The law is not enough: Seeking the theoretical ‘frontier of urban justice’ via legal tools

Introduction

Urban scholars, particularly those focused on the law, sometimes offer a hopeful vision for the role of law in redressing socio-spatial inequality: law and legal action can challenge welfare-work requirements (Boyer, 2006), provide a framework for aggressive social service siting strategies (Martin and Pierce, 2013) and offer support and technical legal expertise to community action groups (Cummings, 2006; McCann, 2004; Sarat and Scheingold, 2006). Indeed, many of the key battlegrounds in the decades-long history of US civil rights struggles have been legal interventions against urban policy, as activists made use of federal non-discrimination and equal opportunity laws to challenge locally-entrenched de facto and de jure segregation (Delaney, 1994; McAdam, 1982).

Yet these interrogations of law also point to its limits in fostering urban socio-spatial justice, as jurisdictional boundaries circumscribe the territorial scope of justice claims and their outcomes (Boyer, 2006; Delaney, 1994). Some scholars, furthermore, demonstrate not just the limits of law for moving towards justice, but the ongoing complicity of law in enforcing exclusionary spaces on the basis of ‘public safety’ and private property conventions (Barkan, 2011; Beckett and Herbert, 2009; Blomley, 2004; Mitchell, 1997).

Do well-crafted legal tools offer real potential for socially just urban outcomes, or are they inevitably inherently constrained–or even revanchist–when situated in a broader political-economic context that is increasingly neoliberal? While some radical scholars might argue that the tools of a compromised state apparatus could never slake the call for justice, many who research progressive urban politics (and, indeed, many justice-oriented political actors beyond academe) continue to trawl for the emancipatory potential of the law (Martin and Pierce, 2013; Sarat and Scheingold, 2006). We argue here that the promise of law as a guarantor of equal protection does not fundamentally undermine or change the neoliberal logic of private markets and urban governance, and we point to ways to move beyond this frustrating conclusion to consider the specific loci of law and political processes where urban justice goals might be pursued to maximum effect.

This paper’s exploration of the potential of law for promoting urban justice is motivated by a sustained reflection on our experiences researching Massachusetts’ equal access laws in the realm of social service provision. Social service provision has long offered urban scholars, and geographers in particular, opportunities to examine the simultaneous and often contradictory promises regarding the extension of social goods to society’s most vulnerable members on one hand, as well as the shift of government functions to private sector governance associated with neoliberalism on the other (Brenner and Theodore, 2002; Wolch, 1990). In Massachusetts, the regional state offers a legislative framework which seeks to ensure fairness (i.e. prohibit discrimination) in the spatial distribution of group homes by limiting local governments’ abilities to dictate the locations of group homes. Group homes–housing facilities (typically private in the US context) which provide on-site social services such as supported post-prison re-introduction into society, or addiction counselling–are an integral part of the service delivery landscape for contemporary urban-regional governments (Brenner and Theodore, 2002; Wolch, 1990). However, contemporary political economic forces reward governments for reducing their role in social service provision and fostering ‘competitive’ city-regions. Accordingly, while the social service agencies (SSAs) that operate group homes in central Massachusetts attempt to provide services in locations which maximise the effectiveness of their programs, they must participate in a private property system which emphasises the rights of existing land owners over the particular community goods that SSAs offer. We reflect upon our earlier findings that law governing siting of service delivery does not seem to enhance spatially equitable distribution of group homes in the case study city (the second-largest in Massachusetts) despite a pervasive belief among stakeholders that it does.

We argue that our prior work examining the case of group home siting in Worcester provokes a broad question: what are the theoretical boundaries of the potential for achieving urban socio-spatial justice through legal tools in the contemporary context of neoliberal political-economic hegemony? We ask first whether laws can provide a framework for opposition to power. Like capitalism, the legal frameworks that establish order may also contain within them the basis for challenge to that same order. But having explored this question, we then proceed towards a more difficult one: where lie the conceptual and practical boundaries between the possibility of justice and its foreclosure with regard to the law? Charting this ‘frontier’ of the possibility of social justice via the law requires more than merely identifying cases where the law has (or has not) been helpful to justice-oriented activists or policymakers, but situating these cases in a systematic project to identify the limits for law as a tool towards just outcomes.

