BRIDGING DIVIDES: THE CHANNEL TUNNEL AND ENGLISH LEGAL IDENTITY IN THE NEW EUROPE by Eve Darian-Smith. Berkeley: University of California Press, 1999. 256 pp. Cloth $50.00. ISBN: 0-520- 21610-5. Paper $19.95. ISBN: 0-520-21611- 3.
Reviewed by: W. Wesley Pue, Nemetz Chair in Legal History and Professor of Law, University of British Columbia.
"YOU WOULD THINK QUITE DIFFERENTLY IF YOU HAD BEEN BORN ON THIS ISLAND!"
-- Lord Palmerston, attempting to dampen Prince Albert's enthusiasm for a tunnel link between England and France, 1867 (quoted at p. 82)
This book, written by an Australian anthropologist and published in California, addresses legal and cultural questions arising in England. Despite its focus on an engineering accomplishment - the construction of the Channel Tunnel - this is very much a book about law. It is also about contexts: the contexts of English law, those in which Englishness developed, the contexts of fast trains, Kentish gardens, island nations, and anthropological observers. In appreciating such a book the context of the reader matters immensely too.
There is much in the way of cultural interpretation here that is foreign to British North Americans living north of the 49th parallel. Unlike the United States (a more important British Diaspora culture) or Australia, for example, Canada has no "nation." We are arguably the world's first post- modern state, and the concerns of national and sovereign peoples seem beyond us. Unlike Australia or the United States (which fancies itself "America") or the United Kingdom, Canada is immensely aware of its continental location, its land boundaries and its status as something other than an "island" political unit.
Eve Darian-Smith's BRIDGING DIVIDES: THE CHANNEL TUNNEL AND ENGLISH LEGAL IDENTITY IN THE NEW EUROPE is, in part, directed to exploring some of the legal implications of England's "island nation" status. It also, in part, addresses the familiar jurisprudential chestnut, "What is Law?" In company with jurisprudes and liberal theorists ranging from Marx and Weber, through Hart, Raz, Donald Black, Posner or Dworkin, she thinks law is about "courtrooms, parliament, legislation, and the legal profession" (p. 14). More controversially she asserts that it is also about oak trees, cliffs, hedgerows, village greens, tunnels, fast trains, and bizarre remnants of mediaeval rituals (p. 196). The argument in this book is NOT the obvious one that "the law" (parliament or courts or whatever) has, in some nook or cranny, something to do with oak trees or cliffs or ritual. Rather, she says, such things FUNDAMENTALLY constitute law.
Strange stuff indeed. What, one reasonably asks, is the connection between landscape features and LAW? The answer proposed (take a deep breath) lies within the realm of the "aesthetics of law." This term references "the ways in which law is intimately connected to visual, sensual, and
Page 373 begins here
textural phenomena." The exploration of law from this angle calls in turn for investigation of "how an aesthetic redefinition of people's view of their material, symbolic, and metaphoric landscapes influence how they experience the powers that order specific territories and shape related forms of morality" (p. 14).
This is a disturbing thesis. From the perspective of North American suburbs, recognizable from Quebec City to Los Angeles, "aesthetics" often seems to reside elsewhere. What "aesthetics of law" can possibly make sense to North Americans? WE experience law everywhere. "Aesthetics," however, often seems always to reside some place else - maybe a downtown art gallery or in another city, but more likely overseas in Paris or London. More problematic still, the predominant North American mentality leaves little room for notions that something as practically cold and abstract as LAW might have any relation whatsoever to anything as fuzzy, warm and imprecise as "aesthetics."
Odder still, the book treats an admittedly impressive engineering accomplishment - the construction of the Channel Tunnel - as LEGALLY significant. The legal (or cultural) import of tunnels is however not immediately obvious. Though many places have tunnels, no one teaches "tunnel law" or even "bridge law." Thinking from late twentieth-century Canada, a book about landscapes, tunnels, "aesthetics" and law is very odd indeed.
