"The Expanding Spaces of Law vividly illuminates the significant contributions spatial analysis offers to sociolegal studies and to legal anthropology, making clear that an adequate analysis of law and society requires a focus on space and time. The theoretically sophisticated, wide-ranging introduction and empirically rich chapters demonstrate how legal geography enhances the analysis of sociological studies in settings as diverse as Indonesian villages, rural America, and urban Mexico. It offers a valuable introduction to the field as well as a collection of recent, path-breaking work."Sally Engle Merry, New York University
The Expanding Spaces of Law: A Timely Legal Geographyby Irus Braverman
The Expanding Spaces of Law presents readers with cutting-edge scholarship in legal geography. An invaluable resource for those new to this line of scholarship, the book also pushes the boundaries of legal geography, reinvigorating previous modes of inquiry and investigating new directions. It guides scholars interested in the lawspacepower nexus/i>… See more details below
The Expanding Spaces of Law presents readers with cutting-edge scholarship in legal geography. An invaluable resource for those new to this line of scholarship, the book also pushes the boundaries of legal geography, reinvigorating previous modes of inquiry and investigating new directions. It guides scholars interested in the lawspacepower nexus to underexplored empirical sites and to novel theoretical and disciplinary resources. Finally, The Expanding Spaces of Law asks readers to think about the temporality and dynamism of legal spaces.
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The Expanding Spaces of Law
A Timely Legal Geography
By Irus Braverman, Nicholas Blomley, David Delaney, Alexandre (Sandy) Kedar
STANFORD UNIVERSITY PRESSCopyright © 2014 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
PLACES THAT COME AND GO
A Legal Anthropological Perspective on the Temporalities of Space in Plural Legal Orders
Franz von Benda-Beckmann and Keebet von Benda-Beckmann
The anthropology of law, and in particular the study of space and time in plural legal orders, is still an underrated node in the field of law and geography, despite the expanding network of scholars approaching the field from a variety of disciplines (see also Valverde, in this volume). Adding to the growing scholarship in the law and geography field so meticulously described and analyzed by the editors in the introduction to this volume, the anthropology of law offers a social science perspective on law and space that is of interest for two reasons. Anthropological studies, with their methodological emphasis on participant observation and discursive techniques for capturing emic perspectives, have generated knowledge of a great variety of "folk geographies." This term refers to local understandings and constructions of space that entail specific normative connotations, representations, and power relations, which serve as orientations in social interaction. Folk geographies could enrich the law and geography studies that thus far have been based mainly on "northern" and urban examples. In addition, the anthropology of law draws attention to plural legal constellations in which unalike and often-contradictory notions of space and boundaries come to coexist in mutual interdependence within the same physical or sociopolitical space. Multiple legal constructions of space open up diverse arenas for the exercise of political authority and the localization of rights and obligations. Showing nonstate (e.g., religious, traditional) legal constructions of space, and analyzing them in the Global North as well as in the Global South, offers a more complex perspective on the law-space-power nexus. To be sure, spaces are not necessarily multilegal, and the degree to which this might be the case varies a great deal. However, we suggest that a full-fledged legal geography should incorporate the possibility of coexisting legal spaces systematically into its theoretical and methodological framework. This offers insight into the different ways in which people perceive these spaces and operate and navigate among the spaces' various authority positions.
In the first part of our chapter we briefly elaborate on our view of legal pluralism with respect to space and place, and how we locate it in the wider sociopolitical organization. We then focus on the dynamics of concretizing legal spaces as places in plural legal orders, that is, on the temporality of legal space and place making. Following the earlier work of Harvey (1996) and others that emphasizes that space cannot exist without time, we see places as (relative) "permanences" of people, relationships, and objects located and bounded in space (Harvey 1996, 261). Places are relative in time and vary in permanence. They are "contingent on the processes that create, sustain and dissolve them" (Harvey 1996, 261; see also pp. 264 and 294). We argue not only that legal spaces and places are perpetually perishing, as Harvey pointed out, but also that they "come and go"; that is, they move and alternate with other spaces, but they do so at different paces, depending, among other things, on the kind of legal system that constitutes the space, for each legal (sub)system has characteristic ways in which spaces are being "timed." A central question we explore concerns what happens within the period in which spaces are emerging and disappearing but are not yet or no longer officially in place. In a last section we discuss how processes of time-space compression (Giddens 1996) and acceleration (Rosa 2006; Rosa and Scheuerman 2009) lead to complex and changing constellations of overlapping spaces. Delaney (2010, 138) has argued that the result of this is hyperterritoriality, a steep increase of overlapping legal spaces for which ever more "regimes of continuity" are created, to solve socioeconomic problems once and for all. Taking this argument a step further, we argue that since every newly created space has its own regulation, hyperterritoriality implies hyperregulation, that is, a steep increase of overlapping regulations that requires ever more complex legal coordination. We suggest that this poses a paradox, for the very need for coordination that is required every time such a regime is established is inhibitive for the long duration that is pursued with the regime of continuity. Instead of providing a sense of certainty, these legal spaces often generate deep feelings of uncertainty among the addressees of the regulations, because they are constantly confronted with coordinative adjustments. And if no adjustment is made, they have to cope with the changing and contradictory regulations of the overlapping legal spaces. Including the analysis of legal plurality and a pronounced time perspective may provide the geography of law with a deeper understanding of the volatile, contradictory, and fractured nature of legal space making, and of the uncertainties with which addressees of spatial regulation have to live.
