The Place of Law

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The essays in The Place of Law speak to the role of place in our understanding of law. The contributors treat place as more than geographical fact - calling attention to the ways in which localized cultures are expressed in legal norms, inquiring about new spaces within which legal authority is being deployed, and examining the interactions between law and the process of globalization. This volume sheds new light on the ways in which law defines territory and its boundaries, both literally and conceptually. The ...
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Overview

The essays in The Place of Law speak to the role of place in our understanding of law. The contributors treat place as more than geographical fact - calling attention to the ways in which localized cultures are expressed in legal norms, inquiring about new spaces within which legal authority is being deployed, and examining the interactions between law and the process of globalization. This volume sheds new light on the ways in which law defines territory and its boundaries, both literally and conceptually. The contributors highlight law's spatial aspects and the legal regulation of space, revealing that law lives most vividly not within its majestic embodiments, but in the realm of the ordinary.
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The Place of Law


By Martha Merrill Umphrey

University of Michigan Press

Copyright © 2003 Martha Merrill Umphrey
All right reserved.

ISBN: 047211350X

Where (or What) Is the Place of Law? An Introduction
Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey
The association of law and place is as old as law itself. It is difficult to think of law without adding the name of a place--be it a powerful nation-state, or a small municipality. That law reflects the customs, values, and ideas associated with particular places is hardly news. Identifying the place of law in any social order has long since become standard practice in legal studies. And yet the meaning of the concept of "the place of law" remains far from self-evident.
For some, place connotes a landscape, carved up or marked in various ways, a "given" of the physical universe. This conception links law and geography by treating place as a precondition of social life. For other scholars, the place of law directs inquiry to the contribution of law to social life, to the functions of law and law's role in society. Still others describe place as the product of human labor, social processes, and political contest. These scholars recognize that law plays a large role in the production of a territorialized understanding of place. Law can be, and is, used to create particular kinds of places, differentiating, for example, individual property from public land; and law invests place with value or meaning, such that individual property becomes private.
Place sometimes is used metaphorically, as a way of organizing our conceptions of the world. As a metaphor it contends with other ways of organizing understandings of, or relations to, legal authority, other ways of marking social relations, other metaphors through which legal power operates. Approached this way, we can inquire about the relative utility of the deployment of metaphors of place for the organization of law or the design of legal regulation.
These different conceptualizations connect the place of law with the "various social projects and social practices through which geographical forms and spatial relations are changed." Although natural law theorists may ask us to imagine law as a set of abstract ideals, floating timelessly beyond the boundaries of cities, states, and nations, few would deny, as a descriptive matter, that positive law derives its particular form, content, and social administration from its rootedness in a geographically defined space.
First and foremost, then, the concept of the "place of law" has a horizontal component: law spreads itself over a specific territory. Thought of in this way, the place of law is a matter of jurisdiction. Jurisdiction marks the domain within which one set of legal authorities can be said to exercise legitimate authority. At the same time, jurisdiction delineates the boundaries beyond which some other law holds sway. In our domestic context, jurisdiction often refers to that rarified and abstract space in which state interests collide with federal power. More generally, however, questions of jurisdiction lead us to consider the very sources and limits of legal authority, and to consider the law's role in the construction of the classical political form of Western modernity: the sovereign nation-state. In this regard, law connects place to power as part of the apparatus through which areas and people are governed. Place is important to sovereignty's projects of producing social order and ruling a people.
