Law and the Kinetic Environment

Regulating Dynamic Landscapes

Sarah Marusek

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781315309354
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book addresses the legal-geographical implications of the fact that landscapes are not static, but dynamic. Within the field of legal geography, the spatial relationship of law to landscape is usually considered to be static. Environments are often considered fixed, and consequently inert, as places that literally don't go anywhere. Typically, then, it is what happens in these places, rather than the place itself, that commands academic attention. In contrast to this static viewpoint, Law and the Kinetic Environment considers how many landscapes are in flux and, as a result, may be seen as dynamic. Natural phenomena, such as oozing lava, moving glaciers, or bubbling geothermal pools, challenge and test the normative conceptualizations of stability of place, property ownership, and legal regulation. Consequently, such dynamic landscapes enliven and transform law, offering new jurisprudential insights into what law is and how it operates in response to the kineticism that, this book argues is, to some degree, inherent in all landscapes. This original engagement with legal geography will appeal to those with general interests in this area, as well as specific concerns with questions of law and place, property and the environment.

Chapter 1

Fluidity of land, lava, and law

Law books are often thick volumes with dusty pages that are often unread out of fear, but possibly reverence. We are afraid of law for its own distancing from us, for its rigidity. The critique of legal jargon, legalese, or even the historical framework of legal realism would support this. But, is law more fluid than its formal institutionalism might suggest? This book will assert that law must be fluid in order to react and respond to the unstable volcanic environment in Iceland and Hawai’i. Whether in Hawai’i or Iceland, the volcanic environment is geologically active, socially changing, historically evolving, culturally contingent, and of course, legally framed in ways that constantly change. Law can be experienced in a similar manner. Although there aren’t “legal tourists” per se, we witness law in a variety of settings, from the court to the street. In the same sense that seeing pictures of the volcano is not the same as actually being at the volcano, observing law may be a different experience than that of direct engaging with it. In other words, going to court is much different than watching court proceedings on television renderings of the courtroom, including such American shows as Judge Judy or the earlier The People's Court. Ironically, and in contrast to visiting the volcano, going to court may be much less dramatic. Watching law happen however, is something that we do in ways that we experience on a daily basis. Similarly, the longer one lives next to the active Kīlauea, the more banal this becomes, especially if the volcano is known to ooze rather than explode. However, even living next to such potentially explosive volcanos such as stratovolcanoes around the world (Mt. Rainer, Mt. Lassen, Mt. Etna, Mt. Fuji, Mt. Pinatubo, and others), is something that people do without worry, except if the lava is flowing towards a populated area.

The perspective of law towards lava is one of formality and distance. Yet, if we consider that we live and breathe law in so many aspects of our everyday lives, then we actually become law. Foucault's premise of governmentality would support this notion of we make law happen by living it in our everyday lives. Yet, ownership of the spectacle can be quite complicated as owning nature, or nature as property, means that such places and activities must first be able to be owned for the public good, and second, able to be exchanged and recognized for possible private ownership. Often, ownership of land is premised upon stability and permanence, as real estate and land tracts do not generally move. Sometimes the move when there is a natural disaster (such as an earthquake that moves the land or buildings upon it, a tornado that wipes out structures, floods or mudslides that sweep away architecture or topsoil, or fires that burn down property). However, in dynamic landscapes, the land itself is on the move with structures subject to the same possible elimination. Regulations of the landscape shift as the landscape itself shifts. Movement is interpreted as change, and change is often not foreseeable; yet through science, we can predict. In contrast thought, law reacts rather than predicts. Law is limited in its foreseeable scope of future events. Yet, law remains a permanent and contested structure of Western social order. Similarly, the permanence of land in the kinetic environment is contestable as property ownership discourses show. On Hawai’i Island, much of the property near the erupting Kīlauea Volcano is privately owned; some is publicly owned by the State of Hawai’i, the County of Hawai’I, or the U.S. government. Here, property ownership designators, such as lines on the earth that delineate who owns what, becomes unclear, even non-existent, in the moving natural landscape. In Hawai’i, land may be covered by lava, and even simply fall into the ocean. In Iceland, the people seem to live on the land and near the spectacle rather than attempting to contain the myriad spectacle that exist in the island nation, including volcanoes, glaciers, geysers, and the seemingly ubiquitous naturally occurring geothermally heated pool, or spa.

