Summary and Critique of Core Readings

Article 1: Legal Geography: An Australian Perspective

Summary

The fundamental idea in the paper is that the law co-creates the social and the spatial while the two co-create the legal. This implies that there is a strong relationship between laws, people and place, with both generative and responsive effects on both sides. For instance, laws create spatial boundaries, jurisprudence, nations and so forth, constituting of people and place. On their part, people and place affect how legal principles are applied. While this is an established fact, the law has oftentimes been applied as though geography did not exist or affect it, while geographers have also acted in blindness to its creative and responsive actions to the law.

An equally significant point made in the paper is the role of legal geographers and the discipline at large. This has been given as bringing visibility to the invisible: framing law within geography. By so doing, the discipline informs geographers of how their discipline is affected by the law. They also seek to establish how people and place affect the law. They bring critical insights into fields such as economics, power, geopolitics and governance. This in the end offers enrichment to domains of geography, offering valuable contributions to geographic issues such as regulations touching on people and place.  On the other hand, legal geography as a discipline offers extended appreciation to multiscalarity, materiality and agency in their uses as far as reform and operationalization of law is concerned. 

In the end, the paper forms a foundation to legal geography research, outlining the history of the disciple, its ambition and contribution. It explores a number of issues that fall within the disciple/line of inquiry from an Australian perspective. It features examples from the latter and international case studies to draw into larger theoretical debates within the domain of legal geography. 

Critique

The theoretical basis of the paper is set on the commonly ignored nexus between the law, places and the people. The standard idea in this is that the law is a social institution, which generates and responds to people, places and spatial heterogeneity. While this is an important component on the legal discipline, it has often been ignored, with geographical actions and effects overlooked in legal matters. However, matters law should be in theory of importance to geographers, and geography equally make sense in matters within the legal discipline. Therefore, the paper sets out to discuss several issues that emerge in the confluence of law, people and places from the historical set up, the future prospects of the discipline and the development of its body of research. For instance, it is demonstrated that places are a creation of social institutions including the law. In this, the authors argue that places are generally spaces that have been ascribed some meaning. This meaning is generated from among other sources, the law. Other examples are legal concepts of property and nation-states, which all demonstrate the existence of the link between the law, people and places. 

The context of the paper is of course the problematic ignorance of the law to geography and that of the latter to the law. There is a demonstration by the authors throughout the paper that there have been historically inadequate attention paid to geography by the law and an equally dearth of interest in the law by geographers. Though geographers have often taken some interest in law, they have never made it as the core focus, or labeled it as legal geography. The discipline of legal geography has since been established to bridge this gap. On the part of the law, legal geography challenges assumptions on what has been accepted as within the boundaries of law, routinized, sedimented or normalized so and seeks to extend beyond such limits. The discipline seeks to extend to issues that have been traditionally considered to be beyond the reach of the law. This owes to the fact that the law has normally been treated as an abstract concept, with little or considerations to social and spatial dimensions. 

The argument of the author (s) is logical and well structured. They begin with setting the background both theoretical and contextual, after which they issue a brief history of the discipline. This is followed by a lengthy discussion featuring the contributions of legal geography, legal geography and materiality, how the discipline relates to scale, power and place and legal pluralism and governance. Though the paper cites various Australian cases from the beginning, there is a dedicated section on legal geography in the context of Australia. The logic of the text can be drawn from a wide range of scholarship featured both within and outside the paper. While there are compelling examples of how the law interacts with people and places in the paper itself, the work corroborates a major premise presented by Bennett & Layard (2015). The latter references the law’s longstanding fear of geography with a case from the 19th century,   R v Dudley & Stephens (1884). The scenario featured two sailors in the high seas who had to kill and feed on a cabin boy to survive according to their sworn statements after the trip. These were used against them in a murder trial, with no spatial distinction whatsoever or appreciation of the fact that they would have died were they not to resort to cannibalism. In Australian law, Mabo v Queensland (No 2) [1992] 175 CLR 1 premised disconcerting ideas of sovereignty, being native and property. The two cases demonstrate sufficiently that indeed there was a confluence of law, places and people.

The author (s) approach is largely legal though in essence they are meant to offer a balance between the law and geography. They have taken the issues of law and demonstrated how they coincide with geography. This may appear problematic as the paper appears largely geographical going by the institutional affiliation of the authors and even the Journal of Publication. Apparently, the authors assume that they present a balanced view of both law and geography to the extent that the paper can be useful to both disciplines when tackling legal geography. 

Conclusion

In the end, the author (s) made a very compelling argument. This is due to their detailed approach that incorporated many examples and cases demonstrating the nexus between law, people and places. The authors were successful in not only demonstrating the blindness of the law to people and places, but also showcased the problem from the angle of geographers. A gap is successfully established with a reasoned argument of how law, people and places co-create and respond to each other. The robustness of the argument was also sealed by the infusion of various counter arguments. For instance, it was demonstrated that geographers were quite aware of the law, but did not make it their core focus or recognize the field of legal geography. This made it further clearer on the nature of the gap to be filled by the discipline of legal geography.  Generally, the paper offers a good introduction to the field of legal geography for both academic inquiries from geography and law. It is quite simplistic and basic in its approach, introducing key concepts, the context and the history of legal geography in a manner suited for beginners. It is a good place to start as one delves deeper into more complex subjects intertwined in legal geography.

Article 2: The Siren Call of Legal reason

Summary

The author makes several distinguishable points with respect to legal reasoning. First, they draw on their personal experience as a child and growing up to understand that thinking like a lawyer was quite special and different. This was incalculated into her by her father and other family folk who were in the legal profession. Within that context, it was clear that femininity and gender at large was a hindrance to legal reason and as such she needed to suppress it every time to avoid creating doubts over her intellectual reasoning. The unfortunate part was that rationality was not much about thinking like a lawyer but rather like a man. Rationality was associated with masculine tendencies and dissociated with feminine features. 