Urban social justice and the law

The question of how to motivate social justice has been a paramount one for many scholars, with widely varied lenses on ‘justice’. Harvey, for example, has often highlighted the totalising impacts of global capitalism and the misplaced, quixotic faith some activists and scholars place in local resistance rather than coordinated global struggle (Harvey, 1996, 2014). In 1997, Kirby noted the dangerous potential for sovereign, national state powers–even democratic ones–to trample human rights under the guise of public security: one need look no farther than abuses of police power in the United States, or the wanton destruction by dictators such as Syria’s Assad, to find ‘weak’ and ‘strong’ versions of such excesses today. Kirby (1997) argues that legal and parliamentary structures can be designed to contain and guard against such abuses.

Yet the arena of legal geographical scholarship demonstrates a complex role for the law in achieving urban social justice goals. Although accounts of civil rights social justice activism for full racial integration of American society in the 1950s and 1960s point to the importance of legal claims-making for achieving non-discriminatory housing, education and employment policies (McAdam, 1982), contemporary events and debates over public safety and poverty highlight the limitations of law in changing society or ensuring justice (Beckett and Herbert, 2009; Carr et al., 2009). Blomley (2004) has shown that property law itself fails to account for social justice and community-oriented place claims due to its firm roots in individualistic conceptualisations of the landowner. Legal scholars from a range of disciplines point to the pernicious effects of social and political norms interrupt the possibilities for justice through law. Carr (2014) has demonstrated how elite social networks can easily overcome legal mandates for public participation in urban planning to achieve desired land use outcomes. Valverde (2012), too, highlights the role of predominant social norms and individual discretion in enforcing local land use and regulatory regimes underwritten in city legal codes.

These many cases of the limits to law in achieving social justice point to the long-recognised enmeshment of law in its socio-political context. Law is not outside of, but inherently a part of, the social and economic structures which produce, maintain and engage it to achieve social norms and functional urban governance (Blomley et al., 2001; Braverman et al., 2014; Holder and Harrison, 2003; Valverde, 2012). As such, law is a site, medium and arena of contestation over social justice claims (Blomley, 2004; Chouinard, 1994; Sarat and Scheingold, 2006). Law is multi-faceted, meaning ‘concrete acts of legislative bodies’ as well as institutional frameworks and concepts for adjudication of claims, among other dimensions (Barkan, 2011: 591). Here, we understand law as specific legislative acts which, through their establishment, provide a framework for possible actions by agents–individuals, corporations, institutions and governments–within the arena defined and regulated by those acts.

Our point of entry: The rhetorical strength and ‘actually existing’ weakness of law in Worcester, Massachusetts

We enter the effort to articulate a project which more systematically identifies a frontier of urban justice through our prior research experiences regarding a legal framework for local facility citing in Massachusetts typically referred to (for complex historical reasons) as ‘the Dover Amendment’ or simply ‘Dover’, although it is actually codified as Massachusetts General Law (MGL) Chapter 40A, Section 3. Dover offers a rhetorically powerful, spatially egalitarian legal framework for Social Service Agencies (SSAs) in new facility siting. Dover forbids local governments from prohibiting an educationally-oriented group home based on its location or use zone. Interested parties–including SSAs, local government representatives, residential opponents and the legal community–all agree that Dover provides Massachusetts SSAs with tremendous power and leverage in the siting process (Martin, 2013; Pierce et al., 2012). SSAs assert that when there have been conflicts over group home siting they have often prevailed, and they cite the extraordinary Massachusetts legal apparatus as crucial to their success (Martin, 2013; Martin and Pierce, 2013).