This book considers the fluid landscape itself to be a spectacle. Environments of nature coincide with environments of people to reveal a fluidity, or kineticism, of how law works, how law happens, and what law even is in the first place. The mobility of the legal terrain is what keeps law percolating in response to culture, science, tourism. Lava is a legal metaphor for law through its constant oozing and occasional eruption. Similarly, bubbling geysers are a legal metaphor for the intermittent explosiveness of law that is timed and regulated according to a cycle of predicated eruption.

Typically, we see landscapes as stable, as places to be owned or regulated, as fixed architecture, or a built environment that is fixed in meaning. The aesthetics of the stable landscape suggest an absence of movement. Yet, such stability may be an illusion. With the rise of natural events such as rising seas, sinkholes, earthquakes, drought, the landscape is much less stable and more active than first considered. In fact, landscapes that change are spectacles of movement that through their dynamism, affect how law is present in such a landscape. Movements in time, in composition, in approach, and in meaning are movements in which law, through legal perspectivism, is also in motion. The kineticism of land and law reminds us that the dynamic landscape is all around in a variety of contexts. The two contexts explored by this book, the Strokkur Geyser of Iceland and Kīlauea Volcano of Hawai’i, reveal the fluidity or land, lava, and law.

The dynamic landscape

In 1916, Hawai’i Volcanoes National Park (HVNP) on Hawai’i Island was organized and signed into law by U.S. President Woodrow Wilson. Over one hundred years later, over 2.5 million visitors from all of the world came to visit Kīlauea Volcano in HVNP (State of Hawai’i 2018). Since January 3, 1983, lava has been erupting from Kīlauea's East Rift Zone towards the ocean. Forming what is now known as Puʻu ʻŌʻō volcanic cone, there have been numerous episodes in which lava covered the land and added new land to the island. As a revealing commentary on law's jurisdiction, the lava has erupted outside the boundaries of the national park into the Puna District of Hawai’i Island comprised of rural communities organized into small towns and private housing subdivisions numerous times. By the end of the most recent Leilani eruption in 2018, “lava flows destroyed 215 structures and buried 8.9 miles (14.3 km) of highway with lava as thick as 115 ft. (35 m)” (Hawaiian Volcano Observatory n.d.). During this time, the lava flowed underground in lava tubes, over the ground in visible flows, and in and out of the boundaries of the HVNP. The fissure at Puʻu ‘Ō’ō evolved through many stages: crater, cone, fissures, lava lake, collapsed cones, lava fountains, oozing streams of lava over the land emptying into the ocean. In 2014, the village of Pāhoa was threatened with lava inundation as that lava flow came within a half mile from the town center. In 2018, lava erupted in the middle of the residential subdivision of Leilani Estates and covered over seven hundred homes. Kīlauea is one of the world's most active volcano, a reality experienced by the island's nearly 200,000 residents.

In the weeks and months that followed the pivotal 6.9 earthquake of May 4, 2018, the legal spectacle shifted domains. Having disappeared into the earth at Halema’uma’u Crater, the lava reappeared outside the National Park on Kīlauea's southern flanks as erupting vents and fissures. With new lava locations, the jurisdiction of this legal spectacle shifted from the public land of the national park to the contested and privately owned land of two residential subdivisions, Leilani Estates and Lanipuna Gardens.¹ Previously within the HVNP, the glow (Figure 1.1) was publicly accessible to those who entered the park's gates. However, as the glow reemerged as spurting fountains and rivers of molten lava flowing across private homes and backyards towards the ocean, access to the glow was publicly restricted, if not effectively privatized through state and county regulations. Competing understandings of jurisdictions arose over how the glow and the flow should be governed. Once out of the park's boundaries, lava flowed uninhibited over layered jurisdictions with a range of jurisdictional actors, including perhaps the most prominent, Madame Pele, the Hawaiian Goddess of Fire [also called Tutu (Hawaiian for grandmother) Pele]. Local governing agencies seemed respectful of Madame Pele's power to transform the landscape yet fearful of uncontrolled human viewing as the National Guard manned roadblocks to the neighborhoods to keep out the public and selectively allow in the local, national, and international media.

Figure 1.1Glow from Halema’uma’u Crater, Kīlauea Volcano at Hawai’i Volcanoes National Park (March 2013); image available at https:/​/​commons.wikimedia.org/​wiki/​File:Halemaumau_Crater,_March_2013.webp

Nearly halfway around the world is Iceland. Iceland is a volcanic island similar to Hawai’i Island. Both islands display a kinetic landscape, rich with lava eruptions past and present. Both islands are spectacles of nature that are home to thousands of residents while attracting millions of global visitors. As places of spectacle, both islands reveal insight into the relationship between law and place as found in molten lava, subterraneous geothermal energy, or boiling water that spouts from the earth's surface. While lava in Iceland seems to be more removed from direct contact with residential communities as in Hawai’i, the contexts of tourism and comparative legal response to the dynamic landscape provides a rich link of kineticism between the two places. In both places, the role of law in offering an avenue for sightseers compels a closer comparison between these two otherwise similar islands.

