Scale, mood, and jurisdiction: a framework for sociolegal studies

Spatial scale: qualitative and quantitative

Seeing or imagining the earth and its populations from above, whether in order to stake a claim or to generate descriptions that dominate, edify, and/or entertain, is not only implicated in governance but is itself governance. That insight is now widely acknowledged, in feminist critiques of ‘the male gaze’ as well as in Foucault’s influential comments on the Panopticon and other techniques for controlling through seeing. But the point here is that acts of seeing and representations of all kinds have to use a particular spatial scale; there is no such thing as scale-less seeing or depicting. And the choice of scale has a close – though not necessarily fixed – relationship to the mode of governance associated with or facilitated by that representation. Two quick examples from the vast literature on European colonialism will illustrate this point. First, the instruments and the heavenly charts used for sailing in the centuries before GIS were the tools that enabled a gaze ‘from above’ that turned stormy oceans into homogeneous two-dimensional surfaces divided into equal squares; the earth and each of its oceans appeared as flat surfaces neatly bisected by the equator and subdivided by meridians. While it would be cartographically determinist to claim that a combination of maps and navigation tools produced the system of European empires that lasted from 1492 until the mid-1950s, there is clearly an affinity between the scale of the sailors’ maps and the political project of exploration and empire. As a second example we can note that amateur nineteenth-century anthropologists drew pictures and wrote descriptions of humans encountered on their travels that focused the gaze of their European readers not on a unique individual but rather on the supposed ‘type’ of which the individual portrayed was but a mere exemplar: the pictures were always of ‘a Hottentot woman’ or ‘a Zulu man’. The authors of these representations were gravely implicated in the emergence of a new scale for seeing and governing humanity: the scale of (biological) race. The scale of ‘race’ is not cartographic, but it has some affinities with it, not surprisingly given that biopolitical practices are often heavily dependent on maps as well as on diagrams, diagnoses, charts with numbers, narratives about collective habits and propensities, etc.

Therefore, even the most elementary aspect of scalar analysis (the quantity of space or amount of ‘stuff’ that is included in each type of survey) contains many possibilities for conflict and innovation, and therefore for challenges to the inherited notions of the ‘correct’ scale that prevail in each context. But quantitative spatial scale is but the tip of the iceberg, the beginning of scalar analysis; and as Hegel would have predicted, it is not possible for issues of quantity to be kept from sliding into the even more complex field of qualitative scale differences.

De Certeau’s analysis having been broadly accepted by scholars across a wide range of disciplines, it is now the consensus, among critical scholars, that using a map is a qualitatively different way of grasping a given amount of space than hearing or reading a narrated tour of the same space, and that this is but an example of what I call the importance of the qualitative dimensions of spatial scale choices. Besides quality, two other elements that allow us to analyze spatial scale issues beyond the mere quantity of land or water or humans covered are mentioned in Boaventura Santos’ already cited article ‘Law: A Map of Misreading’ (1987), namely, projection and symbolism.

Projection, technically, refers to the choices that need to be made due to the fact that a three-dimensional object such as the Earth cannot be directly ‘mapped’ on two-dimensional paper. The politics of projection have come to the fore as activists and scholars in the global South have pointed out that Western-produced maps use the Mercator projection, which makes Northern Europe and North America seem extremely large, while making Africa and South America look relatively small. (The traditional Mercator projection also makes Antarctica look like the biggest continent, but that distortion has few political effects.) Given that all governance projects have a perspective, a particular way in which the constantly shifting living world around us is domesticated by means of what actor-network theory calls ‘practices of inscription’, it makes sense, in sociolegal analysis, to draw lessons from the current debates about which projection to use for world maps and apply them to the realm of law and governance. However, in doing so it will be necessary to go beyond the issues arising from using a two-dimensional paper or computer screen to represent three-dimensional objects. One example may be helpful here. Bayatrizi’s fascinating genealogy of some entities routinely used in legal and policy contexts – life expectancy statistics and tables of mortality rates – shows that just as de Certeau noted that maps, as a format, disavow the embodied humans who see and count and decide to write down and draw certain things but not others, so too, life and death statistics suppress and erase both the human beings whose lives gave rise to the static charts and, just as importantly, the process by which a large number of events, each of which was unpredictable, were aggregated and turned into a set of probabilities (Bayatrizi 2008). We could say for present purposes that life expectancy charts used by insurance company actuaries use a particular projection to capture, through a set of numbers, humanity’s most existential and unpredictable processes. What Bayatrizi shows in her genealogy is that other projections were possible (and still persist, though in limited contexts, as in the psychological discourse of mourning, which uses a completely different scale than the insurance industry).

