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Chapter Five - Law and Geography
- Edited by Daniel Newman, Cardiff University, Russell Sandberg, Cardiff University
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- Law and Humanities
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- Anthem Press
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- 27 March 2024
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- 09 January 2024, pp 69-86
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Summary
Introduction: Studying the Legal in Legal Geography
Legal geography explores the interconnections between law and space, a field of study that relates law to context, while simultaneously revealing geography’s legal footprints. The rich interconnections between law and space, and the diverse ways that each co-inform and co-constitute the other are legal geography’s ‘core objects of inquiry’. In this chapter, we observe how this area of scholarship has evolved over nearly three decades, beginning in the mid-1990s, a generational confluence of law and geography that is neither a ‘sub-discipline of human geography nor […] an area of specialized legal scholarship’ but rather (or, at least) ‘a truly interdisciplinary intellectual project’.
As a discrete ‘intellectual project’, legal geography features several defining characteristics. Core to its mission is to emplace law and to bring law to landscape. Legal geography likewise takes a broad sweep of form: from grand theory to the ‘small’; from global observations of space, time and law to (sometimes very local) place-based case studies; and from explicit disciplinary articulation to an implied nuanced analysis. In the latter case, legal geography can play a significant, albeit often unacknowledged role in informing the scholarship.
Writing in 1994, the foundational legal geographer Nicholas Blomley quoted Lawrence Friedman and David Harvey, who each in turn (yet separately) recognised the limitations of their own disciplines. Friedman argued ‘law […] is too important to be left to lawyers’, while Harvey mirrored this sentiment word for word, noting that ‘geography is too important to be left to geographers’. Each gave voice to a gap that these two complementary disciplines had left lying on the field, a ‘hidden to plain sight’ lacuna of spatial relations where law fails to acknowledge the world it inhabits, and geographers ignore or undervalue how ‘social spaces, lived places, and landscapes are inscribed with legal significance’.
In writing this chapter, we acknowledge our own disciplinary perspective on legal geography. We are both lawyers, variously critical property and human rights theorists. In many ways, unlike the ‘progress report’ that David Delaney penned from 2015 to 2017, when he wrote across three sequential journal articles of legal geography’s evolution through a human geographer’s lens, our brief survey of the field is necessarily a legal interpretation. Rather than surmising what is the effect of law on geography, as Delaney ventures, we observe how geography has informed (and informs) the law.
Should Nature Have Rights? Orthodoxy and Innovation
- Cristy Clark
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- Journal:
- Law & Social Inquiry / Volume 48 / Issue 4 / November 2023
- Published online by Cambridge University Press:
- 27 November 2023, pp. 1471-1476
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- November 2023
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Index
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp 226-242
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1 - A Theory of the Forest
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp 37-80
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Summary
This book explores an other way of relating to land; a relationship to space and place that runs counter to property's (private) orthodoxy and its atomising, exclusionary ways. As set out in the Introduction, we use the metaphor of the lawful forest to describe this relationship. Like the forest, this relationship is ancient. Like the forest, this relational understanding of people, place and community seems peripheral to our modern, mostly urban lives, a wooded hideaway beyond our everyday experiences of concrete and steel. While the lawful forest is indeed extant, a literal place of trees, its presence also transcends the physical, evoking a figurative yearning for a spatial life lived better. Simultaneously physical and metaphysical, the forest emplaces us, creating contexts that weave together its remnant presents with a memory of forests past. We also describe this forest as lawful, drawing on critical property theorists and scholars of legal geography to derive its ground-up legitimacy from the many, not the few. Aspirations of common-wealth and spatial justice dwell in its shade, a space and place where the ‘wide-open synergies’ of the commons is a stark foil to the sequestering, controlling inclinations of private capital (and its private property alter ego). This chapter's ambitious task is to situate this vast, diverse (and mostly hidden) lawful forest in theory, and to explain why it remains so peripheral, and so overlooked.
