2. Where do we come from?

There is a personal aspect to the story of how we each found our way to the space of legal geography. We met while we were doctoral students in urban studies and European labour law, respectively. We became friends and later partners, but we also discovered that there was some overlap between our respective PhD research projects in so far as they both dealt with the geographies of labour and social rights in the EU. In our conversations, we also found that it was quite enriching to work across the divides between our respective disciplines. In our joint and separate work, we have made use of the analytical resources of legal geography to re-conceptualise the problem of social dumping and, ^{Footnote 3} more broadly, to explore the multi-scalar regulation of ‘work on the move’ in the EU, ^{Footnote 4} especially within the logistics and transport sectors. ^{Footnote 5} We have also done work on internal bordering in the context of intra-European so-called poverty migration. ^{Footnote 6}

3. Starting from the ground up

Legal geography, as de Witte notes, is not a solidified sub-discipline, nor a systematic methodology. As the title of our response suggests, we prefer to think of it as a conceptual and analytical toolbox. It is also a way of asking questions, a particular ‘ethos of investigation’: ^{Footnote 7} a context-sensitive, empirically oriented and reflexive approach that is simultaneously attentive to the detailed workings of law. De Witte suggests that legal geographic analysis allows for an exploration of the everyday experience of ‘[living] under EU law’ and, with that, a better understanding of (popular) resistance to the project of EU integration. He is right in this. EU integration is not an a-spatial or ‘extra-territorial’ process; it does not unfold in an abstract space above or beyond the concrete geographies of everyday life.Footnote ⁸ This fact is made clear by the evolving meaning of the concept of ‘territory of the Union’ in relation to the possibilities of individuals to exercise and claim rights attached to EU citizenship status.Footnote ⁹ This, in a nutshell, is why it is useful to approach the study of EU law using the toolbox of legal geography.

In what follows, we wish to highlight three characteristics of legal geography that, we believe, make it a productive analytical approach: first, the methodological orientation towards the workings of law ‘on the ground’; second, the attention to the technicalities of law; and third, the use of concepts that allow us to challenge taken-for-granted ideas about law and political order, not least in the context of the EU.

Legal geography encourages us to reconsider the epistemologies and methodologies of EU legal studies. If doctrinal analysis remains dominant in the field, legal geography ‘flips the script’ so that instead of treating law as an abstract set of principles and rules that are ‘applied’ to real-world situations, we start from a concrete case or situation to consider the complex workings of law ‘on the ground’. Qualitative, empirically oriented, and context-sensitive methodologies for data collection and analysis (such as ethnographic, interview, and case studies) can lead to new discoveries, and allow us to explore dynamics that might have been overlooked had we started from the abstract principles and rules set out in conventional legal source materials. An instructive example of this is Mariana Valverde’s detailed empirical studies of the mechanisms and effects of ‘everyday law on the street’.Footnote ¹⁰

Legal geography is in many ways similar to the broader field of socio-legal studies. However, geographic methodologies allow for inquiries into the more-than-discursive dimensions of law and legal practices. Legal geographic methodologies involve an analysis of how abstract legal categories and regulations ‘map onto’ concrete, lived space and pays attention to the material/spatial and lived relations of power, oppression, and resistance. A good example is Ellen Gordon-Bouvier’s analysis of domestic work, which shows how the regulation of this type of work in English law reiterates a gendered division of labour, reflected into the spatial distinction between the private space of the home and the public domain presumed by property law.Footnote ¹¹ In our joint work, we have explored how EU regulations on the freedoms of establishment and providing services – which are intended to promote market integration and economic development by removing barriers to company mobility – ‘map onto’ the uneven socio-economic geography of present-day Europe. They then create the conditions for social dumping to take place while simultaneously re-configuring both the legal and geographical space for action by trade unions and workers. ^{Footnote 12}

4. Attention to ‘Legal Technicalities’

A second reason why we find legal geography to be so useful as an analytical approach has to do with its attention to the detailed workings and technicalities of law. ^{Footnote 13} This includes its focus on the ‘spatialities of law’. That is, how law ‘envisages both physical space and the space of governance’, ^{Footnote 14} whether it works through categories of space and, if so, how these spatial categories are defined and demarcated. Legal geographers have documented many examples of spatial tactics in law – including court-imposed spatial prohibitions (so called ‘red zones’) ^{Footnote 15} and spatial limitations on begging, ^{Footnote 16} freedom of speech (eg free speech zones), ^{Footnote 17} and even kissing.Footnote ¹⁸ These works interrogate the ability of law, and of legal actors, to govern people by governing space in ways that negatively affect already disenfranchised and marginalised subjects.

