Abstract:This report explores scholarship at the interface of geography and law engaging with the concept of evidence. As with the first two reports, this is not a summary of a predefined field, but rather a consideration of how ideas of what constitutes evidence have been differentially understood across geographical and cognate studies. The discussion spans work that has considered the formal barriers to the production of evidence at trials, the politics of silencing certain evidential practices and interpretive ques… Show more
“…(Blomley, 2014, p. 137)Thus, evidentiary rulings and practices are always capable of influencing substantive decisions (Gill et al, 2020). With this study, I respond to the challenge to “think of how questions of place, embodiment and materiality intersect in the conversion of matter or speech into evidence,” (Jeffrey, 2021, p. 904). In particular, I expand on the literature by engaging in a long‐needed inquiry into the extent to which evidentiary rules enable the scale of property, as discussed below, to drive and predetermine disputes between human accretion and environmental protection.…”
Section: The Scale Of Evidentiary Rules and The World‐making Power Of...mentioning
This study shows how legal evidentiary rules intended to make trials fair also enable biodiversity loss, even in courts charged with environmental protection. The common law is premised on two types of rules. The first, substantive laws, set rules for how society should function-obstructing and punishing some behaviours while enabling and rewarding others. In contrast, procedural laws are intended to level the playing field when there is a dispute over substantive rules during litigation. This case study concerns a routine environmental dispute over land development in Sydney, Australia. It demonstrates how, by enabling courts to determine what evidence will and will not be considered, procedural rules and practices drive substantive outcomes by rendering certain places, dynamics, and connections visible and capable of judicial action while obscuring others. Specifically, the court's efforts to use evidentiary tools to make litigation more efficient drove substantive outcomes in two ways. First, work to narrow evidence to address factual disputes also narrowed the court's geographic scale of analysis to the property boundaries of the site, thus obscuring broader threats to a critically endangered ecological community. Second, these procedural evidentiary decisions drove substantive outcomes undermining biodiversity protection, while concealing their inherently substantive nature. Combined with the tendency of the court to use procedural informality to promote compromise between the parties, and a broader juridical treatment of intact ecological communities as species that can largely be moved at will, the evidentiary rules enabled an environmentally focused court to enable the victory of development over species protection.biodiversity protection, environmental law, legal geography, property, rules of evidence, rules of procedure
| INTRODUCTIONThis study uses a routine environmental dispute to illustrate the potentially decisive role that rules governing evidentiary admissibility play in determining whether and to what extent the legal system will or will not protect existing biodiversity. In particular, I examine a 2019 legal conflict over land "development" 1 in Sydney, New South Wales, Australia: Auspat International No 2 Pty Ltd v Randwick City Council NSWLEC 176. 2 At stake in this case was a proposal to destroy and build over an area of critically endangered native vegetation, or bush. Through this case study, I illustrate the power of often under-examined procedural evidentiary rules to drive much larger substantive
“…(Blomley, 2014, p. 137)Thus, evidentiary rulings and practices are always capable of influencing substantive decisions (Gill et al, 2020). With this study, I respond to the challenge to “think of how questions of place, embodiment and materiality intersect in the conversion of matter or speech into evidence,” (Jeffrey, 2021, p. 904). In particular, I expand on the literature by engaging in a long‐needed inquiry into the extent to which evidentiary rules enable the scale of property, as discussed below, to drive and predetermine disputes between human accretion and environmental protection.…”
Section: The Scale Of Evidentiary Rules and The World‐making Power Of...mentioning
This study shows how legal evidentiary rules intended to make trials fair also enable biodiversity loss, even in courts charged with environmental protection. The common law is premised on two types of rules. The first, substantive laws, set rules for how society should function-obstructing and punishing some behaviours while enabling and rewarding others. In contrast, procedural laws are intended to level the playing field when there is a dispute over substantive rules during litigation. This case study concerns a routine environmental dispute over land development in Sydney, Australia. It demonstrates how, by enabling courts to determine what evidence will and will not be considered, procedural rules and practices drive substantive outcomes by rendering certain places, dynamics, and connections visible and capable of judicial action while obscuring others. Specifically, the court's