# European Law Open/Volume 1/Issue 1/Here be Dragons: Legal geography and EU law

Published in European Law Open, Volume 1, Issue 1, pages 113–125 (2022).
​DIALOGUE AND DEBATE: SYMPOSIUM ON LEGAL GEOGRAPHY AND EU LAW
Here be Dragons: Legal geography and EU law
Floris de Witte
London School of Economics and Political Science, London, UK Corresponding author. Email: F.E.De-Witte@lse.ac.uk
(Received 13 October 2021; revised 25 November 2021; accepted 25 November 2021)
    Abstract
    This paper sets out a research agenda for EU legal geography. It identifies some central traits to the project of legal geography, a relatively new and increasingly populated interdisciplinary space that links legal studies with geography. While the EU and the project of integration appear to offer particularly rich soil for the legal geographer, very little attention has been paid to the ways in which the nature, structure and lived experience of the EU can be explained from a spatial and temporal perspective. For many reasons, as will be elaborated, this is a shame. Most crucially, perhaps, there is a growing realisation in EU studies in general that the authority and legitimacy of the EU depends, more and more, on how it is experienced by its citizens. Legal geography, with its spatial awareness and focus on the way in which space, time and law are co-constituted, offers a lens, language and conceptual framework to fill this void. While EU lawyers have occasionally and haphazardly ventured into the terrain of legal geography, much work is to be done. This could take the form of methodological, empirical, or conceptual work, and would offer a new dimension to existing accounts of European integration and to the central concepts in doctrinal and constitutional work in EU legal studies.
Keywords: legal geography; EU law; interdisciplinary; space; time
1. Legal geography
Legal geography is a relatively new addition to the interdisciplinary catalogue of legal studies. It sits, unsurprisingly, at the intersection of law and geography. This means, essentially, that it is preoccupied with space. It employs a range of different methodologies to understand how law constructs space, and, conversely, how space affects law. These terms require some unpacking. What is meant by ‘space’ is not (only) its metaphysical connotation, but everything through which space manifests itself in our world – whether tangible or not: city streets, infrastructure networks, borders, rivers, forests, migration, wolves and hamsters. The term ‘law’, equally, has a wide connotation for most legal geographers, including statutes, case law, informal legal processes and conventions, but also political and institutional structures involved in lawmaking. In short, legal geographers are interested in how space co-creates law, and how law co-creates space.
The aims of legal geography are, essentially, to make visible how law affects what is around us, and vice versa. Legal scholars might intuitively be most attuned to the former: we know that law has the ability to shape the world in tangible and intangible ways. We also know that law can demarcate spaces for certain functions, or incentivise and sanction specific usage or relations. What we see outside our windows, and how we act in that space, is (also) a product of law. But legal scholars might be less intuitively attuned to how the causal arrow can be reversed: ​how space also co-creates law. The determinations, assumptions, frames and rhetoric used ‘in’ law are always situated in the social world – it is tightly intermeshed with the spaces, places and times where law is created and law is, in a way, a response to these constraints and conditions. In other words, law is born out of a particular setting, which can be understood politically and socioeconomically, but also in terms of space and time. These latter categories are of interest to legal geographers.
What this reflexive sensitivity of legal geography suggests is that law is perhaps less determinative than we might expect as legal scholars: it is not something that is drafted in offices, whereby law ‘on the books’ seamlessly translates into law ‘in the streets’ (or in a forest, in outer space, in the practice of hunting or fishing). Legal geographers pay close attention to the contingency of the spatial application of law and the agency of actors faced with that law.
Legal geographers are a motley crew. They consist mainly of occasional visitors from ethnography, anthropology and human geography as well as critical geography, and include planning lawyers, political scientists, socio-legal scholars, critical legal scholars, environmental lawyers and policy scholars. It is not easy to determine (bar a few exceptions) which scholars are self-consciously engaged in legal geography. Partially, this is a reflection of the field’s genuinely interdisciplinary nature, but also of its ill-defined scope: it is a discipline that includes questions of the legal determination of outer space, questions of indigenous jurisdiction in Indonesia, the wolf population in Finland or the history of cars in the suburban United States (USA). While this is, in my view, one of its strengths and attractions, it is also a challenge for a field in construction.
Much of the work of legal geographers has, for lack of a material definition of what legal geography entails, focused on the method of the discipline: what does it mean to ‘do’ legal geography? What defines, if anything, the discipline of legal geography? In the most general terms, it appears that legal geographers mix the focus on agency – on the details, the spatial and material – from geography and ethnography with the affinity for the structuring and determinative character of legal studies. More specifically, three characteristics stand out. First, legal geographers ‘think spatially’. This spatial (and temporal) sensibility entails a shift in orientation for legal scholars: rather than thinking about the law that is somehow superimposed or ‘dumped’ on a specific site, we should think about how law is created by and creates a specific place or incentivises specific relationships within that place. If we walk through a newly constructed neighbourhood, lawyers might think of traffic rules, public procurement or terms in mortgage contracts. Legal geographers see how regulations on noise pollution affected the shape of the houses, how municipal decisions on public transport determine the socio-economic composition of the population, or how the proximity to a forest might lead to a de facto disapplication of municipal rules for waste disposal by the inhabitants. ‘Thinking spatially’ requires attention being paid to how space is given ​meaning through law, to tangible or intangible borders and to the scope of legal regulations. It presupposes an ability to read the biophysical landscape, an awareness of how space affects relations between humans, more-than-humans and other material realities, and how a specific place mediates the ‘dumping’ of law on it.
This leads us to the second characteristic of legal geographers. Legal geographers are interested in the unstable, dynamic or fractious interaction between, on the one hand, the local and specific context where law ‘acts’, and, on the other hand, the necessarily aspatial nature of law itself, which is generated and applicable regardless of specificity. A municipal, national or supranational norm cannot take account of the specific context of all the sites to which it might be applicable. Yet, the specific spatial context will, inevitably, alter the legal norm itself – whether through practical mediation by local administrators, the creation of unintended effects, an inability to achieve the objectives of the norm, or even its de facto misapplication or disapplication by actors faced with that law. This ambivalence is interesting to legal geographers because it allows for an explicit engagement with the reflexive nature of legal geography: space, time and law become intimately intermeshed to the point where causal effects become difficult to disentangle. Does the law create the space or does the space create the law? Only by studying all three dimensions, then, can we truly engage with the normative questions that interest legal geographers.
