Theorizing the space and time of law

Theorizing the space and time of law

Preface: on critical theory’s production process

The rhetorical conventions of theoretical writing suggest that theorists come up with new ideas from scratch, out of a direct, unmediated, monological reflection upon the state of the world. But there’s a great deal of wishful thinking and professional pride in that model of theoretical production. Following Bakhtin’s ideas about dialogism and heteroglossia (explained in the previous chapter) would suggest that much if not all theoretical work in fact originates in an affective and relational response not to the world itself but rather to existing theoretical work – usually, a strong dislike for either established ways of thinking or for a particular, successful work. Kant’s well-known metaphor, featuring himself waking up from ‘dogmatic slumbers’, suggests an autonomous and uncaused process – as if he rose from bed one morning and suddenly realized that he, and European philosophy in general, had been dreaming, for generations, a description of theoretical work that is likely highly misleading, however sincere it might be. One reason for the persistence of the autonomous hero of philosophy myth, I would suggest, is that the trope has venerable antecedents in the history of Western thought, not least the famous Christian scene of Saint Paul’s sudden conversion on the road to Damascus. The ‘road to Damascus’ theory of theory acts to suppress and deny the influence of one’s friends, colleagues, and caregivers, as well as that of past generations: in general, such metaphors suppress the effects of the constitutive connections everyone has with one’s contemporaries, including but not limited to what Jennifer Nedelsky calls ‘relationality’ (Nedelsky 2011).

One of the reasons why I argue in this book that Bakhtin’s work is well suited for socially and politically engaged analyses of the power of law is that, long before symbolic interactionism and ‘situated knowledges’ were invented, Bakhtin showed that all human communication (including works of literature traditionally regarded as products of the autonomous power of individual geniuses) is more usefully regarded as inherently dialogical. If that is the case for forms of communication such as novels, works that appear on the marketplace as the product of the isolated labour of a creative individual, it stands to reason that Bakhtin’s dialogical and interactionist perspective is even better suited both to understand and to practice the genre to which this book contributes, namely critical theory. As its name implies, this type of intellectual work explicitly begins not with the imagination that produces novels but rather with a critique of what is, including a critique of established ways of thinking. (For now it is not necessary to distinguish between ‘critique’ in the Kantian sense – that is, the exploration of the conditions for the possibility of certain ways of thinking – and ‘critique’ in the more popular sense of mere criticism.)

Critical theorists do not always specify whether their critiques are internal (showing inconsistencies) or external (highlighting the lack of fit between an idea and reality). Worse, they often fail to specify what it is, precisely, that they wish to critique. Routledge has a book series called ‘Critical Analyses of Law’, and there is now an online journal also called Critical Analyses of Law, shortened to CAL; elsewhere, one hears scholars refer to themselves as ‘critical human geographers’ or ‘critical criminologists’. The label is not wholly devoid of meaning: in all cases, it acts as a gesture to differentiate oneself from mainstream approaches, and in particular to distance oneself from that scholarship which is imbricated with state power. Critical criminologists, for example, often differentiate themselves from ‘administrative’ criminologists. The term ‘critical’ is thus useful as a rough and ready way to politically differentiate one’s colleagues. But in self-designated ‘critical’ work there is often a silent slippage that goes from taking a critical stance toward the power relations that exist around us (as left-wing citizens with and without formal education do) to engaging in a critical reading of the works of various authors – authors who may also be ‘critical’ (in the sense of writing against mainstream institutions) but with whom we disagree on certain points.

In the interest of problematizing the word ‘critical’ and promoting reflexivity, it is appropriate to note that while my political views are today as left-wing as they ever have been, this book was conceived neither as a left-wing commentary on the world we live in nor as an argument that major progressive thinkers are not as left-wing as they claim. Rather, it is intended as a constructive contribution to reflexive discussions of the tools used in various modes of self-designated critical theorizing. Specifically, the book began to take shape out of what was initially an inarticulate unease with the rapid success of spatial thinking and spatial analogies in social theory, and more generally, the proliferation of theoretical work on ‘space’. Reading work by such influential theorists as Ed Soja and David Harvey (who are not sociolegal scholars but who have been influential in the field) led me to the conclusion that the argument – and by now, often just the assumption – that space is more important than other categories of analysis has had the unintended effect of reviving an old metaphysical fallacy: namely, treating space and time as abstract and separate entities, Newton-fashion (Soja 1989, 1996; Harvey 2001, 2006, 2009). A related problem is that that sociolegal work on space tends to neglect or subordinate temporality, as geography generally does; but in my view, neglecting one dimension of social and legal life altogether (at least, a dimension that is being explored by other scholars, albeit not as numerous or influential) is not nearly as problematic as the reification of the central category: ‘space’.

