Alien Phenomenology,Self-Exclusion and Property Rights

I. Law and Spatial Practice in the Ancient City

In many ancient civic communities, the limits of personal identity often simply equalled the limits of physical association or the inherited, unequal social roles prevalent in such communities. In such an environment, for example, an ‘idiot’ was simply a private person, one who retreated from city life, with all the difficult proximity to others which such an existence demanded (private tax is still termed idiotikos foros in Greek-speaking communities, such as Cyprus).

In Roman civic society, spatial relations prioritised the authority of the family unit above all else, and then, within that, the authority of the paterfamilias. Personal identity as such did not emerge from the individual as a ‘subjective’ being as we might know it in modern times; identity was instead inherited or allocated by relative position, and worship, religious worship (whether of fire, the hearth, the ancestors or the ‘gods of the interior’), was a reverence for the sanctity of that important collective identity.

For many, of course, this system was particularly egregious by modern standards; the tradition of the bride being carried over the threshold of the house by the groom emerged initially from the Roman practice of doing the same – but in Roman times, this practice was no supposed romantic gesture. It reflected rather a brute and necessary symbolic realty, that it was only through the act of the paterfamilias of the house carrying the bride into the house (and over the threshold) that she could ‘become’ a person, symbolically speaking – between the spaces of the previous community of her father and the new community of her husband – between the old pater and the new ‘pater’ – she did not have any symbolic meaning; she did not have personality in the important symbolic sense required by Roman ethics.

This was therefore a time of perhaps more distinct moral spatial enclosures – or at least moral spatial enclosures with more active meaning – where the dynamic between space and standing in society was very clear and very much enforced (although when has it not been so?). Family, religion and law were deeply intertwined and had active meaning. As Siedentop writes, referencing Fustel de Coulanges, ‘at its origin the ancient family was both the focus and the medium of religious belief’. ¹ He notes also that ‘domestic practices in Greece and Rome – the subordinate role of women, the nature of marriage, property rights and inheritance rules – were also direct consequences of religious belief’. ² Specific Gods – the Lares, the aforementioned gods of the enclosure, or interior, and Lararium, architectural features honouring such Gods – reflected the importance of such matters; ‘the Lares. . .are formidable divinities, whose duty it is to punish mankind and to watch overall that passes in the interior of the house’. ³ Lararium, the shrine structures dedicated to honouring these Gods, were a distinct feature of most domestic spaces. Belief, values and faith genuflected towards the concept of a ‘proper distance’ in spatial dynamics, and rules were enforced to give value to such proper distance, in the same way that public space is currently abandoned for gain or private speculation in all matters. Roman Urban houses, for example, could not be contiguous or joined in early iterations of the ancient city – some space, however slight, had to separate them: ‘at Rome the law fixed two feet and a half as the width of the free space, which was always to separate two houses, and this space was consecrated to the “god of the enclosure”’. ⁴ A sacrifice in the exploitation of potentially private space was granted to the supposed divinity residing within that contingent space, a primal understanding of some value lying within there, a value that we moderns have perhaps decided to neglect.

Here, we see examples of both the benefits and costs of exclusion as a sacred practice; it necessarily limits the full participation of all subjects, prioritising the autonomy of a few at the cost of a number of excluded others who must be permitted by that few to enter the mainstream social landscape – but it also prioritises the value of distinctions between the private and public worlds, arguably an essential practice for a healthy civic space where those two world can exist and co-exist (public spaces in contemporary society seem decidedly precarious in the face of a modern fetish for the private, unleavened by any serious religious mores). Arguably, this valuing of enclosure as a method of sanctifying something about humanity has been eroded and changed over time, bringing the nature of a property right into disrepute as it becomes separated from this primal, almost spiritual role and functions increasingly as simply a financialisation token.

II. From the City of Pagans to the City of God

The rise of Christianity – and the concurrent displacement, or appropriation, of pagan religious beliefs – changed many things; one important change for this article was that the ideology of Christianity allowed the argument that fixed social roles and a more radical, universalised, abstract human identity could co-exist. Here, we see the first moves beyond exclusion – the threat of the message of Christ was that religion was not for the benefit of only a chosen people, but accessible to all, the chosen, the pagan, and especially those regularly excluded by all, the powerless, such as the poor, the weak, the ill and stricken – those who were not able to bodily or materially enact or enforce an enclosing. Arguably, prior to the emergence of the Christian doctrine, your social/physical role was your identity, by and large. There was a huge spatial (and moral) significance to this, if we continue to see morality and spatial epistemology as deeply intertwined.

Christianity (and especially the Pauline interpretation of Christianity) introduced a new universality to personal identity, linked to the idea of each individual or soul having a chance at personal redemption, a chance at justice beyond the worldly limits of an often much harsher (largely Roman; often Jewish or religious) civic justice. It is no accident that in Romans 12:2 we are given the Pauline exultation ‘Be not fashioned after this world’. ⁵ The Platonic mantra of early Christianity could be re-written as ‘Be Otherworldly’.

Here, we see the ideological root of the modern Western notion of a personal human ‘right’, a history Siedentop has expertly outlined in his work on individuality and Western liberalism. ⁶ This idea – this radical idea – was that the ‘Kingdom of God’ is present within each person regardless of what space one is contained within in more physical, social or communitarian ways. Within such a framework persons thus come to be seen as universal individuals regardless of their physicality, social standing or communal position, and such Christian individuals are as a result – in theory at least – presented with the (for the time) revolutionary imaginative opportunity of an equality of status as children of God – the moral (spatial) community extends from the material plane to an immaterial, Neo-Platonic realm and space (and morality) is expanded exponentially as a result to include all within the family of God and the caring arms of God as the conceptual Father. This abstraction of spatial morality onto a more otherworldly plane – the ideological move from this world, to an Other world – allowed for the brute facts of society to be ignored, or indeed circumvented in belief, and for a notion of justice (even if only privately realised) to become available to all. Is it any wonder that Christianity became attractive as a form of belief to the many formerly downtrodden individuals in the often-harsh Roman world? More crucially, can we understand today that legal structures and notions of justice are as much the result of the Christian ethic of ignoring ‘reality’ (see e.g. the ethics of Kant and Rawls) as pragmatic Roman legal science?

III. From Synecdoche to Semiotics

Arguably, as Christianity developed and became dominant, this moral spatial shift had an equally important impact on perspective, both individually and more generally as a dominant cultural attitude; it had an impact on the view of how or why to see any sense of order within the world as it was. To echo the work of Antoniades, one could reconfigure this shift as being one from a synecdochism to a semiotics of being ⁷ ; from seeing oneself and the wider community as somewhat interchangeable (or relational; and here Christianity neglects a positive from the pre-Christian cultural era, often notably censored in the occasional so-called heretical works that add a pantheistic touch to Christian belief, such as that of Eriugena) to one where the individual being in itself had sufficient meaning to it qua being, separated from the larger context of communal, environmental or physical embodiment. In philosophical terms, one could view it as a shift from more ancient Neo-Platonic attitudes to modern philosophy instigated by Descartes and his reconfiguration of existence around the subject.

This epistemological and perspectival change could also be seen in the art of visual representation as it developed during the Christian period, and indeed, I argue that it is in this field that we see a clearer manifestation of this shift in thought from perceiving being as definitely intersubjective or relational to instead being, or becoming, hyper-individualised. Specifically, linear perspective emerged as the dominant mode of representation, albeit that there are many other modes of representation possible. Why is this important? This shift in perspective reflected how the individual wanted to see, and saw, themselves. Linear perspective favours a view of the world ‘from the standpoint of the seeing eye of the individual’. ⁸ Undoubtedly, there was an emancipatory aspect to this shift, but what was also lost? The often-oppressive collective identity of the Roman civic world may have constrained the development of the individual subject, and marginalised some identities, but in its championing of the value of the spaces in between us, and the private and public spaces we inhabit, it also recognised the importance of collective relationality in fashioning a larger civic identity. In challenging the Roman world, Christianity may have discarded much of value while developing the notion of the individual subject as a child of God, regardless of their social position. There is a delicate balance between offering inclusion to all and allowing some degree of subjectivity to remain – the balance between communality and liberty.

Christians adopted the representational tool of linear visual perspective as a mode of propaganda – and supposedly ‘the’ way of seeing – and utilised it even in places that differed radically in opinion regarding how to view the subject within existence or nature. The Jesuits, for example, imported linear perspective into China as a vehicle of Christian iconography – largely, one could argue, because the interests of linear perspective and of the Christian message of a universalism available to all irrespective of social position were in perfect alignment. Such universalism, useful and radical in part, required seeing the world differently than it was materially, however – seeing an ‘otherworld’ beyond the brute facts of reality, a perspective that might favour specific roles for individuals in society – which the use of linear perspective within Christian art made much more possible.

