Progress report

Progress in Human Geography

2016, Vol. 40(2) 267–274
Legal geography II: ª The Author(s) 2015
Reprints and permission:

Discerning injustice sagepub.co.uk/journalsPermissions.nav

DOI: 10.1177/0309132515571725
phg.sagepub.com

David Delaney
Amherst College, USA

Abstract
In this report I assess progress in legal geography – past and potential – in terms of its contributions to two
significant projects in contemporary critical geographic thought: the discernment and diagnosis of spatial
injustice and the idea of the right to the city. I argue that conventional spatial imaginaries tend to invisibilize
injustices, obscure the contingencies and causes of injustice, and uncouple injustice from responsibility.
Conventional legal imaginaries commonly legitimize injustices or render them as mere misfortunes, if not
deserved fates. Because traces of the legal are commonly constitutive of the spatialities of injustice –
underpinning them, shaping relations of power with respect to them, rendering places meaningful in dis-
tinctively legal ways – then much of what legal geographers do is investigate the contingencies and constraints
of spatial justice. I also draw attention to recent work by non-geographers and the increased penetration of
critical spatial thought into legal scholarship as grounds for anticipating future progress.

Keywords
legal geography, legal mobilization, political lawyering, right to the city, rights, spatial justice

I Introduction courts (Benson, 2014); on the regulation of

street vendors in Mexico City (Azuela and
Because what is called legal geography is a
Meneses-Reyes, 2014); on the transfer of prop-
heterogeneous interdisciplinary project charac-
erty expropriation regimes from India-Pakistan
terized by theoretical pluralism; because the
to Israel-Palestine (Kedar, 2014); and on the
scope of topics covered is very wide; and
role of the ‘at will’ doctrine of American
because, taken as a whole, it does not seem to
employment law in the production of social suf-
have a common methodology, few distinguish-
fering in the workplace (Delaney, 2014). Each
ing concepts, and no ‘debates’ through which
of these studies treats very different kinds of
differing positions might be refined, I some-
spaces or places and very different instantia-
times wonder what renders it sufficiently coher-
tions of ‘law’. But perhaps what legal geogra-
ent such that ‘progress’ could be attributed to it.
phy is might become more apparent if we
In a recent collection, The Expanding Spaces of
change the question and ask: what is it good
Law: A Timely Legal Geography (Braverman
et al., 2014), there are chapters on the rules of
engagement associated with NATO’s Operation
Corresponding author:
Enduring Freedom in Afghanistan (Smith, 2014); David Delaney, Department of Law, Amherst College,
on different kinds of procedural ‘rules of Amherst, MA 01002, USA.
engagement’ that inhibit activists’ access to Email: dpdelaney@amherst.edu
268
for? Each of the chapters mentioned also offers
a close technical analysis of how law config-
ures social space in ways that have conse-
quences for justice and injustice in the world.
Conventional spatial imaginaries tend to
invisibilize injustices, obscure their contingen-
cies and causes, and uncouple injustice from
responsibility. Conventional legal imaginaries
commonly legitimize injustices or render them
as mere misfortunes, if not deserved fates. Crit-
ical geography aims to correct the former. Crit-
ical legal scholarship aims to destabilize the
latter. In this report I will argue that because
traces of the legal are commonly constitutive
of the spatialities of injustice – underpinning
them, shaping relations of power with respect
to them, rendering places meaningful in distinc-
tively legal ways – then much of what legal geo-
graphers do is to investigate the contingencies
and constraints of spatial justice. The countless
material sites of law, from the property lines of
adjacent neighbors (Blomley, 2014) to buffer
zones around orcas (Herbert, 2014) to Palesti-
nian farms (Fields, 2012) and First Nations
property (Egan and Place, 2013) and to the
courtrooms of human rights tribunals (Jeffrey
and Jakala, 2014), are often the sites of the pro-
duction of injustice as well. Legal geographers
take us into the workshops where space, law and
(in)justice are the means of the co-production of
each other. They show us, often in granular
detail, how unjust geographies are made and
potentially un-made. But it is hardly the case
that the relationship between changing law, re-
configuring space and ameliorating injustice is
linear or direct. Law, geography, politics, power
and their dynamic inter-weavings are much
more complicated. Legal geography, then, is
also good for discerning these complexities, dis-
connections and reversals. This is by no means
to imply that legal geography is only good for
this. Much excellent work in the past couple
of years has other aspirations. It is only to say
that because power and law are two facets of
the same thing and because (in)justice is
Progress in Human Geography 40(2)
constrained and enabled by what we call law,
then those geographers who are primarily con-
cerned with spatial justice would benefit from
what like-minded legal scholars have to offer.
II Discerning justice
The themes of justice and power are closely