A third general characteristic of legal geographers lies in their normative approach. While some work by legal geographers has focused on empirical or descriptive projects, the majority understand the discipline as carrying an implicit commitment to make visible, dislocate or destabilise instances of injustice or articulate conflicts about space. For example, from around 2010, there has been a shift in attention within USA scholarship towards urban law, and towards questions pertaining to poverty, race and, more generally, the social justice implications of the legal regulation of the city. In Australia and the Asia-Pacific, however, the attention has shifted to questions of ecological justice, with a focus on extractive industries, coastal environments and food patents; while Israeli scholars have been preoccupied with the politics of the settler colonies and the Israel–Palestine conflict. Space conflicts can arise between socio-economic groups, between ideologies, between humans and more-than-humans; it can be articulated as a conflict between exploitation and preservation, or in terms of privileged access to resources such as water, territory or minerals. For some, this focus on conflict and justice is part and parcel of the project of legal geography – its inescapable normative commitment. Interestingly, however, it seems that it is a specifically local (or continental) sensitivity that has led to the focus on these specific questions in different parts of the world. One wonders what questions and normative commitments a European project of legal geography would end up focusing on. Space, as such, allows for an analytical framework which brings together a range of elements that are often artificially separated as a consequence of more rigid disciplinary frameworks: social relations, legal constraints, material realities, more-than-human entities and economic effects.
These three characteristics – thinking ‘spatially’; a reflexive awareness about the interaction between law, space and time; and the implicit normative commitment to make visible what law obscures – can be traced in most work on legal geography, regardless of their substantive focus. ​
2. Why EU legal geography?
What makes legal geography and EU law such a fascinating mix? At least five characteristics of EU law mean that legal geography can offer very valuable insights into the nature and ‘lived experience’ of European integration. Ultimately, the aim of the project of EU legal geography is to fill a gap that is becoming increasingly visible in EU legal studies, wherein it struggles to understand and articulate the resistance against the project of integration. This needs to be better understood not in isolation from but as an irreducible aspect of the functioning of EU law. EU legal geography can tell us something about what it means to live in the EU and what it means to live under EU law. It offers an analytical framework that can make sense of the realities of European integration in a way with which traditional accounts of EU law struggle.
A first, almost practical, reason why legal geography would be a natural fit for EU lawyers is that, for better or worse, the EU regulates most policy areas in which legal geographers are interested. Around 18 per cent of EU territory, for example, is designated a Natura 2000 site under the Habitats or Birds Directives. EU law has harmonised public procurement, waste management, climate change responses and transport policy; it has rules on animals, agricultural policy, geographical indications, and regional and cohesion policy; free movement and competition law rules apply to ‘spatial questions’ as diverse as rental markets, tourism sectors, bookshops and genetically modified organisms (GMOs); and both the EU’s internal and external borders are regulated through EU law.
Secondly, and more conceptually, European integration is deeply, almost constitutively, spatial and temporal. Much of its authority resides in its ability to ‘localise’ or ‘deracinate’ symbols and markers of state authority (whether as obvious as through currency or borders, or as mundane as through cultural programmes or the mobility of products or people). EU law has for some time been considered as an instrument for the transformation of its Member States. Whether we look at the cases on EU citizenship or at the moral regulation of the internal market, what we see is the gradual but inexorable infusion of the EU’s values on the national level. These different technologies of integration create room for the formation of novel configurations of space, time and authority in our daily lives: something as mundane as a shopping trip in a local supermarket in Stockholm might expose the shopper to Italian culinary heritage, Polish sausages and a French cassière. European integration has always been focused on reconfiguring social space by challenging preconceived understandings of (material) culture and relational demands, and its authority depends more than ever on how it is perceived and experienced by its citizens. Understanding these dynamics of the ‘lived experience’ of EU integration better will allow us to better grasp the significance, challenges and opportunities for the use of law in the process of European integration.
A third characteristic of EU law that makes legal geography a natural companion is that the constitutive tension in both disciplines shows a remarkable overlap. As intimated, both are concerned with the interaction between the local and the central, the actual and the theoretical, the practical and the preordained. This tension has already been extensively analysed in EU law, where, on the one hand, the ‘uniform application throughout the Member States’ is one of its core constitutional tenets, while, on the other hand, local administration and courts have the ability to mediate the demands of EU law to account for local peculiarities. As Zoe Pearson has argued ​with reference to international law, legal geography ‘provides us with an opportunity to see that spaces within the terrain of international law are not static, linear and ordered, but rather complex, fluid and uncertain, evolving continuously along with the interactions of the different actors present, and emphasising varying sites of legal and non-legal regulation’. The explicitly spatial perspective that legal geography brings can offer further depth and sophistication to the way this plays out in the EU, as well as challenge the rigid and somewhat tiresome assumption in EU legal studies that uniformity is – normatively, conceptually, descriptively – at the heart of European integration.
Fourthly, EU law is a particularly ‘sticky’ kind of law. Whether it comes in the form of case law of the Court of Justice of the European Union (CJEU), commitments in treaties, or as secondary EU law, the norms articulated in EU law can – due to the principles of supremacy and direct effect, and the joint-decision trap – not easily be contested or reversed by political actors on the national or European level. EU law functions in a deeply, and deliberately, depoliticised space with a strong status quo bias. As Reecia Orzeck and Laam Hae have argued in a different context, ‘if the law’s contingency makes it harnessable, its inflexibility makes it worth harnessing’. EU law, in other words, for better or worse, is an instrument through which life in Europe is mediated or negotiated. At the same time, it necessarily affects all corners of Europe – from the habitat of Finnish wolves to policing in the Strait of Gibraltar, and deals with questions ranging from bans on Airbnb in Venice to the geographical protection of Champagne. The depoliticised nature of law in the EU means that it is likely to be less responsive to law’s spatial context and consequences. Revealing how EU law is mediated in specific sites through non-traditional forms of mediation, adaptation and contestation is, therefore, crucial for questions relating to the authority of EU law.
Finally, as discussed, legal geography’s normative commitment is, itself, deeply revealing about the nature of a polity. In simple terms, different questions come into focus in different geographical contexts. The turn (in very general terms) towards questions of urban law in the USA, or indigenous and ecological questions in Australia and the Asia-Pacific, suggests specificity both in the sites of struggle as well as the normative commitments that legal geography engenders. What could this specificity mean in Europe? What makes Europe – in spatial, normative or geographical terms, specific? Which spatial conflicts emerge from the lens of the legal geographer, and are currently hidden and implicit in EU law and EU integration? What does the analytical framework offered by legal geography reveal about the texture of life under EU law?