The Jesuits ran into problems, however, with the existing (and preferred) method of oblique perspective in example, China as a different way of viewing the world other than it was materially. Linear perspective as a mode of representation is a choice, not a representation of absolute truth; oblique perspective, also a choice, is albeit a different one. It is ‘less faithful to appearance, but more faithful to fact; it shows things nearly as they are known to the mind. Since oblique projection removes the vanishing point, all things are represented as being the same distance away and the eye of the spectator is everywhere at once’. ⁹ Oblique favours the relational or synedochal point of view; subjects blend into and within the environment, rather than becoming the focal point. The communities in China at the time could not assimilate linear perspective in the same fashion as the West, perhaps a consequence of the dominance of different belief systems, for example, Buddhism/Confucian thought, and this different attitude to perspective in visual representation. Scolari writes that ‘the attempt to institute a single viewpoint contradicted the very roots of Chinese thought, in which man is not the measure of all things. Rather. . .it is nature that expressed itself through the artist’. ¹⁰

As a result, the synecdochic attitude (which was not completely unavailable to Christian thinkers, for example, as mentioned, it was contained within the albeit heretical Periphyseon of Irish philosopher Eriugena, wherein he developed a mode of thinking based on earlier Neo-Platonists such as Gregory of Nyssa and Basil the Great) drifted out of favour in the West. We see the last glimpses of this strain of thought as a cultural and political force amongst the elite in the Middles Ages; Antoniades has also written of the characters of the Second Earl of Essex Robert Devereux and Sir Francis Bacon as representative of this final struggle between the two modes of thought, with the synecdochic (represented by the doomed, selfless fealty of Essex to Queen Elizabeth, even in the face of royal abandonment) mostly dropped in favour of the ‘rational’ and more monadic thought advocated by figures such as Bacon.

Arguably, our modern system of ‘right’ echoed this shift, as one would expect – such rights being a method of protecting that which is of value. Philosophers such as Locke, Mill, Kant, etc. prioritised the natural liberty of the individual within this process, regardless of the cost to the community as a whole (but also note the pushback from later economists/ethicists such as Henry Sidgwick, who noted the need for an ethical basis in terms of avoiding market failure that develops on the concept of sacrifice of current individual benefit for the long-term benefit of the collective whole). ¹¹

IV. Enclosure, Improvement and Hyper-Individualism

With the Enclosure movement of England, we see a large-scale and systematic political manifestation of this gradual shift in belief towards a more monadic political ideology in the realm of moral spatial dynamics. The act of systematic enclosure of common space was not unique to England, but the process and politics of the Enclosure movement in England operate as a useful and well-documented model by which to examine the instinct of enclosure more generally and what ideologies such instincts manifest. It also illustrates the political and legal impact of this ideological shift.

Much has been written about the long process of systematic private enclosure of common land in England between the early 1500s and the 1800s (by which point, arguably, the process was completed and the very idea of rights relating to common land as a predominant element of civic society had become marginalised in legal, economic and social thought). My interest in this process is less about undertaking a full reassessment of the history per se and more about gaining insight into the ideologies underpinning this Enclosure movement: what it meant in terms of thinking about the world and the spatial dynamic between individuals within a society. Understanding that the Enclosure movement also eradicated a way of life and a mode of thinking about being in the world and amongst people, a spatial ethics, is also important here; it illustrates that our spatial epistemologies are not fixed, nor immanent.

We can see early inklings of the process of undermining the status of common land (and those who would use it and have customary rights regarding it, the commoners) in English agrarian politics and practice in the early 1500s; a generous interpretation would view this enclosure turn in agrarian thought as a technological innovation in land use and ecology, as it was often linked to writings regarding the supposed current best practices of farming or husbandry. An important work in this context is the work of Anthony Fitzherbert, legal scholar, judge and equally important for the purposes of our study, prominent landowner, having inherited the estate at Norbury in Derbyshire. Of particular importance here are two works by Fitzherbert; one on agriculture, The Boke of Husbandrie (I keep the original spelling for older works throughout); and one on law and agriculture combined, The Boke of Surveyinge and Improvements, both first published in 1523. The Boke of Husbandrie can be fairly considered to be one of the first coherent texts on the study of agriculture of the day. Neeson also identifies Thomas Tusser and John Norden as two other early agricultural writers who advocated for enclosure and engrossment for ostensibly agricultural reasons. Tusser, a poet and farmer, wrote A Hundreth Good Pointes of Husbandrie in 1557; expanding it to Five Hundreth Pointes of Good Husbandrie in 1573; Norden, a cartographer and surveyor, wrote his Surveyors Dialogue in 1607. ¹²

In Husbandrie, Fitzherbert argues for enclosure and engrossing. Enclosure was the practice of bringing under private control what space had theretofore been common land, with specific rights of access and privilege particular to such commonality. Engrossing was the practice of purchasing multiple farms to make a larger single (and, so the argument went, more economically efficient) farm. In ‘The Reaction to Enclosure in Tudor Thought & History’, Kines writes that ‘Husbandrie is little more than a manual for the simple farmer, yet the ideas expounded were as new and radical as any written, for it actually advocated enclosure’. ¹³ The common perspective on enclosure in England at the time was much more complicated than current perspectives. As Kines writes, within England, there were two methods of engaging with land; ‘The primitive open field system, in which the peasant worked both his own and the lord’s land, existed in much of the south and midlands yet by the sixteenth century this traditional form of tillage varied greatly. On some farms there were few, if any, scattered strips, while on others a considerable portion was enclosed by the tenants and held in severalty. Another deviation was to re-distribute the common meadow, enclosing the arable land and leaving the waste unenclosed. A second system of farming was to be found in the northern areas and the southern coastal counties stretching from Suffolk to Devonshire. In these place’s there prevailed scattered farms specializing in animal production and including small plots of enclosed land for the cultivation of necessary food crops’. ¹⁴

Open field farming has been described in more detail thus: it was ‘[a] system of cultivation with farmers allotted strips of land in the field which could be re-allocated from time to time [that] was common among freemen and sokemen at the time of the Norman Conquest, especially in the Danelaw where serfdom was less common. . .. The system continued in full force after the Conquest for varying periods in various localities. The strips represented roughly one acre or a day’s ploughing. . .. The general idea was to provide equal treatment by scattering the allotments to each farmer among the various fields of the manor or township. . .. The system worked well for a time but became inconvenient and time-consuming and hardly motivated improvements. Lords began to consolidate their demesnes, and the example was followed on the rest of the fields. Mediaeval manorial extents show parts of a manor or village as open field but with increasing enclosure as time went on. A survey of the West Field of Cambridge in 1370 describes 1,000 parcels of land strip by strip. Fitzherbert, in 1523, refers to the common practice of neighbouring strip owners exchanging various strips to produce compact holdings and enclosing these. In 1563, there are like accounts from East Anglia’. ¹⁵

This system had been in place for many hundreds of years and had generated an equally complicated system of rights in relation to the land. Other developments in relation to land at this time are also worth noting, for they feed into the culture of the time in understanding and engaging with land and play a further role in the systematic enclosures that were yet to come. One major event was the Dissolution of the Monasteries and the grand expropriation of land from the Roman Catholic Church – clearly this act had political and petty personal causes, but it is also evidence of an attitude towards spatial enclosure and land use that discards the value of the common space and thus, relationality in forming a sense of being or subjecthood.

Feudalism and religious morality had, of course, many ills, many of which required and deserved reform – but one thing that was tossed away almost haphazardly in the Enclosure and Dissolution movements without any real regard for its significance was the idea of responsibility towards the land (from the landowner) and responsibility towards those who suffered, the poor and those under hardship. Chalk quotes Tawney as writing of the common businessman of the era and his attitude to enclosure that ‘A century before he had practiced extortion and been told that it was wrong: for it was contrary to the law of God. A century later he was to practice it and be told that it was right: for it was in accordance with the law of nature’. ¹⁶ Neeson makes the interesting observation regarding critics of the commons in England: ‘merely looking at a common or a common field village wasn’t enough, as defenders said. When critics took things at face value, they mistook the uncultivated commons for infertile heath, and many did not see common-field pasture at all. Critics of common in the eighteenth century shared a myopia common amongst modernisers. “We ever must believe a lie,” said Willian Blake, “when we see with, not through, the eye”’. ¹⁷

By the 1540s, the attitudes surrounding the enclosure of land had shifted from being discussed ostensibly in terms of agricultural development to being discussed more broadly in terms of being the correct mode of economic and social life – in this way, the propaganda of Fitzherbert had been successful. In the Discourse of the Common Weal (1549), much space is given over to the discussion of the problems already emerging from the practice of enclosing land. In the second dialogue, as Chalk writes ‘the Doctor says the solution of the problem of the conversion of arable to pastureland lies in providing a sufficient profit incentive to induce the greater cultivation of land’. Thus, he argues that, whenever people ‘find more profit by pasture than by tillage, they will still enclose, and turn arable lands to pasture’. ¹⁸