related (Garth and Sarat, 1998). Every instance
of injustice implicates power, and any occasion
of power can be evaluated in terms of justice.
But they are distinguishable. Power talk is
descriptive, justice talk is normative. To iden-
tify a state of affairs as unjust is to condemn
it. In our world, much of what we recognize and
experience as power is directly linked to the
legal – to rules, rights, authority, punishment
and so on. Recently, geographers have argued
in favor of more explicit normative commit-
ments in research (Olson and Sayer, 2009).
With prominent exceptions, geographers and
legal geographers, myself included, often do
seem to be more comfortable with power talk
than with justice talk. However, much work in
legal geography does concern itself with sys-
temic asymmetries of power such as domina-
tion, exploitation, and marginalization both in
the world and with respect to access to law. The
choice of contexts, such as racism, colonialism,
homelessness and environmental injustice,
allows the inference that these asymmetries are
not simply interesting but unfair and unneces-
sary. They are wrong. But, as Patricia Ewick
has written, ‘The concept of justice is often
deployed . . . as a vague but often unspecified
marker for some equally unspecified value com-
mitments having something to do with the dis-
tribution of costs and benefits’ (Ewick, 1998:
40). That said, I understand claims of injustice
to be assessments of unnecessary social suffer-
ing (Renault, 2010). Not all suffering is social
suffering and not all suffering is unjust but, ulti-
mately, evaluations of social suffering – its
causes, and reciprocal enrichments – are what
provoke claims of (in)justice. (In)justice is
Delaney
intrinsically social and relational in the sense
that claims of injustice necessarily call into
account inherently social states of affairs con-
cerning contingent social arrangements – includ-
ing socio-spatial arrangements.
Although often expressed in slogans, we
know that the conceptual-normative domain of
justice and injustice is irreducibly complex. It
is irresolvably contested whether in the register
of sophisticated theorization or ordinary intui-
tions (Heinze, 2013). In our world, some people
are deeply concerned about justice and some
are seemingly indifferent. For some of us who
spend our working lives looking closely, injus-
tice is pervasive and systemic, while justice is
always aspirational (if not utopian), occasional,
fleeting and fragile. For others, instances of
injustice are more discrete departures that stand
out as anomalies against the just-enough back-
ground of the social, political-economic givens.
By the givens I mean the broad generative,
structural, institutional conditions of contem-
porary earthly social existence. These would
include, at least, the dynamic configurations
of global capitalism, the international system
of states and organizations (including corpora-
tions and international organizations) and the
set of dominant justificatory ideological fra-
meworks, including the range of liberalisms
and a-liberalisms. Add what you will.
For radicals, the call to justice requires
dismantling the givens and replacing them
with . . . something else. One may, however,
generally endorse the radical view and still
recognize specific and significant conditions
or manifestations of injustice that may be ame-
liorated within the constraints of the givens.
Calling attention to these instances is the work
of activists and social movements. We know,
though, that the history of social struggles is
rife with situations in which the amelioration
of suffering within the givens only serves to
further entrench the givens. We know too that
amelioration here – in this place or context,
at this scale, with respect to this axis of
269
power – often exacerbates injustice there. Sen-
sitivity to these possibilities may inform one’s
analysis of the spatial dimensions of injustice,
one’s analysis of the involvement of the legal in
the generation and possible remedies of social
suffering and one’s practical sense of what is to
be done. Often, in non-revolutionary contexts,
this is what is done: call in a lawyer (Hunt,
1990; Sarat and Scheingold, 2006). If we want
to more fully understand the play of contingency
and constraint as well as the possibilities and
limits of amelioration, then it is necessary to
investigate the workings of the legal in ways that
are specific to this social domain.
III Moving law toward justice
Movement activists engage legal institutions for
a lot of reasons, and among these is the desire to
exploit the plasticities and indeterminacies of
law so as to align forms of state institutional
power/violence with the desired vectors of jus-
tice – often against other loci of state power.
At the same time, there are significant con-
straints on what is possible, and there are often
trade-offs that attend this strategy. In distinc-
tively legal arenas of struggle and contestation
it is not simply a matter of advancing and refut-
ing rival justice claims (Grinthal, 2011–12;
Cummings and Eagly, 2000–1). Much of the
doing of law, in the service of undoing spatial-
ities of injustice, is technical and procedural.
Lawyers working on behalf of (or in opposition
to) those seeking spatial justice or, as I have
called them, nomospheric technicians (Delaney,