This is not however a book about placeless spaces, culture-less societies, or countries with no nation. It is about England (more on the quirkiness of the Brits below). It is about legal theory. As such it offers insights highly relevant to sociolegal study in important places (e.g., the U. S. A.), disposable periphery states (Canada, or Australia, perhaps) and exotic locations (e.g. Nunavut, Zimbabwe, or Indonesia) alike. While the empirical focus of the book is England's Kent County, its CONCEPTUAL PIVOT is the interplay of the local and the global in law and culture. The forces of "globalization," felt most directly in Kent in the form of the European Union, are made newly tangible by the Channel Tunnel's land link to the continent. Darian-Smith seeks to take us beyond previous conceptualizations of the local and the global:
"There now exists a great deal of theoretical literature on local and global politics.. Yet much of this work takes for granted that we all recognize and know what `local' and `global' mean and represent. On the one hand, formal institutional change is presumed to operate at the global level, while on the other hand, personal perceptions relating to cultural identity, and subjective interpretations of place occur at local levels. The problem with this model is that global (structure) and local (agency) are too often neatly distinguished as separate processes. In fact, these areas of exchange and transition are interdependent. For despite the appearance of local and global as extreme opposites, they depend upon and mutually define each other" (p. 166).
So far, so good. North American positivism does not sit well, however, with the next component of her argument. Darian-Smith holds that "the nature of English law, its intimate connection to the land, and its relationship to the conceptualization of Britain as an autonomous island nation are being seriously challenged" (p. 188). This is not
Page 374 begins here
primarily, as one might think, on account of the transfer of legislative, economic and judicial power from London to Europe. Rather, "the legal presence of the EU, in the form of fast trains, yellow rape fields, clean beaches, and exhaust-free cars, may be subtly affecting a range of people and their perceptions of THE LANDSCAPE AS AN AESTHETIC SYMBOL OF THEIR IDENTITY AND A POSSIBLE ICON OF NATIONAL ALLEGIANCE" (p. 188, emphasis added). THOSE CRAZY BRITS
The peculiarities of the English need to be addressed directly if such seemingly extravagant assertions are to be appreciated. "Peculiar", the English certainly are. Their customs, folkways and rituals are almost unfathomable to foreigners. What, for example, is one to make of a service organization, calling itself "Men of Trees", whose mission is to plant oak trees in Kentish "villages" but never in "towns"? "Men of Trees" ChairWOMAN, Peggy Stevens, explained that no formal criteria were needed to distinguish villages (entitled to their beneficence) from towns (not so privileged), because authentic Kentish folk instinctively know their villages from their towns (p. 18). Go figure.
England, it turns out, is peculiar in three ways. Each peculiarity is fundamentally constitutive of English law. Darian-Smith draws our attention to these aspects of England's legal culture: (1.) English self-understandings about their peculiarities as an island nation, (2.) related assumptions about English attainments in citizenship, virtue, law, and constitutional government, and (3.) the relationship of those attainments to landscape. Within this frame it goes without saying that even if, as seems unlikely, England is not the best of all possible worlds, it is nevertheless a jolly good place.
The significance to be attributed to the fact that a nation state is also an island (apologies to Scotland and Wales and the Irish part of the United Kingdom) is not immediately apparent to continental Europeans, Mexicans, or Canadians. More easily understood perhaps by Australians and United Statesers, whose Monroe Doctrine effectively creates the U. S. A.'s imagined space as a rather large "island," the peculiarities of England are significant. The only European State unoccupied by enemy forces for a millennium, England's island status confers upon it a sense of security, bounded identity and difference. The first industrial state, the greatest of the great imperial powers, the font of liberal democracy, human rights and the rule of law, the English have long pondered their peculiar blessings. Many have been inclined to find explanation of England's greatness in their "island" status. Consider, for example, the words of Major-General John Spencer Ewart in 1906:
"Great Britain has always been an island. To its insularity it probably owes its peculiar institutions. It has always been able to adopt so much of Continental civilization as it thought wise and desirable. In fact, however it has adapted rather than adopted. The result is something quite unique. British civilization, as American and Canadian travelers often point out, is much more different from Continental civilizations than is one Continental country from another. Thus British characteristics have developed themselves in partial isolation from the rest of the world and have, indeed, MADE A CONTRIBUTION WHICH IS PERHAPS GREATER THAN
Page 375 begins here
THAT OF ANY OTHER COUNTRY TO THE CIVILIZATION OF THE WORLD...
