Law, Property, and the Geography of Violence: The Frontier, the Survey, and the Grid

Abstract

Physical violence, whether realized or implied, is important to the legitimation, foundation, and operation of a Western property regime. Certain spatializations—notably those of the frontier, the survey, and the grid—play a practical and ideological role at all these moments. Both property and space, I argue, are reproduced through various enactments. While those enactments can be symbolic, they must also be acknowledged as practical, material, and corporeal.

Key Words:

• property
• space
• violence

Acknowledgments

Thanks are due Adrienne Burk, Damian Collins, David Delaney, Peter Fitzpatrick, Lorraine Gibson, Aurian Haller, Paddy Hillyard, Steve Hindle, Sarah Jain, Lisa Sanchez, Austin Sarat, and several anonymous reviewers of this article. Versions of this article were presented at the Association of American Geographers Conference, Hawaii (April 1999), the Socio-Legal Studies Conference, Belfast (March 2000), and the Law's Grounds Conference, Cleveland-Marshall Law School, Cleveland, OH (April 2000).

Notes

1. As Williams (1983) notes, violence is a slippery term. For the purposes of this article, I define law's violence as the exercise of unwanted physical force, whether actual or implied (cf. Platt 1992; Keane 1996,; 67). My working definition includes a focus on corporeal violence, rather than the symbolic (Litke 1992). While I acknowledge that violence can be psychological—as in the use of racist words—there is a danger of stretching the meaning of violence until it loses all utility (Keane 1996,; 66). My definition also includes both actual and implied violences. Most obviously, actual violence can be done to human bodies; the death penalty is perhaps the most obvious example. While some important work has been done on law's violences at this level (Sarat 1994), we also need to examine violences that are threatened or implied, or that are realized through forms of inaction (as in the case of domestic violence, as noted below). Clearly, in adopting such a broad definition, we risk finding violences of equal political and moral weight everywhere. Being put to death is clearly not the same, physiologically or ethically, as involuntarily obeying a legal command. While acknowledging this, it also seems important to recognize the associations between realized and implied violence (cf. Cover 1986). Violence is also present beyond the extreme, theatrical moments of the law, such as capital cases. Although violence literally means “to carry force toward something,” I also treat violence as a power relation that takes several forms. Violence, like power more generally (Allen 1999), can work in instrumental, legitimative, dispersed, and immanent ways.

2. For example, violence has a relation to nature and landscape (Schama 1995) or place and territory (Watts 1997).

3. Prosaically evidenced, perhaps, in the murder mystery, which reassures us that violence not only lies outside law, but also can be tamed and disciplined through the use of rational deduction.

4. I borrow here from Giddens (1987,; 49), who distinguishes the boundaries of the traditional state as a frontier (an outer defensive ring, often linked to physical defensibility, that abuts zones of savagery, not other sovereign state territories) from the border of the modern state (a conceptual line separating two or more states, entailing precise demarcations of territorial sovereignty).

5. Although, of course, we must be cautious about treating colonial discourses as unitary and uncontested.

6. There are many other examples. Turner's (1961,; 38) frontier also invokes a spatial and propertied divide; “The frontier is the outer edge of the wave—the meeting point between savagery and civilization…The most significant thing about the American frontier is, that it lies at the hither edge of free land.” John Stuart Mill also makes a clear divide between the liberal world and “those backward states of society…Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement” (Mill [1859] 1975,; 15–16).

7. Semple here draws upon understandings of the “improvement” of land, central to Lockean notions of property and entitlement. There are echoes of this notion in Robert Park's ([1932] 1952) concept of “succession,” which he claims to identify in his analysis of land settlement in South Africa. From this he (226) derives the evolutionary principle that “the land eventually goes to the race or people that can get the most out of it. This, on the other hand, is merely another version of the rule of agricultural economics, which declares that the best land eventually goes to the best farmer.”

8. Not only is law founded through violence, but violence is itself constituted by law. For example, legal definitions of the beginnings of biophysical consciousness or the moment of brain death are the basis for determining what acts can be done to the body, such as abortion or organ removal (Skouteris 2001).