What is most interesting about the process of systematic enclosure is that its success was, at least initially, not entirely guaranteed, regardless of the many advocates – there was a strong anti-enclosure movement, within and without government. Anti-enclosure sentiments – and actions – were admittedly strongest amongst the population, of course, but the government was not far behind in terms of a critical stance, at least in the early days of enclosure. Partially, this anti-enclosure stance was connected to a critical stance of the practice of husbandry, agriculture concerned with raising animals for meat, dairy or fibre. The difficulty for the government was that the sequences of so-called improvements created massive social upheaval – this was what the government was terrified of initially and was arguably the initial motivation for its support of anti-enclosure principles. It is worth noting that prior to 1500s, there was, of course, enclosure happening; it was just simply not systematic and all pervasive. But as Reid Jr. writes ‘it nevertheless did not arouse great passion until the end of the fifteenth century. Excitement was particularly aroused at that time over rural depopulation. It was perceived that villages that had been steadily inhabited for several hundred years were being emptied of their people. The conclusion was quickly drawn that the enclosures of wealthier landholders – especially those working to obtain large areas of contiguous pastureland for sheep-grazing – were responsible’. ¹⁹

Kines argues that the first statutory provisions relating to enclosure, and in opposition of it, were enacted in the fifteenth century, with ‘two statutes enacted in 1488-89’. The first recognised that ‘great inconvenyences daily doth encreace by desolacion and pulling down and wilfull waste of houses and Townes within this realme, and leyeng to pasture londes whiche custumeably have been used in tilthe’ and that husbandry was ‘one of the grettest commodities of this realm’. ²⁰ The consequences resulting from decay of this ‘grettest commoditie’ were sufficient to warrant action by the ‘Kyng our Soveraign Lord by thassent and advise of the Lordes-speull and temporell and Comens’. It was decreed that any person owning a house attached to twenty or more acres of land farmed within the previous three years was ‘to kepe susteigne and meynteyn’ such houses.‘Upon default, the King or other lord of the manor was entitled to use one-half of the profits gained by the conversion. These were forfeited until such time as the houses or towns were rebuilt. This applied only to property held by the King’. ²¹ In the light of this, the government felt it necessary to act. They were most prompted to action by the associated ‘decay of husbandry’ they saw as affiliated with enclosures and engrossing.

Five years after the ascension of Henry VIII, we already see the first public reactions against enclosure of previously common law; as Kines writes ‘The people of London were accustomed to the numerous open fields around their city in which they could exercise and play in their leisure time, and for their own selfish reasons, resented the enclosing hedges’. ²² Kines cites Hollingshed as writing that the public ‘assembled themselves on a morning, and went with spades and shouels vnto the same fields, and there (like diligent workemen) so bestirred themselues, that within a short space, all the hedges about those towns were cast downe, and the ditches filled’. ²³ In 1514, we see an explicit Act of Government against enclosure and engrossing, the Proclamation prohibiting enclosure and engrossing of farms. A year later, a further act was published, the ‘Acte concerning pulling downe of townes’. As many commentators have noted, it was not only the government that was, at least ostensibly, concerned with the enclosing and engrossing practices; prominent writers of the day, such as Thomas More, came out in direct opposition to the practices. More wrote in his famous Utopia that:

for wherever it is found that the sheep of any soil yield a softer and richer wool than ordinary, there the nobility and gentry, and even those holy men, the abbots! not contented with the old rents which their farms yielded, nor thinking it enough that they, living at their ease, do no good to the public, resolve to do it hurt instead of good. They stop the course of agriculture, destroying houses and towns, reserving only the churches, and enclose grounds that they may lodge their sheep in them. As if forests and parks had swallowed up too little of the land, those worthy countrymen turn the best inhabited places into solitudes; for when an insatiable wretch, who is a plague to his country, resolves to enclose many thousand acres of ground, the owners, as well as tenants, are turned out of their possessions by trick or by main force, or, being wearied out by ill usage, they are forced to sell them; by which means those miserable people, both men and women, married and unmarried, old and young, with their poor but numerous families (since country business requires many hands), are all forced to change their seats, not knowing whither to go. ²⁴

Wolsey, the main character in government who advocated against enclosure, was also an ardent supporter of the ploughman. On the 28th of May 1517, he in fact established a commission to investigate the practice of enclosure.

Alongside these governmental and establishment efforts to at least mitigate enclosure, we have the emergence of literature advocating for it, at least in purely agrarian science terms. The aforementioned Fitzherbert and his Boke on Husbandrie was a clear advocate of the practice. He also published his Book on Surveying and Improvements. These books were clearly in opposition to the at least public position of the government on the issue – Kines writes ‘Fitzherbert assumed that no farm was too small or to steeped in tradition to be modernized, and to him, modernization clearly entailed consolidation or engrossing of land and the implementation of a dual agrarian system of both grain and sheep. Taking for granted that every farmer would eventually begin to raise sheep, Sir Anthony experimented and discovered that it was considerably cheaper and more profitable for the small farmer if “euery neyghbour may exchaunge landes with other,” and enclose his consolidated plot with hedges’. ²⁵

Government counter-punched against these revolutions in agrarian thought – in 1526, there was issued from Westminster a proclamation ‘Ordering Enclosures Destroyed and Tillage Restored’. Kines writes that this ‘required that all land enclosed since Henry VII’s time be re-opened and the people first “make the grounds plain as they were before the enclosures . . . Second all land previously held in tillage was to be tilled again in a manner appropriate to the region”’. ²⁶ Such advances and retreats of the various movements mark much of the history of Enclosure in England, but by the mid-1500s the practice was fully entrenched; what was only up for debate by that point was the degree. By the mid-seventeenth century, as Neeson notes, public arguments in favour of enclosure had become acceptable even when enclosure was known to cause ‘local distress’. ²⁷ The early seventeenth century was the period of ‘the final withdrawal of official resistance to enclosure. . .the last Inquisition of Depopulation. . .was held in the 1620s’. ²⁸

In the mid-seventeenth century, a further spate of enclosures and the formalisation of the process meant that ‘public debate opened. . .with a series of pamphlets written by two Midland clergymen, Joseph Lee and John Moore, one of whom (Lee) was also an encloser. It was an important debate but short lived: little public argument about enclosure appears to have followed the restoration. Timoth Nourse and Daniel Hilman broke the silence in the first decade of the eighteenth century: the 1730s saw the publication of pamphlets by John Cowper, Thomas Andrews, and others, the estate management and husbandry treaties of Edward and John Laurence, and the first few private enclosure Acts. Then in the 1760s dearth and a strong spate of Acts drove defenders of commons to write against enclosure again’. ²⁹ By the mid-1800s the process, aided by Parliamentary imprimatur, was largely complete.

Note here the attitudes towards the common and commoners in England; Neeson writes that critics of the commons could not understand ‘the relationship between the commoners means and their wants. Commoners had little but they wanted less. The result may have been that they lived well enough for themselves, but invisibly and poorly in the eyes of outsiders. The satisfaction of commoners was incomprehensible to supporters of enclosure’. ³⁰ In response to the idea put forward by certain commoners that their enclosing landlords had enough already and should be satisfied, Nesson notes ‘perhaps having “enough” was unimaginable to men who wrote about crop yields, rents, improvements, productivity, economic growth, always more, as it has been incomprehensible to twentieth century historians living in constantly expanding market economies, albeit on a finite planet’, adding that something critics of commons and commoners missed was ‘the constantly negotiated interdependence of commoners, their need of each other’. ³¹ On this point of the necessary relationality of the commoner, born out of the catastrophe of their social position in a class based society, Neeson writes as a riposte to the use of the term cottager over commoner, ‘it ignores all the reciprocity, the village dealing, the sense of self, the willingness to argue, the craft, the alliance with one lord against another, the collective celebration, collective memory and mutual aid properly associated with peasants and commoners’. ³² In other words, it ignores the possibility of another way of approaching property relations, once less rooted in an absolute demarcation of exclusionary space; largely abandoned for private certainty and power accumulation.

Enclosure happened within England first, but then it was exported elsewhere via English early colonialism. One could argue that the English perhaps suffered a colonialism on themselves in the Enclosure movement, a form of gaslighting from the land owning elites towards what had theretofore been a rather relational attitude towards nature and having value in things for their own sake; arguably this enclosure and the concurrent Dissolution of the Monasteries broke this attitude of finding meaning by being part of the whole rather than believing oneself to be the definitional point of all things, especially in the example of economic self-interest or hyper-individualism.

An example of enclosure-as-export – and developing on the ideas of ‘enclosure’ and ‘improvement’ – the English viewed Ulster in Ireland as a laboratory for experimentation with forms of social and property relations to produce profit and embark on one of their first colonies, the Ulster Plantation. Developments from the Ulster experiments drove the English global colonial project and arguably the development of global capitalism. In Ulster, the new colonial settlements were designed as defensive structures built to support the ‘escheatment’ of land from those living in the region and to sever land from historic modes of use such as booleying and rundale, often presented as the Irish form of commons. ‘Property’ – in the English legal sense – was therefore created and enforced: ‘Land had to be free from customs and rights which interfered with the most productive use. Land had to become Property’. ³³ More accurately, land had to become a certain form of property that prioritised binary spatial exclusion, individualism and denied the value of relationality. Other types of use and possession were outlawed and suppressed. A distinction was created amongst people between the included and the excluded and a troubling psychological legacy was created, a distinction between one and ‘an other’.