This historical sense of insularity, this pride in the distinctive features of British civilization, this belief in the influence of the sea upon British character, is a factor which ought not to be overlooked in any examination of the problem of the Channel Tunnel" (quoted at p. 85, emphasis added).
This strikingly succinct statement draws together a constellation of faith-statements, all of which seemed obvious to Ewart's generation. Here, in a nutshell, is an entire national sociology and historiography. It is fully the equivalent of, though antecedent to, the U. S. A.'s Turner thesis. Ewart's problematique, shared with many others of his day, was to explain how England came to be the end-point of history. The passage incorporates Whiggish assumptions about English history, an emphasis on the peculiarities of the British (shades of Weber) and heavy doses of the environmental determinism then fashionable amongst geographers. Racial assumptions underlay the notion of a "British character". It distorts only slightly to reduce all this to two foundational assumptions: (1.) England is the greatest civilization the world has ever known; AND (2.) England's greatness flows from its lack of a land link to a continent. This may strike some as reasonable, others as absurd. Regardless, some such mythological understandings of national history enjoyed wide currency in England a century ago. In our own day an Empire has been lost and, consequently, the English are less obviously inclined to see themselves as the end-point of history. There are significant traces forward however. Kindred understandings resonate powerfully with a number of contemporary English assumptions concerning national identity, citizenship, and history. A nostalgic hearkening back to bygone glory days mixes with complacency and with pride in English social and legal achievements, leaving an altered, but persistent, "island nation". Many English - and certainly many Kentish folk, inhabit some such mythology.
One of the key features of Englishness -- as culture, ideology, law, and citizenship -- has been its explication in terms of what it is not. In a word, the English are not French. The complex, multi-faceted historical relationships between England and France are deeply layered and often contradictory. But when it comes to DEFINING the virtues of Englishness the deployment of France as an "other" is more or less constant. In English eyes France can appear to be a strange place where people eat snails and horses, worship the Virgin Mary, where the sun shines and the wine is splendid. The odor of garlic is pervasive, disease rampant. France also is commonly seen as suffering deficits with respect to both democracy and rule of law. Consider, for example, Conservative MP Norman Tebitt's 1990 assertion that "The blessing of insularity has long protected us against rabid dogs and dictators alike" (quoted at p. 147). There can be little doubt that it is not only Hitler's ghost Tebitt intended to conjure up by his colorful choice of words. English insularity is often assumed to have protected the freest people on earth from homebred dictators as well as from foreign tyrants. Maybe bad ideas -- despotism or civil law, perhaps -- as well as diseases, invading armies and other nasties are repelled by ocean boundaries. One informant told Darian-Smith this,
"The French, you see, have much more control over people there. They
Page 376 begins here
haven't got democracy there in the same way as you have here. Here you've always meetings and discussions. People have time to think and opportunities to defend what is important to them like nature and wildlife. There it goes right back to Napoleon - the French, if they want something done, it's done you know.. It's a law dictatorship the French system of government, funnily enough despite the French Revolution" (a leading member of the Kent Conservation Society, a retired lawyer, quoted at p. 38).