The author also discusses the role of reason in law. They posit that reason gives law order and normative legitimacy, according it principles and a higher appeal. The author cites the example of the rule of law which is testament to the role of reason in law. Additionally, they present the view that the nature of legal reason recognized in most cases is consistent with enlightenment views and ideals. It is associated with impartiality and objectivity- something that the author seeks to question in the context of contemporary wisdom of reason. Her aim is particularly to examine whether postmodernism accommodates an alternative view of reason that accommodates femininity. Their investigation is based on how reason operates in practice and whether it is purely logical, as proposed in enlightenment philosophy.

From her critique of Enlightenment models of reason, the author critiques dominant decision making models of judicial decision making and makes the case for a gendered view. Among the approaches to reason discussed include Hegelian and Aristotelian beliefs on the limits of women to attain high levels of rationality and intellectualism and the rational approaches of the likes of Kant and Rene Descartes. While she demonstrates that such models are largely disposable, she goes a step further and examines MacCormick’s consequentialist approach to judicial decision making. Drawing from the latter, she introduces the importance of who makes judicial decisions, their personal values and background, which in effect justifies the need for gender diversity in the judicial bench. Despite the assumed prominence of logic, it was apparent that most judicial decisions were met from evaluation, which allows for influence of personal values in legal determination.

Critique

The reading clearly applies the gender theory to law. This involves the examination of how masculinity and femininity affects legal application and reasoning. The author makes this clear in their opening paragraph where she discusses her understanding of “thinking like a lawyer” when growing up. There was clear patriarchal bias, with rationality associated with the male gender and less-lawyer-like thinking accorded to the female gender. It was apparent to her that every time she brought in aspects of her gender into a legal argument, her intellectuality would be doubted. More narrowly, the paper is in line with feminist theory. Apart from lamenting masculine leanings of legal reasoning, the author clearly intends to establish the case for the validity of femininity values in legal reasoning. She consequently critiques a lot of enlightenment ideas of reason and their bias towards women, terming them as objectionable and flawed. They in essence show that through evaluation of judicial decision making, there is need for diversity and feminine values actually hold. The reading is a typical feminist treatise- attacking unqualified views of male dominance and establishing the case for feminist values.

The author’s approach is purely feminist with their arguments based on personal experiences, philosophical and legal evaluation. The feminist approach is apparent in the way she decries male dominance in legal reason right from home and in the academic and practice contexts. As a young girl, she came into contact with the understanding of legality as “masculine thinking”. This depressed her to a great extent and is the background in which the whole work is built. She terms her musings on the plausibility of feminine values in law as valid given that there is less logic and more evaluation used in legal decision making. Objectivity and impartiality, standard enlightenment values related to legal decision making have been portrayed as misleading and inaccurate. The argument is thus hinged on personal experiences, enlightenment philosophy and legal evaluation methods evident in practice.

The author makes several assumptions in their argument. First, they assume that gender equality is a prerogative of the law. This is against the standard idea that the law should apply reasoning to facts in decision making, regardless of the nature of such “reasoning”. This assumption is the basis of their grievance on the dominance of masculinity in legal decision making as well as the enlightenment values that underpin it. The author also assumes that female legal practitioners have not considerably expressed their values in legal reasoning and have in fact suppressed them in a bid to appear objective and intellectually right. This also accompanies the thought that masculine legal practitioners, unlike their female counterparts, have not had to suppress their values at any point for the sake of an objective approach to legal decision making. These assumptions and the general approach of the author cannot be faulted as they remain consistent with the overarching theme of the book, law and gender. This is to say that they are a perfect fit to the context with which they are made. There are possible gaps in the reasoning of the paper due to the evident subjectivity in it. This is because the argument is made from a purely feminist angle with utterly no counterargument. A more balanced approach would have been fitting with masculine, feminine and objective standpoints.

Conclusion

The author renders quite a convincing narrative in their accommodation of femininity within legal reasoning. This is due to their successful portrayal of masculine dominance as a form of prejudice and also distinguishing it as totally unmerited. They successfully show that masculine dominance in practice and the underlying enlightenment philosophy that supports it is clearly flawed. The alternative case for diversity is also meticulously presented with a sufficient rationale pitting logic against legal evaluation in judicial decision making. Therefore, the author is successful in making a strong case for their feminist approach to the law by disapproving standard views and assumptions. On the other hand, it cannot be gainsaid that the author partly weakens her case by failing to incorporate a counterargument, though such weakness shall only premise when the paper is taken out of context. The approach taken is a standard feminist one that allows for such a singular approach. In summary, the work is valuable in the domain of gender and law, raising several substantiated points on masculinity and femininity. It takes the shape of most feminist works which often entails attacking normalized views of gender in society. More importantly, it has presented a diversity of proofs for the main argument that feminine values have accommodation in legal reasoning. Apart from demonstrating the illusion of impartiality and objectivity, there has been a credible, detailed and grounded theory of feminism for legal reasoning. 

References

Bartel, R., Graham, N., Jackson, S., Prior, J.H., Robinson, D., Sherval, M. and Williams, S., 2013. Legal geography: an Australian perspective. Geographical Research51(4), pp.339-353.

Bennett, L. and Layard, A., 2015. Legal geography: becoming spatial detectives. Geography compass9(7), pp.406-422.

Conaghan, J., 2013. Law and gender. Oxford University Press.

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