V. Taxonomy and ‘Being’

An argument can be made that these historic moves towards prioritising self-interest over older, perhaps less clear and efficient but more relational, ways of doing things that attempted to balance private and public interests were an offshoot of the more general move towards viewing being as largely taxonomic; towards viewing existence as primarily a game of classifying where things belong, rather than as allowing some interplay between things in terms of being and meaning. Thus, meaning becomes the sum of all things, rather than existing within a greater set, or being a subset itself – and thus it relates only backwards towards that more overarching meaning. Arguably, this speaks to the notion of wholeness existing within itself, rather than being part of something larger.

Arguably, this individual’s ‘wholeness’ is felt by society as requiring its opposite – an ableist ontology or a lacking ontology. Whatever way one decides to frame it, it is concerned with identifying supposed ‘weaker’ spots – inefficiencies, even though they might serve a greater communal role, for example, or simply be a vulnerability of being when viewed in its totality. ³⁴ The ‘safe’ self depends upon an exclusion of any corporeal vulnerability, but it is an incomplete exclusion – and the excluded other is at the very heart of the self. This is the true relationality, but self is defined in relation to what it is not, rather than what it encompasses in full. ‘Selfhood’ is ultimately somewhat exclusionary.

As Watermeyer points out, there was a separation between the ‘ideal’ and the ‘normal’. ³⁵ The ideal equalled: unattainable, divine, humbling, shared imperfection. Normal, on the other hand, became, homogenisation, ‘Nation’, standard, types. No doubt this shift had an impact on spatial thought and feeling. For many, being or personhood now meant only individual autonomy, freedom, or rather rights without limit or counterweight.

This is not to suggest that rights are not important for liberty and a sense of security. But arguably, now there is a shift to interpreting rights from the perspective of the exclusionary aspect being the dominant, perhaps even the only aspect – the concept of an interplay of actions seems lost. In a sense, this illustrates the dangers of rights – coming to ‘eat themselves’ given their initial carving out of a sense of individual liberty. ³⁶ Like everything rights themselves need to be regulated to ensure this excessively exclusive element does not emerge.

Legal theorist Roberto Unger has also long been aware of this danger; in his outlining of the Critical Legal Studies movement ideology, he reemphasised the important notion of counter-principles existing within any doctrine of law, a reemphasis that criticises the idea of law existing as a formally sui generis entity, ‘immanently morally rational’ regardless of formal iteration. ³⁷ For Unger, democratic imagination has to impinge on the form of law to shape it according to the needs of the time required. In relation to the doctrine of contract, for example, Unger noted that the idea of contract seemed to be currently one stating that it was only about freedom to, and freedom of, contract, noting that the counter-principle of ensuring that unfair bargains were not enforced was largely marginalised. For him, the contract only worked in total if both principle and counter-principle worked in a more equal harmony. We see in this balance a larger exercise in harmonisation – between, as Unger notes, ‘communal life’, those ‘areas of social existence where people stand in a relationship of heightened mutual vulnerability and responsibility towards each other’ and a more ‘dominant’ conception of the right, here nicely illustrated by Unger: ‘as a zone of discretion of the rightholder, a zone whose boundaries are more or less rigidly fixed at the time of the initial definition of the right. The right is a loaded gun that the rightholder may shoot at will in his corner of town. Outside that corner the other licensed gunmen may shoot him down’. ³⁸

VI. Excessive Exclusion

It may come as no surprise, then, to note that the conception of the property right has reached this point of being a ‘loaded gun’, especially in some jurisdictions/cultures, where any sense of relationality encompassed within the liberty of the right has dissipated to the point of non-existence. In the United States, for example, people have been, in fact, shot for ringing the doorbell at the wrong house or pulling into a driveway by mistake (not their own by mistake, but because of smartphone instructions). ³⁹ Of course, gun culture and racial dynamics more particular to the United States play a role in the tragedies here, but is it not also the consequence of a certain perception of the property right – a perception of it as allowing an excessively, or unfairly exclusionary ability, without any consideration of the counterweight? This conception of the right, not properly counterweighted, is not equitable. This conception of the right is an absolute one, absolute in terms of who is within the zone of the right and who is outside the zone. This reflects a real conflict, whether modern or ancient, about the control of space. As such, it involves conceptualisations of space and spatial epistemology. There are those who believe space needs to be, and can be held, absolutely, and these types dominate in the conception of the right, because to dominate is to win. For such, any suggested reform relating to property or property rights – any seeming impingement of their ability to absolutely control space, or on their liberty – is seen not as a counterweight to their liberty that perhaps strengthens it for all, in a Rawlsian or Kantian fashion, but an existential threat to it, an attack, even if reform accounts for merely a reduction of their relative exclusionary power. Here, we see the continuation of a sense of being as not synecdochal, or relational, but as hyper-individualistic, excessively monadic.

VII. Reform

The property right is defined largely by its ability to keep others out – by its exclusionary force. ⁴⁰ The centrality of that exclusionary character can certainly be debated, however; Hohfeld, for example, conceptualises property in a very particular way. In the Hohfeldian analysis, Hohfeld was rightly concerned about the lack of clarity over the term property. In the 1913 (the first) iteration of his analysis, he writes ‘A second reason for the tendency to confuse or blend legal and non-legal conceptions is the ambiguity and looseness of our legal terminology. The term property furnishes a striking example’. ⁴¹ As a result, Hohfeld made the now infamous categorisation of property rights as being composed of several disparate elements, for example, the distinction between rights and duties. He wrote ‘In other words, if X has a right against Y that he shall stay off the formers land, the correlative (and equivalent) is that Y is under a duty toward X to stay off the place’. ⁴² This process of categorisation simply clarifies in detail the freedoms of the parties involved conceptually, but it does nothing to clarify the dynamic towards the land or space itself (or more importantly why it should be so that the relationship to land is constituted in these binary terms, other than for some degree of certainty), in terms of the prioritisation of interests so that one or (an) other are includable, and others (or oneself even perhaps) are not – access is the framework around which land is conceptualised in terms of human relationships. Is there not another framework that can be elevated in meaning? What if, for example, the framework was conceived from the perspective of the land itself, and with a view to contextualising persons in relation to the important needs of land alongside their own human needs? What if human needs are merely a subset of some larger power?

However, Hohfeld phrases it, especially in relation to the examples he gives as regards land, the endpoint is the same. Some can access, others can’t. Whether X or Y has a privilege of entering or a duty to stay off the dynamic as regards land is essentially consistently spatial, and in this way, a spatiality centred around the subject as monadic individual, rather than any form of subjectivity or personhood that views one as part of a larger whole (not in any monistic way, but rather in a fashion echoing, e.g. perichoresis – the idea of being part of something a little alien to oneself). Hohfeld admits as much with his own phrasing; in giving the strange example of where ‘X has contracted with Y to go on the former’s own land, it is obvious that X has, as regards Y, both the privilege of entering and the duty of entering’. ⁴³ The focus is on the action – the verb – of entering and/or not entering, regardless of whether one sees the ability to do so as phrased as a duty a privilege of a right. An imperfect analogy here might be conceiving of intimacy with another person as only being defined by the penetrative act, rather than by other ways of engaging with bodies. A different – yet still legitimate concern – might be why access must be regulated in this or any way, whether categorised as a duty, a right or any other thing, etc. Hohfeld at no point addresses the centrality of desiring access (whether exclusively defensive for oneself as owner, or more offensively as an excluded other) within property relations, as opposed to the question of subjective responsibility towards oneself and space.

Hohfeld’s distinctions are helpful in so much as they identify more accurately the flavour and scope of the various constraints or freedoms of action as regards resources, at least in a Western legal sense (other indigenous relationships with resources may be less concerned with the question of a constraint or a freedom, and phrase permissibility of action in other ways), but they still do nothing to change or challenge the dispositif regarding for example, land or any other type of space of interest to human being – as Hohfeld tellingly comments ‘The privilege is perfectly consistent with this sort of duty, for the latter is of the same content or tenor (authors italics) as the privilege’. ⁴⁴ Whether phrased as a privilege or a duty, the content is the same, and this remains in the Hohfeldian analysis as a central dispositif of exclusion. We can translate here dispositif as a ‘set up’ – the arrangement, including the concept as well as administrative structures, for doing a certain thing, here, managing spatial resources, not only those outside, but our spatial sense within, managing, in this fashion, our internal boundaries that provide a comforting sense of self (e.g. like when a friend might describe challenges to thoughts and opinions that constitute the self as feeling like ‘I have to do everything I can to keep the walls from falling down’).