In addition to choosing a certain type of feature or process as the central concern of a particular map, maps have to provide a set of agreed-upon symbolizations: the colour blue for water, the colour brown for mountains, a broken black line for one type of political boundary, a solid line for another type, and so on. Cartographic symbolization has some parallels in legal contexts. An example of symbolization in legal discourse is found in the conventions for naming and citing cases, conventions that, by incorporating the level of court that issued the decision into the very title of the case, indicate the amount of authority that the cited text is supposed to carry. The way in which conventions about citing cases import the hierarchical system of courts into all law review articles, even ones with radical content, contrasts with non-legal academic citation practices, in which the authors cited are not already organized into an established hierarchy. Of course certain names (Bourdieu, Foucault, etc.) have more authority than others, but most authors cited in social science publications do not have an official rank.

While projection and symbolization, as Santos suggested, are useful notions in understanding the dynamics of legal intertextuality and indeed of interlegality, there are other processes of selection and inscription that do not have obvious cartographic parallels. A good example is found in Bruno Latour’s detailed discussion of the flow of documents and the formation of ‘files’ at the Conseil d’État. Latour shows that any one piece of paper (for instance, a death certificate) is neither legal nor medical nor anything else, by nature. Legality is a quality of the network, not of the entity. Thus, a death certificate becomes legal by virtue of leaving the doctor’s hands and becoming incorporated into the network made up of heterogeneous links that we then call ‘the lawsuit’. Latour shows that the bureaucratic, affectless official paper with the cause of death and the doctor’s signature is brought into legal life by being linked to a highly emotional plea (written by a lawyer, probably) about the pain suffered by the father of the dead man (who died in a ski accident): ‘There is no need to insist on the pain of the claimant, who already was a widower and has been cruelly struck by destiny several times before, in order to understand the damage suffered by the loss of someone, who through the cruelty of fate, was his only descendant’ (Statement of Claim quoted in Latour 2010: 75).

Therefore, what I would add that goes beyond Santos’s claims is that the way in which an entity (a death certificate, in this instance) changes completely depending on the network to which it has been attached go well beyond what cartographers call symbolization. More generally, like all mapping terms and analogies, ‘symbolization’ is a rather static term, and does not necessarily help to capture the dynamic processes that create ‘law’. The death certificate example shows that to understand the qualitative differences between what one could call the legal scale and the medical scale, one needs to go beyond a critical cartographer’s discussion of what is selected, what is and is not shown, what projection is used, or how various features of the world are symbolized. Many of the significant differences lie not in map-like conventions but rather in the dynamics and the logics of the relevant networks.

We have thus seen that while analyzing the spatial scalar dynamics of law and governance we can learn a great deal from critical geographers’ work on the politics of maps, now that legal geography is several decades old (Braverman et al. 2014), the ‘law as mapping’ analogy that has become so popular since Santos inaugurated it proves insufficient. Once we begin to think about what scale, projection, symbolization, and so on might mean in the legal/governance context, even sophisticated analyses of the politics of projection, even when combined with de Certeau-style critiques of the qualitative differences between, say, a tour guide’s account and a paper map, do not suffice. The workings of law, in other words, are illuminated by the law-as-map analogy, but using mapping analogies can obscure the dynamic processes of legal network constitution.