Four sites that might be of particular interest to EU legal geographers are borders (especially within the context of the EU’s internal and external borders), the place for local tradition, the distribution of costs and benefits of climate change regulation and, given Europe’s dense population, gentrification and the interaction between human and more-than-human spaces. These sites seem particularly fraught in the EU (even if they obviously also appear in other parts of the world) and a clear understanding at the moment of EU law’s role in their creation or resolution is lacking. It would be inappropriate to predict which normative commitments might become implicit and explicit in a European project of legal geography. EU legal scholarship more generally, however, has seen an increased focus on (and sophistication of) concepts such as solidarity and vulnerability, which might be interesting for legal geographers as well.
In short, the legal geography of the EU has the potential to reveal how EU law works: how it affects spaces and places, how it incorporates their demands, how it renders sites, people, animals and borders. It has the potential to offer crucial insights that will frame and deepen many of the questions with which doctrinal and constitutional scholars of EU law engage. More than that – it ​has the potential to unearth an innovative and critical vocabulary and conceptual understanding of the process of European integration that firmly situates legal geography within what is probably its most essential dimension: the lived experience of European integration.
3. Space in EU Legal studies
EU legal studies has, for a long time, been the domain of doctrinal lawyers and constitutional lawyers – who have approached the discipline as relatively self-standing. More recently, however, EU legal studies has seen a ‘critical turn’ as well as an increase in empirical work, and a variety of interdisciplinary projects that have opened up EU law to new forms of engagement, critique and analysis. The recent collection edited by Mikael Madsen, Fernanda Nicola and Antoine Vauchez illustrates the richness and diversity of methods that could be used to make sense of EU law and its environment.
Even if there is little coherence, or any self-reflective identification with the project of legal geography, some contributions can be found that focus on questions related to legal geography throughout EU law; these are widely dispersed throughout the many substantive areas on which EU law focuses. EU legal studies has, in other words, since around 2010, increasingly ‘found space without having found geography’. There has been an increase in attention to space in EU law – in certain sites specifically. But bar a handful of contributions that will be discussed, these have been analysed and critiqued without the explicit spatial focus and reflexive awareness that characterises legal geography. Likewise, human and population geographers, but also ethnographers, anthropologists, migration scholars and criminologists, have increasingly focused on the effects ‘on the ground’ of certain EU policies, such as the Habitats Directive or the fisheries policy, or on the EU’s external borders; however, they usually understand EU law as a ‘black box’ that operates in isolation from the social context to which it applies. This section sketches a few of the many diverse areas in which EU law has ‘found space’, and it hints at the questions that a legal geographer might ask in order to enrich current research in EU legal studies.
The first and most obvious space in EU law is borders: the EU’s internal and external borders. Free movement has, evidently, always been a core research question for EU lawyers. Recently, some of its more explicitly spatial dimensions have been brought into focus, such as transnational solidarity, extradition, and labour and student mobility. Even in these more ‘spatial’ contributions, however, EU law is usually understood as hegemonic, as exclusive, in its determination of social space and social relations. The reality of the places, spaces and relations that it affects, in other words, only enters the picture as context (at best). One important exception is the work of Andrea Iossa and Maria Persdotter. In 2021, they published an account of social dumping and labour mobility in the EU, explicitly situating these questions within the framework of legal geography. Scholars from surrounding disciplines, meanwhile, have offered insightful studies on specific forms of mobility, ranging from the movement of Somalis from the Netherlands to the ​UK, to Erasmus or Brexit, and from the exercise of free movement for reasons of love to reasons of work. Usually, here, EU law is taken as a vector in facilitating or inhibiting mobility ‘on the ground’, but with little regard to the contradictions, complications, uncertainties and exceptions that lawyers see throughout EU free movement law, and which affect and are affected by the spatial characteristics of different parts of the EU.
The legal geography at the EU’s external borders is perhaps more interesting, as it is regulated in a piecemeal way, is relatively ill-defined and allows for the interaction between very diverse sites, actors and types of movement. Two examples come to mind. The first is the work on the reach of the EU’s jurisdiction, or, if you will, its ‘legal boundaries’ and their capacity for extraterritorial effect. In other words, EU law frames social interactions and spaces far beyond its borders, as the work of Anu Bradford and Joanne Scott highlights. Other scholars, such as Ayelet Schachar and Hans Lindahl, have approached this same question from a more theoretical (and international law) perspective, offering similar insights into the unstable nature of borders and the re-emergence of the state through the recasting and re-placing of space and borders. The insights offered by these scholars could serve as invaluable groundwork for EU legal geographers keen to understand what happens when EU law operates in places, and regulates interactions, far beyond the context for which it was intended. The second example of work on the EU’s external borders that might be of interest deals with the ill-defined borderlands where national law, EU powers, Frontex and refugees collide; with a particular emphasis on specific sites such as the Mediterranean and Aegean Seas, and on large-scale refugee sites such as Moria or the Białowieża Forest. Legal scholars have questioned the scope of EU norms in this context, the power of actors and the range of rights that should apply in these contexts. With very few exceptions, however, they have not yet taken an explicitly spatial approach, focusing on the way in which the specificities of these diverse sites affect the legal regime and actors, and, conversely, how law renders or understands these borderlands. Migration scholars and criminologists, ​likewise, offer very rich research on what happens ‘on the ground’ on these sites, without necessarily appreciating the contingent nature of the sites’ legal regulation.
A second site of recent spatial interest for EU lawyers has been the city. The work of Michèle Finck and Fernanda Nicola, for example, sheds light on the role of subnational actors in the (constitutional) governance of the EU, and their role as sites for the mediation of EU law within local, spatial peculiarities. Tommaso Pavone has undertaken work on how local culture, identity and context affect judges and their engagement with EU law through the preliminary reference procedure. Giacomo Tagiuri, in his research, looks at how EU law affects licensing and zoning rules, and their impact on local cultural and local identities, particularly in the urban setting. The work by Ran Hirschl and Saskia Sassen, equally, focuses in very different ways on the framework within which global cities emerged and are constituted. Most of this work is rooted in the constitutional or socio-legal tradition. Meanwhile, Antonia Layard, one of the few scholars who is both well versed in EU law and legal geography, has recently put the study of ‘urban law’ on the map in Europe. Stéphanie Hennette-Vauchez’s work on ‘the Mall’ equally uses an explicit spatial perspective to analyse the way in which the legal regulation of particular places impacts on anti-discrimination norms and fundamental rights. Just as is the case for scholars of urban law, legal geographers are drawn to cities: cities constitute places where a large number of legal demands collide – from consumer protection and housing to health and safety; from zoning rules to infrastructural demands; and where problems related to inequality and race are particularly pronounced and often explicitly spatial.
