The Janus face of urban governance: State,informality and ambiguity in Berlin

Introduction

Traditionally ‘informality’ is defined as being outside a formally defined realm. I argue instead along lines of more critical approaches to informality (McFarlane and Waibel, 2012; Roy and AlSayyad, 2004; Varley, 2013; Yiftachel, 2009), for an understanding that challenges the assumption of such a binary definition by focusing on the legitimate authority – the state. Informality’s entanglement with the state is intimate, which is why research on informality always involves a relational approach to researching the state. Over the last five decades, the very role and influence of the state has been understood in various different ways in informality research. ¹

Recent research (McFarlane, 2012; Roy, 2011) has suggested that informality can be understood as a device revealing the nature of the state. Below, I borrow from this approach and elaborate on informality as being (1) a production of the state and (2) via its regulation also a practice of the state itself. Through three instances of regulating social practices in public space in Berlin, I develop the argument that the role of the state (and of governance) and its mechanisms that define, govern and regulate informality as well as the involved informal practices of the state itself, are highly ambiguous and marked by constant shifts in power. Informality has an incessantly negotiated character, which also holds true more generally in questions of power (Tilly, 1999: 344).

Informality in this article subsumes both social practices on the fringes of the law or uncertain response from the state as well as state practices and their negotiations with regulation in everyday enforcement. These fringe and borderline practices oscillate and cannot be defined using clear boundaries as they are constantly shifting and marked by changing degrees of permeability from both sides. Informality thereby is conceptualized as being inclusive of a whole range, a spectrum with different shades rather than as a moment, or an opposite pole of formality.

Institutionalized informality – pioneer urbanism at Tempelhofer Freiheit ²

In the late 2000s, the grounds of former Tempelhof airport were targeted as a vast inner-city land resource with the potential to be developed into a new district. In accordance with process-oriented and participatory planning approaches, these developments were to be kicked off by informal uses.

Initially, the city administration perceived the appropriation of the myriad number of vacant areas, buildings and infrastructure sites (such as Tempelhof airport) as weakening their aspirations of developing the new capital city into a major world city. However, international investment remained below expectations, and ambitions were re-routed and geared instead towards fostering a new creative city agenda (Colomb, 2011). This altered the way in which the city dealt with available land resources. Informal occupations of empty land were now promoted as distinctive features and assets upon which the city could capitalize in the infamous ‘poor but sexy’ agenda. So-called Zwischennutzer (intermediate users) were incentivized to ‘develop’ barren and valueless land and make it more attractive for later investment.

The valorization of temporary and informal practices was especially put forward in the wake of the book Urban Pioneers: Temporary Use and Urban Development in Berlin (SenStadt, 2007), published by the Senate for Urban Development in cooperation with Studio Urban Catalyst. Zwischennutzer have since become ‘urban pioneers’, a shift in terminology indicating that these actors should no longer be intermediate practitioners facilitating investment, but rather pioneers initiating processes of urban and economic development more permanently and more structurally. The book proclaims that Berlin is ‘a laboratory for the business of temporary use’ (SenStadt, 2007: 17), entangling urban pioneers with economic development. Avoiding the more politically motivated projects initiated by migrants, system refugees, dropouts and part-time activists, ³ the book focuses instead on economic and leisure-based projects. The collection of projects hints at processes of neoliberal city development to reintegrate valueless land into the property market while limiting investment and maintenance costs.

