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

Scale, mood, and jurisdiction


A framework for sociolegal studies


Introduction


The first chapter was devoted to explaining, elaborating, and interpreting those parts of Bakhtin’s work that are relevant and useful for the study of law and governance. The rather one-sided dialogue with this important figure, who has been hugely influential in literary and cultural studies but not (so far) in the socio-legal sphere, was followed by a chapter engaging with contemporaries who have also been interested in questions of time and space but have used other resources, mainly those provided by either geography or anthropology. Much of that discussion was critical, not because I do not respect the work mentioned but because when one is attempting to delineate a new approach, as I am doing in this book, it is necessary, not least for heuristic reasons, to explain how my work differs from what is already available in different literatures. I showed there that much of the available work (e.g. in legal geography) inherits the discipline of geography’s built-in bias toward spatial scale. Temporality has been explored by a number of scholars – the legal anthropologists mentioned in Chapter 2 and the more philosophically oriented work featured later in this chapter – but by and large temporality and spatialization have been treated separately in legal studies. Noticing that problematic reification and separation of ‘time’ from ‘space’ is what led me to argue that we ought consider reviving and repurposing Bakhtin’s chronotope, a notion devised for the specific purpose of understanding how particular temporal scales relate to or influence spatial scale choices.


However, when dealing with legal mechanisms – with the word ‘legal’ being used here in the broadest sense (that is, including not only state and other formal law but also informal and private systems of norms and sanctions) – an analysis of the relation between the spatial scale and the temporal scale of an assemblage, however sophisticated, is not sufficient. Why not? Because while scale overlaps, often to a large extent, with jurisdiction – especially given the prevalence of territorial jurisdictions in modern Western law (Ford 1999; Elden 2013) – the game of jurisdiction is not reducible to or always coterminous with that of scale.


Let me very briefly explain why I foreground jurisdiction, in advance of the more detailed description at the end of this chapter. First, jurisdiction is often confused with spatial scale; but there are numerous jurisdictions that are functionally rather than spatiotemporally differentiated (e.g. a physician can write prescriptions for otherwise illegal substances, and this power is neither site-specific nor time-limited). Secondly, even in states that have by and large marginalized or even suppressed alternative or specialized jurisdictions, a variety of overlapping jurisdictions still exist. The legal pluralism literature has shed much light on these jurisdictional games, but often restricting the analysis to colonial and post-colonial situations; I see jurisdiction as a game that is always being played, not just between legal systems but also within them. The chapter will thus first discuss the three main aspects that I argue need to be included in scalar analysis (space, time, and affect and mood), and will then go on to analyze, in the final section, the complex relations between the game of jurisdiction and the game of scale (developing the argument fist made in Valverde 2009). Subsequent chapters, it should be noted here, will not necessarily use each and every one of the elements of the framework set out here. The argument of this book is not that every sociolegal analysis should give equal weight to each of the elements of scale and then proceed to also give equal time to jurisdictional issues. It bears repeating that the framework developed in this book is not a static ‘theory’ of law/governance that is meant to be applied in the same way across different situations. Which elements are in the foreground or in the background and how the different dimensions of analysis interact with each other will depend on the concrete situation being analyzed. In some situations, for example, struggles over temporality take centre-stage, such that spatialization practices simply follow from temporal scale choices; in other situations, the game of jurisdiction is the dominant one; and so forth. The framework developed in this chapter, therefore, needs to be sensitively applied; to repeat, it is not a theory of law or governance. And because it is not a theory, when I talk about a legal network or a part of a network as a ‘chronotope’, I do not mean to claim that chronotopes actually exist; I mean simply that the workings of governance processes can be illuminated by viewing them as chronotopes.


