Progressive and critical legal geography scholarship

Abstract

In 1992, geographer Nicholas Blomley and lawyer Joel Bakan penned a piece entitled Spacing out: Towards a critical geography of law in which they successfully argued for a new scholarship to interrogate the links between these ostensibly disparate disciplines (Blomley & Bakan, 1992). Blomley and Bakan’s paper may have set out the constitution of a contemporary legal geography scholarship and arguably marks an inflection point in an intellectual effort that began—tremulously—in the 1980s (Clark, 1985). Described variously as an approach or subdiscipline, it has evolved significantly and, 30 years later, research is flourishing across the globe. This claim is supported by growing numbers of publications under the rubric in leading international geographical journals and by a dramatic increase in the number of publications using the term legal geography, particularly since 2007. Australia is at the forefront of these developments. From the outset, scholars within the Institute of Australian Geographers Legal Geography Study Group, initially conceived in the 2000s, have led the field (Bartel et al., 2013). Under strong and sustained leadership from Bartel, Robinson, Graham, Carter, ourselves, and others, this scholarship is widely regarded as being globally significant (Clark, 2020; Techera, 2020). At the 2021 Institute of Australian Geographers Annual Conference hosted by the University of Sydney, several legal geography sessions touched upon and referred to this blossoming research endeavour. The special section for which this paper is the editorial reflects the contributions made by Australian researchers to the continued development of legal geography scholarship. In it are works by experienced and emergent scholars presenting new research from across different areas of legal geography that showcases these developments.

Figure 1 traces a 30-year trajectory from 1973 to 2022 of legal geography publications from a Web of Science database search using the search term “legal geography”. From the early 1990s, legal geography emerged with initially tentative steps. There is a clear upward trajectory from the mid-2000s in the use of that label and a dramatic increase in the number of publications so described since then. From 2007, there has been a consistent increase in the number of publications and thereafter the average number of publications per year is 96, compared with an average of eight from 1973 to 2006. The years from 2019 to 2021 are particularly propitious for legal geography scholarship despite, or perhaps because of, the global pandemic, with an annual average of 174 publications. Clearly, legal geography research is growing rapidly and consistently.

Increasingly, scholars are turning to legal geography to shed light on some of the globe’s most pressing challenges and opportunities. Legal geography scholarship is recognised for both its ability to advance social research and its proponents’ inherent inclination to achieve impact by influencing policy and practice. We are witnessing an increase in applied, critical legal geography scholarship inflected with a progressive agenda exploring how social and environmental change is influencing law and how law is and can influence social and environmental outcomes. The co-constitutive and iterative processes inherent in legal geography scholarship are effective in balancing legal geography theory and enable such research to be applied and have impact in terms of social and environmental outcomes. The papers in this special section respond to global calls for legal geography scholars to accelerate the progressive agenda that characterises much of their critical research. In it, we flesh out how different types of legal geographical scholarship reveal how law is “co-opted” to become an agent for socially progressive causes, or how rapid social and environmental change is influencing law’s trajectories.

In these papers, too, we have revealed a dynamic and complex relationship between law and geography. As legal geographers we might profitably visualise the law/geography relationship as a non-hierarchical cyclical process where each discipline constantly, but often inconsistently, influences the other. The characteristics of this mutual dependency in the relationship between law and geography are often unforeseen and certainly under-interrogated. As both physical and human geographers, we investigate the people/place/environment nexus and are informed by varied influences and, as legal geographers, we add “law” in all its guises to our analytical lenses.

Many works in legal geography investigate specific laws and their impacts on space. These works both form, and contribute to, a general corpus in which authors explore the ways that regulatory frameworks shape landscapes by restricting and manipulating how people interact in their environs. Legal geographers also expose the reverse—how people/place and more-than-human dynamics can influence the ways in which they are regulated—wherein place-based realities influence how law is performed. This pattern of working goes to the interdependence of law and space, and the papers from this special section reveal just how complex and nuanced the relationships between them can be.

Again, Australian legal geographers lead and have growing global influence in setting new research agenda. In Legal geography: Perspectives and methods (O’Donnell et al., 2020), several regional Australasian offerings have provided insights into how legal geography scholarship advances social research using different methods and methodological approaches, and have highlighted the ways in which both social and environmental changes are influencing the trajectories of law. Bartel and Carter’s (2021) edited collection points to the range of work undertaken in legal geography. Their extensive volume, entitled Handbook on space, place and law, shows the value of legal geography for contemporary crises problem-solving. Exploring how social and environmental changes influence law and asking how law can influence social and environmental outcomes are tasks core to legal geography research. At the same time, Kusiak (2021) has also called for legal geography scholars to accelerate the progressive agenda that characterises much of their critical research.