2010), have to navigate a complex, high stakes
and expensive institutionalized language game
with skill and not a little luck. Lawyers know
that some discursive moves are required and
that some are forbidden, that law is both malle-
able and rigid, that some authorities will be
receptive and others dismissive or hostile. They
know that advancing the cause of justice may
require deep immersion in the mysteries of doc-
trine as well as a sharp pragmatic sense of how
270
to put on a trial (Bellow, 1996; Moliterno, 2008;
geographers would perhaps be most interested
in Foster and Glick, 2007). They also know that
winning a case may not deliver substantive
relief for plaintiffs and that losing a case might
pay dividends in political organizing (McCann,
1991, NeJaime, 2010). Those who are interested
in re-making geographies of injustice can profit
from this knowledge.
Consider a justly celebrated episode from the
1990s that has become nearly totemic in critical
geography: the victory of the Los Angeles Bus
Riders Union against transportation racism in
Los Angeles. Edward Soja’s influential Seeking
Spatial Justice (2010) opens with a discussion
of a case, Labor/Community Strategy Center
et al. v. Los Angeles County Metropolitan Tran-
sit Authority. This case was the culmination of
the efforts of political lawyers on behalf of a
grassroots movement seeking transportation
justice for low-income, predominantly black
and Latino Angelinos. The outcome of this
case was a consent decree requiring substantial
redistribution of resources (Mann, 1999; Rice,
2002–3). But as Soja also notes, other similar
movements that sought ‘spatial justice’ through
litigation have failed (p. 204). Soja describes the
ruling as ‘a remarkable moment in American
urban history’ (p. vii). He says that the decision
‘signaled a revival of the civil rights movement
and stimulated comparisons to the famous
Brown v. Board of Education case’ (p. viii). But
progressive legal scholars are less sanguine.
Patrick Moulding (2005) discuss some of these
subsequent cases in light of difficulties in pre-
senting evidence of ‘disparate impact’, tougher
standing requirements, judicial limitations on
private rights to sue, the ease with which defen-
dant transit authorities can offer race-neutral
justifications for allocation choices and the
remedial limits imposed by budget constraints,
over which neither defendants nor courts have
any control. ‘Despite one significant litigation
success’, he writes, ‘use of courts presents both
legal hurdles and potentially undesirable side
Progress in Human Geography 40(2)
effects’ (p. 172). He argues that ‘even success-
ful litigation obtaining reallocation of funds
within a transit network may produce a Pyrrhic
victory’ (p. 175). Likewise, Jerrett Yan (2013)
argues that, ‘[u]ltimately most modern attempts
to pursue transit planning equity through the
courts have met with little success. Plaintiffs
struggle to conceptualize, define, and measure
equity in a way that is acceptable to the courts,
and courts are reluctant to substitute their
judgment on complex policy issues for that
of the defendant transit agencies’ (p. 1134).
Yan also mentions institutional incapacity to
enforce rulings. Indeed, in 2011, five years
after the expiration of the consent decree in
Los Angeles, an investigation by the Federal
Transportation Administration found new vio-
lations – brought to its attention by lawyers
working for the Bus Riders Union – that were
‘strikingly similar to allegations [brought]
fourteen years earlier’ (p. 1144).
The point is not to dismiss the efforts of
transit equity activists or even their strategies.
Activists and political lawyers know that much
good can come from losing a case in terms of
organizing, leveraging adversaries and more
(McCann, 1991; Lobel, 2003). Neither is it to
criticize fellow scholars. The point is simply
that closer attention to the actual workings of
law in action vis-à-vis spatial justice can be
useful. Politically engaged legal and socio-
legal scholars, including geographers, have
developed an enormous amount of research
that examines what works and doesn’t work
and why, and with what risks and trade-offs
(Sarat and Scheingold, 2006; Torres, 2008–
9). So legal geography can be good for bring-
ing this practical knowledge to the attention
of those who seek spatial justice, relieving
them from having to re-invent the wheel or
leave them shaking their fists at the sky crying,
‘there oughta be a law!’
Similarly, legal geography may contribute
some depth and nuance to geographical work
on ‘the right to the city’ (the literature on this
Delaney
theme is enormous, but a great start would be
Mitchell, 2003). Kafui Attoh’s article, ‘What
Kind of Right is the Right to the City?’
(2011), raises a number of questions that need
to be taken seriously. He frames his argument
in terms of the under-theorized conceptions of
rights that tend to characterize this project and
draws out the differing implications for ‘the
right to the city’, especially with respect to con-
ceptions for democracy. For me, his claims that
much of the rhetoric of the right to the city is
often ‘vague’, ‘confused’, ‘fuzzy’, and ‘unser-
ious’ ring true. Especially useful is his recogni-
tion that rights claims – and the visions of
justice that may inform them – are often incom-
mensurate and that, ‘all rights, including rights