Spatial scale: qualitative and quantitative


That political and legal power is always exercised through and by particular scales, with spatial scale choice being more than a technical politically neutral choice, is now well understood. The simplest examples of this general insight concern the political effects of shifts in the sheer amount of territory covered by a particular governing project, that is, shifts in the quantity of space claimed or actually governed by a particular authority – the sort of shift that can be visualized by using Google Earth (see inter alia Herod and Wright 2002). The quantitative scale of the actual or imaginary map that authorities use as they go about their work is thus important. Much has been written on the role of maps in facilitating imperial and colonialist projects such as parcelling out land for white settlers’ farms and building cities on a grid system; but contrary to some accounts of the relation between mapping and conquest, the fact is that well before modern maps, what we could call the imaginary of governance was already spatialized. A would-be ‘monarch of all that I survey’ can imagine the space that is to be dominated – or rescued, or explored – in the absence of maps. Noted geographer Christian Jacob remarks, in the first sentence of his magisterial book The Sovereign Map: ‘Seeing the world from above is a timeless fantasy that geographical maps make actual by way of metaphor. This dream pervades literature and science, from the utopia of Gulliver’s Travels to the frenetic scenes of contemporary science fiction, from the eyes of Icarus to the lenses of satellites that send a reflection of the earth back to us’ (Jacob 2006: 1).


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.


In general, the scale of a representation (‘representation’ here including graphs, statistics, symbols, narrations, and pictures of all kinds) has a close relationship to the workings of the particular legal or governing system thought to be appropriate for the entity being represented. This insight is often reduced to the impoverished and by now trite point that local, national, and international spaces are traditionally regarded as needing scale-specific, distinct governance systems: in the oft-quoted words of Boaventura Santos, ‘legal developments reveal the existence of three different legal spaces and their corresponding forms of law: local, national, and world legality’ (Santos 1987: 287). But the standard tripartite differentiation of spaces and their governing systems into global, national, and local, which obscures as much as it reveals, is but an instance of a much larger phenomenon. As mentioned earlier, seeing humanity as differentiated by physiognomy (or by ‘culture’) into ‘races’ can be said to be the effect of a particular scale. Changing the focal length, so to speak, might blur racial and national lines until all of humanity becomes the only object that can be seen (as seen not only in Kantian hopeful tales about humanity but also in sci-fi stories about alien invasions, whose inter-planetary scale has the effect of constructing ‘the human race’ as a single entity). But if the gaze of the observer is committed to the scale of race, ontologically, the probable outcome is that governance too will be seen as requiring racial differentiation.


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.


The shift from quantity to quality, in spatial scale analysis, can be illustrated by means of a text that has been extremely influential not only among legal geographers but in studies of space and authority more generally: Michel de Certeau’s brilliant discussion of the differences between the social effects of descriptions one generates by walking around, say a city, and on the other hand, the top-down relationships encouraged by bird’s-eye-view representations, including maps. When an individual narrates what they see as they walk from one street to another, whether in real life or in a text, the representation thus generated is explicitly embodied and situated. The listener (or the reader of someone’s story) sees the city, literally, through a particular person’s eyes, and they see only one slice at a time. A conscientious travel writer might generate a series of narrated walks that together cover the whole of a city; but no matter how many situated descriptions are stitched together, this type of account will have a different quality than what is effected through a general-purpose map of the city. Due to its formal features, the map will be necessarily impersonal: we rarely stop to think about the authors of maps, in contrast to flâneur-type accounts, for which authorship clearly matters. The bird’s-eye representation will thus appear as objective, having suppressed all traces of the embodied observing and measuring and photographing and drawing that went into its making. Therefore the map, de Certeau writes in a much-quoted passage, ‘colonizes space’: ‘the map, a totalizing stage on which elements of diverse origin are brought together to form the tableau of a “state” of geographical knowledge … pushes away … as if into the wings, the operations of which it is the result … The tour describers have disappeared’ (de Certeau 1984: 121).


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).


Besides using a particular quantitative scale and a particular projection (in the larger, somewhat but not wholly metaphorical sense used here), governing projects are always differentiated by the way in which they select certain features and de-select or ignore others. Maps are never generic: there are physical maps, political maps, climate maps, and road maps, and this distinction is quite separate from questions of quantitative spatial scale and projection. The application of that to law is obvious: there is no such thing as law in general, since every legal process comes already classified as belonging to a specific project (criminal law, family law, etc.). The legal facts that are relevant in one type of law are not necessarily relevant in another type, as is the case with features of the terrain, which appear in some types of maps but not others.


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).