Paradoxically, for official city planning, the integration of ‘urban pioneers’ necessitated a simultaneous regulation of these pioneers’ informal practices, a formalization limiting the impact of radical shifts in city development. The most internationally acclaimed example became Tempelhofer Freiheit, a project that sought to gradually redevelop a vast 350 hectare inner-city airport site with informal use and innovative participatory planning. For the first time, urban pioneers were structurally incorporated into the official planning process via the large-scale center-staging of informal practices in a process-oriented urban development. In 2010, one and a half years after the closure of Tempelhof airport, the site was declared a new park. Public criticism soon arose as the park was fenced off, closed down at night and guarded by a private security firm. The park’s fringes were to be gradually developed into new mixed-use city districts. ⁴ Temporary use was initiated and encouraged by the city to stimulate development years before the first cranes should arrive. The first phase of redevelopment was promoted by the city administration ⁵ as a ‘lab for intermediate use where the pioneers and not big investors bring life to the space and make it attractive. This was to be done via short-term initiatives and sustainable growth projects that were to become more professional and maintainable in the long-term’ (Tempelhofer Freiheit, 2010). Furthermore, these pioneers should ‘create new economies that would, if successful, also have a positive effect on general employment’ (Tempelhofer Freiheit, 2010). Urban pioneers were envisioned as the ‘motor’ of overall development and ‘in the true sense of the word, trailblazers’ (Tempelhofer Freiheit, 2010). Understanding temporary users as the motors of urban development dates back to the aforementioned publication. However, these bold propositions on the important role played by pioneers needed to be qualified after three years of onsite integration. In an interview, a city official explicitly expressed his doubts that the pioneers were able to significantly impact the future of the site (GrünBerlin, interview, 9 December 2013). The city needed to establish rules and regulations in the process of incorporating ‘informal uses’ (as the city official called them). Despite the initial ambition to create a space for experimentation open to various kinds of informal practices and also radical new ways of making use of the vast land resources, the selected projects were low risk and conventional. The restrictive evaluation process limited the broad range of, frequently, radical proposals. Furthermore, local and citywide regulations such as the Federal Building Code, the local building regulations and general park regulations, as well as regulations set up by the initiators of the Tempelhof project itself such as the pioneer and interim use contracts, limited the more progressive range of informal use. Furthermore, the overall design of the pioneer projects needed to follow pre-established design principles; pioneers needed to pay a small lease and if commercially orientated, pay 10% of their turnover to the city. Weighty restrictions were also levied on the accessibility of the pioneer fields themselves since the park was closed at night. Spatial regulations such as fencing, restricted access and security patrols rendered the Tempelhofer Freiheit a highly controlled environment, making it an idealized urban space where all activities inside were under close scrutiny. Hence, the hypothetically radical approach of pioneer urbanism loses most of its potential when developed under such in-vitro conditions (‘the laboratory’).

This maze of rules, regulations, guidelines, laws and bureaucratic processes consequently meant little ground-breaking impact and resulted in a few conventional, well-tested uses (such as a community gardening project or a minigolf course) and primarily economically-oriented projects whose impact on urban redevelopment is minimal (such as Segway rental and catering businesses). Therefore, on the one hand, the city enables and facilitates experimental use, while on the other hand, it is obviously unable to withdraw from its authoritarian role establishing rules and regulations, thereby curbing the inherent potential of pioneer practices as ‘motors’.

These governance processes are embedded in a broader development of governance-beyond-the-state. Governments increasingly assign a greater role to parts of civil society to manage what formerly was provided for and organized by the state. The ambiguous role of the government in the Tempelhof project resonates well with Swyngedouw’s (2006) ‘Janus face of governance-beyond-the-state’. The city administration reveals its Janus face, by simultaneously acting as an enabler and a restrictor of exactly what it has enabled. The state can never fully withdraw from newly developed governance models that include participation and the assignment of responsibility to civil society since it is precisely the state that needs to respond to assigned public responsibilities (Swyngedouw, 2006). These forms of neoliberal governance are conceptualized as empowering and democracy-enhancing. However, by existing within the old system of regulations, they create tension and inherent contradictions. The state’s embrace of informal uses simultaneously entails their formalization and thus deprives them of their inherent potential.

Furthermore, the state is very selective in determining what types of informalities are left to succeed. Only practices with the broadest consensus and those that are the least challenging to existing norms and regulations are legitimized. The inherent ambiguity in this form of governance-beyond-the-state shows that longstanding power arrangements are reinforced in processes of formalizing the informal. Categories of ‘formal’ and ‘informal’ are made fluid and are produced and reproduced by different bodies, instruments and mechanisms associated with the state. Moreover, in the context of Berlin, the official promotion of informal practices is a vital vehicle for neoliberal city marketing building upon the city’s liberal ‘anything goes’ reputation. After admitting to having limited the impact of urban pioneers in the development at Tempelhofer Freiheit, the city official from GrünBerlin stated that ‘one aspect [of pioneer urbanism] is definitely city marketing … and Berlin, thereby, fiddled around with something for which the city is renowned’ (GrünBerlin, interview, 9 December 2013).

Whereas this example was illustrative of informality as produced by the state, in the following example of Görlitzer Park, different bodies of the state need to be understood as informal agents themselves in tackling illegal practices (informality of the state).

