The right to work on the street: Public space and constitutional rights

Abstract

Do people have a right to work on the street? If so, what are the constraints and conditions attached to this right? Historically, municipal authorities have tried several ways to regulate or even prohibit commerce on the streets, by implementing administrative regulation and criminal laws, but neither has proven successful thus far. In fact, in some cases, these attempts have backfired. Constitutional challenges to municipal regulations have paved the way for the incorporation of municipal regulations based on a right to work on the streets. This article seeks to understand and explain how the act of placing a wooden or metal stall over a public space contributes to the development of a regulatory regime that administrates the right to work in an urban space. It further shows how these solutions have been jeopardized by litigation and transformed by recent constitutional doctrines that recognize the right to work on streets. Constitutional courts in Mexico, Colombia, and India have addressed the struggles between the street vendors’ ability to work on public thoroughfare and the municipal regulations that seek to limit street trading. As such, our aim is to analyze the way in which the municipal capacity to legislate, control, and regulate public space has been challenged and constrained by street vendors’ invocation of their right to work in these countries. This will help explain how constitutional courts do actually represent urban governance.

Keywords

constitutional courts developing countries right to work street vending

Introduction

Urban social practices that are usually labeled as illegal or informal are the subject of three different views. On the one hand, there is a legalistic view that “uses the language of ‘the law’ to condemn those practices and puts the law above all other consideration” (Azuela, 2006: 82). The use of criminal statutes is favored by this approach as a means to deter unwanted urban practices. On the other hand, there is a regulatory view that puts the emphasis on the rules and legal techniques that can allow these practices to take place while minimizing their (allegedly) negative effects (Delaney, 2010). Finally, there is a critical perspective that claims to observe “informality” as a mechanism of spatial management and control, where the law is not but a “confusing, convoluted, at times contradictory and difficult to enforce” set of norms (Devlin, 2011a). The case of street vending¹ is an example of an activity where these perspectives may be applied.

Street vendors are an integral component of urban economies, particularly in the Global South. Despite this, “the default view implicit in governmental discourses, public opinion, police activities and theoretical accounts takes as a premise the often legalistic logic that assumes street vending to be entirely against the law” (Meneses, 2013). According to the legalistic perspective, the law should be enforced by a strong municipal government against those who misuse common space reserved for walking and driving. On the contrary, regulatory perspectives do not necessarily attempt to “annihilate” (Mitchell, 2003) street-vending activities, but to accommodate them in a particular place. Finally, recent developments in planning theory have argued for a different focus where vendors’ informality is incorporated into the planning needs of a particular urban landscape (see Devlin, 2011a).

One could argue that the regulatory perspective is more inclined to celebrate cultural diversity than the legalistic one (Valverde, 2008), or that regulatory strategies have been more pervasive than legalistic ones, in the sense that they have contributed to rendering the act of street vending as an object of surveillance, control, relocation, fines, and arrest. Furthermore, it is also possible to argue that in practice, “formal law does not act like a blueprint structuring social action and spatial form” (Devlin, 2011a: 54). However, it is our contention that most urban scholars have overlooked the difference that constitutional rights may generate within these three approaches.

As acknowledged in a recent study, the urban landscape that these approaches tend to elaborate is one which appears to be less a function of rights and more a reflection of the power that different actors may exercise over the streetscape (Devlin, 2011a). Furthermore, within this context, street-vending activities are conceptualized as to be “instances of the urban poor, under conditions of extreme inequality, producing the urban in ways that help them survive day-to-day in the city, even if these survival strategies violate local laws regulating urban space” (Devlin, 2011b: 145). Yet, street-vending activities also represent the everyday manifestation of a particular right within the urban landscape: the right to work.

The streets and, specifically, the sidewalks are public spaces where social relations and rights are continuously contested and (re)defined (Mitchell, 2003; Staeheli and Mitchell, 2010). Thus, by analyzing the ways people occupy a place on the streets, we can learn in what ways people’s rights take place. The functions we assign to a public space often rest upon individual rights, such as, according to Davy (2009),

The right to walk in the street and to sit underneath a lamp-post, the right to protect privately owned land with walls, the right to lease space to high-end retailers, the right to sell and buy goods in public. (p. 230)

The spatiality of street-vending activities also involves a conflictive relationship between different rights: the right to walk and pass freely (Blomley, 2007), the right to work (Meneses, 2013), or broadly speaking, the right to access and use public space.