That the interpretation of the death found in the sentimental narrative of claim is articulated with the unsentimental death certificate to form a new entity is a network-creating result generated by the bereaved father’s claim against an allegedly negligent municipal council. The same death certificate could and probably did lead a different life elsewhere: to give a hypothetical example, when used to count the number of accidental deaths in a particular public health district. And the sentimental story about the widower who lost his only son no doubt circulated in non-legal circles as well – in a counselling psychologist’s office, for example, the same story would have become a wholly different thing. But it is not just the piece of paper or the sad tale that change in nature as they move from one place to another: some of the component bits can become detached from the original document or story and lead unpredictable lives in other networks. For example, if a medical researcher were to aggregate death data from a particular area to document a possible epidemic, the name of the deceased – one of the bits of the death certificate – would need to be erased: the individuality of the deceased needs to be deleted in order to protect confidentiality, and most immediately, to gain the approval of research ethics boards. By contrast, in the legal context, the name on the certificate is an essential link in the chain: a mistake in the name or a redacted name would render the lawsuit void. (This hypothetical comparison is my own, not Latour’s.)


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


To illustrate the importance of qualitative analyses of spatial scales, and develop the point about the limits of the law-as-map metaphor, recent literature on the emergence of the modern notion of territory is particularly useful. This literature focuses on how one and the same chunk of earth is transformed as it becomes territory, with this shift not being always amenable to mapping metaphors. To bring the specificity of territory into clear focus and de-naturalize the now ubiquitous system of territorial sovereignty, it is necessary to give a few examples of how political authority was exercised before the rise of territorial states. In the early Middle Ages, for example, kings held their authority by virtue of being the heads or sovereigns of a particular people, a peuple, a Volk: Europe had a king of the Saxons, a king of the Franks, etc. This type of authority may be spatially bounded (e.g. limited to the space inside the walls of a city-state or to a more or less bounded geographic area), but it does not necessarily rely in an essential manner on clear, fixed, spatial boundaries. For that reason, in that paradigm, if members of that clan or people go elsewhere, they do not cease to be members of that non-geographic polity; they are Saxon or Norman or Neapolitan by virtue of what used to be called blood, not of location. A related but distinct example of non-territorial political power is the type of authority that Foucault called ‘pastoral’. This highly personal rule, which does not rely either on blood or on space, is unconcerned with drawing boundaries on the earth and turning land into territory, which were and still are the major modes of political affiliation. Instead, the political leader who models himself on the good shepherd has a purely personal authority that is in no way limited by or based on space:


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)


It should be noted that in this passage Foucault is using ‘territory’ in a somewhat anachronistic manner. Greek political thought privileged the polis, in part a spacetime and in part a set of social relations: when contrasted to the pastoral authority of leaders of wandering peoples, Greek political authority can be said to be spatial (or, as shown in Chapter 1, spatiotemporal); but territory is not a word appropriately used in the context of ancient Greece. The key point of the passage – typical of Foucault’s rhetorical habits in that it constructs a somewhat simplistic picture of a non-modern mode of governance in order to sharply highlight the modern entity that is the real object of his analysis – is that the metaphor of the king or prophet as shepherd of men/souls generates and/or enables non-spatial governance.


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’.


In his influential book on territory, incidentally, David Delaney uses ‘territoriality’ to refer not only to political authority but also to property and quasi-property claims (e.g. Delaney 2005: 5–6, 124–126). Delaney’s very expansive usage is in keeping with the general tendency of social theorists to deploy the abstract terminology of ‘territorialization’ (which draws on or at least cites Deleuze’s highly abstract use of this term [Brenner 1999]). This terminology can create ambiguity since it is not always clear when ‘territorialization’ is merely a metaphor, as opposed to a governing move that seizes land and turns it into territory, as Neil Smith and Cindi Katz note in an important caveat to the ‘space race’ in theory mentioned in Chapter 2 (Smith and Katz 1993). Along somewhat similar lines (and perhaps also influenced by his friend Deleuze), Foucault’s own discussion of pastoral power also fails to distinguish between governing through space in general and governing through territory more specifically, as mentioned above. The elision he makes does not affect his own argument, since what he wants to do is isolate and highlight the specificity of pastoral power; but in other contexts sliding from territory to property in land to more metaphorical uses of ‘territorialization’ can lead to imprecise analyses that see ‘territory’ anywhere that people and chunks of earth are being governed spatially.