WEAVING SPACE INTO LAW AND LEGAL PLURALISM
Law and Space
Space and time are important aspects of any empirical research or social theory. They form constituent elements of social life and organization that help to individuate people, social interactions, and relationships (Giddens 1984, 1985; Goldschmidt 1966; Harvey 1996, 53, 210, 264; Lash and Urry 1994, 223). Space and time are analytical concepts that point to the multidimensional nature of the physical world. Infinite space and "stellar time" (Leach 1961) are formal social constructions that allow for comparison of a broad array of more substantive constructions, such as social, religious, political, ecological, and "hydrological" spaces (spaces defined by a common hydrological system; see also Werlen 1988), ranging in scope from a living room to the "global," or even the position of the earth in the universe, and from measured minutes, individual lifetimes, the time of families, and states to the evolution of the earth. Such formal concepts also allow for comparison of very different modalities of time (e.g., lineal, cyclical, iterative) (see Engel 1987; French 2001, 691; Geertz 1973; Greenhouse 1989, 1996; Khan 2009, 56; Leach 1961).
All notions of space and time are social constructions, whether defined by social, economic, or political relations and units or by reference to physical (e.g., ecological, hydrological) characteristics. There is no unique, theoretically superior substantive definition. Any primacy given to a particular type of time and space reflects the pragmatic political or theoretical and methodological purposes for which they are selected (Harvey 1996, 266). The choice of a certain spatiotemporality is not innocent with respect to the social relations that are thereby highlighted or rendered invisible (e.g., the spatiotemporality of many women's lives, colonized subjects, and the like). Natural and physical scientists tend to define space in terms of physical criteria whereby, for example, territorial, property, or administrative spaces and scales become secondary, subject to definition of space in terms of physical characteristics. For social scientists, social, political, or administrative demarcations of space tend to be the point of departure.
There is a rather taxing discussion of whether space is structural, normatively constructed, relational, or individual. We think this discussion is misconceived (also see the introduction to this volume). To be sure, notions of space are experienced and held individually, "via the experience of the subject's own body through the conscious self in movement" (Werlen 1988, 161). These experiences and the ideas of space vary considerably between different segments of the population, per age, gender, class, social status, in combination with idiosyncratic features. But each individual human being is born into social structures and organizations that are already full with social constructions of space within which that person is socialized. In most contemporary societies there exists a broad array of coexisting social, religious, economic, and political constructions of space and places, which sometimes differ from one another and sometimes reinforce one another. Spaces and places often have moral or religious values attached to them. Inevitably, individual notions of space are affected by these more general cultural and legal notions of space. This holds especially for those in which legally constructed spaces create and legitimate social, economic, and political resources. These tend to become resources in social interaction and power struggles (Harvey 1996, 44, 266). Space, in other words, is structural, normatively constructed, relational, and individual at the same time.
Notions of space are inscribed into law, and thus acquire particular social, political, and economic relevance. We call such abstract constructions categorical. Such legal-institutional notions of space to some extent share the normative and justificatory character of more general cultural-ideological notions of space, but they tend to be more specific. The chronotopes that Valverde discusses in her chapter in this volume are cases in point. Categorical legal constructions define normatively the spaces for which law claims validity; they construct specific legal spaces and their legal relevance at different scales, using physical, economic, social, and administrative criteria. Legal rules ascribe specific functions to such spaces and localize rights and obligations of persons in them. With legal means, territories—however vaguely or clearly they may be demarcated—are plotted on, above, or below the terrestrial and marine surface of the earth. They range from political territories, such as states, to internal administrative divisions of political territories, economic zones on the surface of land and water, and small plots of property demarcated in cadastral registration systems. Legal rules also localize people's rights and obligations in space, whether this is for purposes of acquiring state citizenship, organizing tax obligations, or establishing residence rights and duties for married spouses. The internal differentiation and complexity of modern legal systems has led to myriad overlapping and nested spaces, created by legal regulations that pertain to specific domains of social and economic life (Tickamyer 2000, 806). Each of these spaces is systemically linked to other spaces and regulations at different scale, some more densely, others only loosely. Despite all attempts of lawyers to create an image of a consistent body of law, regulations within each legal system are often contradictory.
Legal constructions of space are, as it were, projected onto the geographical space for which they claim validity—on "maps" of different scale, as Santos (1987) has suggested in his "cartography of law." But the mere existence of such maps does not mean that law actually exists within that space. Unless there is further empirical evidence, legal constructions of space are in the books, on the maps, on paper, and in the minds of people only as "imagined spaces" (Anderson 1991). Postulating the "existence" of such legal constructions independent of further empirical evidence is inherent in the normativity of general legal rules that claim validity here and there, now and in the future. Only when concretized can we ascertain whether and in which form law actually exists in space, in the sense of becoming a point of orientation for social practices and relationships grounded in space. Concretized law gives actual meaning and acquires significance in the relations between person and organizations and the physical environment.