Accordingly, although most social researchers have characterized laws regarding the regulation of street-vending activities as a set of regulatory strategies designed for displacing, controlling, excluding, or containing the physical presence and movements of the urban poor within specific spaces (Bromley, 2000; Cross, 1998; Crossa, 2009; Illy, 1986; Jaffe et al., 2012), in practice, the regulation of street-vending activities has also constituted an ongoing debate about who has the right to work in the city and under what conditions this right may take place.

As we illustrate, in different countries, constitutional courts have decided that the urban poor have a right to work on the streets, under certain circumstances. These judicial resolutions have encouraged urban authorities to develop a more comprehensive regulatory framework in order to accommodate the everyday exercising of the right to work within public thoroughfare. By incorporating rights into regulation measures, urban authorities cannot completely deny people’s rights, but only administrate their exercise over space, thereby shaping the urban landscape as an often dualistic geography constituted by places where the urban poor can exercise their rights and places where they cannot.²

From an urban planning perspective, the above statement means that each time a specific bylaw is issued, or a license to occupy a place on the pavement is granted or refused, urban regulators “are arranging spatial exclusion and inclusion” (Davy, 2009: 231). However, from a more socio-legal approach, each permit is not a unilateral act from administrative authorities; rather, it is more an instrument that mediates and regulates the clash that occurs when street vendors seek to exercise their right to work, affecting third parties’ rights to use the street. This process involves the interpretation of constitutional rights as well as administrative regulations. Thus, it is precisely in the analysis of this second interpretation that it becomes possible to understand how the differing scales that feature the regulation of street-vending activities oscillate between “more abstract formulations of rights and social realities” (Griffiths and Kandel, 2009: 157).

This article attempts to rationalize how the “judicialization”³ of the right to work in Colombia, India, and Mexico has played a determinant role in the everyday organization of time and space by which particular livelihoods are conducted in the urban environment. The regulation of street-vending activities has been central to the debates about urban planning and public space in Mexico (Meneses, 2013), Colombia (Donovan, 2008), and India (Shapiro, 2006). On the one hand, street trading has had a long historical presence in these countries, providing essential services to most of the population. On the other hand, vendors have been blamed for many of the urban problems, thereby representing “a symbol of a metropolitan space gone out of control […] a ‘menace’ who inappropriately use streets and footpaths, block traffic and depress real estate values” (Shapiro, 2006: 2140; see also Donovan, 2008; Meneses, 2013). In these three countries, however, judicial challenges to municipal regulations have actually fueled a push toward incorporating such regulations in the countries’ respective constitutions.

This article aims to analyze how constitutional courts in India, Colombia, and Mexico have transformed the position of street vendors within the urban landscape. What used to be an open-ended discretional decision of urban authorities to authorize or deny permits to sell on the streets became a relationship between a citizen and his or her government, where the former is entitled to a right and the latter has to provide an answer with a legal argument that grants or denies such a right.⁴ Thus, a primary implication of this new arrangement is that street vending is no longer an informal activity, but the material expression of exercising a constitutional right. We see in this new configuration an opportunity to develop a more critical engagement with the functions of public space and the role that constitutional courts may play in planning the city, thereby contributing to problematize the question of “what planners may learn by paying attention to the urban transformations that are taking place in the Global South” (Devlin, 2011a; Roy, 2011). In doing so, this article seeks to investigate a specific set of “judicial experiences”⁵ through the detailed lens of how the invocation and defense of the right to work impacts the urban space, and the lives of street vendors in particular.

Following De Genova (2004: 161–162), we agree that it is only in light of this socio-legal account that one can sustain a critical perspective which is not complicit in the naturalization of street vendors’ “illegality” as a mere fact of life—the presumably transparent consequence of being “out-of-place” (Yatmo, 2008). Here, through the case of street vendors’ invocation of their right to work, this article discusses the ways in which the judicialization of placing a stall over a specific place on the street represents a spatial palimpsest where different conceptions of the “right to work” take place (Figure 1).This court-centered approach suggests that within specific spaces, rights and norms are not static or universally accepted but are contested and transformed as actors invoke different “reality frames” (Engel, 2001: 9).