A major qualitative scale shift: earth, land, and territory

What is it, then, that characterizes this power of the shepherd, which we can see is foreign to Greek thought, but present and intense in the Mediterranean East, especially in the Hebrews? What are its specific features? I think we can summarize them in the following way. The shepherd’s power is not exercised over a territory but, by definition, over a flock, and more exactly, over the flock in its movement from one place to another. The shepherd’s power is essentially exercised over a multiplicity in movement. The Greek god is a territorial god, a god intra muros, with his privileged place, his town or his temple. The Hebrew god, on the other hand, is the god moving from place to place, the god who wanders.

(Foucault 2007: 125)

This point underscores, for the contemporary reader, that territoriality is by no means necessary for political power even in the present day. Pastoral power is still with us today, and not only among members of California New Age sects or political parties led by charismatic figures. Foucault’s innovative work on pastoral power is very useful in drawing our attention to non-spatialized forms of political and psychological power. However, territorial governance is not clearly distinguished from spatial governance in Foucault’s account of the rise of modern states, probably because specifically legal tools are in the background in those sets of lectures (Foucault 2003, 2007). In other work, Foucault did pay a great deal of close attention to the particular political and ethical effects of legal tools, from inquisitorial interrogation to the criminal’s confession (Foucault 2014; Valverde forthcoming) – and significantly, in those important lectures at the Louvain school of criminology, spatial and territorial issues fade completely into the background. Thus, while we have inherited from Foucault a wide range of studies of the genealogy of modern powers and knowledges that have yet to be fully mined for insights and analytical tools useful in the study of law and governance, Foucault did not provide a general or even a historically specific account of how spatial governance interacts with temporalization and other dimensions of governance, including jurisdiction. That is also the case in the monumental historical study of territory and political power by Stuart Elden.

Elden’s massive history of ‘territory’ shows that although the word territorium began to be used in Roman times, first by Cicero and then by Seneca, the term had quite a different meaning than what we might expect. It denoted the area just outside the city walls, a space that did not necessarily have a fixed outer boundary – the mostly rural space under the effective control of the nearby city, made up to a large extent of farm lands producing food for the urban dwellers (Elden 2013: 63–64). The space, therefore, was defined functionally – and functional divisions of labour and/or authority have little use for static maps with clear boundaries. In addition, and relatedly, Roman citizenship was tied to legal status (free vs. slave, plebeian vs. patrician) and to descent, biological or adoptive: but not to birthplace or residence (Elden 2013: 54). As Elden shows, it was only with the rise of modern forms of political power, especially sovereignty that land began to appear as ‘territory’.

Therefore, in considering spatial scale, it is important to remember that some governance processes are not spatial at all (with Foucault’s pastoral power being merely one example), and that spatial governance is in turn highly differentiated not only quantitatively but qualitatively as well. In respect to spatial governance, as against the current fashion for using the term ‘territorialization’ extremely loosely, it needs to be remembered that property in land is not the same as authority over a space, and that space only becomes territory under particular conditions.

Beyond mapping: dynamic vs. static spatial scale analyses

Perhaps because of the dominance of maps and mapping metaphors in studies of law, space, and governance, a dominance that generates at least as much fuzziness as light (Smith and Katz 1993), work on law and space often has a static character. When scholars resort too exclusively to map metaphors, overlapping jurisdictions are often described as if they were transparent overlays, like anatomy textbook illustrations. This is highly problematic, and not only because it marginalizes time altogether (just like the anatomy overlays, which are snapshot-style depictions of human bodies of an ‘average’ age rather than depictions of the maturing and aging process). The argument made in the previous chapter to the effect that relations of governance (like all forms of communication) are by nature dynamic, multi-vocal and interactive – or dialogic and heteroglossic, to use Bakhtin’s language – suggests that it is important to pause here to consider ways of continuing to further the spatial scale analyses that critical geographers and others have carried out, but in such a way as to allow for descriptions that capture the temporally shifting, unpredictable, and dialogical features of governance.