The Spatial, the Legal and the Pragmatics of World-Making

Nomospheric Investigations

David Delaney

• Publisher: Taylor & Francis
• Year: 2010
• eBook ISBN: 9781136953019
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Critical legal geography is practised by an increasing number of scholars in various disciplines, but it has not had the benefit of an overarching theoretical framework that might overcome its currently rather ad hoc character. The Spatial, the Legal and the Pragmatics of World-Making remedies this situation. Presenting a balanced convergence of contemporary socio-legal and critical geographic scholarship, David Delaney offers a ground-breaking contribution to the fast growing field of legal geography. Drawing on strands of critical social studies that inform both of these areas, this book has three primary components. First, it introduces a framework of interpretation and analysis centred on the productive neologisms 'nomosphere' and 'nomoscapes'. Nomosphere refers to the cultural-material environs that are constituted by the reciprocal materialization of 'the legal' and the legal signification of the 'socio-spatial'. Nomoscapes are the spatio-legal expression and the socio-material realization of ideologies, values, pervasive power orders and social projects. They are extensive ensembles of legal spaces within and through which lives are lived and, here, these neologisms are related to the more familiar notions of governmentality and performativity. Second, these neologisms are explored and applied through a series of illustrations and extensive case studies. Demonstrating their utility for scholars and students in relevant disciplines, these 'empirical' studies concern: the public and the private; property and land tenure; governance; the domestic and the international; and legal-spatial confinements and containments. Third, these studies contribute to an ongoing theorization of the experiential, situated pragmatics of 'world-making'. The role of nomospheric projects and counter-projects, techniques and operations is therefore emphasized. Much of what is experientially significant about how the world is as it is and what it's like to be in the world directly implicates the dynamic interplay of space, law, meaning and power. The Spatial, the Legal and the Pragmatics of World-Making provides the interpretive resources necessary for discerning and understanding the practices and projects involved in this interplay.

Chapter 1
Welcome to the nomosphere^*

“To understand history and its motions … we must first understand the history of the prevention [and the compulsion] of motion”

(Reviel Netz, Barbed Wire: An Ecology of Modernity, 2004: xii)

The geopolitics of ICE, or an introduction to world-making

Let’s begin with a situation. A disturbing situation. The men with guns entered Rosa Sorto’s home by breaking a window and unlocking the side door (Arias v. ICE brief [07–01959]). It was 6:30 in the morning. They went from room to room demanding that sleepers arise, assemble in the living room and submit to questioning. Some of the men who lived in the house were taken away in handcuffs, dressed only in their boxer shorts. Some people were allowed to stay after the men with guns left. The invasions were repeated for four days all over town. Throughout 2007 and 2008 they were repeated in dozens of small towns and urban neighborhoods throughout the country (Chiu et al., 2009). Hundreds of men, women, and children were rounded up, put on waiting busses, sent to local jails, army bases, and detention facilities a thousand miles away. Some were flown out of the country. Children were stranded in day-care centers and schools with no word as to where their parents had been taken. One girl said, “All of us are scared. When you go to school you don’t know if your parents will be there when you get home. I don’t feel safe anywhere—walking to the school bus, walking outside the school building” (Freedman, 2007). In one town 400 people took refuge in the basement of a Catholic church.

The men with guns were participating in world-making projects called Operation Cross Check and Operation Return to Sender. Among the towns where these militarized maneuvers took place were Wilmer, MN, New Bedford, MA, Pinsville, OH, and Greely, CO. Small towns such as Cactus, TX were virtually emptied of residents after, in the words of The New York Times, “… hundreds of agents clad in riot gear and armed with assault weapons” raided a work-site (Moreno, 2007). The men with guns were members of a Fugitive Apprehension Team working for ICE (the Bureau of Immigration and Customs Enforcement), an agency of the US federal government’s Department of Homeland Security. Those who were on the receiving end of these “operations” were slaughter-house workers, garment stitchers, gardeners and day-laborers. They were also mothers, sons, sisters. Some were petty criminals, some were mentally retarded. Some were labor organizers. Some were citizens of the United States; others were citizens of Mexico, Honduras, and El Salvador. Practically, perhaps they were citizens of nowhere, denizens of the global assembly line. Some American citizens have had their homes invaded multiple times because of “mistaken identity” (Bernstein, 2007a, 2007b). Primarily these people are suspects. They are suspected of being in the wrong place, on the wrong side of the line. They are suspected of being persons whose very physical existence is construed as “illegal presence.”