Figure 1.

Authorized street vendors. Mexico City, downtown core area.

As García-Rincón (2010: 241) stated, the underlying question behind this issue is a simple one: How does the state address the contradiction between different definitions of the right to work in some developing countries where employment continues to fall and where the right to work has been traditionally limited to closed spaces (e.g. the factory, the office, and the store)? In answering this question, it becomes apparent that the judiciary actually represents a means of urban governance—that is, an emergent institution involved in the regulation of the city in the face of a failing municipal apparatus that is unwilling or incapable of carrying out its mandate under the law (Rajagopal, 2007: 165).

Constitutional law cases are not mere judicial decisions regarding a specific legal situation. Case law also contributes to a dialogue between planners, municipalities, formal businesses, and street vendors. In a sense, judicial resolutions do not only represent “sites” in which particular legal conceptions of the urban landscape are “made” on the world (Murphy, 2004: 119) but also provide a framework for decision making on the urban agenda. These frameworks, however, are not static or natural legal rules; they are institutional decisions that are continuously challenged and reinforced by both the legal system and society.

Judicial affirmation of a vendor’s right to work encourages urban authorities to develop a more comprehensive regulatory framework in order to accommodate the exercise of that right on the public thoroughfare. Accordingly, it seems that scholars, including those involved in city planning, need to take these cases seriously in order to appreciate the challenges posed when imagining the city’s inhabitants not as urban masses but as a concentration of citizens with rights. This article’s analysis of case law developed by constitutional courts shows that the experiences recounted in this case study could be useful to illuminate some of the challenges confronted by urban planners when dealing with the commercial occupation of the public space.

As Hoch (2009) suggested, urban plans are not only policy briefs or a set of municipal decisions; they also represent public stories from which we can learn how specific plans fail or succeed. Hence, judicial resolutions represent another feature of this story, one which embodies a composition between prior municipal plans designed to deal with street vending, and current challenges these plans may face in practice. This perspective adds a much needed modulated view “to the tendency to portray a rather immutable model of global urbanism” (Shatkin, 2011) as a monolithic set of public decisions addressed at “punishing the poor” in the Global South (see Müller, 2012). Hence, analyzing how the judiciary has been mobilized by street vendors, and the outcomes of these cases, represents an important contribution in understanding that municipal plans are not implemented in a straightforward manner since they have to accomplish a minimum standard of rights and duties. By doing so, it is possible to develop a much more nuanced view of the engagement between planning approaches and the entrenched realities of the urban landscape, “an engagement which, though beset with inequities, moral ambiguities, and sometimes violence, contains possibilities for local agency” (Shatkin, 2011).

The remainder of this article is structured as follows. In the section “Defining the right to work,” we shall describe the general features of this right, in addition to discussing how different international and constitutional texts have recognized this right. In the section “From the streets to the courts,” we explain the contents and legal consequences of the constitutional case law developed in Colombia, India, and Mexico regarding the right to work on the streets. In the section “Rulings back to the city,” we will explain the primary consequences that constitutional recognition for the right to work on the streets may have on the organization of the urban landscape. In the section “Final remarks,” we present the conclusions and possible implications this article may have in future studies concerning the regulation of street-vending activities.

Defining the right to work

The right to work has been fully recognized in several international human rights documents.⁶ Articles 6, 7, and 8 of the International Covenant on Economic, Social and Cultural Rights provide a broad approach to the right to work. Article 6 guarantees everyone the opportunity to gain a living by working for it—a choice which they can make freely. This broad definition may include people who opt to work on the streets although there are no specific references to the right to work on the street as such. Instead, the Covenant and other documents from the International Labour Organization (ILO) refer to street work as an expression of informality and focus on the need to establish rights for such workers. Thus, article 7 of the Covenant contains several provisions that seek to establish a minimum set of guarantees for workers, such as fair wages and safe working conditions, among others. Interpretations of these provisions identify street workers as a group that should receive the benefits of formal work (Economic and Social Council, 2006: 4).