What is remarkable about this lawful forest is its ubiquity. Equally remarkable is its near-invisibility. These observations are, of course, related. Making plain the latter renders obvious the former. It is a forest lost to plain sight, ancient woods that have seemingly disappeared amidst their (individual) trees. This chapter's task (and, indeed, the task of this book) is to reverse this skewed myopia, to identify why we see space in reverse, and to advance a theory of the lawful forest that marks its subtle outlines. Or, to imbue this task with a literary flourish, to reveal the forest's concealed glades and overlooked wood-pastures that subsist amongst us. In so doing, this task requires patience. It takes time to adjust one's vision from the harsh sunlight of the cleared private plains to the forest's dappled shadows. The rewards of patience lie in nuance and connectivity; subtle glimpses of the intricate relational practices and ancient propertied ways that this accustomed sight slowly reveals.
List of Contents
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp v-v
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Introduction
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp 1-36
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Summary
In 2016, speculative fiction writer William Gibson faced a unique dilemma. Gibson found that he was unable to finish his current book because it was set in a present that no longer existed. Perversely, the future had become now. Gibson almost put the book aside for good, thinking:
This is never going to happen. And it really threw me – for about six months. All I could do was read the news feed and feel worse about that. But eventually I realised that I wanted to believe I was living in a stub. That something had split off and that things weren't supposed to be this way. It wasn't supposed to be as dire.
Gibson's sense of dread is one that many of us have shared over the last few years, a dread that has only intensified since 2016, of being blindsided by a dire turn of events and the speed with which a future dystopia seems to be approaching. Life now imitates (nightmarish) art; global pandemics, climate crises, widening social and racial inequalities, civil unrest, liberal democracy under threat, the contestation of truth, science, objective fact, these are our new ‘normals’. Gibson's book was set in both the present and a post-apocalyptic future – a time after the ‘Jackpot’, an unspecified cataclysmic confluence of events or ‘ecopolitical disasters’ that wiped out 80 per cent of the human population, resulted in mass extinctions of nonhuman animals, and left the biosphere on the brink of collapse. For Gibson, the evidence was in, his imagined apocalyptic future was his 2016 now.
Our book, The Lawful Forest, is framed for this time on the cusp, written on the precipice of Gibson's ‘Jackpot’. We may be living through the end-days of late-stage capitalism, when David Harvey's accumulation by dispossession nears its inexorable conclusion – and the final enclosure of our earthly commons looms. All around us the portents are ominous. Species extinction accelerates, one hottest summer on record is followed by another, mega-wildfires scorch the land, and so on. Meanwhile, the human institutions we rely on for collective action seem inadequate for the herculean task. Democracy is under stress, inequalities are further entrenched, truth is relative, even insurrection surreally stalks the corridors of the U.S. Capitol. However, these dire times also speak of other ways forward, of past societal moments when we were on different ‘edges’, and of their ‘shadow revolutions’ rich in promise, yet never fulfilled.
6 - A Future Dystopia
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- Book:
- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp 205-225
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Summary
Our book dwells on a fault line between two tectonic forces: on the one hand, the seemingly inexorable ‘progress’ of enclosure, and on the other, the resistance to its ‘rational’ linear logic and its (seemingly) unstoppable trajectory. Through stories of rupture, of times when these tectonic forces collided in plainer view, The Lawful Forest's critical history of the last millennia reveals continuities, ongoing, recurring moments of societal inflection. This is the common thread that joins our critical history of property, protest and (claims to) spatial justice.
These inflection points are profound because they bring into sharper focus the nature of our relations with land; as both a physical space, and the abstract spatial orderings that property and its laws enliven. Such relations have played out against one unbending truth, that of land's finitude. In writing of the homeless in American cities in the 1990s, Jeremy Waldron spells out what land's finitude means for ‘those without property and those without community’, and the stark implications this has for spatial justice. It is a simple truth worth repeating: ‘everything that is done has to be done somewhere. No one is free to perform an action unless there is somewhere he (sic) is free to perform it.’ Another quote underscores this same pressing issue of land's scarcity, but it also reveals an alternate counter-truth. This is the spatial implication of what Chapter 3 first describes as the commonweal, where ‘the expansion of public wealth in land creates more space for everyone, while the expansion of private wealth in land reduces the space available for others’.