Geysers such as Strokkur (Figure 1.2), spas such as the Blue Lagoon, and other geothermal hotspots including the slothlike movement of the continental plates at Thingvellir National Park, provide a compelling juxtaposition between law and culture in these two places. On Iceland, the unstable terrain is off limits in some of the country's national parks, while this dynamic, changing aspect of nature in a volcanic setting is open and unrestricted to the public. This is evident at Strokkur, geothermal spas such as the Blue Lagoon, but also including others, floors in residential homes with geothermal hearing, and even as a source of humor on the side-of-the-road DIY bakeries using the steam's heat to cook banana bread. On Kīlauea, lava was the island's liquid that most recently spouted, as was the case at Fissure 8 where molten lava spouted nearly 200 ft. in the air during the Leilani eruption of 2018. Here, geothermal energy is outsourced as a private multi-national electricity-generating company rather than the public avenue of heating floors as Iceland as the country's primary source of state-funded heating in homes across the country. Throughout the book, Iceland will be a secondary point of examination with lava from Kīlauea primarily guiding the book's analysis and discussion. In this context of molten lava, pools of boiling water, and the impacts of both on the surrounding environment, the spectacle involves natural phenomenon. As humans, we want to see this events and flock to experience their viewing. We are witnesses to the spectacle of the dynamic landscape. The spectacle also creates a cultural scope in which the natural spectacle creates locally specific reactions, understandings, and ways of living with the spectacle. Ironically, those that live with such natural phenomena may even normalize their everyday frameworks through the relationship with the spectacle. In this way, the spectacle becomes normalized. However, the visitor to such natural phenomena is apart from this cultural normalization. Like any tourist setting, the host culture may welcome or discourage visitation to this spectacle based around the beliefs and practices of ownership, access, and usage.

Figure 1.2Strokkur Geyser, March 2016, image copyright: this author.

Home to the spectacle, the kinetic environment is a landscape that moves. This dynamic landscape can include surface features that are themselves in motion, such as glaciers, geysers, or volcanoes. Yet, the dynamic landscape also includes the components of a particular environment, ranging from the air above, related weather, manmade infrastructure, and spontaneous natural occurrences that change the land itself. The materiality of cooled lava is land that was once alive and is now static (Bennett 2010). Yet, before the cooling of lava, the landscape is an enlivened molten terrain that law and culture respond to. Whether in Iceland or in Hawai’i, those of us on the land are subject to what happens beneath the surface. Prediction happens, law responds, and culture adapts and thrives in these kinetic places. As an active and evolving spectacle, Kīlauea and Hawai’i Island, like Iceland, is a dynamic landscape that involves the eruption of magma from the earth's core over the land into the ocean, the explosive movement of rock at the volcano's summit, and the impact that such movement has on the communities, culture, and local governance. The regulation of these places invites a closer look into law itself as a spectacle involving risk, ownership, common sense, and instability. Just as the volcano is a spectacle, law is also a spectacle. Both spectacles are visual, insofar as we see the movement of lava or steam just as we see courts, lawyers, or police officers. We view the spectacle for its superficial character, yet upon closer examination, the dimensions of what we see reveals insights into what really is a landscape or what really does law look like? Landscapes whether natural or legal are dynamic with regard to terrestrial flow and the motion of action framed as public spaces.

Within the context of the most recent turn in the field of legal geography that links spatiality to temporality (Braverman et al., 2014), the dynamic landscape is not fully discussed. Instead, with a focus on the jurisprudence of movement (Barr 2016), the dynamic landscape becomes a kinetic environment that literally expands the time–space relationship of place in order to consider the motion of landscape that make place kinetic and in motion through law and legal frameworks. Such motion invokes spatio-temporality, yet extends the inquiry to frameworks of stability and instability with attention to construction, expectation, and responses to spectacle. This resulting conceptualization of mobility invites a way to see how law works in enlivened terrains. We can experience law's relationship to transition in such everyday mobility frameworks as the road; yet motion also reminds us of the limitations of law with regards to transitions, those same everyday mobility frameworks, and a changing landscape though natural disasters and climate change. Because we are on the move, law must constantly also be on the move. This fluidity of law reminds us that law's relationship to place is constantly in flux and has a difficult time remaining static. In fact, such stability cannot address the evolving terrain that law inhabits, vacates, and returns to within the dynamic landscape. Exploring the changes that accompany place and its occupancy “endeavors to reconnect the concealed, forgotten or prohibited connections between peoples and places, between the human and the more-than-human” as Robyn Bartel (2013, 343) suggests.