This book is therefore meant as a reflection on the tools we use to study, describe, analyze, and theorize legal relations and legal processes, in the broadest sense of ‘legal’. It is certainly not a theory of the world or a theory of ‘spacetime’ or a theory of any other objectified abstraction. And since one of its main arguments is that Bakhtin’s dialogical and pluralistic approach to communication could be usefully borrowed for analyses of political and legal power, I will attempt to make explicit my own dialogical relations with authors (living and dead), texts, and discursive traditions.

This chapter will thus appropriately begin with one performance of critique that is a key moment in the history of Western thinking about space and time but that has been oddly neglected in current social theory on space and spatial governance. That bit of critique is Kant’s argument, in the ‘Transcendental Aesthetic’ section of the Critique of Pure Reason (Kant [1781] 1965), that time and space are the most important, most basic filters through which all human perception, imagination, and therefore abstract thought as well pass – and that therefore they cannot themselves be known (at least by human beings). It will be argued here that one can re-read Kant’s analysis of time and space and borrow it for purely critical purposes without adopting his overall framework. Using a single passage from Kant does not involve adopting Kant’s substantive theories, especially his theories of law and ethics, which are as individualistic, static, and monological as can be, and are therefore completely at odds with the Bakhtinian ethos of this book.

Remembering Kant (very much against the grain of his own ethico-political views) shows that long before Foucault and actor-network theory, and indeed well before Nietzsche, mainstream European philosophy already recognized the dangers of objectivizing the preconditions and the parameters of human knowledge. Re-reading a relatively self-contained text by Kant for a very limited purpose also reminds us that while European languages allow us to make meaningful sentences containing the word ‘time’ and/or the word ‘space’, even using them as grammatical subjects, that should not mislead us into thinking that we can occupy some God-like place from which to measure or to theorize temporality or spatialization.

Nietzsche’s work has famously taught us that just because we have to have grammatical subjects for all our sentences, we should not conclude that processes and events always have authors. Kant and Nietzsche profoundly disagreed on issues of ethical and legal theory, as is well known: but both would agree that ‘time’ and ‘space’, in so far as they exist, are unknowable. All that human beings can know are the different ways in which the processes and relations that make up the world are temporalized and spatialized. That acknowledgment of the limits of human knowledge is virtually all that Kant and Nietzsche have in common; given the profound divisions between humanist more or less Kantian legal thought on the one hand and the Nietzschean tradition as continued by Foucault and Derrida on the other hand, the part of the Critique of Pure Reason that de-objectifies space and time may not be a bad place to begin.

In addition, from a Bakhtinian perspective it becomes apparent that it is risky and possibly misleading to follow the conventions of Foucaultian governmentality work and speak of ‘practices of temporalization and spatialization’. I do use those terms on occasion to emphasize that my main interest in questions of space and temporality lies in the question of how governance takes place through space and through time. But the phrase ‘practices of temporalization and practices of spatialization’, while useful in undoing the reification of space and time, is somewhat problematic in that it implicitly suggests that there are some distinct governance processes that temporalize and others that spatialize, when in fact the distinction between the two aspects is merely analytical.

Another feature of this book that differentiates it from most Foucaultian governmentality work (including some that I have authored [Valverde 2011a]) is the sustained effort to include the aesthetic and affective dimensions in the analysis. While always temporally and spatially embedded, emotional and aesthetic aspects of communication and governance are often excluded or ignored in governmentality work; in addition, such features of human life do not always lend themselves to the kind of mapping that many scholars – those working with temporality as well as those working on space – have traditionally favoured. Thus, I am quite sympathetic to recent theoretical work in geography that draws our attention to the persistent importance of affect, rhythm, and so on (e.g. Crang 2001; Thrift 2004). However, most of that work is by postmodern theoretical geographers who write at the philosophical scale favoured by authors such as Deleuze. By contrast with that style of thought, I consistently avoid abstract debates about what it is to be human, or about such notions as ‘space-time compression’. I cleave to Foucaultian governmentality work to the extent of still believing that such philosophizing has its interest and its virtues, but does not enable better, more nuanced analyses of law and governance.