A third type of space that EU lawyers are increasingly ‘finding’ relates to more-than-humans and the environment, even if this still remains primarily the domain of geographers and ​environmental lawyers. Contributions have focused on the regulation of water, marine conservation, air pollution, fisheries and environmental noise. A few contributions stand out as taking space seriously. The first is an article by Maria Gaglia Bareli, Miranda Geelhoed, Louisa Parks, Elisa Morgera and Elsa Tsioumani, in which they study the effect of the rules of the common agricultural policy (CAP) on the livelihood of traditional goat pastoralists in Ikaria and their relationships with other inhabitants, as well as on the ecosystem of the island. A second example is the work by Jane Holder, one of the few EU lawyers explicitly interested in legal geography. In a range of articles, she critiques the EU’s commitment to ecological and spatial justice – laying the groundwork for a spatial understanding of one of the core questions that the EU will have to face: how to distribute the costs of the fight against climate change? A third example is provided by the articles by Kate Sowery and Arie Trouwborst. Sowery offers a rich conceptual engagement with the way in which EU law renders animals and the spaces they inhabit. Trouwborst, in a range of articles, critiques the EU’s framing of wolves and their habitat. Both authors provide excellent examples of the kind of questions a legal geographer would be interested in.
A fourth site that is receiving attention from EU lawyers is concerned with both space and time. This is a range of contributions that looks at the ‘forms of life’ that EU law allows for – with Loïc Azoulai’s work standing out. This work situates EU law (with a focus on free movement and citizenship law) within the places and spaces that frame the subject of EU law and imbue it with meaning. The focus on the nature and form of the social relationships that EU law engenders offers an important insight into both the constitutive and destabilising dynamics that EU law carries. While this frame – which is also implicit in the work of Païvi Neuvonen or Ségolène ​Barbou des Places – is not explicitly spatial, it does come close. Its preoccupation with the way in which EU law constitutes and frames processes of formation and deconstruction – including the temporal dimension of concepts such as ‘social integration’ – echoes the legal geographers’ interest in the reflexive interaction between space, time and law. Political scientists have equally developed arguments that are sensitive to the spatial and temporal dynamics of EU institutional change.
This very general and short overview of where EU lawyers have ‘found space without having found geography’ is utterly incomplete. Luuk van Middelaar’s recent intervention, suggesting a geopolitical turn in the EU’s preoccupations, for example, explicitly engages with the themes of space and time, and focuses our attention towards geography in the way the EU (and not only EU law) operates. Thinking spatially about EU law could unearth buried treasures in endlessly diverse areas, including transport policy, industrial policy, cohesion policy or consumer law. It could focus on the legal regulation of tourism, professional sports, rental markets, geographical indications, GMOs, bioethics, European schools, health care or (transnational) families. It could also, more reflexively, engage with the internal functioning and dynamics of European institutions or national administrations and courtrooms faced with EU law – as historians have started to do. Other examples of aspects of EU law that are begging to be broached in spatial terms are cases such as Festersen (on the use of rural land for habitation as opposed to farming), Josemans (on drug tourism on the Belgo-Dutch border), Deutsche Apotheke (on the role of pharmacies in rural Germany), or the cases on the prohibition of megastores in Catalunya, the challenge to German motorway tolls or the destruction of the Polish Białowieża Forest. Recent cases on the habitat of wolves and hamsters, and on the regulation of hunting, could offer other starting points for aspiring legal geographers.
Overall, it is safe to say that the discipline of EU legal geography does not yet exist. The absence of scholarship on EU legal geography signifies that – as a discipline – EU legal studies continues to struggle in shifting its register away from questions of politics and policy and towards the detail, stories and lives that make up Europe, an exercise in which international law scholarship, and scholarship on European human rights law, have been much more successful. Some ​contributions in EU law come close to employing the spatial lens, reflexive awareness and normative commitment that typify legal geography, but as a whole, such work is very haphazard and piecemeal, and lacks coherence. At the same time, EU law is prime territory for a legal geographer, for reasons set out in this article. It is a geography waiting to be discovered, explored and reconfigured – an exercise that will not simply offer a more meaningful understanding of the nature and effect of EU law but also, more generally, of how the law of integration relates to the reality of integration.
4. Questions of space
There is no doubt that much of the spatial territory of EU law remains unexplored. But perhaps more interesting than the spaces that can be explored are the type of inquiries on which EU legal geography might focus. At least three distinct types of research come to mind: methodological, empirical and conceptual – each committed to the project of legal geography and each invaluable in unearthing how EU law engages with space in (and beyond) Europe.
Despite (or perhaps because of) the relative youth of the field, legal geographers are very preoccupied with methodology. A number of important contributions that have shaped the field deal with questions such as the appropriate interaction between law and geography; the place for empirical, theoretical and conceptual work; and the different methods that could bridge the legal and geographical traditions. Likewise, the field has been criticised for being insufficiently sensitive to how methods influence substance, and for approaching law as being too contingent. Work of this sort is invaluable in shaping the discipline, in creating a communal language, fostering coherence and allowing for genuine interaction between studies and scholars.
Within the EU context, all this methodological work is perhaps even more valuable. Partially for obvious reasons: scholars will be used to their national traditions, methods and blind spots. There are no narratives, such as ‘integration through law’ or ‘constitutionalisation’, to connect EU legal geographers. How, then, can we ‘do’ EU legal geography? How do we become ‘spatial detectives’, as Layard and Luke Bennett have framed it, in a space where EU law and national law collide; where boundaries become porous and administration is multi-tiered? Which concepts are central to making the EU spatially ‘legible’? How can we study the impact of CJEU case law spatially? Which methods of legal studies and geography are particularly interesting from the EU perspective? Which normative commitments might underpin legal geography in the EU? Does space influence EU law in legislation and adjudication or mainly in application and decentralised implementation? Can a polity like the EU ever be ‘localised’ to a meaningful extent? And, perhaps most crucially for the ability of EU legal geography to contribute to our understanding of the process of European integration: how do the insights of EU legal geographers translate into the language, concepts, ideas and core tenets of the disciplines that surround legal geography?
