UNIVERSITY COLLEGE LONDON UCL
DEPARTMENT OF GEOGRAPHY
“On the territoriality of civil liberties:
the interrelationship between
law, politics and space.”
MA ARCHITECTURE and HISTORIC URBAN ENVIRONMENT
BARTLETT SCHOOL OF ARCHITECTURE
“When public space is eroded, our civic culture suffers,
even our democracy.”
In the western sphere, the concept of freedoms, liberties and rights of citizens lays the foundation of the contemporary notion of democracy which is enshrined in laws and policies. While categories of rights, freedoms, and liberties, as well as restrictions, appear immaterial as long as we regard them only as legal tools, this essay will highlight the interrelationship between these legal pillars of democracy and the urban space as a built physical space, as a territory. I will analyse the spatial dimension of the legal frameworks around civil liberties and their threats. This analysis shall be used as a backdrop against which one particular activist “manifesto for the equilibrium of civil liberties in public space” will be positioned within the relevant literature.
_The concept of liberties, rights, and freedoms in democracy.
Democracy as a political system and a form of society is built on participation, is based on legal accountability, justice and, most fundamentally, the guaranteeing of citizen’s right, liberties, and freedoms. Democracy “implies not only delegating and taking decisions but also debating, participating in the conduct of public affairs and living together in dignity, respect, trust and solidarity” (Council of Europe 2014). This characterisation of democracy based on rights, civil liberties, freedoms within some sphere that is “public” is enshrined in a complex hierarchy of laws and bills of rights. From the Universal Declaration of Human Rights (UN General Assembly 183 1948) by the United Nations to the Charter of Fundamental Freedoms by the European Union (2002), the European Convention on Human Rights as well as the Human Rights Act in national English law of 1998 which all build on the understanding rooted in 19th century that each individual is having a constitutionally guaranteed and reserved sphere of individual liberty (Friedrich 1942). It is in such legal frameworks, that a freedoms-based narrative of democracy and citizenship is adopted. In the United Kingdom, this notion of civil freedoms and liberties is carried further into the constitutional principle of ‘everything which is not forbidden is allowed’ (Brown 2017: 554). While all these affirmations to civil rights, freedoms and liberties are a protection of democracy, the latter constitutional principle gives decisive importance to how “everything which is forbidden” is formulated inside this legal framework of rights, freedoms and liberties, which are framed without much detailing of what they imply spatially: freedom of speech, freedom of information, freedom of the press, freedom of assembly and freedom of association, etc. It is within the pair of competing forces between liberties versus prohibitions that recent political history has shown an increase of state control and decline of liberties, built on a range of policy objectives, mostly around public safety, terrorism and gentrification (Brown 2017:543). Recent years have shown, how democratic states seemingly upheld democratic rights through allowing free election as a commonly accepted symbolic identifier of democratic rights being fulfilled, while simultaneously underperforming substantially in upholding civil liberties (Chasco et al 2017).
_Legal text and territorialisation of liberties.
Legal text, as abstract and immaterial its nature may appear, it is a piece of socio-political negotiation, gaining legal powers only through a majoritarian agreement between the stakeholders within the system on which they imposed - the citizen, the judiciary and the executive. However, legal texts must be, and today more commonly are, understood beyond their abstract form, but rather in their spatial, territorial (Harvey 1973), geographical and therefore, material dimension (Philippopoulos-Mihalopoulos 2010:202). This new understanding extends the Spatial Turn´s paradigm of reading “text as space” (Hess-Lüttich 2012) and reading even socio-legal parameters of law as geographical. Laws which guarantee the rights or liberties or likewise prohibit or criminalize activities consist of an inherent spatiality. When the geographer Edward Soja (2009) refers to `spatial justice and regional democracy’, the elements of space, justice and democracy are framed as inseparably interrelated and dependent on each other. Put very simplified: Every civil right, freedom or liberty as well as every ban or restriction put in law, refers to the emplaced, to a geographically specific spatial entity (Philippopoulos-Mihalopoulos 2010:35). Often the area between a country's boundaries, the area of a park covered by a local bye-law or other laws covering the public realm. Democratic theory, in its most simple framing of participation of citizens, is built on the ideas around some “sphere” that is “public”, understood as both a social and a physical sphere as space (Habermas 1991). Within the contemporary conceptualisation of public space, as a derivative from the ancient Greeks Agora as a public place of participation of the public (which must be critically questioned as a reference, as the Greek agora was not the open-to-all type of public space as the myth goes, but excluded women and minorities (Ruddick 1996)), it is only there, where political debate can be verbalised (Sennet 1996), visualised, materialised and made spatial. Public space are the grounds for communal meeting without spatial restrictions and reflecting the entirety of a pluralistic society (Oc and Tiesdell, 1998; Cybriwsky, 1999) as well as the “realm of freedom where people of all sorts are welcomed and encouraged to linger and minds of all kinds may freely congregate” (Longo 1996: 10).