Dover works by setting limits on municipal zoning. Originally dating from 1950, the law prohibits most local governments in Massachusetts from restricting the use of land for religious or educational purposes. State and federal courts have interpreted the term ‘educational’ broadly when applying the statute, designating any sort of ‘life skill training’ as protected. While the law’s language has been slightly modified over time, allowing standard building requirements to be applied universally, a city or town still cannot employ building or zoning requirements in a way that effectively excludes unwanted educational or religious uses (Pierce et al., 2012). The law clearly relies upon a notion of equality and right to be free from discrimination that is spatial as well as social. Additionally, and unlike federal anti-discrimination laws which have no particular enforcement mechanism other than legal action in the courts, Dover bars legal discrimination from the start of the siting process by prohibiting localities from applying zoning or other use-discerning laws at all. Our interviews with both residents opposed to particular group home sitings, as well as with social service agency employees who are involved at various stages of siting, reinforced this notion of Dover as a particularly strong law:

[H]ere in Massachusetts we have a unique statue, [… the] Dover amendment, which gives important protection to non-profit educational uses. (Lawyer, social service representative)

Dover is a pretty powerful law [… it] prevented discrimination, but unfortunately, any laws that create absolute power […] corrupts absolutely, right? It […] just tilted the pendulum all the way to the other side, and gave no room for protest. (Resident opposed to sitings)

As we have demonstrated elsewhere, however, in spite of all of the apparent power that Dover offers, the application of the law does not seem to undermine prevalent land use patterns (Martin and Pierce, 2013; Pierce et al., 2012). Group homes are highly clustered in the most impoverished areas of the city; they tend to be sited in close proximity to industrial and low-end commercial districts; and the types of facilities sited in more residential, higher-income neighbourhoods tend towards the ‘least objectionable’, i.e. nursing homes and youth residential facilities. This pattern is precisely what one would expect from the function of a neoliberal land market that is politically hostile to the disadvantaged: a concentration of facilities perceived as most objectionable within already impoverished neighbourhoods, and marginal penetration of the least objected-to service facilities into neighbourhoods with relatively powerful residents who have the social, political and financial wherewithal to control the development process. Dover is a strong legal tool, but one situated in a multivalent negotiative context that includes economic, social and political registers (Pierce et al., 2012). As a result, even though the law is widely experienced as a legal tool enabling strong spatial justice claims in Massachusetts cities, the landscape of group home service provision that emerges from a historical process of siting is highly spatially constrained, remanding disempowered service-seekers to the landscape of poverty in which their social service needs were initially forged.

How much stronger could a law be? Limits of law for urban justice efforts

Our work on group home siting led us to consider a broader, more provocative question: how much stronger than Dover would a law have to be in order to contribute to the production of meaningfully more just urban spatialities? Dover, after all, exists within a matrix of other legal tools that affect social service agencies’ spatial distribution. A state statute adopted in Massachusetts in 1989 provides that ‘local land use and health and safety laws, regulations, practices, ordinances, by-laws and decisions of a city or town shall not discriminate against a disabled person’ (M.G.L. c. 40A, §3). Many courts applying federal Americans with Disabilities Act (ADA) or Federal Housing Administration (FHA) non-discrimination statutes have interpreted the statutory term ‘disabled’ to include mentally ill persons, those recovering from drug or alcohol addictions and AIDS patients (Juergensmeyer and Roberts, 1998: 288; Weber, 2005). Residents of group homes which treat these and similar conditions (developmental challenges, addiction, mental illness, AIDS) in Massachusetts are therefore protected from discrimination as to residential choice by these laws in addition to Dover.

Yet within its limited purview, Dover is potentially much more impactful than these other laws, because it prohibits most kinds of regulatory interference in the siting process by municipal governments. The enforcement mechanism for these broader anti-discrimination laws, in contrast, relies upon a harmed party filing a lawsuit after an alleged infringement has occurred. Municipalities and (where applicable) regional states are in these other instances left to their own discretion in crafting land use regulation that either implicitly or explicitly recognises such other (generally national-scale) protections.