The study of jurisdiction inevitably invites inquiry into the nature of legal boundaries, about what is inside and outside of law. From the perspective of state law, boundaries must be clear; the where of law's authority must never be left ambiguous. But the very act of drawing sharp boundaries involves an imagination of an outside, a place from which law is constitutively absent. Law is a set of social institutions and practices constructed on the basis of imaginings of a place beyond law's boundaries. Law thus authorizes itself as a lesser or necessary evil and as a response to our inability to live in a place without law, the Hobbesian state of nature.
Hobbes's famous picture of life without law captures a fundamental dilemma of the human condition: whether people should live freely but insecurely, or should relinquish their freedom in the name of a greater security. For Hobbes the answer was clear. Power (and so freedom) must be transferred to a single entity (or person) if peace and security were to be realized. The sovereign must lay claim to rule over a specific location, a place over which its authority would be complete.
Hobbes's conclusion, however, also asks us to think of the place of law vertically. In this regard, our responsibility as legal subjects is to know our place vis-a-vis the law. We must humbly accept the law's authority as supreme if we are to enjoy its ordering effects. Like Joseph K.'s vision of the Castle in Kafka's novel, the law occupies a space on high; as law-abiding citizens, we must approach the law with reverence and our gaze must be directed upward. Consider the argument of the Supreme Court in Walker v. Birmingham, a case that asked whether civil rights protesters could lawfully ignore a court order prohibiting their march. Although the Supreme Court recognized that the lower court's injunction was based on an arguably unconstitutional local ordinance, the majority insisted that the petitioners had no right to ignore the injunction until the question of constitutionality had been resolved by a legal authority. Offering a classic statement of what we have called both the vertical and horizontal understandings, Justice Stewart wrote, "No man can be a judge in his own case, however exalted his station, however righteous his motives. . . . Respect for judicial process is a small price to pay for the civilizing hand of law." By reasserting the law's authority, the Court reminds us of our place before the law by conjuring the state of nature that lurks beyond law's boundary. We are reminded that the peace and security achieved by law's power are ever vulnerable; that lies the abyss just beyond the place of law.
Numerous other cases, from the mundane to the bizarre, deal with other complications arising from law's relationship to place, both horizontally and vertically conceived. Can, for example, law's authority extend beyond the place of its origin? Do citizens leave the reach of that authority when they cross law's geographical boundary? To what extent does the reality--or even fantasy--of such a space beyond law trouble law's legitimacy? A classic illustration of this problem is found in Queen v. Dudley and Stephens--a case that is a parable about the violence of a lawless place and the utter necessity of sovereign power. The case began with the sinking of an English yacht in 1884. As the ship went down, the defendants, Dudley and Stephens, along with one other sailor and a young boy, escaped in an open lifeboat. After drifting for more than twenty days, during which they exhausted their food and water, Dudley and Stephens killed the weakened and defenseless young boy and "fed upon . . . [his] body and blood." Eventually the three survivors, found "in the lowest state of prostration," were rescued; and, contrary to the long-followed custom of the sea, Dudley and Stephens were charged with murder.
At trial, Lord Coleridge acknowledged that the situation in the lifeboat was one of "necessity," and he painted the actions of Dudley and Stephens in starkly Hobbesian terms. Their actions were, in Coleridge's view, guided by the belief that "in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or anyone else." The question as he saw it was whether that belief, the equivalent of the right of self-preservation that Hobbes tells us governs behavior in the state of nature, should be recognized by law, whether the lifeboat was, under such extreme conditions, a place beyond the legitimate reach of positive law.
Though custom had for centuries sanctioned similar lifeboat killings in cases of dire necessity, for Coleridge this question was not particularly difficult. While he recognized that the defendants found themselves in a situation where it was almost impossible to "keep . . . judgment straight and . . . conduct pure," he contended that it is precisely in such situations where law must stand guard against the frailties that constitute our very humanness. Law must refuse to acknowledge and justify actions according to nature's dictates or recognize those dictates as its own. Coleridge flatly asserted that the idea of an unqualified right of self-preservation is "immoral"; morality requires that we distance ourselves from, rather than give in to, the impulses of the state of nature. "It is not correct," he wrote, "to say that there is any absolute or unqualified necessity to preserve one's life."