Stretching the law – zones of exception at Görlitzer Park

The official website of Berlin introduces Görlitzer Park as ‘a microcosm of Kreuzberg’s lifestyle’, describing it as a prototypical location where the local lifestyle is condensed, expressed and lived. Görlitzer Park is one of the most intensely used parks in Berlin, attracting a diverse crowd of visitors including tourists, families, hipsters, dropouts, yuppies, students and refugees. The park’s heavy use has inspired a range of people taking advantage of it economically: food vendors, bottle collectors, drug peddlers, street musicians, beggars, masseurs, bike repairers and many more. Some of them are distinctly ‘informal businesses’ and are rarely prosecuted. For many years, the park has been a central location for Kreuzberg’s anything goes attitude and laissez-faire reputation. Over the last decade, however, it became much more regulated, controlled and policed. This process has been influenced by local transformations such as increasing rents, ⁶ the changing composition of residents, the massive influx of tourists, and the expansion of law and order policing. In parallel, drug peddling has increased and as a result of several violent drug-related incidents, the park became stigmatized by the press as an anarcho-park, a place of lawlessness and a legal vacuum. Known far beyond Berlin, the park has become an infamous symbol of a crisis-ridden city but also a future-looking capital, and together with its surrounding district has been described as the ‘laboratory of the nation’ (Rosenkranz, 2015) where new police strategies are tested, and where the problems of the entire nation can be observed on a small scale: ‘the Görli has become a symbol of failure of those who are deemed “responsible”: the state, the senate, the district and the police. It is a symbol for longstanding indifference, for muddled refugee politics and for failed drug repression’ (Rosenkranz, 2015). Many of the law and order measures in recent years follow protocols reminiscent of what Agamben coined as the ‘state of exception’ (1998, 2005). In Görlitzer Park these exceptions are particularly related to measures that render generally valid laws locally inoperative, thereby granting extended authority to the police. These strategies intentionally offer latitudes for everyday policing practices.

Since the early 2000s, Görlitzer Park is on the list of so-called ‘crime burdened locations’ (in German Kriminalitätsbelasteter Ort and hereafter ‘KbO’). This governmental mechanism generates zones of exception that the executive body of city administration can designate. In KbOs, certain laws are exempted and measures the police can take are expanded. ⁷ At the core of this legal construct is the authorization of the police to verify people’s identification without concrete evidence of a crime at certain locations. The instrument of KbOs renders federal law locally inoperative: according to the German Code of Criminal Procedure (StPO) ⁸ the police are generally not allowed to conduct identity verification when people are not suspected of a crime. The local General Law for Security and Order (ASOG) ⁹ repealed the relevant sections of the StPO by designating certain areas as being ‘crime ridden’. According to ASOG, identity verification, the search of belongings and body searches can be conducted at locations where people potentially arrange, prepare and commit crimes, where people are in violation of the penal provisions of legal residences, where potential offenders may hide, and where people are involved in prostitution (§21, 34, 35 ASOG). The law remains vague about which locations are affected or what criteria need to be met. Furthermore, the labeling of a location as being a KbO is not mentioned in any legal text. Therefore, any designation of a KbO needs to be effected in practice.

The process of KbO designation is not made transparent and nor does it follow an established protocol. Basically, only the police can designate a certain place as being a KbO – without needing to coordinate their decision with any corrective body such as the Senate. Furthermore, the list of KbOs is also not publicly accessible. The police have intentionally requested to keep the number and exact locations of KbOs confidential. Police president Kandt offered a series of explanations: criminals should not be directed towards these locations, and publishing the list would stigmatize these locations and would have a severely negative impact on the general sense of security (AISO, 2014). Kandt further claims that there is no ‘informative value’ or ‘practical utility’ for the general public to know about these locations. In contrast, for the police, personal searches without a concrete suspicion of a crime are ‘simplified’ since ‘[the police] do not need to prove to individuals that they are suspected of preparing to commit a crime’ (AISO, 2014). These propositions made by the police president in January 2014 explicitly declared that the KbO instrument simplifies everyday police work and provides police officers with much more leeway, both through the measure itself as well as by keeping the locations confidential.

Ruling by zones of exception is a disciplinary regime in confined spaces where the state as the sovereign actor is able to place itself outside the law since it has the legal power to suspend the validity of the law. This is what Agamben termed the paradox of sovereignty: ‘the sovereign is, at the same time, outside and inside the juridical order […] the law is outside itself’ (1998: 15). The leeway offered by such instruments designates certain areas as spaces of in-between – or latitudes (Ong, 2006: 8). The zones of exception are not to be misunderstood as the opposite or outside of rule and order. They are in fact an integral part thereof and span between the (seemingly) formal space of the state – with its regulations, norms and rules – and the everyday spaces of policing and governing practices. Consequently, these zones of exception need to be understood as spaces of informality – not only in relation to the informal and illegal economic practices that take place there (such as drug dealing and street vending), but rather that they are much more a type of informal space that the formal state designates to offer wiggle room for everyday policing and to legitimize actions that extend beyond the general rule of law.

