On legal geography as an analytical toolbox for EU legal studies

Abstract

EU legal geography concerns itself with the mutually constitutive relationship between EU law and space (also, and increasingly so, time). This requires reconstructing and systematizing the widely used concepts which reveal the geographical basis of EU law (such as movement and circulation), but also developing a particular viewpoint, indeed a specific “ethos of investigation”, which equips us with the tools to challenge and transcend the dominant ways of doing EU law. In particular, it is argued that a geographic turn in European legal studies will foster the study of how law works “on the ground” and will allow challenging taken-for-granted ideas about the relationship between law and political order, while throwing new light on the very technical concepts with which we reconstruct, analyse and assess EU law.

1. Introduction

This is a joint reply to Floris de Witte’s article, included in the present issue of European Law Open. We were very pleased to read de Witte’s contribution. It was about time that someone ventured into the uncharted lands of imaginary dragons and proposed a research agenda for legal geography in European Union (EU) legal studies! De Witte’s article is remarkably clear, comprehensive, and free from the type of conceptual excesses that mark many current debates on space and time.¹ De Witte describes in straightforward terms what it means to ‘think spatially’ and why it is useful to do so in order to understand the workings of EU law ‘on the ground’. In particular, de Witte identifies several concrete areas and developments in the EU legal order that both reveal the intertwined relationship between EU law and its spatial ‘context’, and that call for a legal geographic analysis, such as the changing status and role of city authorities in EU law.

As de Witte so expertly explains, legal geography is a truly interdisciplinary approach, concerned with the mutually constitutive relationship between law, space and, increasingly also, time. ² These relationships are intensely concrete. The geography of both ‘natural’ and social life is thoroughly structured by law. Conversely, law is embedded in social and political processes, and mediated by various spatial and biophysical factors. As de Witte notes, a substantial corpus of EU law deals with pre-eminently ‘spatial matters’: agriculture, environmental protection, transportation, waste management – and, of course, the ostensibly ‘free movements’ of goods, capital, services, and people. The lexicon of EU law is also full of inherently geographical terms and concepts: ‘circulation’, ‘free movement’, ‘internal market’, ‘regions’, and ‘territory’. We agree with de Witte that legal geography offers an especially productive analytical toolbox to explore the different fields of EU law, and to understand ‘what it means to live under EU law’. In this short response, we wish to emphasise and elaborate on some of de Witte’s arguments, and to offer some examples of how we have made use of the analytical tools of legal geography in our own work.

2. Where do we come from?

There is a personal aspect to the story of how we each found our way to the space of legal geography. We met while we were doctoral students in urban studies and European labour law, respectively. We became friends and later partners, but we also discovered that there was some overlap between our respective PhD research projects in so far as they both dealt with the geographies of labour and social rights in the EU. In our conversations, we also found that it was quite enriching to work across the divides between our respective disciplines. In our joint and separate work, we have made use of the analytical resources of legal geography to re-conceptualise the problem of social dumping and, ³ more broadly, to explore the multi-scalar regulation of ‘work on the move’ in the EU, ⁴ especially within the logistics and transport sectors. ⁵ We have also done work on internal bordering in the context of intra-European so-called poverty migration. ⁶

3. Starting from the ground up

Legal geography, as de Witte notes, is not a solidified sub-discipline, nor a systematic methodology. As the title of our response suggests, we prefer to think of it as a conceptual and analytical toolbox. It is also a way of asking questions, a particular ‘ethos of investigation’: ⁷ a context-sensitive, empirically oriented and reflexive approach that is simultaneously attentive to the detailed workings of law. De Witte suggests that legal geographic analysis allows for an exploration of the everyday experience of ‘[living] under EU law’ and, with that, a better understanding of (popular) resistance to the project of EU integration. He is right in this. EU integration is not an a-spatial or ‘extra-territorial’ process; it does not unfold in an abstract space above or beyond the concrete geographies of everyday life.⁸ This fact is made clear by the evolving meaning of the concept of ‘territory of the Union’ in relation to the possibilities of individuals to exercise and claim rights attached to EU citizenship status.⁹ This, in a nutshell, is why it is useful to approach the study of EU law using the toolbox of legal geography.

In what follows, we wish to highlight three characteristics of legal geography that, we believe, make it a productive analytical approach: first, the methodological orientation towards the workings of law ‘on the ground’; second, the attention to the technicalities of law; and third, the use of concepts that allow us to challenge taken-for-granted ideas about law and political order, not least in the context of the EU.

Legal geography encourages us to reconsider the epistemologies and methodologies of EU legal studies. If doctrinal analysis remains dominant in the field, legal geography ‘flips the script’ so that instead of treating law as an abstract set of principles and rules that are ‘applied’ to real-world situations, we start from a concrete case or situation to consider the complex workings of law ‘on the ground’. Qualitative, empirically oriented, and context-sensitive methodologies for data collection and analysis (such as ethnographic, interview, and case studies) can lead to new discoveries, and allow us to explore dynamics that might have been overlooked had we started from the abstract principles and rules set out in conventional legal source materials. An instructive example of this is Mariana Valverde’s detailed empirical studies of the mechanisms and effects of ‘everyday law on the street’.¹⁰