Modern theory, hence, identifies a truly “public” public space as the key agent to facilitate democracy. The United Nations’ Habitat III strategy (2016) titled “THE RIGHT TO THE CITY AND CITIES FOR ALL” identifies public space to facilitate “freedom, gender equality, equity and diversity of expression, transparency, pedagogy, culture of civic and critical engagement, as well as binding participation and accountability”. As if this assertion wasn´t courageous enough, its title leans against the iconic rhetoric and of Henri Lefebvre´s seminal works “A right to the city” (1968/2009), in which he adopts the narrative of a “right” of each urban individual to a space which is not organised according to the specific requirements of the state and of its constituent institutions (Lefebvre 1991: 56). This interesting analogy between a Marxist philosopher and the language of contemporary policy advice by the UN shines a light on how legal mechanisms, in form of rights and obligations, are a powerful tool to address the erosion of civil liberties in public space.
_The Erosion of civil liberties in public space among majoritarian norms of conduct.
In London, for every citizen, there is 1,64 sqm of public open space: 1,2m x 1,2m per person on which an ever denser urban public has the right to enact and enjoy their civil liberties. This scarce commodity, however, is under constant threat of decline as public spaces are hit by a growing hyper-regulation, intense surveillance and policing and, most importantly, far-reaching legal restrictions of use, as the result of what Andrzej Zieleniec in “Lefebvre’s Politics of Space” describes as the “hegemonic orthodoxy of the homogenising practices of planning, design, commerce, and the overarching concern with risk avoidance, surveillance, order and security, and the needs of capital to create conditions for maximising profit”. Driven by national policy objectives around public safety (Barker 2017), terrorism (Coaffee 2009) and gentrification (Doan & Higgins 2011), London´s public space as a territory of liberty, as I argue, is highly contested and under threat (in spite of scholars such as Moeckli (2016:3) arguing that little attention has been given to this phenomenon in academia). A whole landscape of national laws, most prominently the Anti-Social Behaviour Act of 2014 by the Conservative-Liberal Democrat government coalition, have increasingly handed broad powers to local councils on curtailing certain behaviours in their public spaces (Public Spaces Protection Orders Guidance for councils). But with the objective of “public safety” as one of the most emotive political arguments, laws like these strengthen authoritarian communitarian thinking, which, by focussing on majoritarian sensibilities (Brown 2017), sacrifices many of the liberties that are fundamental to democracy. Under the guise of threats to public safety and nuisance, a narrative of majoritarian standards is developed, in which any conduct “contrary to public decency” (Hampstead Heath Bye-Law) is criminalized.
In the parliamentary debate on Tuesday 2 July 2013 on the Anti-Social Behaviour Act, then Minister for Policing and Criminal Justice, Damian Green MP argued:
“We all agree that public spaces are there for the enjoyment of the whole community and we all know that there is too often a minority that spoil it for the majority”.
This majoritarian understanding was turned into common legal practice with the highly contagious Public Space Protection Orders (PSPOs), in local bye-laws and national laws which govern perceived nuisance at the cost of “unpopular minorities” (Ashworth 2019) such as youth, homeless or unwanted political protest on the grounds of nuisance, urban aesthetic or commercial interests. With wide-ranging consequences: today, nearly 50% of London´s territories are covered with some restrictions on public space (Manifesto Club 2018), mostly targeting spontaneous congregating, leafleting or “anti-social behaviour”.