Under the international human rights framework, States have three levels of obligations: to respect, protect, and fulfill (Economic and Social Council, 2005: 7). Respecting street workers means that public officials should not interfere with street vendors’ business without proper justification. Protecting street vendors refers to public officials’ obligation to keep third parties away from street vendors, in case they interfere with their right to work. Finally, government officials must fulfill street vendors’ rights by providing social security and services that improve their conditions. This last obligation should be most heavily considered by urban planners. Street vendors have been an important part of many cities’ economies for centuries, and it is unlikely that it will end any time soon.

The term “right to work” appears in numerous international documents as well as in a number of constitutional texts. This right has been constitutionally recognized in India (articles 19 and 1), Mexico (article 5), and Colombia (articles 25 and 26) (see Table 1). However, historically, it has been problematic to determine the limits of this right within the urban environment. Yet, from a traditional legal perspective, it has been stated in India and Mexico that “it is within the domain of the state to make any law imposing reasonable restrictions [to the right to work] in the interest of general public” (see Supreme Court of India—Sodan Singh And Ors. vs. New Delhi Municipal Committee & Anr. And Ors., 30 August 1989; The Supreme Court of Justice of the Nation (SCJN; Mexico)—Amparo administrativo. 2477/31, 22 October 1932).

Table 1.

Constitutional provisions that protect the right to work in Colombia, India, and Mexico.

Country	The right to work
Colombia	Article 25. Work is a right and a social obligation and in all its forms enjoys the special protection of the state. Every person is entitled to a job under dignified and equitable conditions.
	Article 26. Every person is free to choose a profession or occupation. The law may require certificates of competence. The competent authorities will inspect and supervise the exercise of the professions. Occupations, the arts, and work that do not require academic training are to be freely exercised, except for those which involve a risk to society. Legally recognized professions may be organized into professional associations. The internal structure and operation of the latter must be democratic. The law may assign public functions to them and establish the appropriate controls.
India	Article 19, clause (1). All citizens shall have the right […] (g) to practice any profession, or to carry on any occupation, trade or business […] Nothing in sub-clause (g) of the clause 1 shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
Mexico	Article 5. No one shall be prevented from performing the profession, industrial work, or commercial work that suits her as long as such activity is a lawful one. The enforcing of such freedom can only by forbidden either by a judicial resolution, whenever the rights of a third party are attacked or by governmental resolution issued under the law, whenever the society’s rights are offended. No one can be deprived of legal wages, except by judicial resolution. The law shall determine in each state those professionals that will need a certificate to work. The law shall also establish the conditions that must be fulfilled to obtain such certificates and the authorities that will issue them. No one can be compelled to do personal works without a fair wage and without full consent, except when compelled by a judicial authority.

Usually those “reasonable legal restrictions” imposed on the people’s right to work have been legitimized by the legal system, as a means to ensure “the wise and proper distribution of humans and things, and their relations and movement, within the territorial confines” of the city (Dean, 2010: 89). Thus, the people’s right to work on the street has been balanced against the rights of others to use the same space and the mandate of government to control and regulate that space.

In a number of cases, constitutional courts have affirmed that street vendors “have the fundamental right to carry on a trade or business of their choice.” However, the right may be restricted. For example, certain zones of a city may be considered as “no-hawking zones” (SCJN—Amparo administrativo. 2477/31, 22 October 1932; Supreme Court of India—Gainda Ram And Ors. vs. M.C.D. And Ors., 8 October 2010). While, in other cases, judicial decisions may reinforce a particular socio-spatial order where only the urban poor can work on the streets, subject to the will of the municipal authority: “[urban authorities] may frame rules in such a manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business” (Supreme Court of India—Sodan Singh And Ors. vs. New Delhi Municipal Committee & Anr. And Ors., 30 August 1989).

From the streets to the courts

Despite the function of constitutional courts as an avenue for marginalized populations to assert their liberties, access to constitutional litigation tends to be constrained,⁷ and such courts are not always willing to make decisions that explicitly demand drastic transformations of the legal framework. On the contrary, their decisions tend to defer to legislators and regulators.⁸ In the case of many street vendors, this institutional setting may well constitute an insurmountable obstacle. From this perspective, litigating street vendors’ rights may be better represented as a continuous dialogue between hawkers, municipal authorities, and the courts, than a series of decisions that put an end to conflicts.