Tolerated informality – polyvalent performance at Thai Park

Contrasting to Görlitzer Park, in the third case, informal economic activities have become much more tolerated. Food vending at Preußenpark, aka Thai Park, started out in the early 1990s as family picnics, and nowadays it has become an important place for Thai food culture in Berlin, attracting hundreds of visitors. The initiators of the Thai Park recount the founding myth as follows: three families met, all of them had German husbands and Thai wives. Then, more members of the Thai community joined them for a weekly gathering, bringing along and preparing food. When people from outside the community got interested in the Asian fare, the women started selling their food and it attracted more vendors until the market grew to 40–50 ‘stalls’. People from all over the city and beyond now flock to the park to enjoy some of the most authentic Asian food in the city. What this narrative misses, however, are the conflicts to which the group was exposed. In 2006, as a result of interventions by residents who felt disturbed by the picnickers and the garbage, limited food hygiene, tax avoidance and smoke from the cooking, the local government installed a so-called ‘road map for Preußenpark’. The main pillar of this policy was the installation of trilingual visitors’ rules in German, Thai and English restricting food preparation to a designated area far from the original site, no longer allowing to set up garden furniture and umbrellas, limiting the number of coolers per family, and prohibiting selling food. These rules were highly specific to the park and must be considered in direct relation to the conflict over the market.

Rules only gain their validity when enforced. In the years following the road map, the Department of Public Order (Ordnungsamt) followed a strategy of showing their presence and occasionally raiding the park. The picnickers in turn adapted to (some of) the rules inasmuch as they no longer set up garden furniture on the grass. Instead, they sit on rice mats on the ground. They further adapted the preparation of their meals by concentrating on the less smoke-intense frying instead of barbecuing. However, they never refrained from selling their food to both fellow picnickers and visitors. Furthermore, they also did not adhere to the rule regarding the use of umbrellas since these are necessary to keep the food out of the sun. Whenever there was notice of a raid, all the vendors would leave, abandoning the small stalls. Every raid followed the same procedure. The tacit choreography saw the Ordnungsamt officers confiscate one of the stalls, load the goods and cooking material into their van and leave. The very second the Ordnungsamt van left, the vendors returned and the non-authorized but semi-tolerated market continued as if nothing had happened. This theatricality of policing became a routine to curb uncontrolled growth but not to eliminate these practices. The ambivalent relationship between vendors and state actors is underlined by some of the vendors’ stories. They claim that on weekdays, officers from the nearby planning department would go to the market to get their lunch.

Despite this form of tacit tolerance, the local government rejected multiple requests from the vendors to obtain licenses for their businesses by referring to non-obtainable hygiene standards such as access to running water. In an interview, an official from Ordnungsamt indicated that the market is purposefully kept informal for political reasons: formalization would most probably spark protest from local residents, and without formalization the local government is still able to take stricter measures against the market (Ordnungsamt, interview, 16 July 2012). The vendors are therefore held in a situation of permanent temporariness ‘concurrently tolerated and condemned, perpetually waiting “to be corrected” ’ (Yiftachel, 2009: 90).

The Thai market combines the processes described in the two previous examples. The ambiguous position of the state becomes even clearer. The informality of the market is produced by the local government – through the installation of park rules and by preventing vendors from attaining formal status. On the other hand, the bureaucratic practices themselves are informal – by only partly enforcing the rule, tacitly tolerating the market, by the routine theatricality of the raids and by actively participating in the market’s continuation.

The market’s power dynamics have constantly shifted back and forth. Nevertheless, the state always remained sovereign; that is, able to determine what is tolerated and what is not. However, even asymmetrical power relations entail negotiations, bargaining and adaptations on both sides (Tilly, 1999). The vendors have adapted to new regulations, established a self-organizing community and formed alliances with legitimate institutions such as the Thai embassy in Berlin (Haid, 2013). On the other side, state bureaucrats tolerate the market as long as it does not proliferate without control; they show their presence through routine raids, but at the same time, they are legitimizing the market by turning a blind eye and through active participation. The actors involved are practicing what Tilly (1999), in his analysis on the relationship of top-down and bottom-up power, terms ‘polyvalent performances’, which ‘involve individual or collective presentation of gestures simultaneously to two or more audiences in ways that code differently within the audiences’ (Tilly, 1999: 345). The actors involved, depending on whom they face or with whom they negotiate, perform in different ways. Vendors perform differently when facing patrons than when facing governmental bodies. Similarly, state bureaucrats put on different masks when facing the vendors than when facing residents complaining about the market. Over time, the practices at the Thai market have developed into a delicate choreography where the actors play various roles depending on the audience and by drawing on both tacit and official rules.