The bulk of work by both legal scholars and geographers can be defined as doctrinal, positivist, descriptive, empirical, qualitative or quantitative. This is not to say that their research does not aim at problematising or resolving normative issues but rather that their work is primarily akin to excavating new material. This very broad category is a second type of research in which EU legal geographers might be interested. It is perhaps of most interest to scholars who are occasional visitors to the land of legal geography – and want to study the relationship between law and place in a very specific context. This might mean a very specific place or site (such as the fishing waters of ​Galicia, the villages next to the entrance to the Channel Tunnel or seagulls in coastal Britain) or a particular piece of legislation, or case or regulation. Much of the work that currently falls within this category focuses on environmental justice – elaborating on the way in which EU law affects its environment and its actors. This is perhaps a legacy of its interest to geographers and the relative absence of legal scholars ‘thinking spatially’. Law, however, could have an important role to play in framing empirical observations, and quantitative or qualitative work; and in extrapolating the more general aspects in which law and space interact. The methods that come more naturally to legal scholars – case law analysis, for example – could do the same, and offer important starting points for understanding how the CJEU frames certain sites, spaces or actors. The edited collection by Nicola and Bill Davies on the stories behind crucial cases in EU law, albeit lacking the explicitly spatial frame, is a wonderful example of how such detailed analysis could enrich more general accounts of the nature of EU law.
A good illustration of empirical legal geographical research with a focus on EU law is the article by Bareli, Geelhoed, Parks, Morgera and Tsioumani on the way in which the CAP, EU animal welfare and food standards regulations have affected the life of pastoralists in Ikaria – in economic, social and cultural terms. Their research combines qualitative research, including interviews, with legal positivism, and displays an acute spatial sensibility, clearly framing the EU norms in question as ‘creating’ new spaces and relationships while simultaneously highlighting the way in which the specifics of Ikaria – in terms of landscapes, social relationships, cultural practices – irritate or mediate the application of those very norms. Ultimately, the authors argue, the tools that EU law has at its disposal do not appear able to internalise this reflexive tension. Work such as this is absolutely necessary in EU law. It offers us ways of thinking about the nature, limits and capacity of EU law that is invaluable at a time where the role of law is being re-thought like never before in the process of integration.
In their introduction to the edited collection entitled The Expanding Spaces of Law: A Timely Legal Geography, the editors – the great and the good of legal geography – suggest that while legal geography has often focused on disciplinary cross-pollination and explicit interdisciplinarity; the next frontier should be a type of post-disciplinary scholarship that does not look at law or at geography for inspiration as to the questions to be asked or the methods to be used. This has fostered the emergence of terms such as ‘lawscape’ or ‘nomosphere’, which capture intricate interactions between space, time and law. In EU legal geography, arguable, these terms and the approach could translate quite well. Simply put, there is something deeply transformative, in both spatial and temporal dimensions, about EU law that connects quite naturally to (legal) geography. This could come to the fore most explicitly in a third type of EU legal geography, focusing on concepts that articulate how the reflexive interaction between EU law and space both literally and metaphorically reshapes Europe. This could be by focusing on concepts whose register consist of spatial, temporal, conceptual and normative usages. An example could be to analyse concepts such as liveability, increasingly used to frame contemporary urban life. Concepts such as wilderness, localism, order, public, integration or tradition could be other interesting starting points. ​What such inquiries would highlight is the sophisticated process through which EU integration takes place. Its law and its space are, in this view, so closely intertwined that studying them in isolation from each other will necessarily lead to an incomplete picture. The transformative potential that conceptual studies in EU legal geography could unearth draws on two characteristics of EU law. On the one hand, EU law is relatively malleable. Given that its legal norms apply across the EU, to close to 500 million inhabitants with a great variety of cultural, geographical, social, climatological and economic characteristics, EU law is always somehow ‘localised’, or locally mediated. On the other hand, EU law scholarship has long focused on the transformative potential of EU law: it operates in relative isolation from political actors, its normative core sees to the evaporation of strong boundaries and identities rather than their creation, and it is almost entirely reliant on the creation of (individual) rights for its authority. This combination, arguably, means that what EU law ‘does’ is deeply spatial, in its ability to transform (or create) new types of relationships, new types of boundaries and new types of identities.
5. Conclusion
Legal geography is an exciting and rapidly developing discipline. Somehow, it is also one that has passed EU legal studies by. The questions legal geography asks, and the way it looks at the world, however, seem an ideal fit for the EU. The preoccupation of legal geography with the relationship between space, time and law offers, in the context of the EU, a range of interesting questions that pertain to the very nature of the process of integration, the role of law in that process and the ability of local context to mediate the strictures of EU law. The reflexive sensibility of legal geography, whereby law is understood to create spaces and engender new relationships but the causal arrow is also reversed, in the sense that existing tangible or intangible spaces are understood to impact on the way in which law is formed, articulated or applied, lies at the core of the current predicament of the EU. Understanding the interaction between ‘Brussels’ and ourselves, our streets, our relationships and our social, cultural or ecological environment is where the next frontier of EU law is. Happy travels!
* ↑ For a good introduction to the field, see I Braverman et al, ‘Introduction: Expanding the Spaces of Law’ in I Braverman et al (eds), The Expanding Spaces of Law: A Timely Legal Geography (Stanford University Press 2014).
* ↑ N Blomley, Law, Space and Power (Guildford Press 1994) 28; Braverman et al, ‘Introduction’ (n 1) 2–5.
* ↑ The re-emergence of ‘time’ in the project of legal geography can largely be subscribed to M Valverde, Chronotopes of Law: Jurisdiction, Scale and Governance (Routledge 2015), and M Valverde, ‘“Time Thickens, Takes on Flesh”: Spatiotemporal Dynamics in Law’, in Braverman et al (eds), The Expanding Spaces of Law (n 1).
* ↑ R Orzeck and L Hae, ‘Restructuring Legal Geography’ 44 (2020) Progress in Human Geography 832.