The highly selective review of the literature presented in this chapter seeks to demonstrate that even when scholars choose to talk about space but not about time, or vice versa, their work, especially if it is empirically sensitive, has the effect of showing that spatialization affects temporalization and vice versa. A good example of this is provided, somewhat unwittingly, by noted sociolegal scholar Boaventura de Sousa Santos. In the course of an article primarily devoted to exploring the spatial aspects of legal rule (which will be taken up in more detail in the final section of the chapter), Santos remarks that authorities choose different spatial scales of governance depending on the time frame of their projects, with longer-term governance usually covering a larger territory and ‘day-to-day’ problems being handled tactically at the micro scale (Santos 1987: 284).

That temporalization and spatialization are intertwined, to a lesser or greater extent, and that the study of the dynamics of such interactions is hindered, not helped, by metaphysical speculation about ‘space’ and/or ‘time’, are the overarching claims that underpin this book’s explorations of scale, jurisdiction, and other features of the mechanisms that govern us and that we use to govern. To again cite Santos’s innovative 1987 article: if the broader common project is to study ‘the pragmatics of legality’ (ibid.: 282), and, by implication, the pragmatics of a range of governance mechanisms, then it makes sense to eschew treating either ‘time’ or ‘space’ (or even both, one after the other) as the object of thought, the entity to be theorized. This book seeks to persuade both empirically and theoretically sociolegal researchers that such metaphysical contemplation actually harms rather than facilitates the development of tools for the study of ‘the pragmatics of legality’ and the workings of governance more generally.

After a brief section that as promised above engages with those aspects of Kant’s analysis of time and space that are helpful for purposes of carrying out research on law and governance, this chapter will proceed to consider some examples of three literatures that highlight either temporality or spatialization to address or inform sociolegal research questions. The first such literature consists mainly of ‘law and space’ work but also includes some work that has been influential for sociolegal scholars’ thoughts on questions of space. The second literature quickly canvassed here is the less well-known work produced by legal anthropologists interested in cultural differences in temporalization – scholars who study how different societies, or different situations or moments within the same society, rely on and reproduce distinct modes of temporalization. That this type of work, which is by no means new, has not been synthesized with the work on spatial governance canvassed a few paragraphs above speaks to the underlying intellectual disease that this book seeks to diagnose (and perhaps even to treat): namely, the tendency of academic work to become fragmented, especially – although not exclusively – along disciplinary lines, to the detriment of the creativity that is necessary to capture in thought actually existing governance assemblages. The third sub-literature considered is perhaps not yet a literature; but however small and recent, the work considered here (mainly produced by theoretically informed legal historians) deserves consideration because it opens the door to ways of thinking about temporality that are not reducible to ‘history’. Sociolegal scholars often include some reference to history and occasionally make history a central dimension of their analyses of space (e.g. Blomley 1994, 2004; Braverman 2009). And in general, the historicizing move is one that is fundamental to critical legal studies across all disciplinary boundaries, since ‘critique’ has often been associated with the work of de-naturalizing social relations – the work, in Roland Barthes’ tremendously influential formulation, of showing how mythical representations abolish history and therefore obscure power relations (Barthes 1953). But as Kunal Parker has recently shown, historicizing the present is but one of many different temporalizations observable in law and governance (Parker 2011). Therefore, bringing attention to recent work that questions the identification of history with temporality as such can help to deepen and broaden the framework developed in this book.