Regardless of the conceptualisation of the ‘property right’ as a bundle of rights, including, as in this example, a correlative duty, the relationship is, however, one of excludability as the substantive action, whether an exclusion is enforced against another or an exclusion self-imposed upon oneself because of a perceived limit on one’s autonomy or liberty. In other words, regardless of how one gives a new perspective to the relationship and the various actors involved, the substance relates to actions of exclusion/inclusion – Hohfeld is simply discussing the relationality of responsibility for the act, not the substance of the act itself. The dynamic as regards space is, in human terms, predominantly centred on this dance of defence or retreat, rather than, to take one alternative example, synthesis or incorporation, or even non-action. Can it not be reframed in another way, less focused around this idea of complete possession or complete exclusion, whether self-imposed or self-enforced?

There has been much work done in this direction, although, as I argue, none is essentially concerned with a concrete universality of access or a dispositif change reflecting, for example, non-action towards space. The concern, rather, it appears, is with nonetheless important yet specialised degrees of inclusion, access or belonging as redresses of historic injustice towards marginalised groups who have indeed been excluded from forms of spatial life. In this respect, while all such efforts are concerned with adding more relationality to property relations to counter the historic conservative and often patriarchal, racist, colonial (and: ableist) dynamic of property relations, they do not directly address the idea of a truly universal relationality (not a relationality defined by some specific and conditional belonging) and its relationship to property as a device of bodily inclusion/exclusion per se, which by definition requires a central bodily-related power dynamic – regardless of who has what role – that minimises the role of space itself, makes it secondary to human desires. ⁴⁵ The question of why we are concerned with access to space and the determination of who plays what role in relation to space is not critically addressed. For good reason, as it may appear obvious – we need resources, contained within space, for life. But this critical element, this underlying supposition, should be explored, for perhaps we assume too much regarding property relations based on this underlying basis.

The Critical Legal Theory (CLT) movement of the late 1970s/80 was an important forerunner of marginalised claims to a more dynamic and inclusive property conception, based on the idea of law as inherently political and lacking any ‘immanent moral rationality’ as a legal form which might have continued to justify historic modes of property and ignored the claims of the disenfranchised. Arguably, it was anticipated by the Legal Realism movement of ‘20s, itself a somewhat more diluted attempt to inject an appreciation of the human elements of what by then had become a deeply formal discipline (one can make the argument that the much older Aristotelian concept of equity or epikeia is the earliest form of this leavening of law’s inherent rigidity)’. Kennedy was clear on the place of the CLT project (itself comprised of disparate and often contradictory figures) within larger political/cultural movements, what Kennedy termed ‘left and the modernist/postmodernist projects’. The goals of these, respectively defined, were ‘to change the existing systems of social hierarchy, including its class, racial and gender dimensions in the direction of greater equality and greater participation in public and private government’ (note again the absence of disability dimensions – this indicates a lack of inequality imagination amongst physically normate minds) and ‘a project with the goal of achieving transcendent aesthetic/emotional/intellectual experiences at the margins of or in the interstices of a disrupted rational grid’. ⁴⁶ Note the absence of the question of capability dimensions.

Emerging both from within the movement of Critical Legal Theory and from wider emancipatory movements themselves, other legal scholars explored the contours of property as it related – or did not relate – to their own needs in terms of wider social justice. Feminist legal scholars, for example, engaged with property concerns in ways that brought gender to the foreground and went ‘beyond traditional doctrinal analysis of the law in terms of its scope and application by examining and interrogating the way in which couples’ relationships are not neutral zones of gender and, relatedly, economic equality’, looking at how property and domestic spaces are linked to ‘social relations of power’ and places for gendered inequalities to continue to exist. ⁴⁷ Empirical studies with feminist scholarly underpinnings have had practical significance in spatial ethics, for example, in Land Law, specifically the context of a trust in the family home and the idea of recognising contribution to value previously ignored on gendered lines, as recognised in the landmark UK Supreme Court case Stack v. Dowden. ⁴⁸ Feminist legal approaches emerged out of a generalised feminism of the 1970s (the so-called second wave), although resistance to gendered life and the unequal dynamics that emerged from it were by no means new by that point, even if unstructured.

Critical Race Theorists explored how racial identity and property are interrelated. ⁴⁹ As Vats and Keller note, this ‘uniquely American legal theory’ emerged more generally against the backdrop of the US civil rights movement and legal developments such as Brown v. Board of Education and the Voting Rights Act of 1965, and was given much of its early theoretical form by Derrick Bell in Faces at the Bottom of the Well: The Permanence of Racism. ⁵⁰ As the theoretical movement grew, it expanded beyond purely civil rights issues ‘by contemplating how laws that purported to advance race equality actually served to reinforce, in Alan Freeman’s language, the “perpetrator perspective”’. Primarily, however, critical race theorists argue that ‘racial history and context should play a significant role in legal analysis generally’. ⁵¹ In relation to the question of property and housing, simply put, ‘current legal doctrines protect expectations over distributions of resources that have shaped by past discrimination’, such as ‘confiscation of land from Native Americans and Mexican American’, the ‘enslavement of African Americans and the prohibition of immigration from non-European countries’. ⁵²

More recently, Critical Disability Theory has added an additional and complicating element to the realm of critical theory, analysing disability as a phenomenon and developing a methodology that ‘involves scrutinising. . .the social norms that define particular attributes as impairments, as well as the social conditions that concentrate stigmatized attributes in particular populations’. ⁵³ Uniquely, however, ‘Disability is an identity category that anyone can enter at any time, and we will all join it if we live long enough. As such, disability reveals the essential dynamism of identity. Thus, disability attenuates the cherished cultural belief that the body is the unchanging anchor of identity. Moreover, it undermines our fantasies of stable, enduring identities in ways that may illuminate the fluidity of all identity’. ⁵⁴ Critical Disabled Theorists have applied their thinking to issues related to property and spatial ethics; Gissen, Cheng and Snyder developed what they term disabled communalism, for example, writing that ‘This term is inspired by Mia Mingus’s concept of “access intimacy,” which emphasizes access as a politics of interdependence. Disabled communalism describes the way that access to space emerges from transgressing property boundaries and rights in the form of easements, shared ownership, and connections between separately owned properties. The concept of disabled communalism was developed as a critique of the isolation, exclusions, and demographics of single-family housing in Berkeley, California, but it was also a response to historic demands by disabled people to make individual homes more accessible for potential disabled renters and owners’. ⁵⁵

Socio-legal scholars brought sociological arguments to the property discourse, in the form of three developments common to the social sciences generally, but less historically relevant to doctrinal or black-letter approaches to legal study: ‘empirical, theory-based, and phenomenological approaches’, as McRudden highlights. ⁵⁶ In terms of examples of theory having an impact on legal study related to property, Blandy gives the examples of using the work of Lefebvre on the city in work on property in the public realm of a city centre by Layard or the use of the work of Bourdieu on law and power in studies comparing United Kingdom and New Zealand approaches to rights of freeholders and leaseholders by Blandy, Dixon and Dupuis. Empirical data might be used by legal scholars to build a theory from the data, or they might use theory to explain the data. ⁵⁷ Work by Hendley et al. illustrates this empirical approach to property discussions. ⁵⁸ Phenomenological approaches, as Blandy notes, are essentially ‘qualitative and ethnographic, aiming to capture and understand subjective experience and thus to avoid normative assumptions’. ⁵⁹

Anthropology illustrated different approaches to exclusion and housing amongst cultures, beginning, in a sense, most notably, with The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence by Llewellyn and Adamson Hoebel. As Morris has argued, the functionalist tendencies of Llewellyn’s Legal Realism were often exported into more explicit treatments of property theory, such as those by Cohen, an approach further taken on by later property scholars such as Dagan, Peñalver and Alexander (the latter two associated with the US Progressive Property Movement, discussed below). Even those approaches dominated by a law and economics framework, such as work by Demsetz, showed this functional approach. Merrill echoes the anthropological approach seen here, this idea of anthropological study as ‘evidence of the universal nature of property as a form of organising resources’. ⁶⁰ Merrill defines this universal impulse of human nature the ‘property strategy’, pointing out that while all cultures use it, ‘not all property laws are the same across societies’, adding however that ‘property law is directly related to the characteristics of this universal property strategy. . .chief among them the right to exclude’. ⁶¹ Carol Rose highlighted a narrative, linguistic and communicative aspect to spatial ethics and property, but as Morris notes Rose also showed in her work ‘a rational self-interested subject that many assumed to be universal’, going on to suggest that ‘this universal subject is inadequate and fails to account for the complex morality not only of participants in property regimes but of the regimes themselves’. ⁶² Morris criticises this attempt at finding universality with anthropological tools, stating that ‘Property scholars, in drawing on anthropology to support implicit or explicit claims to universality, are looking to the discipline for the wrong reasons’, adding that ‘Anthropologies gift to property theory is not evidence of generalizable social functions or human behaviours. . .rather it is a sophisticated epistemological and methodological approach to relations’. ⁶³ She adds what anthropology offers is not ‘data about relations. . .but an approach to relations’. ⁶⁴