These inflection points likewise reveal the spatial choices made over time; where the commonweal confronts private wealth, and the linear path of enclosure is briefly disrupted before the status quo resumes. Critically, they provide the briefest of glimpses into other paths not taken, those against-the-grain spatial alternatives that would appear as random aberrations but for a longer-term, critical view of land and its history. In the twenty-first century, land's finitude now means that our available options are increasingly fewer and more limited. We are simply running out of space – and time.
We are at another inflection point now, perhaps the gravest ever. We approach the edge of the precipice, the cusp of William Gibson's ‘Jackpot’, the literary device employed at the very beginning of this book.
5 - Ecological Communes
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- Book:
- The Lawful Forest
- Published by:
- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp 173-204
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Summary
In the late 1960s, but especially the early 1970s, a significant cohort of young people, many of them tertiary educated, escaped Australian cities in demographically significant numbers. This was the era of the ‘back to the land’ movement; one of only four occasions in Australia's urbanised colonial history when the unidirectional flow of rural to city migration was reversed. Much scholarly attention has focused on the zeitgeist of this countercultural era, particularly in the United States. In this chapter, we explore how the Age of Aquarius took a distinctly Australian form: the enactment of a rural utopian vision that played out largely on the degraded green hillsides and forested escarpments of the far north-eastern corner of New South Wales. Here, ancient subtropical rainforests had been clear-felled in less than a century, a frenzy of destruction that left a paltry 1 per cent of remnant cover. This forest, colloquially called the Big Scrub, remains extant at its fringes, confined to the headwaters and ravines of creek valleys and atop the Nightcap Ranges and Jerusalem Creek mountains. But even into the early 1970s, it was a forest that, in its once expansive magnificence, continued to haunt both settler colonial and Indigenous memories.
This chapter begins at this point of inflection, some fifty-plus years ago, when so-called ‘longhaired hippies’ escaped the enclosures of the city, and in their idealism and youthful naivety, began an experiment in what they saw as a new way of relating to land and the environment. Theirs was a story of forging pioneering communitarian property-holding models, of the establishment of multiple occupancy rural land-sharing communities (‘MOs’) where new ways of relating to land and an emerging environmental ethos emphasised ‘repairing the ravages of previous land use battles and liv[ing] in accord with the natural environment’ – not ‘battling the bush in fruitless attempts to subdue it’. As noted, this internal migration had its epicentre in the far north-east of NSW, the aptly named Northern Rivers region bordered by the towns of Byron Bay to the east, Lismore to the south and Murwillumbah to the north. This was (and is) a green subtropical land dominated by a micro-climate of heavy rains, a myriad of creeks and rivers, rich red soils dating from a long-dormant volcano (named Wollumbin or ‘Cloud Catcher’ by the local Widjabul people) and verdant rainforests.
Frontmatter
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp i-iv
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4 - A Concrete Utopia
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp 133-172
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Summary
Several decades after the first publication of Utopia, as the growing rural population was faced with a scarcity of land and paid labour, increasingly intense waves of anti-enclosure riots swept across rural England. Commoners uprooted hedges, levelled ditches, destroyed gates and rioted in the streets. There was also violence, though the gentry was responsible for the majority of this.
This civil unrest, which was partly fuelled by popular resistance to the Henrician Reformation, culminated upon the death of Henry VIII in what is sometimes known as the ‘Mid-Tudor Crisis’. At the height of this crisis was a period known as the ‘commotion time’, when significant rebellions erupted in counties throughout England. The best known of these was Kett's Rebellion, during which thousands of rebels from all over Norfolk and Suffolk set up camp at Mousehold Heath outside Norwich – a camp that has been described as ‘the greatest practical utopian project of Tudor England and the greatest anticapitalist rising in English history’.