The timing of Operation Cross Check coincided with US Congressional debates about “comprehensive immigration reform” that includes the re-establishment of a guest-worker program (under which “aliens” may be authorized to work in the US but with the possibility of becoming voting citizens permanently foreclosed), and the construction of a 370-mile long, 18-foot high wall along the northern border of Mexico (Hulse and Swarns, 2006). Operation Cross Check may have been no more than a demonstration project intended to “send a message” that the Bush Administration was taking “the illegal alien crisis” seriously (Emanatian and Delaney, 2009). But this “message” was sent through the enactment of events such as those just sketched. The men with guns were enforcing the rules that constitute immigration law. The rules exist and they were broken. Against complaints to the contrary, their superiors assert that the ICE raids, as they are called, are conducted in compliance with the law. Anticipating challenges by migrant-rights and civil-rights activists, one spokesperson, Tim Counts, has stated, “We’ll make our case in a court of law” (Freeman, 2007). Advocates for the prey argue that the raids are conducted with defective warrants or no warrants at all, in violation of the Fourth Amendment (Chiu, 2009; Arias v. ICE 07–01959). Whether or not Guatemalans, Salvadorans, or Mexicans had crossed into the space of sovereignty without authorization, advocates allege that the agents had crossed into the space of privacy illegally. And this, they assert, makes all the difference.

The situations that unfolded in Rosa Sorto’s living room in Wilmer, MN, the Swift Company meat-packing plant in Cactus, TX, the Bianco Inc. shop-floor in New Bedford and hundreds of other sites during the time that Operation Cross Check, Operation Wagon Train, and Operation Return to Sender were sweeping through the American landscape, can be described, analyzed, and assessed from a number of perspectives. For example, one could emphasize the causal relationship between these events and the global or hemispheric political-economic transformations that exacerbated conditions of immiseration in the villages and cities of Latin America (Lopez, 2007; Stephen, 2007). From this vantage point one might explain why millions of people are sufficiently desperate to feel compelled to walk for weeks in order to reach Los Estados Unidos, where they might (or might not) get a chance to earn 10 dollars an hour cutting up cow carcasses on a fast-moving assembly line. One might better grasp the importance of remittances from the US for mitigating the effects of immiseration.

Alternatively, one could emphasize the experiential realities related to raising the money to make the trip, transacting with coyotes who may as well leave them to die in the desert as not, living clandestinely after they arrive. One could, for example, focus on the everyday lives of people such as Fausto Lopez and other Mixtec, Triqui, and Zapotec people who live in makeshift encampments along California’s Russian River. David Bacon’s book, Communities without Borders: Images and Voices from the World of Migration (2006), documents the daily lives of these migrant workers—how they work, shop, eat, raise their children. For many, for example, members of el Frente Indigena de Organazaciones Binacionales, (a movement of “indigenous—aliens”), an immediate aspiration is to learn enough Spanish to communicate with other agricultural workers in California.

One might also try to understand these situations as they were experienced by those gathered up in the ICE raids. A woman who was swept up in the New Bedford raid describes some of her experiences like this:

It was a Tuesday, we were all working and all of a sudden a whole rush of people entered. I heard someone scream. When I moved back to see I saw a whole bunch of people entering. They were grabbing people … They would grab [the men] and throw them to the floor, even hitting their faces. When I saw this I ran to the first exit I found. When I was going there I saw even more coming in … The word I kept hearing them use was Fuck You.

They took me out of there around five. In a place they were taking information. That took a long time, and the women that had small babies, some of them were let go. But they didn’t listen to the majority. Because I told them about my daughter and I told them that I didn’t have anyone to leave my daughter with … Then when we were there, I don’t know the name, where they detained us the first time … There were several other rooms. I saw that all of the other women … were being taken to talk with the lawyers. So I asked them, “why don’t you take me?” They told me, “if you are not on the list, you won’t be called”…It wasn’t until they moved me to El Paso, Texas … then the lawyers came and they let me talk with them.