* ↑ There are no journals specifically devoted to legal geography. One that publishes most work by legal geographers is Progress in Human Geography. Beyond that (because of that) most influential work has been published as edited collections, such as Braverman et al (eds), The Expanding Spaces of Law (n 1); N Blomley et al (eds), The Legal Geographies Reader (Blackwell 2001); J Holder and C Harrison (eds.), Law and Geography (Oxford University Press 2003); T O’Donnell et al (eds.), Legal Geography: Perspectives and Methods (Routledge 2020). Routledge publishes a book series on legal geography entitled ‘Space, Materiality and the Normative’. The (very few) articles on legal geography published in legal journals can be found in Social & Legal Studies and the International Journal of Law in Context.
* ↑ Good starting points for more sophisticated accounts are D Delaney, ‘Legal Geography I: Constitutivities, Complexities, and Contingencies’ 39 (2015) Progress in Human Geography 96; D Delaney, ‘Legal Geography II: Discerning Injustice’ 40 (2016) Progress in Human Geography 267; D Delaney, ‘Legal Geography III: New Worlds, New Convergences’ 41 (2017) Progress in Human Geography 667.
* ↑ Delaney, ‘Legal Geography I’ (n 6) 98–9.
* ↑ A Philippopoulos-Mihalopoulos, ‘Law’s Spatial Turn: Geography, Justice and a Certain Fear of Space’ 7 (2010) Law, Culture and the Humanities 187.
* ↑ L Bennett and A Layard, ‘Legal Geography: Becoming Spatial Detectives’ 9 (2015) Geography Compass 408.
* ↑ Blomley (n 2); Delaney, ‘Legal Geography I’ (n 6) 96.
* ↑ Delaney, ‘Legal Geography II’ (n 6) 267.
* ↑ For example, K Attoh, ‘What Kind of Right is the Right to the City?’ 35 (2011) Progress in Human Geography 669.
* ↑ See the edited collection focusing on Australian and Asia-Pacific legal geography: O’Donnell et al (n 5).
* ↑ For example, A Kedar, ‘On the Legal Geography of Enthocratic Settler States: Notes towards a Research Agenda’ in Holder and Harrison (n 5).
* ↑ Many thanks to Loïc Azoulai for pointing this out.
* ↑ A Vauchez, ‘The Map and the Territory: Re-assessing EU Law’s Embeddedness in European Societies’ 27 (2020) Maastricht Journal of European and Comparative Law 134–5.
* ↑ K McNamara, The Politics of Everyday Europe: Constructing Authority in the European Union (Oxford University Press 2015).
* ↑ In institutional terms, see, for example, C Bickerton, European Integration: From Nation States to Member States (Oxford University Press 2012). In substantive terms, focusing on justice and solidarity, see F de Witte, Justice in Europe: The Emergence of Transnational Solidarity (Oxford University Press 2016).
* ↑ T Pavone, ‘Putting European Constitutionalism in Its Place: The Spatial Foundations of the Judicial Construction of Europe’ 16 (2020) European Constitutional Law Review 669.
* ↑ Z Pearson, ‘Spaces of International Law’ 17 (2008) Griffith Law Review 489.
* ↑ M Finck and F de Witte, ‘The Challenge of Challenges’ 21 (2020) German Law Journal 1.
* ↑ Orzeck and Hae (n 4) 843.
* ↑ E Fahey, ‘Future-Mapping the Directions of European Union Law: How Do We Predict the Future of EU Law’ 7 (2020) Journal of International and Comparative Law 265.
* ↑ L Azoulai, ‘Solititude, désoeuvrement et conscience critique. Les resorts d’une recomposition des études juridiques européenes’ 4 (2015) Politique Européene 82; Vauchez (n 16) 133; A Dyevre et al, ‘The Future of European Legal Scholarship: Empirical Jurisprudence’ 26 (2019) Maastricht Journal of European and Comparative Law 348; Fahey (n 23) 265.
* ↑ M Madsen et al (eds.), Researching the European Court of Justice: Methodological Shifts and Law’s Embeddedness (Cambridge University Press 2022).
* ↑ Braverman et al (eds), The Expanding Spaces of Law (n 1) 2.
* ↑ A Iossa and M Persdotter, ‘Cross-Border Social Dumping as a “Game of Jurisdiction”: Towards a Legal Geography of Labour Relations in the EU Internal Market’ 59 (2021) Journal of Common Market Studies 1086.
* ↑ Well-known examples are A Favell, Eurostars and Eurocities: Free Movement and Mobility in an Integrating Europe (Wiley 2008) and N Fligstein, Euro-Clash: The EU, European Identity and the Future of Europe (Oxford University Press 2009). See also E Challinor, ‘When Does Difference Matter? Border-Generating Categories in the Lives of Foreign Nationals in Northern Portugal’ 5 (2019) International Journal of Migration and Border Studies 308.
* ↑ As examples of the different types of intra-EU mobility: I Van Liempt, ‘“And Then One Day They All Moved To Leicester”: The Relocation of Somalis from the Netherlands to the UK Explained’ 17 (2011) Population, Space and Place 254; R King, ‘Theorising New European Youth Mobilities’ 24 (2017) Population, Space and Place 17; T Meyer et al, ‘Free Movement? The Impact of Legislation, Benefit Generosity and Wages on the Pensions of European Migrants’ 19 (2013) Population, Space and Place 714.
* ↑ R Ranta and N Nancheva, ‘Unsettled: Brexit and European Union Nationals’ Sense of Belonging’ 24 (2018) Population, Space and Place 21; K Botterill and J Hancock, ‘Rescaling Belonging in “Brexit Britain”: Spatial Identities and Practices of Polish Nationals in Scotland after the UK Referendum on European Union Membership’ 24 (2018) Population, Space and Place 212.
* ↑ For love: J Medrano et al, ‘Euromarriages in Spain: Recent Trends and Patterns in the Context of European Integration’ 20 (2013) Population, Space and Place 157; for work: G Davies, ‘European Union Citizenship and the Sorting of Europe’ 43 (2020) Journal of European Integration 49.
* ↑ A Bradford, The Brussels Effect: How the European Union Rules the World (Oxford University Press 2020); J Scott, ‘Extraterritoriality and Territorial Extension in EU Law’ 62 (2014) American Journal of Comparative Law 87.