The linkages between Englishness, virtue, democracy and landscape are interesting. The notion that democracy involves something beyond the election of a national legislature ("always meetings and discussions") implies a deep, organic, and very English constitutionalism that is not easily reducible to governmental systems (Napoleon). The idea that "nature and wildlife" is important is not, perhaps, altogether surprising coming from a leading conservationist. (We politely overlook the facts that England has no uncultured landscape and that much of its indigenous wildlife has been entirely destroyed). The land, the laws, the nation, and constitutionalism are linked in this passage in ways that are not merely instrumental. Hedgerows, oak trees, feudal footpaths, and gardens are all, Darian-Smith says, constitutive of English constitutionalism.
The contemporary "English national imagination," she maintains, "embodies certain features of an idealized English heritage. Rolling green hills in an idyllic pastoral landscape embody profound and fiercely defended icons of a timeless, Anglo-Saxon imperial power brimming with class hierarchy and feudal patronage." The whole speaks of "old world charm and embedded traditional values" (p. 44) just, perhaps, as the outback evokes Australia's quasi-constitutional principle of "mateship" and "Marlboro Man" country manifests U. S.A. virtues of rugged individualism, "can-do" enthusiasm, boldness, and freedom.
The English law which Kentish countryside STANDS FOR is, in part, about a deeply tolerant constitutionalism. In other aspects it is about hierarchy, class, and patronage. In a brilliant assessment of the most ordered of English landscapes, the English country garden, Darian-Smith demonstrates gardens to be symbols of "power and privilege. control and civilization" (p. 45). " Law and its aesthetic cultural base were mutually reinforcing" (p. 62), she says: "the garden, as a peculiar feature of the landed estate, continued to operate as an aesthetic metaphor for a social elite's legal capacity to civilize, cultivate, beautify, order, naturalize, universalize, exclude, dominate, and ultimately make inequalities appear more plausible and acceptable" (p. 61). Seen thus, gardens are not just places where plants grow. As metaphors for a legal and social order, they invoke the spiritual essence of an entire nation, its history and its laws:
"Today, the force sustaining England's legal imagination relies upon the image of absolute property ownership in a naturalized `old England,' in which tradition, common sense, and legal precedent play significant roles. Evoking a past when the nation's economic and political stability flourished, the garden today provides an organic metaphor for a particular temporal and spatial landscape that mythically represents the imperial glory of England, the identity of Englishness, and the superior authority
Page 377 begins here
of English law...the garden demarcates a confined and cultivated space - a place of security, a guarantee of repose, a buffer zone against intrusion. And, I suggest, it is precisely nostalgia for the garden as an enduring naturalized and innocent visual representation of England - and Britain's - legal and cultural stability that today makes is so powerful and emotive a mythology" (p. 62).
In advancing such arguments Darian-Smith draws upon extensive literatures and a wide array of sources of evidence, carefully grounding her analysis in context. Despite this, the book suffers from a serious weakness. The Kentish and English context is so alien to contemporary North Americans as to be almost unimaginable. A hard-to-bridge culture gap arises between author and readers: many who read this book will find it quite implausible that English law and constitutionalism could be related in any way, shape, or form, to landscape features.
Strongly corroborative evidence is, however, found in the history of English and British colonialism, a story that might be described as an attempt to Kent-ify the world. Colonists and colonial administrators invested considerable effort into working to transform foreign places into English landscapes, often complete with overseas aristocracies (an effort that, by and large, failed), "transplantation" societies, English agricultural practices, Imperial architectural forms, botanical gardens, and so on.
A cartoon published over sixty years ago in the VANCOUVER SUN portrays then-current understandings of the relationship between Britain, her colonies, and British law. In the background a thatched cottage and manicured hedge provides the setting in which John Bull presents a scroll to a deferential, suitably manly-looking, younger fellow. Steps lead down toward the reader from a cut in the hedge. The meaning of the transaction is revealed in the foreground where eight men stride purposefully outward from the thatched cottage. Dressed in the stereotypical garb of colonists, it is clear that they are headed to diverse destinations within the Empire on which the sun never set. One is clearly bound for Australia. Another, a man with European features and pith helmet, is presumably destined for a new life in British Africa. His lumberjack shirt, decorated with a maple-leaf chest patch, identifies the Canadian settler. A turbaned individual, the only non- European in the group, is apparently a native of the Indian sub-continent. Even "Uncle Sam" appears, marking the British heritage of the United States (cf. Library of Congress and British Library). Each man carries a scroll containing "British Law". This, the caption tells us, is the "priceless heritage" of the colonies (Pue, 1995: 91).