The truth is they did treat us badly. Because some of the women had young children who breast-fed I saw because I was near them. They even made them take the milk from their breasts to see if it was true that they had young children … They even made fun of them … That they were milking the cows … This is what—I don’t know— imagine, one comes to work and it is unjust … One of them was guarding us—when they were taking us. She took my hair-clip because I had a hair-clip, like this and she put her hand on my head and messed my hair up. And they started to laugh. They began talking in English— laughing. Because imagine, with the hair messed up. She even did it more, to mess up my hair more and they just laughed. And that, the women feel even worse because the men were watching when they were taking milk from their breasts. It was so ugly …

(YouTube, “New Bedford Detainee Testimony,” April 10, 2007)

Or, as is perhaps most common, one can exclude reference to both political economy and lived reality, and describe, analyze, and assess these facts of the matter as they are prefigured by legal categories (alien/citizen; documented/undocumented; due process, Fourth Amendment) and conventional spatial images (territorial sovereignty; borders; property; privacy). The alien and the citizen, the predators and the prey, all of us, live in a world in which power and experience are profoundly shaped and affected by space, law and their complex intertwinings. We continuously participate in making, un-making and re-making the world through the practical enactment of these intertwinings. Much of this is obvious. Lines are drawn, lines are crossed, lines are blurred. Distinctions are made, distinctions are un-made. Lines of force are channeled or deflected. But much of this is not obvious.

Fields of power / lines of force

As Henri Lefebvre has written, “That space signifies is incontestable. But what it signifies is dos and don’ts, and that brings us back to power” (1991: 142, emphasis added). And that brings us back to law. The worlds of human experience are composed of an uncountable number and innumerable variety of social spaces. Some are global in extent, some smaller than your hand; some are fixed to particular landscapes, some are in motion. The ways in which these spaces are created and altered, assembled, disassembled and reassembled, strongly condition what the world is like and what it is like to be in the world—that is, what this or that life is like. These spaces are meaningful—they signify, represent, and refer. They are, therefore, interpretable. The interpretations of social space may serve as unexamined premises for conclusions. The meanings in play may register widely within a culture or community (keep out) or they may be highly technical, specialized (the rule against refoulement, the exceptions to the knock-and-wait rule, the scope of the plenary power doctrine) or even idiosyncratic. But meanings are not extrinsic to the spaces; rather, spaces are constituted by their meanings, or, as it is commonly expressed, such meanings are “inscribed” onto segments of the lived, material world. Insofar as the meanings so inscribed are ambiguous (and amenable to reinterpretation) then so are the spaces, and so are the situations that unfold with reference to these spaces. Spatialized meanings are not inert or passively waiting to be read or interpreted. As reflection on the ICE raids suggests, they may be productively understood as performable—as able to be taken up through bodily comportments. Particular spaces (this camp, that native reserve, that special housing unit of a maximum-security prison, this penalty-enhancement zone) and constellations of spaces can therefore be investigated in terms of their performative characteristics and effects, that is, in terms of how they are performed. At the same time, such inscriptions and performances may accomplish the materialization of meaning. Signifiers may be given concrete expression in boundaries, checkpoints, fences, doors, and thresholds; or in the ways in which components of the built environment are assembled; or the in ways in which more extensive landscapes are organized into fields of power.