Image 1: Screenshot of map by “Banned in London” published by The Manifesto Club
In many cases (among countless others e.g. the Trafalgar Square or any City of London Corporation Bye-Law or Hillingdon Borough PSPO), the framing of the prohibition, of the “what is forbidden”, goes beyond aspects of order and public safety. Here, authorities - often without due public consultation - freely chose to criminalise basic civil or even leisure activities, such as congregating in groups of two or more, canoeing or carrying sleeping equipment over Trafalgar square, without the requirement of those activities having caused nuisance or caused a security concern (Brown 2017). The Trafalgar Square Bye-Law with the list of criminalised activities on the square, even is a historic document, tracing back forms of political protest on the square through the amendments to the bye-law, which, after new forms of protests were used on the square, introduced bans of civil leisure activities immediately after those activities were politicised, such canoeing in fountain in 1976 after student protests or “carrying any sleeping equipment with a view to its use” after protests camps were erected in the 2011 Occupy London protests.
With half of the city covered by bans and restrictions on public space based on the shifting sands of the public´s or policy maker´s perception of normative behaviors (Macdonald 2006) at the cost of civil liberties, public space as a territory of liberties is eroded without compensation. As the architect Richard Rogers argues: “When public space is eroded, our civic culture suffers, even our democracy.”Time4mac
While affirmations to rights, freedoms, and liberties are not generally challenged publicly, the societal norms are shifting towards more and more use of laws that allow to frame restrictions and prohibitions very freely with the result of decline of terretories, which fully guarantee the much proclaimed civil liberties.
_The “Manifesto for an Equilibrium of Civil Liberties”
In this interrelation between law, politics and space, I locate my own activist “Manifesto for the equilibrium of civil liberties in public space”, published at the Bartlett School of Architecture in 2019 within a set of theories and literature.
Image 2: Manifesto Title (2019)
Much like a ‘cry and demand’ (Lefebvre, 1968), the manifesto addresses the erosion of civil liberties in public space with a legal mechanism of claiming the production of new spaces of liberty in compensation for any loss of the same, allowing to maintain an overall equilibrium of civil liberties in public space, building on the following chapters:
Resist the surge in government policies and laws that allow erosion of civil liberties in public space.
Compensate every loss of liberty with newly produced public space dedicated to the restricted activity.
Make the production of new spaces of liberty be visible on the urban scale to change societal norms.
Encourage and incentivise authorities to lift restrictions to civil liberties in public space.
(please refer to the link in the footnotes for the full manifesto text:)
The manifesto’s first demand is more than a call for disobedience, but rather it is rooted in the question around which social and societal norms citizen allow authorities to enforce on their public spaces. As Nicole Garnett in “Private Norms and Public Space” (2019: 197) argues, “mainstream norms of public space allocation historically involve abuses of police authority and systematically disadvantages the poor and racial minorities”. It calls to resist the surge in abuses of legal powers by authorities (Brown 2017) to criminalise any behaviors contrary the norm under the argument that individuals should be criminalised for their own protection, reflecting, as Rodgers (2008) argues, a neoliberal philosophy of using rather the criminal system and its sanctions instead of social welfare. The practice of state authorities using the paradigm on the grounds of majoritarian norms of disorder and crime being inextricably linked to each other in a “kind of developmental sequence” (Wilson & Kelling, 1982:31), this resistance is aimed at resisting the state authorities as norm-entrepreneurs and norm-enforcers (Garnett 2009) and re-empowering the civil society as more inclusive, more diverse norm-authors.