efforts to use evidentiary tools to make litigation more efficient drove substantive outcomes in two ways. First, work to narrow evidence to address factual disputes also narrowed the court's geographic scale of analysis to the property boundaries of the site, thus obscuring broader threats to a critically endangered ecological community. Second, these procedural evidentiary decisions drove substantive outcomes undermining biodiversity protection, while concealing their inherently substantive nature. Combined with the tendency of the court to use procedural informality to promote compromise between the parties, and a broader juridical treatment of intact ecological communities as species that can largely be moved at will, the evidentiary rules enabled an environmentally focused court to enable the victory of development over species protection.biodiversity protection, environmental law, legal geography, property, rules of evidence, rules of procedure
| INTRODUCTIONThis study uses a routine environmental dispute to illustrate the potentially decisive role that rules governing evidentiary admissibility play in determining whether and to what extent the legal system will or will not protect existing biodiversity. In particular, I examine a 2019 legal conflict over land "development" 1 in Sydney, New South Wales, Australia: Auspat International No 2 Pty Ltd v Randwick City Council NSWLEC 176. 2 At stake in this case was a proposal to destroy and build over an area of critically endangered native vegetation, or bush. Through this case study, I illustrate the power of often under-examined procedural evidentiary rules to drive much larger substantive
“…Matter 'is an under-acknowledged presence throughout the life of the law', Bennett and Layard write, 'from law-making right through to application of the law ' (2015, p.416). In the case of courts, trials and legal hearings, the materials that constitute evidence and exhibits are particularly crucial to the functioning of the law and are subject to a range of geographical processes, from the difficulty of collecting and assembling them to their decay over time (Gill et al, 2020;Jeffrey, 2021).…”
“…When an expert gives evidence in court, the judge and the law take all precautions that what the expert says should be neither a judgement nor a warrant for judgement, but that it should serve only as a form of testimony which does not usurp the role of the judge. (Latour, 2010: 206) In this forum, there are inevitable limits to the extent that any evidence presented by a witness -whether material or human -can determine a judgement, even if their testimony were to be accepted as mediated by an expert (Jeffrey, 2020). Material witnesses may not provide evidence that, in the setting of the court, are material or relevant to the case (Kang and Kendell, 2019: 6).…”
Section: IIImentioning
confidence: 99%
“…In mobilizing this infrastructure, Weizman suggests that the practice of Forensic Architecture pushes the ‘threshold of detectability’, a threshold that is determined by a combination of legal regulation, geopolitical imperatives, the availability of multiple media sources and the limits of their resolution. Forensic Architecture exhibits an obsessive focus on the exact location between bodies and objects, but as the legal geographer Alex Jeffrey observes, the practice is not positivistic in so far as the forensic architect is acutely aware that the visual and sonic recordings obtained from camera phones and new media always demand further interpretation and manipulation, as well as their triangulation with other sources (Jeffrey, 2020; see also Bois et al, 2016: 126). Nonetheless, Forensic Architecture’s relentless focus on the detectability of image and sound, and the expectation that testimony should be based on visible evidence does represent a form of what Daston and Galison (2007) call collective empiricism.…”
Section: IIImentioning
confidence: 99%
“…In this forum, there are inevitable limits to the extent that any evidence presented by a witness – whether material or human – can determine a judgement, even if their testimony were to be accepted as mediated by an expert (Jeffrey, 2020). Material witnesses may not provide evidence that, in the setting of the court, are material or relevant to the case (Kang and Kendell, 2019: 6).…”
This article develops two arguments. One follows from the idea that materials can be made into witnesses to environmental violence by drawing together the evidence generated from multiple sensors. In this way, the practice of Forensic Architecture entails a commitment to a distinctive form of collective empiricism that leads to the generation of ‘informed materials’. The second theme of the article follows from Forensic Architecture’s claim that the microphysical investigation of specific incidents can be a starting point in reconstructing larger political and environmental processes. In light of this claim, the author interrogates the relation between the evidence generated by material witnesses and the political situations to which this evidence contributes. His contention is that qualitative forms of social and historical research are required that both complement and go beyond the limits of Forensic Architecture’s commitment to collective empiricism.
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