A clear focus on place-based dynamics also lies behind the paper by Lange and Gillespie (2023), who examine bushfire management strategies and their consequences for more-than-human populations. Recognising the problem that environmental and climate change will result in an increase in bush/wildfire activity across the globe, they seek to establish how well existing bushfire repression strategies—and especially “prescribed burning” policies—account for more-than-human interests when the need for biodiversity preservation and conservation is at an all-time high. Their research establishes that bushfire mitigation strategies do not adequately account for more-than-human interests in their case study area, the Blue Mountains National Park, located in the Greater Blue Mountains World Heritage Area, in New South Wales, Australia. Using qualitative software to scrutinise policy plus in-depth interviews, their analysis suggests an approach that can be adopted by policymakers in assessing more-than-human impacts. In their work, there is a neat alignment with a call to both “foreground place and decentre the human” made by Bartel and Graham (2023, p. 3). In this instance, legal geographers are applying their skills and insights to tackle problems associated with biodiversity crises.

Scalar injustices occur when courts use process to tighten the scope of issues in dispute among the parties. In Carr’s paper, concerns about concepts of justice, in all its permutations, link legal geography scholarship with socially progressive agendas and reveal how “dephysicalisation” Graham (2021) takes place through law’s formal courtroom processes.

Scale clearly is an important device for nuanced legal geography analysis, and particularly for environmental decision-making and Sherval (2023) draws out the importance of scalar framings in her paper about the evolution of the shale gas industry in the United Kingdom. In a deep dive analysis of community responses to shale gas development proposals in the United Kingdom focusing on the small village of Kirby Misperton in the North Yorkshire dales, Sherval reveals how concerned, active local residents have turned to protest to have their voices heard. Her work builds on a strong foundational base of similar legal geography inflected case-study research about mining and coal-seam-gas exploration in Australia (Della Bosca & Gillespie, 2018; Ey & Sherval, 2016; Sherval & Graham, 2013; Turton, 2015, 2019). Crucially, this research links pressing global concerns about “transition” fuels for decarbonising energy sources to localised adverse experiences of this process. Research such as Sherval’s provides the place-law example that Bartel (2017) has called for. Moreover, it builds on the applied policy work of Australian legal geography scholarship in the resources extraction/energy policy field, linking to cognate developments globally (see Kelly, 2021).

Another contemporary and pressing environmental problem is tackled in Legg and Prior (2023) about environmental contamination litigation, particularly toxic-tort litigation. Litigation remains a key weapon in the toolkit of environmental protection, and Legg and Prior’s paper refers to toxic tort litigation involving per- and poly-fluoroalkyl substance (PFAS) contamination of two Australian Defence Force bases in Williamtown and Richmond, in New South Wales, Australia. To think through the impact of contamination on both community and the environment, they have adopted a three-prong approach to consider the multiple scales—the “plaintiff body’, “litigant property”, and the role of the state. By way of example, links between ill health and PFAS contamination are explored. Considered, too, is the role of class action, in which some individuals are included whereas others are excluded. Finally, the personal toll of being involved in litigation is observed. This work reinforces the value of a legal geography perspective to unravel the complexity of people/place/law connection. Litigation has been a continued focus for legal geography scholarship, and the papers by both Legg and Prior and Carr show that here. Articulating how litigation variously represents and frames more-than-human bodies, property and the state extends our thinking about the ways in which law-people-place collide and intertwine (see also Faria et al., 2020; Traynor & Tomczak, 2021).

The papers in this special section give full exposure to and interrogate an exciting range of emergent and progressive ideas. We are on the path of a socially progressive research agenda, and there is more to do. Legal geography scholarship can offer insights into decolonialisation processes, give stronger voice to more-than-human concerns, and reveal how the law-people-place nexus implicates scalar framings, especially intimate, body-based experiences. Many of these concerns are associated with contemporary crises in biodiversity loss and complex climate change impacts. Moreover, unpacking the agency exercised by people, places, and the material and more-than-human all need more legal geography research. Challenges lie ahead to extend our scholarship to embrace the practice turn (Brickell et al., 2021), uncover more about legal pluralism/s (Robinson & Graham, 2018), and enhance theorising in legal geography (Chiodelli & Morpurgo, 2022). Colleagues within our region and across the globe are calling for and making inroads into a socially progressive research agenda and Australian legal geography scholarship, such as evinced in these papers, is well-placed to lead the charge.