With scholars such as Philippopoulos-Mihalopoulos, we also see work done on questions of spatial justice and property, which centres the topological or geographical aspects of law; the work of Philippopoulos-Mihalopoulos focuses in particular on the question of atmosphere in multiple dimensions. ⁶⁵ Queer legal theory challenges legal categories that perpetuate heteronormative assumptions, also in relation to property norms. ⁶⁶

My argument, however, is that even given the vast work done by scholars in contextualising property within their respective critical spheres, or adding new dimensions to legal thought, property rights remain both an important liberating and disenfranchising instrument per se, especially disenfranchising in current times given the increasing financialisation role of such rights. Arguably, property rights remain potentially disenfranchising even when contextualised within marginalised inclusionary movements, if utilised in the same or similar ways as in other contexts. This may probably be closest to a classic Marxist approach, in the sense that property has become alienated from its essential function and thus alienates subjects from each other even if one is emancipated at one level, for example, relieved from oppression on identity grounds. I would, however, also argue for more emphasis in critiques of property from an anti-ableist approach, one that prioritises the value of the human life in the abstract and highlights the power dynamics centred around normativity, capability and embodiment/health. An ableist ontology is so deeply intertwined into structural aspects of mainstream intellectual, emotional and physical life that it is hard for those not disabled to understand the complicity of society in perpetuating ableism everywhere, even if they are aware of other serious injustices. ⁶⁷ This illustrates the importance of a universally intersectional approach in considering questions of spatial justice, a point that can only bring us perhaps closer to the Kantian categorical imperative and the Rawlsian procedural manifestation of that idea, regardless of the flaws in such approaches.

The sacred aspect of enclosure – sheltering and protection of all human life – has been neglected within property rights conceptualisations and manifestations, and its wider use as not an end in itself (housing) but a means to an end (self-alienation, capitalism, wealth accumulation) makes a mockery of the Kantian justification as property as autonomy enhancing. Are the marginalised also not simply being often co-opted into a dynamic of financialisation of ownership and exclusionary action per se – less based on identity, perhaps, more brutally rooted in the notion of exclusion from bodily power in the most universal of terms, regardless of other more universal identity markers, for example, poverty. One could understand the desire to enter the game at play if it offers some temporary relief to one’s own oppression. This is not to disparage the advances of liberating the previously marginalised to participate in democratic society as property owners and users, but are they simply continuing the dispositif that gave rise to their own exclusion at a different point in time, now having been included? Have they simply been given new markers – a victory for them, no doubt – but which simply allow them to play the eternal game of creating an (now new) included and an excluded. Has the promise of property fooled them to believe they will obtain their autonomy by owning something, when instead it simply enfolds them in its primal exclusionary fabric, always requiring an excluded other to function? Dagan’s comment referenced above regarding property needing to also assuage non-owners as much as owners is extremely pertinent here, and the tenor of that comment often seems inherently neglected, regardless of the critical scope and emancipatory intent of property scholars. It is hard to imagine the non-owner as a person, so well has the system done its work.

Keenan, for example, explores the question of how spaces of belonging are created, asking if the meaning of spaces is not fixed, ‘how is it that spaces are socially regulated or shaped such that some subjects belong and others do not?’ ⁶⁸ As Keenan identifies, the issue of the subject within space is a key question – she advances an understanding of property as a ‘spatially contingent relation of belonging’. ⁶⁹ She argues that ‘property is a spatial formation that occurs when relations of belonging are held up by the spaces in and through which those relations exist’. Keenan notes that she is here building on a theory of ‘property practices’ developed by Davina Cooper, a theory that also focuses on networks of belonging. Cooper’s work, writes Keenan, ‘considers property practices in terms of two types of belonging – subject-object (when an object belongs to a subject) and part-whole (attributes, qualities or characteristics that belong to a subject or a thing)’. ⁷⁰

Keenan puts forward the argument that when analysed ‘spatially’, these two types of belonging become ‘indistinguishable’. She writes that ‘Property happens when space holds up a relationship of belonging, whether that relationship of belonging is characterized as being between a subject and an object or between a subject and a social characteristic’. Keenan argues that yes, as Cooper points out, ‘subject-object belonging is usually associated with mastery and part whole belonging with membership’, but from her perspective ‘a spatial analysis reveals that aspects of both mastery and membership are involved in every instance of property’. ⁷¹ For Keenan, thinking of property in this way, ‘captures both the physical and social aspects of the space-subject; it focuses on what space does, and through this focus suggests an understanding of that connection that fits with anti-essentialist theories of identity and with critical geographical understandings of place and space’. ⁷²

For me, however, property reflects – and would better adapted to social difficulties, etc. if it realised this fact – not the subject–object relationship or part-whole dimension or even the relation of belonging – property concerns the relationship of the subject with ultimately itself, its own materiality within space, its place as needy – and thus potentially evil, immoral human. I’m reminded of the attitude of many to the categorical imperative of Kant – certainly we can have universal moral rules, which I too want enforced, with one important exception: myself. Practically, I’m also reminded of the actions of, respectively, previous Labour Ministers for Homelessness and Housing, who evicted tenants from properties they owned so they could charge greater rents and avoided property taxes even after specialised advise recommended they consult with a tax specialist. ⁷³ It is only by reflecting on what one needs – or what one believes one needs from space, and from spatial dynamics relating to others within space – that anything approaching harmony or justice regarding spatial relations within space can occur. Is one capable of accepting that one has needs that go beyond what might be just? Kant’s framing aspect of good will is also important here – what is your intent, regardless of your identity, your status – what lies within your heart?

The work of many of the above is framed in broader contextual arguments that undoubtedly have a role in re-framing property discourse, whether it be from a gender, sexuality, racial and/or colonial perspective. It is always interesting to me as a disabled man to note that disability is regularly left out of these lists, a hint that perhaps something more questionable is at play with identity as it relates to property or justice more generally – something more rooted in the need for a reclaiming of raw bodily power and enactment of ability, with its relationship to exclusion, and less with requiring an acceptance of bodily vulnerability or expendability per se, which disability represents in an often terrifying fashion for those who believe themselves to be able, even if otherwise marginalised. Inclusivity will have to reckon with not just those who belong, but also those who either believe they don’t or are believed not to, by others or by themselves – more fundamentally not simply those excluded for some reason, for example, their gender or racial identity, but because they are the excluded per se. Poverty or powerlessness seems more pertinent here, and more difficult for some to act to include. This requires transcending the comforts of subjective identity and belonging, to a degree, and while universality has its drawbacks; arguably, it is in this realm that its benefits are mostly aptly seen. Rawls, discussing the impulse to act unfairly, suggests: ‘In a well-ordered society where effective bonds are extensive both to persons and to social forms, and we cannot select who is to lose by our defections, there are strong grounds for preserving one’s sense of justice. Doing this protects in a natural and simple way the institutions and persons we care for and leads us to welcome new and broader social ties’. ⁷⁴ The actions of the above-mentioned Labour politicians come to mind here once again. These are so-called left-wing politicians, but they cannot understand that, to quote Rawls (himself restating Kant), true liberty is to act ‘in accordance with a law that we give ourselves’; this is not austere command, but an ethics of ‘mutual respect and self-esteem’. ⁷⁵ Furthermore, in a positive fashion, ‘What binds a society’s efforts into one social union is the mutual recognition and acceptance of the principle of justice: it is the general affirmation which extends the ties of identification over the whole community and permits the Aristotelian Principle to have its wider effect. Individual and group accomplishments are no longer seen as just so many separate personal goods. Whereas not to confirm our sense of justice is to limit ourselves to a narrow view’. ⁷⁶

Waggoner also notes that at the root of homelessness are not Heideggerian abstract principles of an inability to dwell, but simple ‘joblessness’ or, in other words, ability or dependability as a value proposition in capitalistic societies that prioritise the ‘productive’. Waggoner, in an excellent study of Adorno as a philosopher of housing, has written, in relation to a focus by Adorno on the issue of employment and joblessness that ‘he [Adorno] is interested in the way unemployment-related homelessness raised the spectre of a generalised condition in modernity: the expendability of the human being’. He would return to the theme time and again, comparing the obsolescence of work and workers to the forced migrations of victims to the concentration camps, where they could be disposed of: ‘He who has not been given a life ticket could in principle be sent away tomorrow. That migration of people could continue which the dictators already once set in motion and channelled into Auschwitz’. ⁷⁷ This raises the issue of spatial justice beyond identity issues towards human value per se, the non-expendability of all human beings, a necessarily Kantian and Universalist approach, regardless of the limits of such work. This question becomes even more important in the face of increasing automation at the level of cognitive work and mere being.

