On the potential of place and place of potential

Abstract

This contribution to the symposium on Legal Geography and EU Law reflects on Floris de Witte’s paper. It makes two points: one about the potential of thinking about place in (and for) EU law and a second about the idea that potentiality itself – a notion which alludes to what could be – could be thought of in spatial terms. The overarching suggestion is that these ways of thinking offer insights into the meaning of meaning in EU law.

It’s ‘a shame’, Floris says, that ‘very little attention has been paid to the ways in which the nature, structure, and lived experience of the EU can be explained from a spatial and temporal perspective’;¹ and it’s a shame, he says, for all the reasons that he goes on to set out in his paper. But in studying that paper, I kept coming back to that early line, because it got me thinking about something else: what does it mean, for something to be a shame? We know, from Floris’s paper, why the lack of attention to the spatial and temporal dimensions of EU law is – or can be understood as being – a shame, but what is it, to be a shame?

When we say that something is a shame, we seem to be saying something that at once points to a present reality and alludes to what could have been. There is a sense of something missed – a possibility unrealised, a truth unseen, a path untaken, a thought unthought; and this sense, moreover, is one that is essentially watermarked by disappointment, sadness, or regret, like a text is watermarked by its author.² Put differently, there is a sense of an other, a different world, in which but for … this, things could have been different. To feel this, or to think it, involves the admission and inhabitation of a space between what is and what could have been. This is a space that is at once factual and counterfactual, a space in which actuality and possibility jostle and the aura (and maybe allure) of an alternative life is felt. It is this that is forefronted in analyses of the ways in which absences and nothings and things that were non-things shape our self-identities.³ It is this that is examined in accounts of our ‘possible selves’ and reflections on the notion of our ‘unled lives’.⁴ And it is this too, I think, that is known in moments of seeing or feeling the forks in a life.

Here, by which I mean in relation to the discipline of European Union (EU) law, the shame in question also involves the missing of something. But the point is more than that, too. It is that what has been missed must have necessarily, and despite its being missed, still been a fundamental part of the experience of EU law, such that it has always been there, but simultaneously not – an absent, or latent, presence; a way of knowing not known. The implication is that there has been a lack in the construction of the discipline, such that EU law could have been thought about differently all along. Of course, and as with anything that’s a shame, the reality is that we don’t really know that what could have been would have been; and we don’t really know either what, if anything, was enabled or averted by its not being. But the idea that EU law could have been thought about differently is nevertheless interesting in its issuing forth of the question of thinking. It calls for ‘thinking about thinking’;⁵ for thinking about how we think about what it is that we think about; for thinking about how we think about EU law.⁶ In that sense, the conceptualisation of the lack of attention to the spatial and temporal dimensions of EU law as ‘a shame’ also sharpens attention to the question of meaning, because thinking about how to think about EU law involves the attribution of meaning. Answers to the questions of thinking are, in that way – like the construction of the questions themselves – ‘acts of meaning’.⁷ And maybe that’s what feeling something to be a shame involves too: reflection on the meaning of meaning.

Reading Floris’s paper about legal geography and EU law felt, quite literally, like being taken on an exciting tour of a vast and ever-expanding space. It is a hugely thought-provoking piece; and once I was capable of looking past my favourite line in it – the line that kept calling me back and coloured my reading; the line that raised, for me, and in the most intriguing way, the question of the meaning of ‘a shame’ – there were two things that struck me in particular. The first is the profound potential of place – or, more specifically, the profound potential of thinking about place in (and for) EU law. This is related to the central insight that is woven throughout Floris’s exposition of the field: that thinking about how EU law and space interact – which means thinking about ‘how law constructs space, and, conversely, how space affects law’⁸ – could fundamentally enrichen the discipline of EU law and ‘offer very valuable insights into the nature and “lived experience” of European integration’.⁹ The points are related because ‘thinking spatially’, Floris says, ‘requires attention to how space is given meaning through law’.¹⁰ It is the latter, the literature suggests – the giving of meaning to space – that is involved in the designation, imagination, or construction of place.¹¹ As Yi-Fu Tuan puts it: ‘‘Space’ is more abstract than ‘place’. What begins as undifferentiated space becomes place as we get to know it better and endow it with value’.¹²

How does this knowing and valuing, this giving of meaning, this constructing of place, occur in EU law? Well, that is the future question; but the implication is that it is a process inseparable from EU law’s broader framework of meaning, without which it wouldn’t make sense. The potential of thinking about place in EU law is, in this way, the potential of thinking about the ‘conceptual life’ of EU law:¹³ about the concepts that structure the meaning of being in (and according to) EU law;¹⁴ about the construction and rendering intelligible of a form of life in and through EU law;¹⁵ and, fundamentally, about the vision of the human condition that is articulated in EU law.¹⁶ The promise of EU legal geography is the promise of more than the telling of ‘something about what it means to live in the EU and what it means to live under EU law’, then;¹⁷ it is also the promise of the telling of something about the meaning of meaning itself in this context.¹⁸