The Janus face of urban governance

These three spaces of informality and their social practices are not simply ‘object[s] of state regulation, but rather are produced by the state itself’ (Roy, 2005: 149) in many different and ambiguous ways. First, the pioneer urbanism strategy embraces and adopts informal practices and formalizes and integrates them into planning processes. The city government, at the very same time, enables and restricts what it has enabled. Here, the state has the power over space and determines which practices can flourish and which cannot. Second, ruling by exception as a governmental mechanism places the state outside itself to tackle practices deemed as not being able to manage without exempting, or at best stretching, a generally valid law. The state’s ambivalent presence thereby becomes clear in its zones of exception and the spatio-temporal dimensions that are consciously obscured from its citizens in order for the state to gain leverage. Furthermore, mechanisms of exception offer wiggle room for frontline actors in their policing. Economic dynamics lay behind these two examples – albeit with different impacts for the informal practices: in the mechanisms of ruling by exception and in employing regimes of law and order informal state practices assist in upgrading urban areas by separating them from undesirable individuals; in pioneer urbanism, however, these practices are encouraged to boost investment. Third, in the polyvalent performances at the Thai market, the informality produced by the state and state informality are much more intertwined, becoming most visible in the ambivalent theatricality of enforcing the state’s regulations.

All three cases make clear that the dichotomy of formal versus informal is rendered meaningless when analyzing everyday practices of the state in regulating social practices in public space. The assumption of the state being the formal legitimate actor has been proved invalid. State practices are informal and formal at one and the same time. Every formal practice involves informal activities and vice versa. The state is not a uniform entity – its actions are ambivalent and at times contradictory.

Particularly, although not exclusively, in cities of industrialized countries, everyday urban life is ‘permeated by stateness’ (Painter, 2006: 753) in a myriad of ways and is applied non-uniformly. Giddens (1985) distinguishes between medieval forms of authority and authority in modern nation-states. In the former, power is most potent at the political center and decreases in influence at the periphery. Political impact on the fringes is diffuse and boundaries disintegrate. In the latter, authority on modern state territory is exerted uniformly reaching the very borders of the nation. The analysis of urban spaces of informality, however, exemplifies that state power is exerted unevenly. In zones of exception, state power intensifies. In areas of polyvalent performances, it thins out. The very same practices, which are tolerated in one space, are unacceptable in others. The rule of the law and the intensity with which it is enforced and policed differ from place to place, contributing to an uneven geography of governance and fragmenting urban space. The cases show the discrepancy between the abstract space of statehood and the concrete and everyday environment through which the state spreads its influence. These ambiguities, however, are not only confined to spatial dimensions but differ along temporal dimensions as well as across social groups. The historiography of the Thai market reveals that in governing the very same practice, different measures have been taken over time – depending on the political influence and local resistance.

Conceptually, urban informality has gained greater intricacy and nuance through relatively recent approaches such as ‘deal making’ (Simone, 2009), ‘occupancy urbanism’ (Benjamin, 2008) and ‘gray spaces’ (Yiftachel, 2009). However, such increased complexity limits the analytical utility of the notion of informality as a whole. Conceptually, this article argues for a critical approach to informality that requires a move beyond the simplistic understanding of informality as the opposite of formality. It goes beyond informality as being a prerequisite of the urban poor, beyond informality as a phenomenon of urban arenas in the Global South exclusively, beyond a depoliticized, neoliberal and frequently romanticized understanding of informality as a mode of self-help for and of the urban poor when the state is absent. Instead, critical urban studies is challenged to understand informality as permeating through all aspects of everyday urban life, as a device that discloses the nature of the state and state–society relationships. Indispensable to such analysis is a very close scrutiny of the structures, lines and uneven distributions of power between the state and its citizens. This article has therefore built critical alliances to other concepts that help us understand this relationship, which in all three cases is ambiguous, is characterized by double standards and involves shifting arrangements of power. The analytic lens of statehood and power can enrich the study of informality and is further able to assist in regaining analytical strength in informality research. Critical literature of the various disciplines that conceptualize the relationship of power and stateness is best equipped for these endeavors. However, more empirical studies are needed that research everyday stateness and that understand informality as both being produced by and inherent to the state. This research, I suggest, can be operative in redefining a more analytically-grounded informality in lieu of dismissing and replacing the concept entirely.