By Prof Antonia Layard, Professor of Law (University of Bristol Law School) *
Legal geography is an exciting and emerging cross-discipline, exploring how people and places co-constitute the world. It proceeds from the premise that the legal co-creates the spatial and the social while the social and the spatial co-create the legal. There is reflexivity. Once we accept this premise, however, the hard work begins. How do we work out what ‘work’ legal provisions and practices are doing to create spaces (national, regional, local or private) and how do spatial and social settings inform the application of legal rules and principles?
In a piece that was commissioned by Geography Compass, both to provide an overview of where legal geography is today as well as to consider where it is heading, Luke Bennett and I developed the idea of becoming a ‘spatial detective’. We suggested that there is much to learn by both legal scholars and geographers becoming ‘spatial detectives’ – of learning, Sherlock Holmes-like, to search out the presence and absence of spatialities in legal practice, and of law’s traces and effects embedded within places. To make this argument, we revisited the debates around the case of R –v Dudley & Stephens ((1884) 14 QBD 273, still a classic in Law Schools).
On 6th September 1884, three sailors arrived in Falmouth and reported to the local Customs House, resenting sworn statements there about their recent activities. One month later, these candid statements became evidence in their trial for murder held at the Devon & Cornwall Winter Assizes, in Exeter. This case, R –v Dudley & Stephens, proved to be one of the most contentious legal decisions in English legal history. For the courts ruled that the killing and eating of a cabin boy by these sailors, was a crime under English Law. This was so, even though the sailors would have died had they not done so, as they drifted helplessly aboard a lifeboat in the South Atlantic, 1600 miles off the Cape of Good Hope.
In 1990, in an opening salvo of what was to become the legal geography project, Pue (a lawyer) singled out R –v Dudley & Stephens as evidence of law’s spatial blindness. He critiqued the trial judge for ignoring the spatial setting, charging that – as a manifestation of law’s aspatiality – the case saw the law treating the extreme circumstances upon a raft in the high seas, no differently that it might a ‘premeditated murder in a private club in London.’. Happily admitting that legal worldviews are not uniform (although “the dominant vision is ever present”), he argued that ‘geography remains largely invisible to lawyers’, with (English) law here operating as though space (and location) simply did not matter. Pue suggested that law’s abstract logic, expressing ‘juridical ”common sense” […] piles abstraction on abstraction’, a move, which he said, was ‘geographical nonsense – anti-geography’ . In contrast, he figured geography as emancipatory, because of its embrace of spatial specificity and its wresting with abstraction. As he put it: ‘[g]eography empowers the “liegemen” of law by demanding that they be taken account of, heard; by insisting on a developed geography of the mundane’. This was a call to arms for those who believed that ‘citizens, localities, and ‘place’ win when specificity is victorious’.
This critique of the ‘invisibility of space in legal studies’ was widely taken up, with much made of law’s closure and the insularity of the legal academy. Yet, as Blomley and Clark put it in 1990: the ‘law-space-nexus’ provides for exciting and complex inquiries . As enthusiastic participants in the legal geography project, and regular conference goers (we put together legal geography streams at the Royal Geographical Society conferences in 2013 and 2014, and presented papers in 2015 with plans for 2016) Luke Bennett and I were happy to take up the challenge. Concerned that ‘law’ (or more precisely legal practice) should not be understood as a ‘straw man’ in these endeavours, berated for its aspatiality when all is perhaps not quite as it seems, we accepted the invitation to write the Compass piece.
Bennett and I argued that it is not that locality and context was blindly overlooked in R –v Dudley & Stephens – quite the contrary. In that case the prosecution’s concern was to assert a general prohibition over anything other than state sanctioned killing in English territories, and it was already settled principle that English ships and their sailors fell under English jurisdiction anywhere in the world. The case was, therefore, a moment of modernisation – the English legal system seeking to emphasise its sovereignty over its sailors, their spaces of travel and thereby to eradicate a ‘law-less’ practice of ‘shipwreck cannibalism’ (Simpson, 1984) which appeared then to be customary amongst seafarers and which posed a challenge to the moral clarity of the law of murder.
In contrast to legal rules and legal practice being necessarily aspatial, being a ‘spatial detective’ can help us to show that legal practice approaches spatiality selectively – sometimes ignoring it, at other times embracing it. We contrasted the fate of the shipwreck cannibals with a case arising from the 1781 ‘Zong massacre’ in which 132 enslaved Africans were thrown off the slave ship Zong, owned by a Liverpool slave-trading syndicate. In this case the spatiality of the situation – the ‘out-at-sea-ness’ – was determinative, for the ship’s captain was held to have been justified by the necessity of his remote predicament in throwing African slaves overboard in order to secure the survival of his ship and its remaining ‘cargo’ (Gregson v Gilbert 1783, Arvind 2012).
While important questions of race and power were clearly at play in the treatment of slaves as dispensable ‘cargo’ (the Zong case was an insurance law dispute), had 132 slaves been killed on the English mainland, a murder charge would almost certainly have been brought. But, as they were killed ‘out’ at sea the court’s application of the law to the event decided that there was no murder committed. Thus – strangely – the application of an aspatial formalism (i.e. ignoring location, as was the approach derided by Pue in R –v Dudley & Stephens) in Zong might have led to what we would consider to be greater justice, for we might be inclined to think that ‘murder is murder wherever it happens’.
In Spatial Detectives, then, we suggested that it is insufficient to regard law as spatially blind or to assert that embracing locational differentiation would always be progressive. Instead, we need to investigate both the presence and absence of geographical location.
There are times when spatiality does not matter. We should, for example, treat murder on the high seas and murder in a ‘gentleman’s club in London’ in the same way. The judicial decision in R –v Dudley & Stephens was not ‘anti-geography’, to have decided that location makes a murder, a non-murder, would be acquitting on account of location. Similarly, location should not matter in cases of violence. Domestic violence is just as egregious carried out in the home as on the streets. Here the absence of geography is not a defeat for ‘citizens, localities, and “place”’ .The question is: does location matter to whether this is the commission of a crime? The more complex questions of justification in R –v Dudley & Stephens are still of course – and will be for generations of law students – up for debate but the aspatiality here is an important normative statement.
Sometimes, however, location and spatial settings do matter. The right to roam, for example, or the right of reasonable access in Scotland, gives us the right to enter onto other people’s land, in a way that we cannot in private homes or in urban locations (though perhaps an urban right to roam might also be spatially, socially and legally plausible). The way in which judges use mechanisms of scene setting is also worth investigating, teasing out how they use spatial observations and framings instrumentally. (No one perhaps did this quite as effectively as Lord Denning, in Hinz –v Berry (1970) ‘It was bluebell time in Kent’ or in Miller –v Jackson (1977) ‘In summertime, village cricket is a delight to everyone’).
Becoming spatial detectives, then, is an active process. It allows us to investigate legal rules, cases and practices with an eye for how and when spatiality influences, frames or determines decisions. It is not as simple as being ‘pro’ or ‘anti-geography’. We need to look for absences and presences, evaluate their interrelationships with other factors, to understand how legal geography creates spaces, networks and governance mechanisms. We need to become spatial detectives.
* Based on L Bennett and A Layard, ‘Legal Geography: Becoming Spatial Detectives’ (2015) 9(7) Geography Compass 406-422. References to works referred to in this post are available there.