The existence of these various interlocking and overlapping non-discrimination limitations demonstrates that the exclusionary inclinations of our society have been repeatedly tempered through the establishments and interpretations of various non-discrimination laws, pointing to the importance of the law for potentially ‘just’ outcomes in cities. If law is to be wielded effectively towards urban justice, more analytical attention to the differential efficacy of ‘justice-oriented’ law with regard to urban policy and the evolving urban landscape may be needed.

In our view, least helpful are those regulations (often enacted at national or international rather than urban scales) which articulate principles of more fair and just urbanism, but which require harmed parties to demand recompense (via the courts or administrative processes) from other actors who contravene these principles. More powerful are laws which, like Dover, prohibit municipal or private interference in pro-justice activities of organisations or individuals. Yet more interventionist, however, would be laws which require state or non-state actors to act towards justice and which incorporate inherent (e.g. nondiscretionary) penalties for violators, such as Article 5 of the US Voting Rights Act (Issacharoff, 2004). In municipal contexts, landlords could be required to collect and report key demographic data on all prospective tenant contacts; if accepted tenant profiles failed to meet predetermined benchmarks, fines and/or oversight would be triggered. Finally, laws which through their own existence reconfigure conventional, neoliberal urban power dynamics are most powerful of all: for example, if a municipality were to establish an account which materially subsidised the purchase by nonprofits of properties for service delivery wherever they liked, and paid for it by taxing businesses which have accumulated wealth by enabling behaviours of addiction.

Four propositions about the justice potential of the law at the urban scale

Even with very strong legal protections of an organisation’s spatial prerogatives, however, factors beyond law and the state (e.g. the social reproduction of hegemonic laissez faire land markets, or relations of ‘soft’ political power located outside of the state) tightly limit the possibility of urban justice through the law. Other critical urban scholars have identified other important moments when the law failed to produce justice in the ways that it nominally promises (Carr, 2014; Carr et al., 2009; DeFilippis and Wyly, 2008). We follow this provocation further by offering four theoretical propositions suggested by our research experiences in Worcester that, if true, would map onto more general limits to the utility of the law in seeking socio-spatial justice in cities.

First, our experiences highlight how legal tools can support agents working towards urban social justice by shielding them from state interference; this is helpful but never sufficient for achieving urban justice. The insufficiency of Dover in achieving substantive landscape change in social service provision does not negate the protections that it offers SSAs as they go about their business. Indeed, Martin (2013) points to the ways that Dover and Federal FHA non-discrimination law does shield SSAs from the excesses of local city and residential opposition to particular sitings. But as we demonstrate above, the law is not enough to produce a more just urban landscape.

Second, following our first proposition, we propose that legal tools cannot enable substantive urban justice without also redistributing concomitant social and economic resources to support those outcomes. In the case of Dover, SSAs do not have appropriate resources to buy land in high land value areas. They do not have time and money to sustain long-term challenges, despite their illegality, to particular siting choices. Legal permission to drive a car on any state-maintained road is only marginally useful if most roads are private, it is useless if the driver cannot afford to operate a car, and it is disingenuous if most travel occurs via helicopter. Failing to provide for access to private roads or the resources to operate the car makes the permission at best symbolic.

Some in the policy arena have argued that deep-pocketed left-leaning actors (e.g. George Soros or Warren Buffet) can activate legal tools lacking enactive resources by deploying their accumulated capital in service of justice-oriented aims (Horowitz and Laksin, 2012). However, from a theoretical perspective, this strategy is self-limiting for pursuing justice, because the resources available to finance social justice rely first upon successful resource capture within the existing financial system. Those who adopt that system’s logics as their own are more likely to succeed within it, and thus would be relatively unwilling agents in any dismantling or restructuring of that system. As a result, while already empowered justice-oriented actors’ engagement in the political field may allow some specific anti-revanchist moments of resistance, these are best understood as rearguard actions.