Legal geography is in many ways similar to the broader field of socio-legal studies. However, geographic methodologies allow for inquiries into the more-than-discursive dimensions of law and legal practices. Legal geographic methodologies involve an analysis of how abstract legal categories and regulations ‘map onto’ concrete, lived space and pays attention to the material/spatial and lived relations of power, oppression, and resistance. A good example is Ellen Gordon-Bouvier’s analysis of domestic work, which shows how the regulation of this type of work in English law reiterates a gendered division of labour, reflected into the spatial distinction between the private space of the home and the public domain presumed by property law.¹¹ In our joint work, we have explored how EU regulations on the freedoms of establishment and providing services – which are intended to promote market integration and economic development by removing barriers to company mobility – ‘map onto’ the uneven socio-economic geography of present-day Europe. They then create the conditions for social dumping to take place while simultaneously re-configuring both the legal and geographical space for action by trade unions and workers. ¹²

4. Attention to ‘Legal Technicalities’

A second reason why we find legal geography to be so useful as an analytical approach has to do with its attention to the detailed workings and technicalities of law. ¹³ This includes its focus on the ‘spatialities of law’. That is, how law ‘envisages both physical space and the space of governance’, ¹⁴ whether it works through categories of space and, if so, how these spatial categories are defined and demarcated. Legal geographers have documented many examples of spatial tactics in law – including court-imposed spatial prohibitions (so called ‘red zones’) ¹⁵ and spatial limitations on begging, ¹⁶ freedom of speech (eg free speech zones), ¹⁷ and even kissing.¹⁸ These works interrogate the ability of law, and of legal actors, to govern people by governing space in ways that negatively affect already disenfranchised and marginalised subjects.

Drawing extensively on this subset of the legal geographic literature, Persdotter’s PhD thesis explored how internal bordering took place in the EU in the mid-2010s. More specifically, it traced the multi-scalar governance of destitute mobile EU citizens (mainly Romanian Roma) in Sweden. It showed that the Swedish state, unable to enact restrictions on the entry of ‘unwanted’ EU citizens, have turned to enable local-level municipal governments to mobilise a host of measures to regulate how ‘vulnerable EU citizens’ are able to access and use urban space for securing shelter and livelihoods. Thus, individuals who are formally free to move and reside within the union have been subjected to a set of government practices (including systematic evictions) that aim to discourage and otherwise manage their mobilities by controlling their conditions of stay in such a way that they are effectively prevented from settling. ¹⁹ Here, the analytical resources of legal geography were useful to explain not just how this shift happened, but also to shed light on its detailed workings, effects, and implications. For example, the thesis showed how the framing of destitute EU citizens as a nuisance and public order problem – due to the technicalities of nuisance law – effectively contributed to undermine claims for their rights and protections.²⁰

5. Conceptualising complexity and change

Finally, the main reason why we both find legal geography to be so suitable as an analytical approach to the study of EU law specifically is that it offers a language and conceptual framework to describe the always changing configurations and geographies of authority in the EU, as well as to explore their complexities. ²¹ The project of EU integration is fundamentally about the re-scaling of state powers and the forging of multi-scalar institutions and relations of government. Static concepts are not helpful in understanding these processes. Instead, we need to think of categories such as ‘regional’, ‘national’, and ‘supra-national’ as open and, to some extent, always undetermined. That is, as historically specific representations and materialisations of socio-political relations. ²² The same goes for the concepts of ‘jurisdiction’ and ‘territory’. Indeed, the recent assertions of sovereignty by the Hungarian and Polish governments – and prior to these, ‘Brexit’ – serve as a stark reminder of the contingency of the EU’s political and legal orders.

Different scales of regulation are not necessarily mutually exclusive. ²³ On this point, we would like to echo de Witte’s suggestion that legal geography can help us to question a widespread assumption in EU legal studies: namely, the assumption of uniformity. ²⁴ In our work, we have called attention to some of the many messy spaces of EU law. Drawing on recent studies of the spatialities of mobile work and EU labour law,²⁵ we have attempted to challenge the idea that EU integration unfolds through a one-directional transfer of powers ‘upwards’ from the Member States to the EU.

In a recent article²⁶, we argued that EU integration turns on the scalar differentiation of powers between various scales of government: a sorting of competencies between the EU institutions and the Member States. In the context of European labour law, this scalar differentiation of powers means that the EU institutions have been given the competencies to regulate cross-border company operations. Meanwhile, core labour law matters remain the competencies of the Member States. This gives rise to a cross-border jurisdiction where companies compete across the EU internal market on the basis of their geographical location and therefore on the basis of the labour law regime they formally belong to. ²⁷ Thus, the contemporary European regime of labour law can be usefully thought of as a ‘patchwork’, characterized by ‘a situation of simultaneous fragmentation and overlap of labour law regulations across and within the EU Member States’. ²⁸ This matters because the current scalar division and differentiation of powers makes national labour law functional to the working of the EU internal market, which, in turn, reinforces the inequality between capital and labour as social powers, while placing constraints on transnational actions by trade unions and workers. ²⁹

6. Concluding remarks

To conclude, we want to, again, acknowledge the timeliness and importance of de Witte’s intervention. A research agenda oriented by legal geographic concepts and methodologies might guide us beyond the framework of the ‘crises of the EU’ that is (re-)currently used to describe the failures and shortcomings of the EU legal order. Challenging the view of the EU as monolithic, it allows us to carefully explore EU integration and law as historically and geographically situated and to investigate how it all works ‘on the ground’. Let’s start this journey!