9. Fitzpatrick (1991, 80–81) notes that the violences associated with the establishment of law and order in the colonies were deemed insignificant in comparison with the “violence and disorder of savagery.” The two projects of deterritorialization and reterritorialization, of course, were not unrelated.

10. Harvey (1993) estimates that only a dozen maps survive from the second half of the fifteenth century. Around two hundred maps remain from the first half of the sixteenth century, compared to eight hundred from the second half.

11. Although, as Butlin (1979) notes, there were distinct spatial variations in agrarian change.

12. Along with the husbandry manuals of the day, surveyors treatises increasingly encouraged an individualized and monetarized view of property, although this was frequently mixed with defensive justifications or echoes of premodern sensibilities, reflecting the often hostile reception from some quarters of the surveyor (McRae 1996). See, for example, John Norden's ([1618] 1979) remarkable “surveiors dialogue.”

13. The survey also relied upon and advocated for modern survey techniques and standardized mensuration. For discussion of the shifts in spatial metrics and their social implications, see Blomley (1994,; 67–105) and Kula (1986).

14. Tawney (1912,; 321) argues that although the early seventeenth century saw the last serious agrarian revolts, the folk memory lingered on, reappearing with the Levellers, who condemned enclosure, and the Diggers, who sought to “convert the waste land at Weybridge into the New Jerusalem.” Struggles over land continue in England, as evidenced in the “The Land is Ours” campaign, which often draws from these early modern precedents (TLIO 2002). Similarly, state violences, often under the sign of property, continue to target property's outlaws, including gypsies, squatters, New Age Travelers, hunt saboteurs, and environmental protestors (Justice? n.d.).

15. For example, by deploying women to destroy fences and hedges, given the presumption of their innate lawlessness. Compare with Manning (1988,; 1–2).

16. Wrightson (1982,; 157) notes an average of seventy-four death sentences per year between 1598 and 1639 in Devon. London executed 140 a year between 1607 and 1616.

17. E. P. Thompson (1993,; 164–65) notes that the tropes of improvement, progression, and settlement that had been applied within England were also used to justify colonial projects of dispossession.

18. In making the case for acts of legal violence directed at native peoples, we should not forget the many violences of native life before colonization (Barnett 1955,; 267–71). Also, it should be remembered that the descendants of many of the Euro-Canadians who were the beneficiaries of this dispossession were themselves economic refugees from earlier acts of displacement, such as the Clearances of the Scottish Highlands.

19. Harris's (1997,; 57) argument that such forms of violence “have less to do with law…than with power” may be true to the extent that it occurred absent a formal state apparatus. However, the reliance on legal forms (trials, etc.), combined with the theatrical display of state power (cf. Hay 1975), might suggest a closer connection.

20. I am indebted to David Delaney for his emphasis of this point.

21. This perhaps explains the fact that some legal officials, such as prison officers, can regard themselves not as instigators of violence, but as its victims (Sim 2001).

22. The British Conservative Party pledged to “rebalance” the justice system “in favour of those who try to protect their families and homes—by redefining what ‘reasonable force’ can be used” (Craven and Morris 2000,; 1).

23. Although this is not his avowed intent, Elias's use of the masculine pronoun is instructive, echoing patriarchal associations of “self-constraint” and citizenship with manly comportment.

24. A related analysis comes from debates concerning governmentality—in particular, the notion of “action at a distance” and, more generally, Latour's treatment of power as translation (see Latour 1987; Rose and Miller 1992).

25. In their reading of New York's Lower East Side, Brigham and Gordon (1996) note the degree to which housing and property relations relating to housing constitute social categories and mark out a terrain of politics. The uses and meanings attached to the spaces of the Lower East Side, moreover, appear central to that process: “The legal distinction between ownership and opportunity for use is constantly at issue on the Lower East Side. Walking (down the sidewalk usually), one is made aware of what is public and what is not…. Ownership is presented in material ways (locks, fences, razor wire) and more discursively (in language that says ‘Get out,’‘Where is the rent,’‘Come in’)” (Brigham and Gordon, 277–78).