A related dilemma involving the political economic context for legal tools oriented to socially just outcomes is their curious periodic reliance on unjust historical contingency. For example, Texas’s admissions policy for its flagship state university (the ‘Top Ten’ program) requires that the top students from every state high school be offered admission (Bouie, 2015). Yet as Bouie (2015) and Forest (2002) demonstrate, this effort to achieve social diversity in the state’s higher education system relies upon a deeply segregated residential landscape in order to succeed. The Texas law not only fails to challenge a landscape of deeply entrenched socio-economic housing segregation, but relies upon it in order to push for greater integration in another arena.

Third, we propose that legal tools offer little leverage to those seeking systematic revolution (e.g. communist hypothesis or new society advocates) except via cynical, strategic abuse of the state. Like dependence on left-leaning capital, revolutionary statism is also self-limiting. Because effective legal tools depend on the ability of the state to back its claims with force, to the degree that the state is undermined, its legal apparatus becomes increasingly ineffective and incapable of defending justice claims. Cynical or subversive use of legal tools to abuse the state, however, may be strategically successful in incrementally contributing to the decline of that state, whether one’s goals are leftist or rightist. For example, Tea Party-affiliated congressional action at the US national level strategically defunds the federal government while tactically disrupting the ability of the legislature to function in the day-to-day by depriving the majority of its ability to govern (Sustar, 2013). This will never make the federal government more able to act in defense of Tea Party interests, but it may serve the goal of destabilising the national state so as to make room for a more powerful regional state. (Right-wing political actors make similar claims regarding leftist reinforcement of the legitimacy of the United Nations, seeing active UN participation as an abrogation of national governance prerogatives.) Strictly speaking, municipal ‘revolution’ is unlikely; yet cities have been key polities in which revolutionary intent has been nurtured and radicalised. To the degree that ‘strategically cynical’ legal strategies are useful, they are likely to disproportionately play out in urban contexts.

Fourth, and finally: we propose, following the lead of cause lawyering (Sarat and Scheingold, 2006), that the law may be used tactically in concert with other, non-state or non-legal tools towards justice outcomes. In contrast to the nihilistic implications of the approach that we question in proposition three, cause lawyering leverages legal arguments and expertise to broader social justice movements, relying upon a multi-pronged approach to achieving some social goals. The case of civil rights successes, as we suggested earlier, is one such example; progress towards broadly accepted gay rights including gay marriage offers another more recent example of the successes that can be achieved through civil society organisations working in tandem with legal strategies to insist upon enactment of the equality principle enshrined in some state legal frameworks.

Future directions: Four empirical questions towards charting the frontier of potential for urban social justice via the law

This commentary was motivated by our reflections on a case which we and others have explored in writing over the past half-decade (Martin, 2013; Martin and Pierce, 2013; Martin et al., 2010; Pierce et al., 2012). The legal tools available to actors in the case of group home siting in Worcester are unusually permissive in the face of conventional local zoning politics, and the actors in Worcester believe it: several key local players have been quite explicit in their intentions to build a more just landscape of group home service provision (Martin and Pierce, 2013; Pierce et al., 2012). Yet the landscape we find largely reproduces existing spatialities of urban dispossession. We asked ourselves: what more could an actor ask for from the law in seeking socio-spatial justice? And we find that question not only unanswered but often unasked in the existing empirical literature.

We have proposed some specific (though still tentative) conceptual limits to the potential for justice via the law based on our empirical research and that of others, but by no means have we adequately charted the frontier of the legal potential for justice. In addition to verifying or complicating our four propositions, additional questions for empirical verification include:

We hope for urban and legal geographies that relentlessly pursue research demonstrating these limits both empirically and theoretically. Rather than focus on the (perhaps inevitable) corruption or cooption of the law by soft power, or the (so often tantalisingly receding) potential for a different world, we call for research that specifically identifies candidates for the limits of the cooption of the law by hegemonic actors, the most viable legal strategies for the sheltering of alternative political economies and the most cynical uses of legal tools towards the disruption of hegemonic power.