Following this admittedly selective look at three important literatures with which this book is in dialogue, the chapter will conclude with a re-reading of two works that have been widely read but not fully utilized. The first is a venerable sociolegal text that, unusually, bridges the divide between legal studies of and from the global North and those originating from the global South: the already mentioned 1987 article by Santos, ‘Law: A Map of Misreading’. Often cited by today’s legal geographers, it can also be read, perhaps somewhat against the grain, as a resource for analyses that are attentive to the ways in which spatialization is affected by temporalization and vice versa. The second work is Saskia Sassen’s massive study of the relationship between territory, authority, and law, a study that unusually for contemporary social theory includes a detailed and innovative historical study of the emergence of state jurisdictions in early modern Europe (Sassen 2006). Since in this book Sassen integrates rather than separates the temporal and the spatial aspects of law and governance, and does so in analyses that emphasize dynamism (the dynamism of actual governance but also the necessary dynamism and flexibility of our analytical tools), establishing a dialogical relationship between this book and hers is appropriate. A more recent book that was considered as a third potential interlocutor is Stuart Elden’s massive study of the emergence of territory as an object and a means of governance in early modern Europe, which is certainly a major contribution to critical theory (Elden 2013). However, Elden’s synthesis of the history of geographic ideas with the history of political theory sweeps law’s own mechanisms, especially jurisdiction, very much to the side, and therefore is not nearly as useful as Sassen’s or Santos’s for current purposes, though it sheds much light on the shifting relations between legal and political power on the one hand and ways of representing and managing land and space on the other.

The Kantian critique of Newtonian space and time

As is well known, Kant developed his own post-metaphysical take on time and space by rejecting both of the then prevailing views. One was that time and space exist objectively, absolutely (Newton’s view). The other theory, associated with Leibniz, was that time and space are properties of conceptual and material objects, and therefore exist objectively, but only as properties, not as entities. By contrast with both of these views, which in different ways reify time and space, Kant argued that it is wrong to even ask whether time and space are objective entities or rather properties of entities. Why? Because the human mind cannot either observe or theorize time and space, and humans ought therefore to avoid asking questions that only encourage idle metaphysical speculation. For Kant, space is a condition of perception, rather than something that can itself be perceived, measured or theorized. ‘Space is not an empirical concept which has been derived from outer experience … Space is nothing but the form of all appearances of the outer senses. It is the subjective condition of sensibility [that is, sensation, experience]’ (Kant [1781] 1965: 70–71). And if all perceptions are necessarily spatial, since we cannot imagine an object that is not spatialized, so too all concepts as well as perceptions are temporal. ‘Time is not an empirical concept that has been derived from any experience’ (ibid.: 74). ‘Time is, therefore, given a priori’ (ibid.: 75). ‘Time is not something which exists of itself, or which inheres in things as an objective determination … Time is the formal a priori condition of all appearances whatsoever’ (ibid.: 77). In relation to legal processes, Kant would say that all that we can know is how law and justice are temporalized (e.g. by using sentence length to announce and denounce the gravity of a crime); the terms ‘time’ and ‘space’ denote abstractions produced by human language, not real entities that can be known by human beings.

How is Kant’s critique of the reification of space and time relevant for sociolegal scholarship? One implication is that it would be best to avoid making ‘space’ and ‘time’ into the grammatical subjects of sentences. Focusing on historical and social specificity (as most of the chapters in this book do) certainly helps to remind us that if space exists, it is not available to us to describe or theorize, and that all that we can do is document various practices of governance that work on people and problems by governing, arranging or changing spaces. On the whole, law and society scholars have pursued documentary rather than metaphysical agendas, and so we have analyzed specific practices that govern through time or through space rather than theorizing time or space. But – and this is where the siren song of metaphysics becomes audible, and Kant’s critique becomes highly relevant – we have as a group experienced great trouble analyzing temporal and spatial dimensions of governance at the same time. This failure of synthesis is arguably rooted in the persistent assumption that ‘time’ and ‘space’ exist, whether as entities in themselves or as objective qualities of entities. (A similar point could be made about sociolegal scholars’ great difficulties in thinking race and gender at the same time. As is now widely recognized, analyses that isolate these dimensions of life and law are not only politically questionable but are also theoretically problematic. But reification can continue, in plural form, if ‘intersectionality’ is read as a static theory of life or law, rather than as a useful term drawing attention to the unpredictable ways in which racial and gendered aspects of experience interact. If one were to generalize one could say that this book’s attack on the reification of abstract concepts extends beyond the ‘space vs. time’ binary, since a similar argument could be applied to other sets of reified concepts – race and gender being one example. But I leave the question of generalizability to others, since pursuing it would be in conflict with the book’s call for concrete analyses of concrete situations.)