The principles of the so-called Progressive Property movement, ⁷⁸ most aptly presented in a succinct two-page original statement, have attempted a radical shift in property conceptualisations, but for the most part simply restate normative facts about property rights: that such rights ‘confer power’; that property ‘implicates plural and incommensurable values’; that some of these values promote individual ‘wants, needs, desires and preferences’, some promote ‘social interests, such as environmental stewardship, civic responsibility and aggregate wealth’, and others ‘govern human interaction to ensure that people relate to each other with respect and dignity’. The critical element of this statement does, notably, single out ‘the common conception of property as protection of individual control over valued resources’ (such expression of this idea sometimes focused on ‘the right to exclude others’; sometimes on the ‘free use of what one owns’) for critical consideration: ‘internal tensions within this conception and the inevitable impact of one person’s property rights on other’s make it inadequate as the sole basis for resolving property disputes or designing property institutions’.

Arguably, however, none of these perceptions of property challenge the initial conceptualisation of space itself, or rather the subject conceptualisation embedded within spatial epistemology. Space for most is not an objective character but whatever their subjectivity requires at any given moment to ‘be’ satisfactorily within existence. The subject often requires something uncertain, emotional or irrational of space, of what they want from spatial conceptualisation within the ‘real world’. Space is arguably its own shifting subjectivity as it relates to the real world, regardless of whether a concept of space is a priori or something much more subjective and materialistic. This is something related to the equally real yet equally uncertain internal dilemma of safe ‘being’. Spatial dynamics, therefore, equal the material realisation of internal struggles regarding the creation of the orientation of self and spatial conceptualisation, constantly in flux. Space always seems simply waiting to be assimilated into the human subject’s range of action, into their perspective, rather than perhaps understanding that space – or land, for example – might have its own unspoken needs, of which we are a constituent part. Would we like to be owned by space in this sense? Probably not, yet we are happy to ‘own’ space in our turn.

Subjectivity – and conceptualisations of the self – therefore plays an important role in spatial and property relations, despite what certain legal theorists would have us believe (i.e. that property law is immanently moral rational within itself – see the response by Weinrib to the work of Unger, his deviationist doctrine and counter-principles within law, for evidence of this). ⁷⁹ And, perhaps more crucially, equally important is whether that subjectivity is rooted in an individualism or a relationality – a synecdochic or a semiotic approach to being, to echo Antoniades.

While we cannot ignore the existence of important primal exclusionary impulses and their connection to a certain form of subjectivity (it is important to feel sufficiently safe; some groups require more of that than others; and yet some go too far, for example, the right wing or investment funds purchasing en masse houses designed for single-owner purchase. What is therefore open for debate – and which might have an impact on property reform and housing policy – is the exact positioning of the exclusionary aspects of property rights and whether such rights focus on subject, spatial or object relations? For example, should the exclusionary aspect of the right be allowed in the case of a fund purchasing property meant for housing but now used as a method of rent seeking? Arguably not – this is an abuse of the right. Should the exclusionary right be used to allow an owner from defending his home from an intruder – yes, the right reflects the individual protection aspect of the right.

Further important questions for consideration, therefore, must concern the relevance of exclusion to spatial ethics (even ‘belonging’ involves a judgement\tenor of spatial regulation points towards exclusion and control), and whether subjectivities determine exclusionary impulses, and what occurs if subjectivity evolves in, for example, trans-humanistic terms.

VIII. Is a New Subject Possible?

Jean-Luc Godard has spoken of how ‘space is the time you need to go to someone else’. ⁸⁰ The implication being that an encounter with other subjectivities is to be found more so within the space between them than directly. Of course, encountering this space in between – or placing oneself within it deliberately – is difficult, not least because it requires a separation from the sureties of one’s own subjectivity; it requires an encounter with vulnerability. What is the potential offered by technology, or new modes of thought, or even pharmaceuticals/biological forms for new possible subjectivities or trans-humanisms, for the creation of these zones of ‘heightened mutual vulnerability’ within our subjective positions? ⁸¹ More importantly, we also need to ask, will these artificial/different/new subjectivities have a ‘good heart’?

A further question: Why should they have a good heart (and do we in our traditional subjectivity even have such a thing)? And what are we really saying with this requirement? Perhaps the notion of a ‘good heart’ symbolises an expectation of a concept of space/territory within them (and us) that is infinite and without distinction. Perhaps it suggests that to be ethical requires primarily that we imagine ourselves to be so, reflecting the efforts of Kant and Rawls towards universalised frameworks for justice. ⁸² Perhaps the good heart is the Klein bottle, as Lacan imagines it? ⁸³ The Klein bottle has no allocation into inner and outer conceptual space, no possibility for spatial judgement, and no possibility of exclusion or inclusion within or without a (moral) territory?

What do we mean exactly when we say that someone has a ‘good heart’? It cannot be a reference to health, for people with such good hearts die all the time or enact injustice. The reference to goodness and the location of goodness within the organ of the heart speak to the special significance which that organ has culturally and symbolically – the very idea of a justice beyond our purely animal nature – the idea of a human ethics or of ‘being a person’. But I would argue, there is also another meaning. Cultures also speak of people with closed and open hearts as being of some significance in terms of their character, but is there some actual quality referenced here? This question brings us back to the issue of pain and the limits or boundaries that are employed to defence from pain. The metaphorical closure of the heart is one such phenomenon – people talk about someone closing off their heart after a particularly horrifying trauma. Is this purely metaphorical – is it not an experiential closure? And if it is not, how can it aid in effecting a different conception towards space that emanates outward from consciousness towards the prevalent modes of ownership regarding things and space?

When we say someone had a good heart, or wish that they had one, arguably what we are saying is that we wish that space within them was infinite and without distinction, in such a way as they would not allocate us, include, or exclude us, in such a way that they would be without judgement. A completely imaginary organ, in the style of Rawls, for whom true justice occurred in an imaginary body, a body without organs, a body particularly without eyes. I would argue that this closure of the heart is not metaphorical – it is a physiological phenomenon that relates to protection against pain, but one that changes our space availability perception. The world literally closes in in terms of space that is available safely, just as the openness of the body (the heart) shifts in psychological state. Therefore, it is entirely necessary to ask both about our own subjectivities and potential new or artificial ones, whether they have a heart, and a heart of a certain quality.

What do we mean when we ask someone to judge me by what is ‘in my heart’? The heart represents some mysterious zone within the body wherein a special immaterial substance lies, or does not lie, a precious substance. But this substance cannot be proven to exist; either it simply does or does not. It represents a state of grace towards the world, as a state of supposed goodness.

The heart, therefore, signifies something otherworldly, something unexplainable but contained within the organ and metaphor of the heart. It acts as a representation of something beyond rationality, and which yet defines humanity, as the hundreds of metaphorical statements attest to. Of the heart, Barthes writes, for example, ‘This word refers to all kinds of movements and desires but what is constant is that the heart is constituted into a gift-object – whether ignored or rejected’. ⁸⁴ Perhaps Derrida offers the real understanding of how to think-with-the-heart, especially in his studies on the death penalty. A long section follows, but worth quoting in full:

So much so that when I say ‘my life’, or even my ‘living present’, here, I have already named the other in me, the other greater, younger, or older than me, the other of my sex or not, the other who nonetheless lets me be me, the other whose heart is more interior to my heart than my heart itself, which means that I protect my heart, I protest in the name of my heart when I fight [en me battant] so that the heart of the other will continue to beat [battre] – in me before me, after me, or even without me. Where else would I find the strength and the drive and the interest to fight [me battre] and to struggle [me débattre], with my whole heart, with the beating [battant] of my heart against the death penalty? I can do it, me, as me, only thanks to the other, by the grace of the other heart that affirms life in me, by the grace of the other who appeals for grace and pardon or appeals the condemnation, and with an appeal to which I must respond, and that is what is called here, even before any correspondence, responsibility. It is my own interest, the interest of my life, of the heart of the other in me, that makes me responsible both for the other and before the other who is in front of me before me [devant moi avant moi]. Even when the other is beside me, or right up against me, or close to me, the other is first of all in front of me before me in me. And as I am in front of him, or her, he or she is also behind me, invisibly. In other words, I am invested: invested as one is by a force greater than oneself and that occupies you entirely by pre-occupying you, and invested as one is by a responsibility. ⁸⁵

It may also be that this notion of a ‘good heart’ correlates somewhat with the Kantian notion of ‘good will’; of it Kant writes: A good will is good not because of what it effects, or accomplishes, not because of its fitness to attain some intended end, but good just by its willing, i.e. in itself; and, considered by itself, it is to be esteemed beyond compare much higher than anything that could ever be brought about by it in favour of some inclinations, and indeed, if you will, the sum of all inclinations. Even if by some particular disfavour of fate, or by the scanty endowment of a stepmotherly nature, this will should entirely lack the capacity to carry through its purpose; if despite its greatest striving it should still accomplish nothing, and only the good will were to remain (not of course, as a mere wish, but as the summoning of all means that are within our control); then, like a jewel, it would still shine by itself, as something that has full worth in itself. ⁸⁶

Rawls, reinterpreting Kantian ethics in what he has called a ‘procedural interpretation’ that transforms them from being ‘purely transcendent and lacking explicable connections with human conduct’ argues the ‘procedural conception of the original position allows us to make those ties’ ⁸⁷ ; he goes further in his concluding paragraph ‘purity of heart, if one could attain it, would be to see clearly and to act with grace and self-command from this point of view’ (‘to see it sub specie aeternitas’, as he writes a few sentences earlier, illustrating a Spinozist influence, in line with his theory of justice). ⁸⁸ The Kantian notion of the good will does speak to the idea of the heart, in my understanding, because it is connected to understanding intention in action, and accommodating that in moral judgement. Intention connects to what lies within the heart.