This cartoon captures much of a "common sense" about Britain, empire, and law. The notion of British law as a priceless heritage, a precious gift given by the mother country to her far-flung, diverse, colonial subjects was -- perhaps still is -- uncontroversial. One of the mythic figures of British Imperialism is the colonial judge, who ventured to the remotest outposts of Empire to bring "law" to colonist and native alike, to exercise moral influence, dispense justice impartially, and, generally, educate all in the virtues of British law, morality, and commerce. Lawyers too embodied law. Slightly less visible than judges or soldiers or mounted police, their role was thought to be important nonetheless. Their training, socialization, traditions, conventions, etiquette and governing structures have a significant effect on the living law of any
Page 378 begins here
place (see McQueen and Pue, eds. 1999). There can be little doubt that the desired end of Empire was the cultural adaptation of the world to British values but also, inevitably, the transformation of overseas landscapes so as to bring them as near as possible into conformity with the hedge-bound landscapes of John Bull's England.
The transformation of land, law, and culture were each part of colonization processes. The simultaneous transformation of each sphere was the cultural project of Imperialism. More even than the suppression of "native" religions, these were the essential core of the Empire's Great Mission. Looking "home" from overseas casts the values of the English in stark relief, revealing the close relationships they imagined between the superficially distinct realms, which Darian-Smith so cogently brings together. PARADISE LOST
It is only by understanding such seemingly improbable connections that it becomes possible to appreciate how the addition of a single new railway line (the tunnel route) has registered so large in the English consciousness. The Tunnel transforms England into something less than an island. Its construction was accomplished only by means that were said to have distorted or corrupted "essentially English legal processes" (p. 127). Moreover, by bringing Kent and other English places into direct relation with Europe, London's relationship to England has been altered. The Channel Tunnel has "called into question the liberal presumption that in modern nation-states, legal and political power necessarily emanate from a capital city" (p. 140).
Registering against Albion's splendid history and comfortable, civilized, spaces, the Channel Tunnel thus represents a "paradise lost," "the Tunnel's disruption of secure spatial borders and an idealized conflation of island, nation, and defensible jurisdiction.. the Tunnel defiles a bounded space dear to the English national imagination. By cutting across Kentish properties, orchards, hedgerows, and a dense network of public footpaths and bridle paths deemed to have existed for centuries, the Tunnel and the fast rail linking it to London metaphorically and literally undermine an established aesthetics of order that is the indispensable basis for imagining the natural authority of English law and notions of Englishness" (p. 65).
All told, this is an outstanding book. It focuses on places and themes unfamiliar to North American "law and politics" scholars and does so with an exceptional analytical perspicuity, methodological imagination, and rigor. This book makes unique contributions to understandings of law, politics, globalization, and culture, making it one of the most inspired "law and" books in recent years.
REFERENCES:
Library of Congress and British Library, JOHN BULL AND UNCLE SAM: FOUR CENTURIES OF BRITISH-AMERICAN RELATIONS (the exhibition website is at http://lcweb.loc.gov/exhibits/british/ ).
McQueen, Rob and W. Wesley Pue, eds., 1999. MISPLACED TRADITIONS: BRITISH LAWYERS, COLONIAL PEOPLES, 16 (1) LAW IN CONTEXT.
Page 379 begins here
Pue, W. Wesley, 1995. LAW SCHOOL: THE STORY OF LEGAL EDUCATION IN BRITISH COLUMBIA. Vancouver: University of British Columbia Faculty of Law (reproduced at: http://faculty.law.ubc.ca/Pue/historybook/school03d.html).
Copyright 2000 by the author, W. Wesley Pue.