Law, Space, and the Geographies of Power: Legal Territories and the "Golden Metewand" of the Law

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LAW 328 Green Legal Theory Nicholas Blomley

Notes

Liberalism is a world of walls, and each one creates a new liberty.

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MICHAEL WALZER

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systematization and rationalization of the common law that occurred in the early sixteenth century under the English jurist Edward Coke.

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The early seventeenth century saw growing pressure for legal reform, given a concern at the length of litigation and the cumbersome nature of legal procedure

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ambiguities of law permitted excessive discretion, corruption, and, above all, insecurity of property.

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Coke's systematization of the common law rested on two strategic moves: it appealed to reason and the privileged authority of the judge, and it constructed a powerful historical geography of the common law.

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But to be a system, this "high and honourable building" required a foundation. Coke found such a basis in his concept of "perfect reason":

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special privilege not to "natural reason" (the rationality of the ordinary citizen), but to what he termed "artificial" reason, the prerogative of the judicial elect

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no man (out of his own private reason) ought to be wiser than the law, which is the perfection of reason.

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A contemporary judicial decision, he claimed, "doth not give or make a new law, but declares the old

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disembeds the interpretation of that law from the multiple local sites in which law acquires meaning.

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Coke's common law has a "double face." Not only does it turn outwards to European civil law in order to "declare its defining difference," it also turns "inward to find out and eliminate those practices and those institutions that failed to reflect back its own unitary image." Of special importance were those localized legal practices that were an affront to Coke's unitary legal map.

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the local customs that he effaced and, if you will, deemed alien, were those that supposedly provided the "communal" underpinnings to the common law.

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The "construction and determination" of local customs can only occur from within the legal enterprise, a task that "do belong to the judges of the realm"

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Evoking folk memories of localized justice, the common law was now cast as an alien imposition, hostile to the very freedoms it purported to embody, rather than the only defense of the freeborn Englishman. "England is a Prison," Gerald Winstanley cried, "and the Lawyers are the Jailers."

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law must be wrested "from the custody of a clique of mandarins and thrown open to the comprehension (and therefore control) of the 'meanest English commoner.'

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On the one hand, law appears universal, or common to all. Law is a total and unitary presence, divorced from the social diversity and spatial contingencies of social life. It is guarded, divined, and mapped by a judicial coterie granted exclusive audience and privileged access. On the other hand, the common law is presented as somehow communal, rooted in the life worlds of the English

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simultaneous sense of universality and rootedness

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"These maps proclaim royal sovereignty over the kingdom as a whole and over each of its provinces. As we turn the pages, we are invited to remember that Cornwall is the queen's, Hampshire is the queen's, Dorset the queen's, and so on county by county"

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royalty disappears; now it is "land" and "nation" that serves as the mythic suture.

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An appeal to the timeless nature of "the land"

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Both Saxton and Coke are engaged in what Gregory (1994) would term an enframing, in which the world is set before the autonomous and detached self Both Coke and Saxton presuppose precisely this divide, whereby a privileged and detached viewer Uudge or cartographer) arranges an ordered projection of an objective and external structure (law or space) that then becomes available for contemplative and rational inspection. Alternative representations-such as the legalities of local life-are suspect precisely because of their location "within" the frame.

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This is despite the existence of a statutory perch of 16 1/2 feet that dates from the ninth century.23 It seems that local buildings, such as the church, often had the local standard sculpted on them

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As with localized variations in time, the attachment of measurement to place was unproblematic when disputes were settled locally, when there was local agreement as to the standard, and when the alienation of land was unusual.

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