That makes it, simultaneously, a promise of insight into our imagination of EU law; and that, in turn, brings me to the second point that I wanted to make about Floris’s piece. This is about the place of potential, by which I mean the idea that potentiality itself – a notion that alludes to what could be – could itself be productively thought of in spatial terms. It has been elsewhere: to the extent that Donald Winnicott’s concept of ‘potential space’ constituted a theorisation of potentiality as well as a new concept entirely, this would be the most famous example.¹⁹ Winnicott conceived of ‘potential space’ as an area of experiencing between ‘the inner world’ and ‘actual, or external reality’²⁰ – ‘between the individual and the environment (originally the object)’.²¹ This is the space, he theorised, where playing, creativity, and ‘cultural experience’ occur;²² this is the place, on his analysis, ‘where we most of the time are when we are experiencing life’.²³

This could, I think, be an interesting concept to think about in relation to law. In the context of EU law in particular I am reminded, for instance, of Floris’s analysis of the way in which EU law can (or rather ‘could traditionally’²⁴) be understood as enabling the individual to conceive of themselves as apart from their ‘home’ state: something which enables a form of self-realisation (the realisation of ‘innermost and private aspirations and desires’²⁵) and a form of self-articulation (the articulation of ‘this is who I am’). On this account, EU law, and free movement in particular, presupposes that the individual may not find and realise herself within her state, and creates a space that enables her to look elsewhere.²⁶ In so doing, it ‘aims to allow the individual to live a life that most closely realises his or her idea of “self”’.²⁷ The question that we might want to consider in this context is the form that this space takes – Floris’s suggestion being that it is one of ‘potential space’, ‘transitory – liminal – space’²⁸ – and it is notable, too, that a notion of self-realisation that is worthy of further examination in similar vein is to be found also in European human rights law.²⁹ But to go down that path right now would be to take us away from what I really have in mind with the idea of the place of potential, which is a notion of potentiality itself as a place: of a place that derives its meaning as such from the potential ascribed to it.

In some respects, this is an intuitive and therefore familiar idea: a place may evidently be thought of (and constructed) as such on account of the expectations held of it, the anticipation felt in relation to it, or the potential ascribed to it.³⁰ (And the question of our capacity to experience ourselves as transformed by places – and, relatedly, to imbue places with transformative potential – is a separate, but nevertheless related and interesting one.) But the point is also more concretely one about the way in which potentiality can feature in, and shape, the law’s construction of places. An example would be Public Spaces Protection Orders in England and Wales, which can involve the prohibition, in delineated public spaces, of certain activities that are deemed to have a ‘detrimental effect’ on the local ‘quality of life’ in part on the basis that those activities are likely to occur and to have such an effect.³¹ Another example, in the context of EU law, would be the conceptualisation of the protected ‘resting places’ of European hamsters (and indeed of protected animal species listed in the Habitats Directive more generally) to include ‘resting places which are no longer occupied … where there is a sufficiently high probability that the species will return to such places’.³² These two examples are evidently very different, but the questions that they raise about how potentiality is being constructed and the work that it is doing – including in relation to the construction of law itself – are, in each case, the same.

Thinking about potentiality in spatial terms in this way opens up two levels of thinking. One is about how potentiality can be woven into the conceptualisation of a place – and, relatedly, of how a place can be constructed as such on the basis of the potential ascribed to it. The second is about how potentiality itself can be thought of as a place, and therefore as a site of meaning: as an area of experiencing, that has a form of meaning. Insofar as it emerges around and against actuality it is, in this way, a place between. The question that we might want to think about, then, is that of the making of such a place, the creating of this space, the meaning of this space.

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There is a poem by Mererid Hopwood called ‘Darnau Tawelwch’.³³ This translates from Welsh as ‘Pieces of Silence’, and the poem is about pieces that are ‘between’: ‘[t]he black piece between | the moment and the little minute | that lasts a lifetime longer’, ‘the grey piece between | the end of the sea and the horizon’, ‘the white piece between | a word and a word that’s resting’, ‘the silver piece between | two souls and two breaths’, and ‘the gold piece between | two smiles and both tender’.³⁴ These, she says, are ‘pieces of silence’, the counting of which is ‘the secret of silence’.³⁵ And that is, in the end, the point, I think: that the matter is not only one of where we look for and find space and place, but that the looking and the finding will always be matters of meaning.