Overall, the metaphor of the heart offers a tentative step towards a fresh perspective on enclosure and space. One more porous and less concerned with reclaiming some territory, which, it is believed, will return the body (the individual body; the identity body; the body politics) to an essentialised a priori wholeness, an imagined lost capability. Such thinking-with-the-(imaginary) heart equals a rationality that constantly re-imagines itself in relation to the body and other bodies around it because of what is felt as much as what is (only) thought. In this respect, identifying what is meant by the concept of the imaginary heart does indeed answer the question of whether new subjectivities are possible. It is a concept of the person that emerges primarily from relationality, not individualism – this is a new subjectivity in the sense that it is radical for our times.

But the question must still be asked: Can the legal system accommodate this type of rationality, where ‘I’ involves ‘You’, and vice versa? Can law be truly relational? Vismann argues that ‘The law, however, wants neither to be seduced nor persuaded – be it by verbal or pictorial images. . .’. ⁸⁹ Kolowratnik writes, in reference to the use of the visual by certain indigenous groups to represent what is important and deserves justice, ‘If courts only accept images that work within their canon, the challenge for Indigenous peoples might be to reduce traditional metaphors to. . .their skeleton. . .to visualize them in a format that works within Western legal conventions. Working with the logic of the metaphor can disconnect Native secret knowledge (power) from what would be accepted as facts (truth) by Western courts’. ⁹⁰ See also the work of Gao, on relationality/thinking-with-the-heart and the concept of ren in Chinese ethics and spatial ethics more generally. However, Gao is also open about the problematic flipside of ren, the fact that it is embedded within a Confucian worldview that necessarily requires a certain degree of hierarchy to work, social categorisation and, broadly interpreted, ‘filial piety’. ⁹¹ For certain historically marginalised groups, this can be extraordinarily dehumanising and oppressive regardless of how much thinking-with-the-heart occurs, for example, women in a patriarchal tradition. Counterbalancing such utilisation of ren with, for example, an application of true Hegelian concrete universality might be one reformative approach here.

Here perhaps we return generally to the work of Rawls in his Theory of Justice on the ‘veil of ignorance’ or an infinitely imaginary body, in another more embodied interpretation one can see such a person as a body without organs, without the organs that provoke judgement, distinction, separation, fear of death – a body without a brain for example. ⁹² Or a body with an imaginary brain, a new type of brain that thinks differently about such things – or a body with an imaginary heart. Such an infinitely imaginary body reconstitutes the meaning of being a person, being a body amongst other bodies that reworks the myth of liberty as the touchstone for self-realisation, autonomy and existence of human spirit so prevalent in the Western world but equally becoming global due to its presence in the machine of communication and its many social media underlings, all preaching self-actualisation. Liberty has been bastardised in meaning, for even the inviolable ‘spheres of action’ of Mill miss that point of deciding what to value, not simply allowing locked off behaviour defended as ‘self-interest’, regardless of what that self-interest values. ⁹³ Even Nozick recognised that liberty is defined by its concern for the impact on the other, not only by the unfettered ability to act regardless as long as one is following one’s own self-interest. ⁹⁴ Harm to others here may be decided on a long-term analysis that requires sacrifice of self-interest in the short term. The most immediate impact is not always of the greatest importance overall.

But understanding our self as defined by our relations to the whole, to nature and to the world, our community, other people, to the alien amongst us, is arguably an alien phenomenology (these days alien because of the other, but also because we have become alien to ourselves as others, or the sense or ourselves as others has become alien to us). ⁹⁵ It is this other(worldliness) that requires championing, and it is what is best imagined as this imaginary heart that both resides in us and others, yet sadly having become alien to us. It is via a thinking heart that judgement remains human oriented.

Eriugena is key here; particularly his thinking in the Periphyseon. He writes:

For when we enter upon a discussion together the same thing happens: each of us is created in the other: for when I understand what you understand I am made your understanding, and in a certain way that cannot be described I am created in you. In the same way when you clearly understand what I clearly understand you are made my understanding, and of two understandings is made one, formed from that which we both clearly and without doubt understand. For example, to take an illustration from numerology, you understand that the number six is equal to its parts: and I understand the same thing and understand that you understand it just as you understand that I understand. Each of our understandings, formed by the number six, has become one, and thus I am created in you, and you are created in me. For we ourselves are not other than our understandings; for our true and ultimate essence is understanding specified by the contemplation of truth. ⁹⁶

Putting the point more beautifully and compassionately, Eriugena writes, ‘understanding can conform not only to natures which are co-essential with itself, but also to natures which are inferior to it when it understands and senses them in love’. ⁹⁷ As Moran adds in his analysis, ‘strictly speaking, at this level there is no longer any object at all: there is only the increasing self-understanding of subjectivity blossoming into the negative dialectic of encounter with intersubjectivity’. ⁹⁸

IX. Conclusion

The real question might be, however, not how to recognise the other in myself or myself in any other, but, as Husni-Rey writes, ‘how does law function symbolically (beyond the State’s capacity to enforce it) and conversely how does analysing Law as a construct build a capacity to undo its symbolic power or reclaim it?’. ⁹⁹ In other words, how to incorporate the symbolism of the self-as-other within the symbolically exclusionary law? How does law incorporate the symbolism of being the imaginary heart that it could be?

One possibility here is with a recognition that the moral force of the law does not emerge from its mere form – recognising that the law is created as a contingent human response towards shifting ideas of justice. It is made by us (and can be remade) to give recognition to our changing concerns and awareness of ourselves, though we do often forget that fact. We make the world of law from without the worlds of ourselves, however otherworldly they might be to the law, to each other – but it is still made. Goodman writes that ‘the many stuffs – matter, energy, waves, phenomena – that worlds are made of are made along with the worlds. But made from what? Not from nothing, after all, but from other worlds. Worldmaking as we know it always starts from worlds already on hand: the making is a remaking’. ¹⁰⁰ Justice in this sense is otherworldly literally – not of this world, though manifested in this world. What else is it to see humans of differing ability as equal within law? One must elevate judgement beyond the material; one must think of oneself and others as more than mere bodies. Rawls writes that the perspective required by his theory is not a perspective from a certain place beyond this world, nor the point of view of a transcendent being, but concedes that it is one that requires seeing the human situation from all temporal points of view, under the aspect of eternity. ¹⁰¹ I’d argue that this is in fact a perspective that demands some degree of ‘being otherworldly’, however rooted in human possibility it is.

We can re-utilise the form of law to construct such an otherworldly attitude; a good example here is the Creative Commons movement which utilises the form of copyright as a right per se, and the form of contract, to reconfigure the attitude towards exclusion and intangible expression in relation to information/expressive goods – changing it from a typical ‘All Rights Reserved’ ideological approach to one that is more dynamic, open and flexible, as fits the attitude of both owner and potential user. ¹⁰² This is a more relational perspective on the usual individually focused approach to rights. Similar efforts can be expended in the area of housing and property rights.

Given this awareness of the architectural character of law – the fact that it is a material, malleable as others are, capable of (re)creating, expanding and bettering the moral space that we inhabit – what role additionally might the issue of structure generally have on our understanding of spatial justice, our sense of architectural justice or justice as architectural? Not only the structure of legal thought, the thought or form of law, but the structure within the world and our sense of justice emerging from our material interaction as one material being in space amongst others. The question of how structure impacts on our sense of law and justice. To conclude on this speculative thought, we might reflect on efforts within architecture or art itself to challenge stable boundaries; with the Ghosted Homes architectural experiment we see boundaries ‘changing their location, these itinerant walls modify the proportions and comprehension of spaces by denying those inside a fixed frame of reference. . .’. ¹⁰³ Or the porous boundaries of the structures of architect Sou Fujimoto. ¹⁰⁴ See also the artwork ‘Turning the Place Over’ by Richard Wilson for an equally shifting manifestation of this idea of itinerancy within structure itself. ¹⁰⁵ And finally note the limits of categorisation within existing machine learning techniques as they automate ‘artistic expression’, the true domain of the human – the A.I. dream house phenomenon, where no people, no animals, no dirt, etc. are shown within the telling spatial fantasy of purity and emptiness. ¹⁰⁶