Recognizing such a principle would mean, Coleridge argued, that the "weakest, the youngest, the most unresisting" would be most vulnerable and most likely victimized. Portraying life without a common power in Hobbesian terms as violent and exploitative, Coleridge warned that an incorrect decision in this case, a decision legitimating such violence and exploitation, "would be of fatal consequence." By conjuring the prospect of a widespread outbreak of lawless violence, Coleridge justified treating the actions of Dudley and Stephens as "willful murder."
Coleridge's opinion suggests that the place of law is the place of sovereignty and sovereign power. Indeed for Coleridge there can be no moral place outside the sphere of law's authority, at least for the "civilized" English on land or sea. But just as the formation of the sovereign nation-state played a crucial role in the emergence of a territorial and jurisdictional understanding of law (and vice versa), the rapid and often radical transformation of this political form is one of the defining characteristics of our era. Under pressures variously labeled transnationalism and globalization, state forms throughout the world are undergoing transformation, adding new functions, shedding old ones, refining institutional processes, developing new alliances within and beyond national borders--and, in so doing, changing the relationship between law and place.
Territory, jurisdiction, boundary: each of these ways of describing the place of law is called into question by contemporary processes of globalization that create new territories, rearrange jurisdictions, and blur boundaries. In the abstract, globalization refers to the increasing interconnectedness of social relations; in reality, it asks us to imagine obscure localities shaped by events across the globe, and vice versa. In the domain of culture, globalization entails the penetration of even the most closed societies by common symbolic forms.
The driving force behind this diffusion of culture and the hallmark of globalization is the worldwide spread of corporate capitalism and neoliberal values. As such, globalization can be seen as a vast project in political economy, a restructuring of the global order to maximize its compatibility with the values and interests of multinational corporate enterprise, and as a crucial reorienting of dominant political ideologies.
At the level of jurisdiction, the global economic system has been institutionalized in the World Bank, the International Monetary Fund, the World Trade Organization, and the North American Free Trade Agreement, to name only a few. These arrangements seek to impose the discipline of the market on economies that have been, it is claimed, corrupted by crony capitalism, welfare state social policy, and other autarchic tendencies. Accordingly, the mission of these institutional messengers of globalized capitalism is to dismantle barriers to the free flow of populations, commerce, information, and especially capital-- all in the service of economic growth and industrial development.
Globalization opens up state processes to far-reaching forces and leads to reconfigurations of state power. As these global forces impinge on the state, the place of law is altered. New challenges and opportunities emerge, new locations of legal authority develop. The process of disaggregating and reconfiguring state power leads directly to the question of what roles territory, jurisdiction, and boundaries play in defining the place of law. Whether at the level of supranational institutions or reformed domestic ones, globalization alters competition and contestation over norms, over the content of legal regulations and standards.
Clearly the globalized political economy is exerting a transformative impact on the place of law. Complementing globalization in this transformation are newly emergent international and supranational human rights regimes. "The past few decades," Richard Wilson notes, "have witnessed the inexorable rise of the application of international human rights law as well as the extension of a wider public discourse on human rights, to the point where human rights could be seen as one of the most globalized political values of our times." Appeals to human rights and an emerging body of international law have, then, the potential to transform power relations within states and open up new possibilities for forces seeking social change. And as the creation of the International Criminal Court suggests these changes may radically redefine traditional concepts of sovereignty and the jurisdictional limits of legal authority.