The highly influential theoretical geographer David Harvey is one of the few relevant authors who mentions Kant’s analysis of time and space. Unfortunately, Harvey mistakenly confuses Kant’s views on space and time with Newton’s: ‘In the Kantian view, as we have seen, space is empty, pristine, and waiting to be divided’ (Harvey 2009: 166). Harvey then claims that Kant separates time from space and history from geography; this is based on a reading of Kant’s populist lectures on what he called ‘geography’ but amounted to little more than Eurocentric amateur second-hand anthropology. If one reads the Critique of Pure Reason, by contrast, one sees that Kant carefully demolishes the old metaphysical habit of imagining that space and time exist objectively, with this critique laying the groundwork for Kant’s novel argument that human knowledge is necessarily limited, being filtered not only through space and time but also through the categories of human understanding (quality, quantity, etc.). Human beings, Kant famously argued, cannot claim to know things in themselves – contrary to medieval and later metaphysical thought. If we cannot know things in themselves, but only things as they appear to us, we certainly cannot make claims about what time or space might be, in themselves.

As already mentioned above, in the ‘Transcendental Aesthetic’ section of the Critique of Pure Reason, Kant famously argues, probably for the first time in Western philosophy, that space and time cannot themselves be observed or theorized because they are the most fundamental preconditions of any experience and any thought. Whatever space and time might be for actual or hypothetical divinities, Kant argues, for humans space and time are the most basic of all the filters through which we see, think, and categorize. One can study planets but not space as such, or study historical events, but not time as such. The old style metaphysicians thought that philosophy’s task was to concoct theories of space and time (along with theories of freedom, beauty, etc.). By contrast, Kant argues that philosophy’s key task is to map the limits of all possible human knowledge, thus encouraging better empirical and theoretical work by putting a stop to meta-physical speculation about entities that cannot ever be known, at least by humans (time, space, things in themselves, etc.).

Metaphysical speculation of the type denounced by Kant did not, however, disappear even after Kant’s critique of old-fashioned metaphysics was adopted by mainstream European philosophy. Indeed, such speculation may have been banned from academic philosophy, but it can sometimes be found today in works by social theorists. Examples of such metaphysical assumptions abound in recent theoretical work on space carried out both within and without sociolegal studies circles, and so it is to this literature that we now turn.

The space race in theory

In keeping with the tradition of keeping abreast of general theoretical developments and borrowing them to study legal processes, sociolegal studies has witnessed much enthusiasm, in recent years, for theoretical explorations of space and spatial governance: but we have had few collective reflections on the reasons for and the implications of this trend. The fact that sessions on ‘law and space’ or legal geography draw large numbers of people at Law and Society Association meetings, whereas legal history is not seen as fashionable or theoretical (even though law schools, institutionally resistant to change, generally employ legal historians but not legal geographers), appears as a fashion trend whose driving forces are mysterious or simply invisible to the very people caught up it.

But whatever the reasons, there is no doubt that the abstract category of ‘space’ has acquired a strongly theoretical patina in recent years. Doreen Massey, unusual among geographers for engaging in a sustained reflexive critique of the dangers of privileging space as a category, helpfully strings together some quotes, drawn from texts already sanctioned as major theoretical contributions in geography, that demonstrate the pitfalls of the collective rush to wave the banner of ‘space’: ‘“Space” is very much on the agenda these days … It is space, not time, that hides consequences from us’ (Berger [emphasis MV]) … ‘that new spatiality implicit in the postmodern’ (Jameson); ‘it is space rather than time which is the distinctively significant dimension of contemporary capitalism’ (Urry [emphasis MV])’ (Massey 1994: 249; see also Massey 2005). On his part, David Harvey (who to give him credit includes history as a dimension of analysis in some of his work) features Kant in a prominent position in his book on cosmopolitanism – but instead of engaging with the critique of objectivist notions of time and space developed in the transcendental aesthetic, Harvey takes it for granted that if Kant is to have any interest today it is as a theorist of ‘space’, and indeed, even as a geographer: ‘it is possible to reconstruct some of Kant’s putative principles of geographical knowledge from the general corpus of his writings’ (Harvey 2009: 31). In the same book Harvey berates assorted other thinkers, from Newton to Heidegger to Martha Nussbaum, for being unaware of ‘geographical realities’ (ibid.: 116), a comment that assumes that geographers’ analyses ought to be hegemonic throughout the human sciences.