Drawing extensively on this subset of the legal geographic literature, Persdotter’s PhD thesis explored how internal bordering took place in the EU in the mid-2010s. More specifically, it traced the multi-scalar governance of destitute mobile EU citizens (mainly Romanian Roma) in Sweden. It showed that the Swedish state, unable to enact restrictions on the entry of ‘unwanted’ EU citizens, have turned to enable local-level municipal governments to mobilise a host of measures to regulate how ‘vulnerable EU citizens’ are able to access and use urban space for securing shelter and livelihoods. Thus, individuals who are formally free to move and reside within the union have been subjected to a set of government practices (including systematic evictions) that aim to discourage and otherwise manage their mobilities by controlling their conditions of stay in such a way that they are effectively prevented from settling. ^{Footnote 19} Here, the analytical resources of legal geography were useful to explain not just how this shift happened, but also to shed light on its detailed workings, effects, and implications. For example, the thesis showed how the framing of destitute EU citizens as a nuisance and public order problem – due to the technicalities of nuisance law – effectively contributed to undermine claims for their rights and protections.Footnote ²⁰

5. Conceptualising complexity and change

Finally, the main reason why we both find legal geography to be so suitable as an analytical approach to the study of EU law specifically is that it offers a language and conceptual framework to describe the always changing configurations and geographies of authority in the EU, as well as to explore their complexities. ^{Footnote 21} The project of EU integration is fundamentally about the re-scaling of state powers and the forging of multi-scalar institutions and relations of government. Static concepts are not helpful in understanding these processes. Instead, we need to think of categories such as ‘regional’, ‘national’, and ‘supra-national’ as open and, to some extent, always undetermined. That is, as historically specific representations and materialisations of socio-political relations. ^{Footnote 22} The same goes for the concepts of ‘jurisdiction’ and ‘territory’. Indeed, the recent assertions of sovereignty by the Hungarian and Polish governments – and prior to these, ‘Brexit’ – serve as a stark reminder of the contingency of the EU’s political and legal orders.

Different scales of regulation are not necessarily mutually exclusive. ^{Footnote 23} On this point, we would like to echo de Witte’s suggestion that legal geography can help us to question a widespread assumption in EU legal studies: namely, the assumption of uniformity. ^{Footnote 24} In our work, we have called attention to some of the many messy spaces of EU law. Drawing on recent studies of the spatialities of mobile work and EU labour law,Footnote ²⁵ we have attempted to challenge the idea that EU integration unfolds through a one-directional transfer of powers ‘upwards’ from the Member States to the EU.

In a recent articleFootnote ²⁶, we argued that EU integration turns on the scalar differentiation of powers between various scales of government: a sorting of competencies between the EU institutions and the Member States. In the context of European labour law, this scalar differentiation of powers means that the EU institutions have been given the competencies to regulate cross-border company operations. Meanwhile, core labour law matters remain the competencies of the Member States. This gives rise to a cross-border jurisdiction where companies compete across the EU internal market on the basis of their geographical location and therefore on the basis of the labour law regime they formally belong to. ^{Footnote 27} Thus, the contemporary European regime of labour law can be usefully thought of as a ‘patchwork’, characterized by ‘a situation of simultaneous fragmentation and overlap of labour law regulations across and within the EU Member States’. ^{Footnote 28} This matters because the current scalar division and differentiation of powers makes national labour law functional to the working of the EU internal market, which, in turn, reinforces the inequality between capital and labour as social powers, while placing constraints on transnational actions by trade unions and workers. ^{Footnote 29}

6. Concluding remarks

To conclude, we want to, again, acknowledge the timeliness and importance of de Witte’s intervention. A research agenda oriented by legal geographic concepts and methodologies might guide us beyond the framework of the ‘crises of the EU’ that is (re-)currently used to describe the failures and shortcomings of the EU legal order. Challenging the view of the EU as monolithic, it allows us to carefully explore EU integration and law as historically and geographically situated and to investigate how it all works ‘on the ground’. Let’s start this journey!