The second demands a legal obligation for authorities imposing a restriction on a public space to have to re-provide or compensate the public for the loss of liberty in the restricted area by making new spaces available dedicated to the banned activity. This mechanism is built before the backdrop previously elaborated, how principles of laws and legal obligations need to be applied to the thinking around (public) space. Using the legal principle of
proportionality rooted in the historic Lex Talionis, knowns as “an eye for an eye”, this demand obliges the production on new, temporary spaces of liberty to maintain an overall “net equilibrium”, by making roofs, parking lots, courtyards, etc available to the public with a dedication to civil liberties. This appropriation of new spaces on roofs, parking lots or courtyards of government-used or borough-owned properties requires to completely rethink the availability and production of public space based on a right of the public to make use of it and, therewith, underlines what Mitchell (2003: 35) defines as true “publicness” of space, where “some group or another takes space and through its actions makes it public”. To understand liberties, being inextricably interwoven with space, as a newly produced and “commonly held resource”, such resource strengthens democracy insofar as they lead to fairer, more innovative, and more democratic institutions, as Jeremy Németh (2012) elaborates following Ostrom (1990) and Benkler (2000). Following this line of thinking around making the public be legally entitled to their territories of liberty, this demand echoes Margaret Kohn`s claim to “social property” - here in the sense of the newly created public space - as an agent for social justice and social rights (Claasen 2017).
The third demand is a consequence of the second, as the production of those new spaces will inevitably result in being very visible in the urban experience. In creating those new spaces in juxtaposition to the restricted areas, they become actors in the public debate around democracy, echoing Lefebvre's thinking of “there is a politics of space, because space is political’ (Lefebvre 1977: 345). With these new structures or accessible spaces, the political agenda around an equilibrium of civil liberties is materialised and visualised and turned into architectural objects within the urban fabric. Politics is turned into things, things (the new structures) are turned into politics and, thus, resemble Latour´s (2005) concept of Dingpolitik , where the “thing” (the new structures) becomes more than just an object, but rather a matter of concern through being a political actor itself. The erected structures and infrastructures providing for activities that were banned elsewhere become visible political actors also through their aesthetic dimension and the site-specific experience they offer, echoing Jaques Racière’s, Jean-Luc Nancy’s and Hannah Arendt’s understanding of aesthetics within space and their common ground of understanding space as a mode of political thinking (Dikeç 2015).
Image 3: Speculations on methods of producing new space and their visual impact.
Lastly, the fourth demand is the sum of the previous three: by resisting state-narrated norms of conduct and claiming a legal mechanism to oblige “territories of liberty” to be created in compensation for any loss and therewith empowering the new structures to become visible political actors in public space themselves, they are aimed to making the cost-benefit equation for authorities imposing restrictions be rather uncomfortable, incentivising them to lift existing restrictions of civil liberties in public space or else having to face both costly erection of compensational infrastructures and public shaming. As Dikeç (2015:3) argues: “spatialisations give political actors a sense of empowerment, but also create governmental anxieties, because they make spatially manifest what was perhaps not evident before, and give rise to new forms and modes of perceiving the world and relating to it” .
As shown herein, democracy is built on principles of participation and commonly shared rights, freedoms and liberties with equality among all citizen, regardless any minoritarian interests or way of life. Laws and liberties are effectively dependent on the emplaced and relate to territories in which liberties are guaranteed in. While laws and contemporary policy advice underline this principle, public space as such a territory of liberty is under threat by a majoritarian thinking around order and public safety at the cost of minorities and liberties in general. Drawing from Lefebvre`s framing of a “right” as a legal term, public space, as a Habermasian social and physical sphere and along Latour and Rancière with their understanding of materialisation and aesthetic appearance of politics through in the emplaced, geographical, territorial and material is carved out as a “social property” to which the citizens are entitled to. The “Manifesto for the equilibrium of civil liberties” proposes a mode of thinking about how public space in the urban experience can become a political actor in the negotiations around basic human rights and democracy and conceptualises civil liberties beyond the dimension of law into the dimension of space and, thus, offers a legal mechanism rooted in the concept of rights-claims that provides a legal tool to the citizen to claim their right to civil liberties in their concrete spatial manifestation.
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image 1: Map of “Banned in London” http://www.bannedinlondon.co.uk/map.html Accessed 01.04.2019
image 2: Image by the author, taken from: Fritz Strempel (2019): Manifesto for the equilibrium of civil liberties, Bartlett School of Architecture, See supplementary materials for reference.
image: 3: Image by the author, taken from: Fritz Strempel (2019): Manifesto for the equilibrium of civil liberties, Bartlett School of Architecture, See supplementary materials for reference.