In the changing environment of Kīlauea, law's contribution to social order reveals a positionality emerging in multiple ways. Law seems to achieve perceived rationality in times of chaos and jurisdiction even as it is careful not to assert complete dominance over an active volcano. The nuance of law's relationship to people within this environment confuses the legal hierarchy of law over nature while elevating law to a position of asserting authority to direct the actions of people when environments come alive. Danger and risk are rationalized in support of law taking responsibility over the spectacle for purposes of public protection. While this often is for public benefit, because the volcanic landscape is an uncontrolled environment and such environments are dynamic and ultimately unresponsive to human authority, law can only control the discursive framing of the spectacle at hand through limiting people's movements and access. Through discursive practice, the law positions itself as the director of management efforts and as the source of control, a responsibility taken out of the hands of the public.

Yet, just as we know that nature is beyond regulation, law is also imperfect in its attempt to control chaos. Chaos, or the discursive antithesis to order and regulation, is fleeting, spontaneous, often without forethought, and happens in everyday scenarios that themselves are beyond regulation. Chaos can transpire in dynamic natural environments such as Kīlauea as well as in manmade environments. Responses to chaos arise in human nature in ways similar to the unpredictability of the enlivened landscape as actions that cannot always so easily be predicted. In considering the chaos of the oozing volcanic landscape of Kīlauea, the lavascape emerges as a place in which order is framed against the backdrop of disorder and articulated through a variety of legal understandings and practices that perpetuate ensuing chaos.

Reading the kinetic landscape of Kīlauea as a lavascape pays particular attention to the complexity of this particular lawscape. Multiple spatialities that reveal law's own conceptualization of its role in this instable environment are evident. Here, the complexities of law are multiple and involve the following interfaces: Legal spectacle; legal materiality; legal imagination; legal semiotics; legal topology. As a visual spectacle within this fluid legal environment, the lavascape of Kīlauea represents a paradox of legality and jurisdictional space involving the post-colonial attempts to corral an active volcano, the Americanized understanding of property and owning nature, and a local culture steeped in indigenous knowledge and practice. In the sections that follow, the legal spectacle of the lavascape at Kīlauea will be examined against the backdrop of a jurisdictional juxtapositioning of order with chaos while critically examining the context of regulation in a kinetic environment characterized by sightseeing, access, and mapping.

Many scholars have envisioned a variety of ways to depict the legal landscape. From the perspectives of those who walk (Barr 2016; Blomley 2011), those who drive (Wagner 2006; Marusek 2016), and those who build buildings (Dovey 1999), zoos (Braverman 2012) or construct walls (Jones 2012; De León 2015), approaches to environments enriched with legal meaning, or what I refer to in this paper as “lawscapes,” generate a multi-layered scope of the constitutive relationship between law and everyday life. Andreas Philippopoulos-Mihalopoulos (2015, 4) describes the lawscape as “the way the ontological tautology between law and space unfolds as difference” in ways that are both visible and invisible. John Brigham (2009a, 382) considers the visual framework of the lawscape through lines and explains “seeing jurisdiction means seeing the lines laid out by law and knowing what they mean.” Margaret Davies (2017, 30) describes the lawscape insofar as “law becomes what it is, where it is - in material locations as performed in and by subjects who are both recipients of law and conveyors of it.” A theme of law and place that emerges from these varied, yet related characterizations of the lawscape perpetuates the space of law as an ongoing, fluid project of legibility in which the contest of legal authority contrasts with a localized understanding of place.

Because the experience of place is locally determined, ontological frameworks of place reflect the construction of place as a site for events to transpire in certain ways. Whether on the street (Valverde 2012; Marusek and Brigham 2017; Kohn 2004; Blomley 2011) or in the lavascape, understandings of place are framed through law, socio-legal norms and legal regulations. This understanding of place is uniquely emphasized at Kīlauea, as local law currently operates in response to Madame Pele rather than against her. However, this wasn’t always the case, as the volcanic flow of lava from neighboring Mauna Loa was bombed by the U.S. milita...