Significantly for this chapter, this rebel camp was the beginning of a largely new approach to popular resistance against enclosure; an approach under which demands for communal property rights and economic justice came to be pursued through the establishment of concrete utopias. Fleeting though they may have been, these utopias – including the rebel camp at Mousehold Heath, the Diggers colony on St George's Hill and the Paris Commune – all moved beyond theory into the physical world in order to manifest working models of an alternative social order or, less prosaically, to create liminal spaces of possibility.
This chapter starts with an examination of the commotion time, including Kett's Rebellion and the reverberations that followed. We then move forward almost a century to the English Civil Wars and the establishment of the Diggers commune on St George's Hill. In this section, we consider the historical context in which the Diggers colony was established, as well as the political and religious manifestos of its leader, Gerrard Winstanley. Like Kett's Rebellion, the concrete utopia established by Winstanley and the Diggers was temporary in nature, but its impact lingered in the form of Winstanley's writing and in the ideals that were brought to life.
The third section of this chapter crosses the Channel to briefly explore the Paris Commune and the socialist utopia that was established in 1871.
3 - A Glimpsed Utopia
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- Book:
- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp 105-132
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In this chapter, we jump forward to the fourteenth to sixteenth centuries, to provide a historical account of the early enclosures of rural (and urban) commons, and resistance to this enclosure via a Peasants’ Revolt, sporadic riots and a fictional Utopia. In this chapter, the notion of utopia is explored and defined through historic example and theory. It is used to further explore the prefigurative politics of forests, and some of the history behind the experimental communities and protest camps considered in later chapters.
This chapter begins with a brief exploration of the manorial system that emerged around the time of the Norman Conquest and the changes that were wrought to this system by the population shifts caused by the Black Death. From here, the chapter explores some of the key rebellions that occurred in the fourteenth and fifteenth centuries, including the Peasants’ Revolt of 1381, the early urban enclosure riots and the radical theology that informed these uprisings. This exploration of radical theology then leads to a consideration of Thomas More's Utopia, a literary work of both fiction and socio-political satire that critiqued the times and portrayed a place (or rather ‘no place’) where enclosure was unthinkable and communal ownership of property the norm. More's utopian thought experiment then gives way, in Chapter 4, to Kett's Rebellion, the English Civil Wars, the Levellers and the True Levellers (or Diggers) – and Gerrard Winstanley's concrete utopian experiment. Through these various incidents of both theory and action, this chapter tracks the history to what has been called England's second or ‘shadow’ revolution1 – one that focused on the rejection of enclosure, claims to communal property rights, and radical economic equality in lieu of Cromwell's bourgeois republic that was eventually realised.
The Manorial System and the Black Death
As Chapter 2 depicts, early ‘Anglo-Saxon settlements were relatively small, and surrounded by wood and waste’. These settlements of ‘individual free peasant landholders’ came to symbolise a particular conception of pre-Norman English life that was subsequently held up in contrast to the strictures of the so-called ‘Norman Yoke’ – a symbolic concept that came to play a powerful role in the rebellions of later centuries. Historians, however, dispute this idealised version of English history and point out that ‘the general drift of peasant life in [the] centuries before the Norman Conquest was from freedom to servitude’.
2 - The Ancient Forest
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp 81-104
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In writing of eleventh-century French law and society, jurist and historian Geoffroi Flach observes, ‘[i]l est peut-être vrai de dire que la liberté est sortie du fond des bois.’ Flach's reflection on ancient verities, of freedoms emanating from ‘the bottom of the woods’, speaks to a truth at the heart of the lawful forest. As the Introduction and Chapter 1 outline, our tale explores the intersection of ancient custom and the public square, and the social and political freedoms that populate this subliminal, contested, inherently potent space. Like Flach's aphorism, our narrative, and this space, is never far from the forest – whether long-felled Norman woods, or the remnant forest that is twenty-first-century London. In this chapter, we write of a vast English acreage of Oak and Ash and Thorn, a forest long gone, scarcely imaginable. Felled first to the till, then to the town, this forest nonetheless persists in its canopied memories. In reaching back a millennium and more, this chapter's aim is to reconstruct (and reconceptualise) what lies at the bottom of these long-disappeared woods.