Using the language of territorialization very expansively, as Delaney and other critical geographers do, does serve a purpose in legal studies contexts: as against doctrinal legal scholarship, such use of language illuminates what private parties involved in ownership conflicts and official bodies squabbling over jurisdiction have in common. This can help to underline that political and quasi-legal powers are exercised by non-state bodies as well (Rose and Miller 1992). Foucault’s well-known and at the time highly original emphasis on what non-state and state powers have in common, as well as Deleuze’s abstract use of the term ‘territorialization’, which also purposively erases the public–private dividing line, were highly innovative and productive in the 1970s and 1980s, at a time when it was generally assumed that nation-states monopolized political power. Arguably, however, the minimization or erasure of the distinction between property and jurisdiction, land and territory has by now lost some if not most of its critical bite: the academic world is hardly oppressed by too much theorizing about ‘the state’. Classifying every spatial governance move as an instance of either territorialization or deterritorialization can, in today’s context, act as a hindrance to concrete analysis. While all manner of non-state parties can and do make quasi-territorial moves, in the sense of attempting to control what others do by controlling a space that may or may not be legally owned by them, there is still a difference between the authority that flows from property and that which flows from sovereignty or non-sovereign but still official jurisdiction. In this regard, I would suggest that we use the term ‘territory’ more carefully and narrowly than is generally done in critical scholarship: the legal distinction between property and jurisdiction is more than a legal technicality (Valverde 2009).


The distinction between property and sovereignty/jurisdiction that legal doctrine no doubt overemphasizes or absolutizes is not without its relevance at the experiential level. Ordinary people are invested in the idea of owning land, not territory; ordinary people also often seek to exercise quasi-property rights over land that is owned by others but in which non-owners feel invested, as Nicholas Blomley has shown in his wonderful study of front-yard politics in Vancouver (Blomley 2007). Blomley shows that these ambiguous relationships, rendered visible for example in heartfelt dilemmas about how much control one can have over neighbours’ yards, hybridize the law of private property with powerful myths and desires that paradoxically undermine the private property ideal because they can only be effected at the scale of the street or the neighbourhood. One cannot live in a ‘nice’ neighbourhood all by oneself, in one’s mini-castle; the desire to limit what one’s neighbours do with their property (a desire whose scale is that of the neighbourhood or the block) is as integral to bourgeois existence as the opposite desire to be sovereign of one’s own plot of land. Blomley’s work has shown that there is a dialectical reversal by which the impulse to own and control a piece of land soon gives way to the equally strong desire to make quasi-communal claims of belonging, control, and inter-household togetherness that undermine the cadastral fiction of wholly separate plots of land. Such unsolvable struggles over how much control one can have (say, over one’s street) in the absence of actual property title are of course ‘political’ in a certain sense. But sociolegal scholars, and for that matter geographers, should be careful not to erase the differences between neighbours feeling entitled to govern the aesthetics of neighbouring properties on the one hand, and warlords seizing territory on the other. The term ‘territoriality’, if used in the Deleuzian sense, erases those differences.


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.


And ‘dialogical’ is here perhaps the most important word – a metaphor that is not just a metaphor, and one that counteracts to a large extent the negative effects of the over-use of map metaphors. Some might prefer the currently fashionable term ‘interactive’. But the logic of what are called ‘interactive maps’, for example, is far more impoverished than Bakhtinian dialogue: in these maps, or rather data sets, the data constituting the map are fixed from the start by a single author, and the supposed ‘interaction’ is not an open-ended interaction – which is what dialogue is – but is rather a selection made from a data set. A restaurant menu is not dialogical, and by the same token neither is an ‘interactive’ map, or even a video game (though the video game allows players more creativity than the restaurant menu). If we agree that it is useful to consider governance as dialogical (with the social-science proviso that non-literary, real-world dialogues tend to be biased towards one party or the other from the start), then it will be important to think about how to make our own analyses more dynamic and open-ended. And indeed, it is not necessary to start from scratch: there are a number of thinkers – Erik Swyngedouw, Neil Brenner, Nigel Thrift, Doreen Massey – who have deepened current discussions of spatial scale and generated analyses designed to reflect the open-endedness and dynamism of all networks. Some of these theoretically oriented geographers have even taken the leap into temporality, as seen in an important anthology, mentioned already in Chapter 2, Timespace: Geographies of Temporality (May and Thrift 2001). This type of work allows us to go beyond the static scales associated with the ‘law-as-mapping’ discussion and pursue analyses that better reflect the complex and often unpredictable movements of governance in action.