26. Similarly, developers in Vancouver's Downtown Eastside informed me that they were not causing displacement, as they were simply developing an empty lot (despite the fact that low-income hotels surrounded the lot).

27. The “broken windows” ideology of policing, espoused by James Wilson and George Kelling (1982), is an interesting case in point. Under its rubric, civic authorities have adopted an array of “environmental crime prevention” programs—such as the regulation of street beggars, open drug-dealing, graffiti, and so on—targeted at public space and its outlaws. Reliant upon spatially reinscribing property claims upon the spaces that appear “untended” (that is, unclaimed), they also seek to limit liberal constraints upon police discretion, even at the risk of making the police into “agents of neighborhood bigotry” (Wilson and Kelling, 35). Stewart (1998,; 2251) counters that the historical record of enhanced police discretion is one of “both general violations of civil liberties and the specific oppression of minority communities.”

28. To reiterate a point made earlier, the politics of the grid must be acknowledged as contingent, informed by specific modalities of vision, conceptions of space, and understandings of property. This becomes obvious when we recognize that the grid has taken on very different meanings in other cultures. The Roman cadastral grid, for example, was based on a cosmology focused on the interplay of stasis and dynamism (Johnson 1976,; 28).

29. Some scholars, such as Cover (1986) and Derrida (1990), seem to see violence as an inevitable and metaphysical component of any legal form to the extent that violence is “inflicted wherever legal will is imposed upon the world, wherever a judicial decision or a legislative act cuts, wrenches, or excises life from its social context” (Sarat and Kearns 1991,; 210; see also Cheah and Grosz 1996). Fraser (1991,; 1328), however, consciously forswears “quasitranscendental reflection on the ‘violence’ that must inhere in any possible legal institution in favor of analysis and…critique of the forms of…structural violence that enters into social processes of judging in, for example, our legal system.”

30. Keane (1996, 79,; 50) draws on the American Revolution to argue that violence can also create bonds of solidarity, and points to the British peace movement as part of a “politics of civility,” seeking to “ensure that nobody ‘owns’ or arbitrarily uses the means of state violence against civil societies at home and/or abroad.”Foote (1997,; 334) goes so far as to argue that “[v]iolence should be seen…as a regenerative force, one capable of refining and forging a new society.”

31. This seems an important task for other reasons. It hopefully provides a counter to the triumphalism that surrounds property, particularly with the collapse of the Soviet bloc. “As the twentieth century draws to a close,” trumpets one panegyric, “the benefits of private ownership for both liberty and prosperity are acknowledged as they had not been in nearly two hundred years” (Pipes 1999,; 63).

32. Staff at my children's daycare encourages them to “use their words, not their hands” when dealing with conflict (which often centers on ownership!). Language is imagined here as not only better than but distinct from physical violence. The more complicated relation between the two is the subject of this section. My thanks to Susan Coutin (1995,; 525) for reminding me of this particular injunction.

33. A partial list would include Thomas Hobbes, Henry George, Pierre-Joseph Proudhon, Karl Marx, Walter Benjamin, Robert Hale, Hannah Arendt, Edward Thompson, and Winona LaDuke.

34. For some, legal meaning and violence are antithetical. Legal anthropology has traditionally held that “violence marked the boundary of the social order in that it demarcated the groupings within which disputes could be settled by language rather than blows” (Coutin 1995,; 517).

35. Sarat (1992, 140) cautions that “[A]s violence and pain are put into language, we may be tempted to forget that their metaphorical representation as weapons and words cannot truly capture the meaning of violence and pain themselves.” Also, those forms of violence that leaves no visible scars, such as “the violence of racism, poverty and despair,” will be less easily represented (Sarat 1992, 141).

36. Brady and Garver (1991,; 1) argue that force and violence are not empirically distinguishable even when force is legitimate: “It makes sense to argue that the Civil War or the Second World War was justified, but it seems absurd to insist that the allegedly justified destruction was not real violence.”

37. My thanks to Steve Hindle for this reference.