If ‘the past is a foreign country’, this ancient place seems an alien world. Yet, at some levels, it is not. While separated by the vast gulf of time, we share a common legal landscape, a locus where ancient memories were once enacted, and now linger in the shaded margins – ghostly in their apparition. As Sarah Keenan argues:
to acknowledge and study ghostly matters is important in recognizing the complex ways that power operates … from state institutions and inescapable meta social structures such as racism and capitalism, through [to] countless, seemingly innocuous everyday things, practices and understandings.
The customs at the bottom of Flach's woods comprise deeply held, commonly understood memories of ancient ‘everyday practices and understandings’, hauntings that underline ‘how that which appears to be not there is often a seething presence’. This is why, to better understand this seething presence, and its significance to our modern-day lawful forest, we reach back to the distant past – to paint a picture of the customary history that this collective memory draws on; the forest customs that pre-dated (and survived) the Norman Invasion, and those same ancient customs that were reasserted under the Forest Charter of 1217.
The Forest Charter itself is a remarkable instrument, and not merely because of its antiquity.
Acknowledgements
- Cristy Clark, University of Canberra, John Page, University of Canterbury, Christchurch, New Zealand
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- The Lawful Forest
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- Edinburgh University Press
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- 14 July 2023
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- 31 August 2022, pp vi-vi
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The Lawful Forest
- A Critical History of Property, Protest and Spatial Justice
- Cristy Clark, John Page
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- Published by:
- Edinburgh University Press
- Published online:
- 14 July 2023
- Print publication:
- 31 August 2022
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This book is a study of the critical history of space, and the ways in which a dominant property ideology has entrenched an exclusionary and profoundly alienating version of spatial ordering. It focuses on select periods in time, when the seemingly linear trajectory of enclosure momentarily wavers and alternate spatial paths briefly materialise, before 'disappearing' from plain sight. Using the forest as a thematic device, Cristy Clark and John Page explore the tensions that pervade our propertied relationships: between commodity and community, abstraction and context, and private enclosure and the public square.
The book draws on a range of case studies including the thirteenth century Forest Charter, Thomas More's 'Utopia', the Diggers' radical agrarianism, the Paris Commune's battle for the right to the city, and Australian forest protestors of the late twentieth and early twenty-first centuries. By analysing these movements and their contexts, Clark and Page illustrate the origin, history and legal status of the lawful forest and its modern-day companions. Although the dominant spatial paradigm is one where private rights prevail, this book shows that communal relationships with land have always been part of our law and culture.
Stop Burying the Lede: The Essential Role of Indigenous Law(s) in Creating Rights of Nature
- Erin O'Donnell, Anne Poelina, Alessandro Pelizzon, Cristy Clark
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- Journal:
- Transnational Environmental Law / Volume 9 / Issue 3 / November 2020
- Published online by Cambridge University Press:
- 02 October 2020, pp. 403-427
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The rapid emergence of rights of Nature over the past decade across multiple contexts has fostered increasing awareness, recognition, and, ultimately, acceptance of rights of Nature by the global community. Yet, too often, both scholarly publications and news articles bury the lede – namely, that the most transformative cases of rights of Nature have been consistently influenced and often actually led by Indigenous peoples. In this article we explore the ontologies of rights of Nature and earth jurisprudence, and the intersections of these movements with the leadership of Indigenous peoples in claiming and giving effect to their own rights (while acknowledging that not all Indigenous peoples support rights of Nature). Based on early observations, we discern an emerging trend of increased efficacy, longevity, and transformative potential being linked to a strongly pluralist approach of lawmaking and environmental management. A truly transformative and pluralist ecological jurisprudence can be achieved only by enabling, and empowering, Indigenous leadership.