This chapter sketches the contours of a methodological attitude aimed to explore the spatiality and materiality of law by taking abstraction seriously and using abstraction strategically. This is done through five steps. First, I briefly account for the impact that the spatial and subsequent (affective, material, post-human) turns in social sciences and humanities had on the notion of the social. Second, I draw the relative consequences vis-à-vis the law, by introducing the notion of spatiolegal. Third, I describe the way in which within the legal system, as well as legal thinking more generally, space has been systematically misunderstood. I especially focus on the case of socio-legal and critical legal approaches, highlighting how beneath their misunderstandings they betray a common incapacity to overcome the separation between law and space, thus reaffirming under another guise the opposition between the abstract and the concrete. Fourth, I tackle this question by integrating insights on the ‘real’, ‘concrete’ and ‘productive’ quality of abstractions, coming from Karl Marx, Peter Goodrich, Gilles Deleuze and Felix Guattari. Along these four sections, the strategic significance of re-evaluating the notion of abstraction becomes gradually apparent, both in the political and methodological sense. Therefore, fifth, I conclude by distilling the discussion hitherto developed, and operationalise it through an empirical example. In this way I am able to show the methodological approach developed in this chapter at work, as well as to provide a minimal testing ground for assessing its usefulness.
Browse by title
In recent years, actor-network theory (ANT), and the work of Bruno Latour in particular, have gained significant interest amongst legal scholars. This approach, derived from Science and Technology Studies (STS) and bearing various links with anthropology and ethnographic methods, has enabled new insights to emerge in relation to the ways in which law operates in everyday practices. The innovative position the approach suggests has been largely based on the breaking down of the dichotomy between nature and society, humans and non-humans, and in turn on an emphasis on the importance of materiality in social practices (and its complexity). In his early work, Bruno Latour therefore laid out the foundations of what was to become a radical rethink of sociological assumptions, by challenging the extent to which humanity can ever be imagined as being fundamentally separate from nature. Consequently, he argued that some of the most fundamental assumptions of modernity, about how knowledge is made, societies are built, and humans can relate to their environment, are mistaken and in need of revisiting. Given its deep engagement with our relationship with nature, and its grounding in the sociology of science, it is somehow surprising that ANT has not been more frequently explored in environmental law – in spite of a few examples. However, more resources are available to those wanting to imagine what an ‘ANT approach to environmental law’ may look like, if engaging with STS and the anthropology of science literature that has in recent years aimed to unpack some of the legal stories that surround environmental practices. In this chapter, I seek to bring together some of this scholarship to reflect on what ANT can bring to environmental law research. The chapter is illustrated specifically with the example of the use of natural resources for industrial purposes, and the long-standing debates on ‘biopiracy’ that have animated much legal debate since the 1990s. Through this example, I retrace the difficulty for modern environmental law to engage with practices that challenge the boundaries between nature and humanity, and the dichotomies on which law has so far operated. I explore how studies that have embraced some of the more radical claims of ANT and STS, and engaged ethnographic analyses of social practices, have illustrated how law often fails to seize the messiness of the entanglement of nature and society. I conclude by discussing how ANT, and the work of Bruno Latour, can be used more broadly by environmental lawyers seeking to reimagine the ways in which law relates to nature.
The text sketches out a methodology of ‘flat ecology’ for rethinking and reworking the present apparatuses of power – political, economic and legal – that engage in performing backgrounding of other-than-human bodies. By diffracting the concepts of assemblage and apparatus through epistemologies of feminist science scholars Karen Barad and Donna Haraway and ontologies of Deleuze and Guattari, and Object-Oriented philosophers, I formulate the concept of ‘minoritarian apparatus’ as a theoretico-practical tool towards seeking posthuman environmental justice. The second part of the text traces the methodology and proceedings of my collaborative performance all that is air melts into city (2014). The site-specific intermedia project creatively re(con)figured the apparatus of European Union Emissions Trading Scheme as a ‘minoritarian apparatus’, a posthuman ecology of difference that affords more just possibilities for meaning-mattering of extra-human bodies.