One of the first challenges that street workers have to face before their cases are heard by constitutional courts is their informal status. Much of the existing literature has demonstrated (Cross, 1998; Crossa, 2009; Meneses, 2013) that many street vendors operate without any sort of official recognition (license or permit), thereby compelling them to sell goods in a more unstable manner in order to avoid the police (see Figure 2). Nevertheless, another consequence of the vendors’ unauthorized status is that they lack standing for litigating in court.⁹ This is why most of the cases heard by courts involve street vendors that have managed to obtain some sort of official recognition, such as a license, for example.

Figure 2.

Unauthorized street vendors. Mexico City, downtown core area.

However, courts may decide to grant some flexibility to petitioners and decide to hear their suit. Such is the case with the Constitutional Court of Colombia (CCC). In the case of Gabriela Hernández and others (CCC—T-225, 17 June 1992), several street vendors challenged a municipal regulation that established a no-hawking zone and thus voided previously issued licenses. Municipal authorities asked the court to reject the suits, arguing that petitioners did not provide proof that they had licenses to sell in the specified zone. Instead, the court held that municipal authorities had to provide evidence to the court that petitioners were not holders of licenses to sell goods on the street for the particular zone. In a further development, CCC decided that citizens that de facto occupied public space to live and work (trash collectors) were also entitled to judicial protection on the grounds that the occupation was publicly noticed and had taken place for several years before municipal authorities decided to end it (CCC—T-617, 13 December 1995).¹⁰

When constitutional courts argue on the merits of suits presented by street vendors, they take into consideration the right to work as well as the duty that authorities have to protect public space. In some cases, courts even consider that other people should be able to enjoy a right to public space as a way to claim that street vendors occupying public space are affecting such rights (CCC—T-508, 28 August 1992). They also analyze third parties’ rights as represented by drivers or pedestrians, as well as the rights of shop owners in the affected areas (SCJN—Incidente de inejecución 5/78, 15 March 1989). Under this framework, most decisions have to harmonize these sometimes conflicting rights and duties.

The current stare decisis in Colombia is based on a 1992 decision in which CCC ruled that the right to sell on the streets derived from the right to work. However, this right was subordinated to popular public opinion. Under these circumstances, municipal authorities were entitled to suspend or revoke licenses to sell on a certain public zone, provided that said authorities gave street vendors new licenses to exercise their trade elsewhere. It is worth noting that under the court’s standard, street workers still can receive their income from their activities on the street since the suspension or revocation of their licenses would jeopardize their way of living. This reasoning considers that street work is an activity carried out by marginalized and economically disfavored persons (CCC—T-225, 17 June 1992; CCC—T-578, 14 December 1994; CCC—T-115, 16 March 1995).

The Supreme Court of India uses a different approach. Under this perspective, persons are entitled to a legitimate use of the road in addition to walking, provided that they do not constitute a public nuisance. The right to trade on the streets is reasoned in light of the right to work. “There is no justification to deny the citizens of their right to earn livelihood by using the public streets for the purpose of trade or business.” The court stresses the relevance of third-party rights, yet recognizes the possibility of using the street to engage in a trade. However, it too recognizes that municipal authorities are entitled to impose necessary regulation to govern these activities. Under this authority, street workers are also expected to be lawful. Furthermore, the court presents a narrow construction of the right to sell on the streets by asserting that the sale of costly or luxury articles is not protected. Thus, the right to sell on the street was tailored for the poor (Supreme Court of India—Sodan Singh and Ors. vs. New Delhi Municipal Committee & Anr, August 30, 1989).

This last decision infers that the streets are places where, under certain limitations, poor people may interact with other poor people in commercial activities. In a more recent case, the Supreme Court of India confirmed the existence of a right to sell on the streets for the poor, but also recognized the need for municipal authorities to regulate activities on the street and that such regulation may change from time to time in accordance with the circumstances (Supreme Court of India—Gainda Ram And Ors. vs. M.C.D. And Ors., 8 October 2010).