* ↑ H Lindahl, Faultlines of Globalization: Legal Order and the Politics of Alegality (Oxford University Press 2013); A Shachar, The Shifting Border: Legal Cartographies of Migration and Mobility (Manchester University Press 2020). See also S Salomon, ‘Citizenship and Unauthorised Migration: A Dialectical Relationship’ 83 (2020) Modern Law Review 583; R Hirschl and A Shachar, ‘Spatial Statism’ 17 (2019) International Journal of Constitutional Law 387.
* ↑ P Maillet et al, ‘Exclusion through Imperio: Entanglements of Law and Geography in the Waiting Zone, Excised Territory and Search and Rescue Region’ 27 (2018) Social & Legal Studies 142.
* ↑ K Aas and H Gundhus, ‘Policing Humanitarian Borderlands: Frontex, Human Rights and the Precariousness of Life’ 55 (2015) British Journal of Criminology 1; G Campesi, ‘Frontex and the Production of Euro-Mediterranean Borderlands’ in C Gualtieri (ed) Migration and the Contemporary Mediterranean (Peter Lang 2018); C Schmoll, ‘Gendered Spatialities of Power in “Borderland” Europe: An Approach through Mobile and Immobilised Bodies’ 1 (2014) International Journal of Migration and Border Studies 173.
* ↑ P Cuttitta, ‘Non-Governmental/Civil Society Organisations and the European Union: Externalisation of Migration Management in Tunisia and Egypt’ 26 (2020) Population, Space and Place 232; M Kristensen, ‘EU Border Officials and Critical Complicity: The Politics of Location and Ethnographic Knowledge as Additions’ 9 (2020) Social Inclusion 169; S Yakhlef, Cross-Border Police Collaboration: Building Communities of Practice in the Baltic Sea Area (Routledge 2020); E McCluskey, ‘Freedom, Technology and Surveillance: Everyday Paradoxes on the EU–Morocco Border’ 6 (2020) International Journal of Migration and Border Studies 412; C Oelgemoller, ‘International Migration: Transit Space – Creative Space?’ 3 (2017) International Journal of Migration and Border Studies 121.
* ↑ M Finck, Subnational Authorities in EU Law (Oxford University Press 2017); F Nicola, ‘Invisible Cities in Europe’ 35 (2017) Fordham International Law Journal 1282. See also A Bobic and J Van Zeben, Polycentricity in the European Union (Cambridge University Press 2019); C Panara, ‘The “Europe of Regions” before the Court of Justice’ 26 (2019) Maastricht Journal of European and Comparative Law 271; M De Visser, ‘The Future is Urban: The Progressive Renaissance of the City in EU Law’ 7 (2020) Journal of International and Comparative Law 389; M Barbenhon, ‘Europeanisation as Discursive Process: Urban Constructions of Europe and the Local Implementation of EU Directives’ 38 (2016) Journal of European Integration 163; S De Gregorio Hurtado, ‘Understanding the Influence of EU Urban Policy in Spanish Cities: The Case of Malaga’ (2019) Urban Research & Practice; J Bazylinska-Nagler, ‘Smart City Landscape Protection: EU Law Perspective’ in A Brdulak and H Brdulak, Happy City: How to Plan and Create the Best Liveable Area for the People (Springer 2017).
* ↑ Pavone, ‘Putting European Constitutionalism in Its Place’ (n 19) 669.
* ↑ G Tagiuri, ‘The Cultural Implications of Market Regulation: Does the EU Destroy the Texture of National Life?’ (on file with author); G Tagiuri, ‘Can Supranational Law Enhance Democracy? EU Economic Law as a Market-Democratizing Project’ 32 (2021) European Journal of International Law 57. On zoning laws, see also J Janderova and S Gyamfi, ‘How Can Public Influence Zoning Plans to Protect Environment? Case of the Czech Republic and Indirect Effect of EU Law’ 1 (2016) International Journal of Environmental Science 326.
* ↑ R Hirschl, City, State: Constitutionalism and the Megacity (Oxford University Press 2020); S Sassen, Deciphering the Global: Its Scales, Spaces and Subjects (Routledge 2007).
* ↑ A Layard, ‘Researching Urban Law’ 21 (2020) German Law Journal 1446.
* ↑ S Hennette-Vauchez, ‘The Mall’ 36 (2020) Revue Francaise de Droit Administratif 833.
* ↑ The question of housing has received some attention in EU law: S Reynolds, ‘Housing Policy as a Restriction of Free Movement and Member States’ Discretion to Design Programmes of Social Protection: Libert’ 52 (2015) Common Market Law Review 259; M Elsingaa and H Lind, ‘The Effect of EU-Legislation on Rental Systems in Sweden and the Netherlands’ 28 (2013) Housing Studies 960; I Domurath, ‘Housing as a “Double Irritant” in EU Law: Towards an SGEI between Markets and Local Needs’ 38 (2019) Yearbook of European Law 400.
* ↑ G Kallis and D Butler, ‘The EU Water Framework Directive: Measures and Implications’ 3 (2001) Water Policy 125; I Pavone, ‘Is Banning Enough? The Intricacy Inherent to Marine Mammal Conservation’ 20 (2019) German Law Journal 587; A Cavoski, ‘The Unintended Consequences of EU Law and Policy on Air Pollution’ 26 (2017) Review of European, Comparative and International Environmental Law 255; T Van Rijn and J Wakefield, ‘Post-Brexit: Untangling the Fishing Mesh’ 27 (2020) Maastricht Journal of European and Comparative Law 660; S Uhlmann et al, The European Landing Obligation: Reducing Discards in Complex, Multi-Species and Multi-Jurisdictional Fisheries (Springer 2019); I Okafor-Yarwood and D Belhabib, ‘The Duplicity of the European Union Common Fisheries Policy in Third Countries: Evidence from the Gulf of Guinea’ 184 (2020) Ocean & Coastal Management 547; E King et al, ‘Implementation of the EU Environmental Noise Directive: Lessons from the First Phase of Strategic Noise Mapping and Action Planning in Ireland’ 92 (2011) Journal of Environmental Management 756.
* ↑ M G Bareli et al, ‘The Unintended Consequences of the Common Agricultural Policy for Local Communities’ in P J Cardwell and M-P Grangers (eds), Research Handbook on the Politics of EU Law (Edward Elgar 2020).
