glasbeek and Mandel, op. cit., at xxx239 of Elliot)

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