Cases in Mexico have focused on the right to work as their starting point, from which they examine the merits of vendors’ grievances. One of the first cases was heard in 1932, regarding a city regulation that banned public vendors from a particular zone of the city. SCJN decided that the municipality was entitled to limit public commerce in certain parts of the city. Consequently, street vendors removed from these areas could continue their trade elsewhere. Under this reasoning, the court implicitly recognized that street vendors were entitled to carry on with their trade as long as they did not violate city regulations (SCJN—Amparo administrativo 2477/31, 22 October 1932). After 12 years, SCJN reaffirmed street vendors’ right to work by requiring municipal authorities to expressly provide the grounds under which they could deny a license to work on the streets. This decision operates under the basis that people have the right to work on the streets and that municipal authorities have to provide a fair justification when denying it (SCJN—Amparo administrativo en revisión 3140/44, 10 July 1944).

Judicial decisions provide additional considerations regarding work on the streets. These cases contribute to elaborate rules vis-a-vis regulation and its limits. A decision from the CCC underscores the various activities that occur in public spaces on a day-to-day basis to illustrate that many complaints against street-vending and other activities (such as cultural events, rallies, or even newsstands) may be excessive if the use of public space is completely restricted (CCC—T-508, 28 August 1992). This decision provides a clear limit to people’s right to use public space as an unlimited resource for walking or driving. It recognizes that activities that take place on the street, such as street vending, may in fact promote social welfare. Therefore, in some cases, people will have to deal with the inconvenience resulting from having small obstructions on sidewalks or on the street, provided that transit is possible. The main difference between the resolution analyzed in this paragraph and the one mentioned in the previous paragraph is that in this argument, the challenge involves citizens, while the former takes into consideration public interest represented by a municipal council against the rights of licensed street vendors.

Conversely, SCJN decided in 1978 that shop owners affected by street workers were entitled to a remedy. This remedy meant that municipality was banned from authorizing street work in the space directly in front of the shop owner who filed the suit. This example illustrates how third-party rights are usually underrepresented in constitutional litigation of street-working rights. Still, when they decide to act, they may well find success. In the Colombian case, street work became a tolerable nuisance while in Mexico, street work was banned from a particular zone in a city, but not entirely proscribed.

Rulings back to the city

In India, Mexico, and Colombia, court decisions have affirmed the right to work on the streets. Urban planners and policymakers must respond to such rulings by designing regulatory strategies to accommodate street-vending activities in a particular place. These regulatory strategies, which have often been employed in Mexico City, as well as in several cities across India and Colombia, prohibit trade in particular places and times (zoning) and require vendors to carry an official permit for a particular business at a particular place (licensing) (Bhowmik, 2010; Donovan, 2008; Meneses, 2013).

As such, within the contemporary municipal legal system, the license system could be interpreted as “the most apt instrument by which the authority can administer the right to work on city streets” (Meneses, 2013: 12). Nonetheless, while official policy in cities in Mexico, Colombia, and India permits vending with a license, municipal governments have tended to “freeze” the specific number of licensed hawkers over specific spaces,¹¹ thereby resulting in a situation in which the majority of hawkers are considered illegal. Despite this, license systems have not only contributed to the constitution of an ideal hierarchy of would-be social agents in public spaces by consecrating the distinction between authorized and unauthorized street users (Meneses, 2013) but also played a determinant role in the configuration of specific areas for street trading, thereby shaping the “clandestine geometry” of the commercial occupation of the public space (Itikawa, 2010).