* ↑ J Holder and A Layard, ‘Seeking Spatial and Environmental Justice for People and Places within the EU’ in A Philippopoulos-Mihalopoulos (ed.), Law and Ecology: New Normative Foundations (Routledge 2011); J Holder, ‘An Idea of Ecological Justice in the EU’ in G De Burca et al (eds), Europe’s Justice Deficit (Oxford University Press 2014).
* ↑ K Sowery, ‘Sentient Beings and Tradable Products: The Curious Constitutional Status of Animals under Union Law’ 55 (2018) Common Market Law Review 55. See also S Duarte Cardoso et al, ‘History and Evolution of the European Legislation on Welfare and Protection of Companion Animals’ 19 (2017) Journal of Veterinary Behaviour 64.
* ↑ A Trouwborst, ‘Exploring the Legal Status of Wolf–Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species’ 23 (2014) Review of European, Comparative & International Environmental Law 111; A Trouwborst, ‘Wolves Not Welcome? Zoning for Large Carnivore Conservation and Management under the Bern Convention and EU Habitats Directive’ 27 (2018) Review of European, Comparative & International Environmental Law 306; A Trouwborst & F Fleurke, ‘Killing Wolves Legally: Exploring the Scope for Lethal Wolf Management under European Nature Conservation Law’ 22 (2019) Journal of International Wildlife Law & Policy 231.
* ↑ Another excellent example (although it does not focus much on EU law) is S Ojalammi and N Blomley, ‘Dancing with Wolves: Making Legal Territory in a More-Than-Human World’ 62 (2015) Geoforum 51.
* ↑ See L Azoulai, ‘Being a Person in the European Union’ in L Azoulai et al (eds), Constructing the Person in EU Law: Rights, Roles, Identities (Hart 2016); and his research project on ‘Forms of Life and Integration in Europe’ (https://www.sciencespo.fr/folie/).
* ↑ P Neuvonen, Equal Citizenship and Its Limits in EU Law: We the Burden? (Oxford University Press 2016), P Neuvonen, ‘Retrieving the Subject of European Integration’ 25 (2019) European Law Journal 6; S Barbou des Places, ‘The Integrated Person in EU Law’ in Azoulai et al (eds) (n 55).
* ↑ Valverde, Chronotopes of Law (n 3).
* ↑ D Keleman and T Pavone, ‘The Political Geography of Legal Integration: Visualizing Institutional Change in the European Union’ 70 (2018) World Politics 358.
* ↑ L van Middelaar, ‘Europe’s Geopolitical Awakening’ (2021) Groupe D’Etudes Politiques Geopolitiques Working Paper 8.
* ↑ See, for example, J Rohde-Liebenau, ‘Raising European Citizens? European Identity in European Schools’ 58 (2020) Journal of Common Market Studies 1504; C Finotelli, ‘Cross-Border Healthcare in the EU: Welfare Burden or Market Opportunity? Evidence from the Spanish Experience’ 59 (2020) Journal of Common Market Studies 608.
* ↑ L Vetters and M-C Foblets, ‘Culture All Around? Contextualising Anthropological Expertise in European Courtroom Settings’ 12 (2016) International Journal of Law in Context 272.
* ↑ Case C-370/05, Festersen ECLI:EU:C:2006:635; C-137/09, Josemans ECLI:EU:C:2010:774; C-148/15, Deutsche Parkinson ECLI:EU:C:2016:776.articularalists' of Somaihe EU’,by of quote.
* ↑ Case C-400/08, Commission v Spain ECLI:EU:C:2011:172. See also Joined Cases C-360/15 and C-31/16, Appingedam ECLI:EU:C:2018:44. For tolls see Case C-321/19, German Toll ECLI:EU:C:2020:866. For forest destruction see Case C-441/17, Commission v Poland ECLI:EU:C:2018:80.
* ↑ Case C-88/19, Romanian Wolves ECLI:EU:C:2020:93; C-674/17, Finnish Wolves ECLI:EU:C:2019:851; C-477/19, Viennese Hamsters ECLI:EU:C:2020:517; C-383/09, Commission v France ECLI:EU:C:2011:369; C-217/19, Commission v Finland ECLI:EU:C:2020:291; C-161/19, Commission v Austria ECLI:EU:C:2020:290; C-900/19, One Voice ECLI:EU:C:2020:941.
* ↑ See, for a wonderful collection, J Hohmann and D Joyce (eds), International Law’s Objects (Oxford University Press 2018), full of chapters on canoes, paper shredders, railway clocks, opium and Breton street signs by pre-eminent scholars. For a pathbreaking study on the human condition in European human rights law, including an emphasis on time and space, see S Trotter, On Coming to Terms: European Human Rights Law and the Human Condition (Oxford University Press forthcoming).
* ↑ See, in this context, Vauchez (n 16) 133.
* ↑ O’Donnell et al (n 5); Braverman et al, ‘Introduction’ (n 1).
* ↑ I Braverman, ‘Who’s Afraid of Methodology? Advocating a Methodological Turn in Legal Geography’, in Braverman et al (eds), The Expanding Spaces of Law (n 1); Orzeck and Hae (n 4) 832.
* ↑ Bennett and Layard (n 9) 406.
* ↑ M Nicolini, ‘Boundaries and Identity: The Legal Geography of the European Union and the United States of America’ (2015) STALS Research Paper 2/2015.
* ↑ J Sobrino Heredia and G Oanta, ‘The Legal Impact of the Common Fisheries Policy on the Galician Fisheries Sector’ 167 (2019) Ocean & Coastal Management 87; E Darian-Smith, ‘Rabies Rides the Fast Train: Transnational Interactions in Post-Colonial Times’, in Blomley et al (n 5); E Darian-Smith, Bridging Divides: The Channel Tunnel and English Legal Identity in Europe (University of California Press 1999); S Trotter, ‘Birds Behaving Badly: The Regulation of Seagulls and the Construction of Public Space’ 46 (2019) Journal of Law and Society 1.
* ↑ Bennett and Layard (n 9) 406.
* ↑ F Nicola and B Davies, EU Law Stories (Cambridge University Press 2017).
* ↑ Bareli et al (n 50).
* ↑ Madsen et al (n 25).
* ↑ Braverman et al, ‘Introduction’ (n 1).
* ↑ See, on ‘nomosphere’, D Delaney, The Spatial, the Legal and the Pragmatics of Place-Making: Nomospheric Investigations (Routledge 2010), and on ‘lawscape’, among others, A Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape, Atmosphere (Routledge 2015).