Jane Holder and Donald McGillivray
As a response to the increasing combining of environmental activism and environmental scholarship, in this chapter we discuss what an environmental justice perspective brings to research in environmental law and we argue for environmental justice to act as a central and motivating purpose in this field of research. In terms of the development of critical research methods to support this we draw upon classic studies of environmental justice, as well as our own experience of using case studies to research environmental assessment and the protection of open green spaces. We suggest that collective case studies (also known as multisite or multiple case studies) offer an opportunity to map out and build up a picture of common concerns and losses and similar experiences of legal hurdles and challenges on the part of geographically disparate local communities. This type of case study is capable of revealing broad discriminatory and unfair practices in environmental decision making which may form part of a pattern of lack of influence and participation in decision making extending beyond the specifics of a particular site, environmental conflict or legal dispute. We outline several critical research stances which might usefully be engaged in this process of centring environmental justice by providing a framework for analysing sets of case studies: taking ‘everyday’ evidence seriously (in recognition of the procedural and distributional justice implications of the generation and application of evidence of risks and harms); identifying local/global interactions (recognising the frequently unjust dynamics which arise from the organisation of space – spatial justice implications); and the significance of spatial relationships, especially according to feminist approaches (relational justice). More practically we outline the nature of collaboration and partnership arrangements between academics and environmental campaign groups which are stimulating and supporting the development of communities of practice aimed at the sharing and application of legal and campaigning knowledge.
In an attempt to bring critical environmental law to a discussion with the current planetary challenges such as the Anthropocene and climate change, and understand the methodological challenges that ensues from such a discussion, I suggest three basic tenets from which environmental law can be examined: grammar, perspective and methodology. Grammar refers to the need for new concepts and ways of connecting the various bodies that participate in and consist of the environment. To this effect, I suggest some terms, such as continuum/rupture, human/nonhuman/inhuman, as well as geologic immersion and planetary withdrawal. Perspective refers to the way current thinking changes or at least is affected by the Anthropocene. Finally, methodology refers to the way critical environmental law must find ways to seek knowledge and the epistemological presuppositions of the limits of such knowledge. In conclusion, I offer four methodological demands of critical environmental law in order for the latter to adapt methodologically and integrate the Anthropocenic grammar and perspective.
Some might wonder why it is necessary to include an ecofeminist approach in a volume on environmental law research methodology. There are a number of reasons why such an approach can add value to our consideration of environmental research: not least, it offers an important counter hegemonic critique of societal engagement with the environment and one that complements other important differential perspectives, such as those of indigenous peoples, and can therefore enrich our understanding of important environmental issues. Just as compellingly, ecofeminist approaches to engaging with environmental questions offer a powerful potential corrective to current dominant, gendered, methodologies which have proved to be of limited effectiveness in addressing environmental degradation. Ecofeminism, with its methodologically distinctive drive to achieve a working fusion of theory and activism, and its commitment to encapsulating the relevance of lived experience in addressing societal challenges, potentially has a great deal to offer in the endeavour to harness the artificially yet routinely sundered conceptual and practical approaches to environmental issues that is arguably a factor retarding progress in addressing complex, large-scale, socially embedded environmental issues. The impetus towards the synthesis of systemic thought and lived experience also recognises the necessity of fostering broader participation in the crafting of environmental policy and law responses to the major environmental problems of our time. To this end ecofeminist methodology employs innovative approaches towards garnering a wide range of gender perspectives that address the neglected complexities of women’s vulnerability and agency as environmental actors. This chapter looks specifically at climate change and the eventual emergence of gender in the United Nations Framework Convention on Climate Change (UNFCCC) regime, through making a case and ultimately obtaining recognition for the gender constituency in this, the chief institution of global climate governance. This ongoing process has seen women employ feminist approaches, such as transversal politics (with which this chapter is chiefly concerned), as vehicles facilitating the construction of knowledge and coalition-building to good effect in adding weight to their case for inclusion and ultimately influence in this most crucial, contentious, contested environmental law and policy context and arguably offering richer treatment of the substantive issues than hitherto.