At some point, this set of municipal strategies can be represented as a complex amalgam of physical and spatial prescriptions, encouraged by constitutional courts to allow a clear demarcation of how people can work on the streets, and under what conditions. Thus, for instance, in Mexico City, “street vendors have been required to take a shower every day, to cut their nails, and to talk and laugh quietly” (Azuela and Meneses, 2013). In other cases, like in India, municipal authorities have been encouraged by constitutional courts to design a specific socio-spatial order to “administrate” the hawkers’ right to work on the street. Indeed, among India’s constitutional resolutions that have allegedly tried to protect vendors’ right to work on the street,

[it is possible to identify] a ban on cooking food from an open flame; a ban on selling items from a table, stall or handcart; a ban on street vending within 150m of train stations, municipal markets, colleges, schools, and hospitals, in residential areas, on roads less than 8m, or on major thoroughfares. Moreover, street vendors must work in hawking zones and work no later than 10 pm. (Shapiro, 2010: 75)

Thus, from a more general perspective, the judicialization of the right to work on the streets has contributed to “produce” (Melé, 2008) regulation on the basis that working on the streets is a constitutionally protected activity. In light of this development, it seems that city planners need to focus on the specificity of “street trading” instead of simply banning it. Hence, regulation becomes the product of a multilateral process where public space exists as a dynamic location where the right to work and the characteristics of such work are constantly shifting.

Final remarks

This article considered how the judicialization of the right to work has played a determinant role in shaping the everyday freedoms and lifestyles of urban city dwellers. We explored a set of judicial experiences that mostly involve conflicts between those who sell on streets and the municipal authorities who have tried to constrain that activity in Mexico, Colombia, and India. Street vendors have been active in the defense and invocation of a specific right that, presumably, has been recognized as universal: the right to work. Following this line of thought, the legal experiences of the street vendors analyzed in this research can be seen as an example of how a specific set of rights and discourses, such as the right to work, has been constantly (re)introduced in the urban environment by the urban poor, in order to resist a city planned without them. Therefore, the set of judicial experiences analyzed in this research has not only helped street vendors continue selling on the street but also exemplify what Bayat (2000) has described as a sort of “non-collective but prolonged direct action by individuals and families to acquire the basic necessities of their lives” in a quiet and unassuming legal fashion (p. 536).

As Sanyal (2005) acknowledged, “planners must learn from the past, formulating problems in a new way, explicitly acknowledging the types of resistance their policies are likely to face and charting a sequence of tasks to overcome such resistance” (p. 236). Hence, a second implication of this article has been to communicate to urban planners the role that constitutional courts have played in the regulation of street-trading activities, in three countries located in the southern hemisphere and the challenges such plans may face before constitutional litigation. Here, constitutional litigation has become a means to return parties to a more rational approach to their conflicts. Instead of imposing capricious prohibitions or over-reactive policies, litigation helps regulators visualize the constraints in which they have to act and forces them to acknowledge their regulatory acts. Constitutional courts have reconfigured the capacities of the city to remove street vendors from the street without proper justification. In other words, municipalities have to provide well-reasoned arguments in order to affect hawkers’ status. This affects licensing, relocation, and even the withdrawal of a permit. Hence, the occupation of public spaces by hawkers is no longer a crime, nor even an irregularity per se. Licenses and permits are not considered grants from municipal authorities. Public space is open for a wide variety of activities that include commerce. Consequently, municipalities are expected to regulate them rather than proscribe them. Constitutional interpretation has managed to create not only legal standing for hawkers but also case law that directs the regulation of this activity.

Nevertheless, to assert that constitutional courts have already recognized the hawkers’ right to work on the street does not mean that street vendors are now accepted as “right holders” by all of society. In other words, as Clark (1985) noted that although “many academics imagine judges to be superhuman, all-knowing seers of the right and true,” street vendors may still be seen by society as a nuisance (p. 39). Gentrification projects and the development of some policies addressed at “cleansing the urban space” are a clear example of this perspective (Campesi, 2010; Müller, 2012). Given judicial precedents, one can conclude that selling on the streets is no less than a right that any citizen may exercise in a public space. However, despite this new status, it still seems difficult for authorities, urban planners, policy designers, and ordinary citizens to recognize street-vending activities as an exercise of a fundamental constitutional right.

Footnotes

Notes

Author biographies

Rodrigo Meneses-Reyes is Associate Professor in the Division of Legal Studies at the Centro de Investigación y Docencia Económicas (CIDE), Mexico City. He specializes on urban regulation and street working activities.

José A Caballero-Juárez is Associate Professor in the Division of Legal Studies at the Centro de Investigación y Docencia Económicas (CIDE), Mexico City. He specializes on judicial institutions and constitutional rights.

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