Abstract
Interrelationships between sociology, law and planning are not much explored in scholarly and professional fields of planning, to put it mildly. Amelia Thorpe’s publication, Owning the Street (2020), gives a wonderful demonstration of the significance of adopting just such an interdisciplinary perspective. The book is so meaningful because Thorpe builds a solid framework for analysing ‘legality’ that is then further explored and valorised via numerous cases of everyday practice. It does not determine the meaning of legality from official texts but demonstrates how it is progressively made through dynamic social relationships and ongoing practices of civic planning.
Empirically, the book is about civic efforts to re-conquer public spaces in heavily motorised cities by occupying parking lots (paying for the day) and making little temporary parks in them, mostly serving community activities. Under the banner of ‘PARK(ing) Day’, all sorts of public activities are temporarily organised in these small street spaces. Do It Yourself (DIY) activists – students, artists and urbanists – bring mobile materials to make a wide variety of cosy places, ranging from a basic collection of turf, armchairs and potted trees through to a cute box filled with lovely young puppets, and on to a self-made pinball machine; all of this in order to interact with the people on the street and to mobilise various communal uses in these car-monopolised urban spaces. The initiatives seek to demonstrate that ‘we the public’ own the street, it is ‘our urban space’. Like many other DIY initiatives, the aim is admirable enough but I must admit that the particularities of the case took me a bit by surprise. Coming from northern Europe, it would probably feel a little awkward to head out early in the morning, run along the streets with your friends to find an empty parking lot, pay the 50 Euro parking reservation for a day, bring your turf and furniture in, and enjoy your time with the community between parked cars at the side of the road. More radical initiatives are not unlikely in a European setting. However, perspectives may be different in other regions of the globe. Apparently, in such cities as San Francisco, Montreal and Sydney, PARK(ing) Day grew into nothing less than a phenomenon. In the first hundred pages of the book, Thorpe enthusiastically catalogues the spectacular rise of the initiative in these cities since it started in 2006.
My fascination arose in the second part of the book, especially the third and fourth chapters, where the analytical framework is constructed and later followed by further empirical exploration. Here the book’s main question is posed: how do local, specific, and personal understandings about belonging, ownership, and agency intersect with law to shape the city? In particular, it focuses on material and discursive claims about legality. Thorpe wonders whether participants are legally allowed to create their own public spaces by paying a sort of lease through the parking metre. Unravelling this simple question reveals an extremely complex reality with completely different reactions and experiences from politicians, parking officers, the police and the public. It demonstrates the complex context and specific social relationships within which legality operates. Every aspect of legality – from making, establishing, maintaining and enforcing legislation, though to court trials and on to citizen compliance in pluralist and non-coherent urban societies – introduces scope for discretion in interpreting legal meanings. Legality is not stated unequivocally in an official text; it is essentially social dynamic and often contested. Thorpe rehearses the classic debates between H.L.A. Hart (who advocated precise adherence to the letter of the law), and the more deliberative position of Lon Fuller, and decides – for good reasons – to follow the latter. Fuller recognised the need for interpretation in legal matters, the need to search in all particular cases for what the rule is generally aiming to achieve: what is this rule for, what good is intended, what evils is it seeking to avert? It is in light of ‘the ought’ that we must decide what the rule is (Thorpe in affirmative citation of Fuller, 2020: 101). The formal text is significant but the final decision may differ from it, following the spirit rather than the letter of the law. For Fuller, not all law is identical to legality; he considered legality to be a normative institution. As a former judge he had experienced many problems with overly detailed legislation that failed to take into account the generality of legal norms, required to enable contextual deliberation in changing situational practices (Fuller, 1964; Salet, 2018).