Space and Legal Pluralism
The notion of legal pluralism is a sensitizing concept that draws attention to the possibility that law of various kinds, with different foundations of legitimacy, validity, power, and authority, and with different degrees of institutionalization and formalization, can coexist within the same social space, often at different scales. Traditional ethnic laws usually claim validity and exist at an infrastate scale, although some transcend national boundaries. Human rights law is cosmopolitan in its claims. Transnational laws also transcend national boundaries. Religious laws usually claim universal validity for all believers. Increasingly international organizations generate their own regulated spaces, whether catchment areas for water management or nature reserves, often crosscutting other important social, economic, administrative, or even national boundaries. Smith (in this volume) analyzes particularly disturbing examples in which international organizations and coalitions of national governments create new legal spaces defined by security and development.
Such plurality of cognitive and normative schemes of meaning and procedures provides actors with a range of options to structure interactions, transactions, and relationships. Plural legal orders produce more complex webs of overlapping spaces (Warren 2007). Multiple legal constructions of space open up multiple arenas for the exercise of political authority and for the localization of rights and obligations. In these arenas clashes occur in which diverging notions of political and legal space, loaded with economic and moral values, are mobilized against each other in strategic interactions over contested forms of political authority in the (sometimes violent) fight for control over resources. An early instance of contrasting economic moralities is the colonial legal treatment of natural resource environments. In the moral categories of expanding capitalist agriculture in the nineteenth-century colonies, land that was not cultivated in an efficient economic sense was deemed "waste." By contrast, according to many local legal systems, such land and forest represent the moral value of taking care of future generations of the community that owns the land. Other kinds of common property were subject to similar competing moral evaluations. For example, resources held as inalienable lineage property according to local law in West Sumatra served the moral good of perpetuating the lineage and, according to the moral values of the colonial state, were "not yet" accessible for "the market" and therefore "backward" (see F. von Benda-Beckmann and K. von Benda-Beckmann 2006b, 195). The colonial governments used their moral evaluation as an argument to disregard local property law and to claim authority to pass over rights to plantation owners to make the land economically productive, thereby expropriating the land from the indigenous population. But indigenous property law was not annihilated. After the fall of the Suharto regime in Indonesia, for example, land that was expropriated decades earlier was successfully reclaimed on the basis of the indigenous people's customary law when the political climate allowed for the reassertion of that law that had once seemed to have become obsolete (F. von Benda-Beckmann and K. von Benda-Beckmann 2013).
In such clashes divergent notions of political and legal space are pitted against each other (see Orlove 1991). In the pursuit of their economic and political objectives, actors may use different constructions of legally relevant spaces and project these onto or inscribe them into the same physical space and the associated political and administrative powers, such as villages, communities, private or state property on land, nature parks, game reserves, and so on. Their strategy may be informed by the differences in lines of authority, the foundations for legitimation, or the differences in the basic categories by which spaces are defined. Their strategy may also be based on the systemic characteristics of those categories and on the social embeddedness of property and authority relationships.
Although the opposition between state law and local customary or indigenous law is the best-known form of legal pluralism, there may be other relevant constellations. Religious law may have conceptions of sacred places and what is allowed there that may contradict the law of the state, and possibly also traditional laws or other religious laws. Even within the same religion, different interpretations of the normative regime of spaces may be a source of deep conflict (Turner 2013). The plurality of categorical cognitive and normative schemes of meaning also widens the range for inscribing categorical notions into social spatial relationships. In our own work on resource management in the Moluccas, we showed how different spatial regimes, based on different versions of Ambonese traditional law called adat, have led to parallel and competing authority over spaces that has dominated village politics for centuries (see F. von Benda-Beckmann 1999; F. von Benda-Beckmann and K. von Benda-Beckmann 2009). Legal pluralism often has implications for who and what is considered an insider or an outsider. For example, when migrants from other regions of Indonesia settle in a village, they become citizens and residents with full political and economic rights and obligations according to governments' law, whereas according to the traditional law of the dominant population groups, they remain strangers with limited rights (see F. von Benda-Beckmann and K. von Benda-Beckmann 2007, 2009; F. von Benda-Beckmann and Taale 1992). In other words, spatial relations are often "multinormative" and contextual, and what the "true" nature is depends on the perspective of the groups and persons that have authority in that context.
Excerpted from The Expanding Spaces of Law by Irus Braverman, Nicholas Blomley, David Delaney, Alexandre (Sandy) Kedar. Copyright © 2014 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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Meet the Author
Irus Braverman is Professor at SUNY Buffalo Law School, the State University of New York. Nicholas Blomley is Professor of Geography at Simon Fraser University. David Delaney is Senior Lecturer in Law, Jurisprudence, and Social Thought at Amherst College. Alexandre Kedar is Senior Lecturer at the University of Haifa School of Law.
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