There is a growing awareness of the need to reconsider the traditional range of investigative approaches used by both lawyers and geographers as we grapple with improving the management of human impacts on the environment. In this chapter I describe a model for legal research that embraces method and methodology from the social sciences that has the potential to expand the scope and impact of research in environmental law. The argument stems from my scholarship, situated at the intersection of law and geography, which explores the connectedness between people, place and law. In such research there are ever-present core questions about the effectiveness or efficacy of environmental legal regimes. My concern is to understand whether environmental laws actually achieve what they set out to do, and this is underpinned by my working hypothesis that a better understanding of place should both inform and improve how environmental law operates. Accordingly, the methods employed in my research range from an analysis of codified law through to primary data collection, based on qualitative research methods. In my work considerable weight is placed upon the identification and critical assessment of the laws, formal and informal, that restrict the way in which local populations interact with their lived-in landscapes. This takes the form of a legal discourse analysis on the regulatory situation governing a particular place, and, as with much legal scholarship, such an approach necessarily highlights many of the deficiencies in the existing legal framework. However, this is complemented by an equal interest in the human–environment interface. To fulfil the need to explore the human/place/environment dynamic I adopt the ‘muddy boot’ tradition of geographers to develop an understanding of how people respond to regulatory regimes. In this chapter my aim is to expose the linkages between human rights and environmental protection scholarship with the place-based work of (human) geographers. This is an ambitious project; there are manifold challenges in linking the universalising narrative of human rights to enhance environmental protection. Yet, the vehicle to undertake this venture falls, arguably, to law and geography scholars – those interested in exposing the relational, heterogeneous and place-based dimensions of our world. The work of legal geographers can extend environmental law scholarship beyond an abstract conception of space towards a clearer, situated understanding of the importance of place in creating effective protective regimes. This is part of a turn towards creating a legal geography methodology in which there is a greater reflexivity about the methods of research (see I Braverman, N Blomley, D Delaney and A Kedar (eds), The Expanding Spaces of Law: A Timely Legal Geography [Stanford University Press 2014], Ch 5).
Environmental law has been developed cross-disciplinarily in close contact with empirical natural sciences on the state of the environment. With the increasingly more intensive and comprehensive interventions of human beings on the environment, defining environmental damage and hazards empirically as well as politically and normatively has become not only increasingly complex and controversial, but also crucial. How we assess empirical data, and how we conceptualize the values and the risks involved is decisive. Empirical and legal dogmatic methods are currently insufficient in terms of grasping the complexity of communicating environmental hazards. Communication and semantic theory is consequently suggested as a methodological approach in order to critically analyse more precisely the present state of environmental law, and how it could develop in order to convey the complexities of environment hazards in a legal language. It is suggested in the chapter that the planet has entered the age of the Anthropocene and, with that, an immensely complex environmental situation requiring new concepts and standards of environmental law. Sustainability and precaution have been tried out as reflexive legal concepts, but often losing conflictual situations to the more binary concepts of economic law. Applying the insights of theories of communicative differentiation is suggested in order to analyse more specifically what types of semantics and concepts are required to normatively express the current situation of environmental hazards and risks.
Peter Burdon and James Martel
The dominant method in environmental law is reductionist, doctrinal, solution focused and betrays an unacknowledged belief in the ‘end of history’. Moreover, it is open to a very narrow and highly privileged range of perspectives. By contrast, this chapter draws predominately on traditional and contemporary anarchist literature to advance an alternative legal method. We begin by recovering key insights from the social ecologist Murray Bookchin. Of particular relevance to this paper is Bookchin’s materialist understanding of the environmental crisis and the conditions for social change. Following this, we draw on writers from Peter Kropotkin to Max Haiven to describe the role of ‘activist research’ in environmental law. This involves collaboration between researchers and people involved in environmental movements under study, and by hybrid activist/academic identities on the part of researchers.
In the now official epoch of the ‘Anthropocene’, it is crucial that researchers adopt methodological strategies that are radical enough. This ‘radical enough’ is the demand of an environment which is not just ‘somewhat problematic’, but is falling apart, body-by-body. Only by really stepping into the field that is environmental law can we convincingly tell our story as though we are heading the urgency of the situation, as the more-than-humans we claim to be. Any step into the field is beset by ethical challenges and, occasionally, obstructions. This chapter arises from lessons learned autoethnographically in the field of sexuality and a challenge brought to the ethical basis of thresholds of participation. This personal method, which claims to bridge the chasm between the individual and the collective concern is fraught with ethical challenges, which I claim are not specific to sexuality research. Attractions and transgressions belong to all kinds of more-than-human desiring bodies. This means that a traditional ethical human framework inhibits the possibility of radical methodologies. ‘F#cking’ is not a banal and profane cry of resistance, but a radically orgasmic research ethic underpinning radical methodological strategies for the Anthropocene epoch.