Today, the multiplicity of legal meanings is studied, in particular, by adherents of legal pluralism; a characteristic theme is the ‘pervasive mixing of multiple sources of legality’ (Thorpe, 2020: 111). In line with contemporary pluralist and relational interpretations (e.g. Cooper, 1998; Blomley, 2011; Ellickson, 1991; Rose, 1994), Thorpe studies property as socially constructed and contextual, focusing on interrelationships between property, ownership and agency. Property, as a legal concept, can only be fully understood by taking into account the plural practices of imagination, discussion, inhabitation and conflict that shape it; when this occurs, sharp demarcations between legal property, social ownership and agency come to be blurred. As Thorpe (2020) puts it, ‘Property can be read as a claim to what is proper, and an effort to persuade others of the propriety of that claim’ (p. 133). Ownership has no legal power in itself but since it socially constitutes property, the legal meaning of property would vanish without social ownership. Property and ownership are made active and real by participants claiming the right to public use of the streets (and, more generally, the right to the city). Thorpe continues this line of reasoning by extending it to ‘persuasion’ and ‘enactment’. Citing Rose (1994), she states ‘property is at heart a matter of persuasion’ (p. 10), making the definition of legality in this case dependent on persuading others about the interpretation of legality. Enacting this meaning is the logical consequence: PARK(ing) Day is constituted as ‘legal because of the success of participants to claim their right and the relative passivity of their opponents’ (Rose, 1994: 111). The social construction of legality is repeated in the streets. The following empirical case studies provide ample evidence of building social ownership by acting and repeating, the cultivation of a sense of ownership and the following enactment of its legality. The author does not make a secret of her activist aim to build community and redefine motorised public spaces in this manner.
How nice to read this sociological enrichment of the understanding of property, a concept that is too often confined to narrow economic and juridical terms. Its practical meaning is propelled by social relationships, by senses of belonging and processes of persuasion and enactment. Emotions and the enjoyment of making the public claim are pivotal in understanding property, at least the public properties that are investigated here. Thorpe’s outspoken commitment to the cause makes the sociological dimension of property and legality very relevant. At the same time, I feel the sociological dimension is taken a bit too far in terms of explaining legality. It seems to me that it exceeds the borders of legality’s institutional meaning, however fluid these may be. The book is a plea for shaping the legality of property by persuasion and performative enactment. Although it is not enactment by the state or the municipality but by civic participants, it is nonetheless a one-way enactment of legality. This practical and consequential reasoning of legal meaning (implicitly) brings to mind the consequentialism of philosophical pragmatism. John Dewey and William James took the position that only that which guides us truly, is true, and that an ethical statement is only ethical if it works ethically. In other words, the real meaning of legality arises from how it is constructed and performed in reality, in its practical consequences. The counter argument, however, is that those who are not involved in the social articulation (or who stay passive) are excluded from claims of legality.
Furthermore, the institutional dimension of legality is lacking from the discussion. I fully understand the plural and relational nature of analysing legality, and I sympathise with many civic initiatives claiming rights to the city, but I am not so sure that legality might be realised so directly by civic claims and their practical enactment of it. Legality is the institutional dimension of law and legislation. Like all social and cultural institutions, legality depends on very complex processes of ‘social normalisation’ through ongoing practices. However, legality differs from other institutionalised public norms because of its legal nature: it reflects a (usually indirect-reciprocal) practice of legal binding. Its meaning is changeable and dynamic, and it is constructed and evoked in practice, as Thorpe makes clear. But change in legality also goes through its own legal-institutional transformation; this includes deliberations over the generality and durability of established normative rules (see Fuller), and weighing the interests of the full public rather than those of selective claimants. Usually, it takes more time for this kind of legal normalisation to settle (and to change), and it may be less permissive than many unbounded pathways of social change in practice. Of course, this institutional change is often contested in a plural society and its meaning is never unequivocal, but it deals with social contestation and different interpretations in its own way, the court being the final arbiter. Legal institutional deliberation is socially constructed but needs its own mores and its own discretionary spaces.
In the particular case of PARK(ing) Day it ultimately seems a bit premature to invoke the concept of legality, a conclusion that Thorpe herself makes. It is a vivacious civic initiative, where participants pay for temporary uses of parking space, most of them committed to fostering community, and using this particular activity to build up larger public uses within car monopolised urban space. Technically, it is not exactly a lease, and it is certainly not a legal right. The initiative was nowhere severely opposed, people appeared to like it, and politicians were keen to support the initiatives. Controversial litigations have not been reported. Even most of the participants themselves did not claim legal rights. They simply created new urban realities in permissive social spaces rather than new legality, although it might grow into that. Yet I am glad that Thorpe took the admirable effort to conceptualise the making of legality in everyday practices. There are many different civic initiatives – sometimes less friendly – and understanding the analytical underpinnings of their contributions to legality is extremely important. This inspiring book must be used and discussed in bachelor or master classes of planning schools.