There are a lot of kinds of meanings that may be so inscribed, performed, and materialized. Segments of social space or place may be invested with affective significance. One kind of meaning that is of profound significance for the production of social space is legal meaning. Sometimes legal meaning may be explicitly attached to the edges of social spaces: “keep out,” “authorized personnel only,” “NOW ENTERING MUDVILLE.” Sometimes the meanings are tacit, having been learned through habituation. Consider the spatialities of “the public and the private” and the ways in which these condition experiential fields of power. In certain situations, though, the meanings and their entailments can be activated, or raised to a more conscious level of awareness. They often spell trouble. Just ask Michael Anton Michels, who was arrested for jogging in the nude in “pubic space”—“indecency” being a function of the law-space conjunction (R. v. Michels, 27 W.C.B (2d) 170, 1995 (Alberta’s Queen’s Bench)). Or, ask Dana Derungs, Jennifer Gore, and Angie Baird, who were all ejected from Wal-Marts for breastfeeding their infants in the stores—which are interpretable as “public space” in one legal sense and as “private space” in another (Derungs v. Wal-Mart, 374 F.3d 428, 2004). Just as the socio-spatial may profitably be understood as performable, so too the socio-legal may be—must be—performed if it is to assume a presence in the world of experience. The ICE agents performed legality one way, the employees who expelled Dana Derungs performed it another way. However, as Igor Stramignoni has observed, “in spite of the ubiquity of Space in law’s many legal domains—or, perhaps, precisely because of that ubiquity—modern Western law seems to pay little attention to it” (2004: 179).

Consider these other recent episodes in the mutual constitution of the legal and the spatial and their intertwinement with power as experienced by:

• demonstrators at the 2004 Democratic Convention in Boston, who were herded into “protest pens” so as not to disturb delegates, and so as to be more easily monitored by authorities (Bl(a)ck Tea Society v. Boston 378 F.3d 8, 2004);

• or Ho Kim Ma, a “legal alien” in the US who arrived there as an infant refugee from Cambodia. Ma completed a prison sentence for assault and was then formally deported. But, because Cambodia would not accept him, he was “detained” indefinitely, and then spent years being transferred from one private, corporate “detention facility” to another without any hearings and without access to attorneys (Ma v. Reno, 208 F.3d 815, 2000);

• or members of the Uintah Indian Nation, whose reservation was found in 1992 to have been “diminished” by implication eighty years earlier, a decision that resulted in a retroactive loss of tribal land base and reduction of tribal sovereignty (Hagen v. Utah, 510 U.S. 399, 1994);

• or Pearlie Rucker, who was evicted from her apartment in an Oakland public-housing complex because her daughter had violated the “one strike and you’re out” provision of the Anti-Drug Abuse Act of 1988 (Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 2002);

• or Suzanne Kelo of New London, Connecticut, whose property was expropriated by the city and sold to private developers for “the public benefit” (Kelo v. New London, 545 U.S. 469, 2005);

• or Luz Marina Cardoza-Fonseca, whose application for asylum was denied because even though she had demonstrated “a well founded fear of persecution” the feared persecution was not deemed to be “on account of political opinion” (INS v. Cardoza-Fonseca, 767 F.2 1448, 1994).

• (The references to “cases” indicate not only the existence of troubles but also the existence of contestable interpretations of law-space. And while they clearly represent important experiences in the lives of participants, each was also the occasion for broader systemic reiterations, reinforcements, modifications or transformations.)

• Or, if you have ever trespassed or been trespassed against; been evicted, deported, excluded, detained, extradited, banished, or quarantined; had your privacy invaded, been segregated or de-segregated, been subjected to “extraordinary rendition,” lost your passport, or are a native Hawaiian, illegal alien, or Palestinian … ) you can just ask yourself.

If we understand these primarily as spatial events, some of their features (boundaries, containment, mobility, expulsion, partition) will be foregrounded as other features are filtered out or marginalized. On the other hand, if we understand them primarily as legal events, other features (policing, administrative procedure, doctrinal elaboration, rights) will be given prominence as others are filtered out. There are, though, a multitude of ways of understanding spatiality, legality, and their relationship (or practical intertwinements). Some of these ways can be described as conventional, some are less conventional, or critical. In this work I will argue that conventional ways of understanding either the legal or th...

Table of contents

• Contents
• Acknowledgements
• Chapter 1 Welcome to the nomosphere*
• Chapter 2 Nomospheric situations
• Chapter 3 Nomospheric settings
• Chapter 4 Nomoscapes
• Chapter 5 Nomospheric projects
• Chapter 6 Nomospheric techniques
• Notes
• Bibliography
• Index