to the city, pose costs, necessitate trade-offs and
may come at the expense of other rights we
deem important’ (p. 679; see also Schragger,
2013). I also agree with Don Mitchell and Nik
Heynen (2009) that the vagueness of the right
to the city may be a strategic virtue in terms
of rendering injustices legible in the idioms
of law and popular legal consciousness. This
possibility too has been well examined in the
literature on legal mobilization (NeJaime,
2011). But, it’s fair to ask: what happens when
movements organize and invest resources
around rights claims that are not realizable?
What happens to the movements? What hap-
pens to those on whose behalf the movements
work? I’d suggest, and I’m certain Mitchell
and Heynen would agree, that the rights that
matter are rights that matter – substantive
enforceable claims such as rights to affordable,
secure shelter; rights to a dignified employment;
rights to a healthy environment, and so on. That
is, rights that impose enforceable obligations on
others and substantively re-configure the rele-
vant fields of power. These are also rights that,
under the prevailing conditions in many parts
of the world including the United States, are
‘no-rights’. It’s not unreasonable to ask, as many
have, whether ‘rights’ are the right means to jus-
tice. And it’s reasonable to respond: what else
271
you got? No one is more acutely aware of these
issues than Don Mitchell. For more than two
decades, alone, and with collaborators such as
Lynn Staeheli and others, Mitchell has sustained
a strong commitment to diagnosing and criticiz-
ing the workings of the givens as they pertain to
political dissidents, workers, homeless people,
residents of public housing, migrants, and others.
He is, of course, closely associated with the rights
to the city project. But he is also an astute analyst
of the possibilities and limits of law in realizing
rights that matter (Mitchell, 2005, 2010).
Progress in legal geography has been pro-
pelled by scholars and teachers of the caliber
and reputation of Mitchell, Nick Blomley and
Steve Herbert, who have brought distinctively
legal criticism to debates on spatial justice, as
well as by geographers such as Hari Osofsky
and Melinda Benson, who are trained as law-
yers. But perhaps more indicative of progress
in legal geography are the contributions of
non-geographer socio-legal academics such
as Mariana Valverde (2014), Susan Coutin
(2010), and, perhaps most importantly, the
increasing number of law professors who have
engaged in significant ways with critical spa-
tial thought and are bringing it to the attention
of the legal profession. These are scholars who
train lawyers who may work directly with
activists seeking spatial justice. Irus Braver-
man, Sandy Kedar, Chris Butler and Andreas
Philippopoulos-Mihalopoulos are perhaps best
known among legal geographers. Two other
law professors who have demonstrated particu-
larly creative involvement with geographical
thought to illuminate the ways in which spatio-
legal imaginaries invisiblize or legitimize injus-
tice are Lisa Pruitt and Timothy Zick. Familiarity
with their research is required for anyone inter-
ested in what legal geography is good for.
Although the focus of Pruitt’s work is on discern-
ing the various ways in which law works differ-
ently in rural spaces and on the scholarly biases
of ‘metronormativity’, she consistently employs
a refined spatial sensibility to analyses of class,
272
gender and poverty (2008, 2010, 2011, 2014).
Zick has published a number of significant
works over the past decade that reveal the ways
in which conventional conceptions of space
and place are deployed in American First
Amendment jurisprudence, especially with
respect to public expression (2006a, 2006b,
2009, 2010).
In the past few years there have also been a
number of excellent law review articles by
younger legal scholars which are firmly grounded
in the literatures of critical and critical legal geo-
graphy. Among the more insightful and useful for
the discernment and diagnosis of spatial (in)
justice are Elise Boddie’s ‘Racial Territoriality’
(2010–11), Stephen Clowney’s ‘Landscape Fair-
ness: Removing Discrimination from the Built
Environment’ (2013), Sarah Schindler’s ‘Archi-
tectural Exclusion’ (forthcoming), and Mae
Kuykendall’s ‘Restatement of Place’ (2014).
This kind of research not only imports critical
spatial thought into law but significantly contri-
butes to its further development.
IV Conclusion
Critical geography is indispensable for reveal-
ing the workings of power that conventional
spatial imaginaries obscure and for identifying
the whys, hows and wheres of injustice that
are otherwise invisibilized and legitimized.
This is what it’s good for. Much, though cer-
tainly not all, of what is called legal geogra-
phy contributes to these efforts and
can contribute much more. At the same time,
critical geography – legal and otherwise – is
increasingly valued by progressive legal scho-
lars for precisely these reasons. They are
bringing the insights of critical spatial thought
not only to a wider academic audience but to
members of a profession who are, so to speak,
differently situated with respect to power and
the possibilities of justice than are most aca-
demic geographers.
Progress in Human Geography 40(2)
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