Though questions of jurisdiction and sovereign authority present the most concrete way of analyzing what we mean by the "place" of law, there is yet another way of conceptualizing "place" that shifts from the geopolitical to the sociological. Taking this perspective, sociolegal scholars have asked about the role law plays in social life. How important is it in the lives of citizens?

Two general ways of thinking about the place of law in social life have emerged in the literature. The first, instrumentalism, posits a relatively sharp distinction between various kinds of legal standards, on the one hand, and various kinds of nonlegal human activities, on the other. It then explores the effects of the former on the latter. Instrumentalism conceives of law as a tool for sustaining or changing aspects of social life, but not as a major force in shaping society. Instrumentalism denies that law is already an integral part of that which it regulates.

Perhaps the key to the instrumentalist understanding is the belief that there is a fairly firm division between the legal and the social. As Robert Gordon has observed, writers in this tradition

divide the world into two spheres, one social and one legal. Society is the primary realm of social experience. It is "real life": What's immediately and truly important to people . . . goes on there. . . . "Law" or "the legal system," on the other hand, is a distinctly secondary body of phenomena. It is a specialized realm of state and professional activity that is called into being by the primary social world in order to serve that world's needs. Law is auxiliary--an excrescence on social life, even if sometimes a useful excrescence.38
Law, then, is pictured as a residual category whose role in the everyday is episodic, artificial, and often disruptive.

The second perspective, the constitutive, contends that social life inevitably is run through with law. In bold outline, the constitutive view suggests that law occupies an important place in society, shaping it from inside out, providing the principal categories in terms of which social relations are made to seem largely natural, normal, cohesive, and coherent. We are not, as instrumentalists suggest, merely pushed and pulled by laws that impinge on us from the "outside." Rather, we internalize law's "meanings" and its representations of us, so much so that our own purposes and understandings can no longer be extricated from them.

So conceived, it is understandable that law's place might be either relatively invisible (as part of the frame in terms of which actions are formulated) or seemingly necessary and natural (as part of what it means to be an agent or actor at all). Thus, in thinking about the place of law, those who adopt the constitutive perspective tend to see the links between law and society at the level of networks of legal practices, on the one hand, and clusters of beliefs, on the other. While these links tend to be relatively diffuse, they are nonetheless incompatible with portraits of legal systems as "struggling to retain what seems like a tenuous grasp on the social order," as having little place in the organization of society.

The essays collected in The Place of Law speak to these different understandings of place. They treat place as a geographical fact, calling our attention to the way distinctive localized cultures are expressed in legal norms. They analyze the social processes through which the place of law is created and maintained, exploring new places or spaces within which legal authority might be deployed. Finally, they consider the way globalization works. Taken together, they help us see the way law both defines territory and attempts to keep things in place. They highlight the spatiality of law and the normative contests that spring from the legal regulation of space. They draw our attention to the fact that law lives most vividly far beyond its most majestic embodiments, in the common, the quotidian, the ordinary. They challenge scholars to attend to the difficult task of charting where (or what) the place of law really is in any society and in any historical period.

The first two essays in this collection examine the place of law in repressive political conditions. Both are interested in the intersections between law as a technology for the governance of particular geographies and other systems of meaning and control, including literature and culture. The first examines what happens when the place of law is penetrated by "literary culture"; the second, what happens at the intersection of culture and legal formality.

Wai Chee Dimock begins our inquiry by trying to identify the place of law in the former Soviet Union, a place in which the rule of law was allegedly absent. Dimock's essay takes issue with this view, examining law as a technology of governance, not as something standing apart from the lives of ordinary citizens living under totalitarianism. She focuses on law's horizontal axis, that is, its location on a geographical map. Her essay points to the importance of knowing about the borders and boundaries of law and whether the jurisdiction and scope of law are coextensive with the geographic boundaries of nation-states.

Dimock describes the place of Soviet law in the life of one individual, Osip Mandelstam. Mandelstam, "probably the greatest Russian poet of the twentieth century," was arrested twice as a result of his allegedly subversive poetry, including most especially his "Stalin Epigram." Dimock insists that the prosecution of Mandelstam occurred within, not beyond, the boundaries of law. It was, she says, an act clearly authorized by the Soviet Criminal Code, a code designed to serve the needs of the state apparatus.

This identification of law and the state came at considerable cost. So intertwined were law and the state under the Soviets that their law had neither jurisdiction nor moral force beyond the territorial scope of the state.



Continues...


Excerpted from The Place of Law by Martha Merrill Umphrey Copyright © 2003 by Martha Merrill Umphrey. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Where (or What) Is the Place of Law? An Introduction 1
Time against Territoriality: National Laws and Literary Translations 21
The Empty Place: Legal Formalities and the Cultural State 43
The Architecture of Authority: The Place of Law in the Space of Science 75
Digital Networks, State Authority, and Politics 109
The Place of Cyberlaw 131
Against Cyberspace 147
Contributors 181
Index 183
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