Inclusion and Exclusion in the Open City

The apparent left-right consensus on the open city should set off alarm bells for anyone concerned with the oppression and suffering of vulnerable communities in contemporary cities. Something must be rotten at the core of this vision of the open city if everyone agrees to its utility yet development in our cities continues to perpetuate poverty and inequality.

Liberals, of course, claim that consensus is a good in and of itself. Liberal political theory stresses the importance of striving toward consensus as the basis of legitimating political action. A core part of this process is minimizing exclusion in the political process. The progressive political narrative of the past fifty years has been one of identifying social groups who have been historically excluded and are now demanding inclusion. Therefore, the political principle of inclusion has been almost reified as an absolute good, and exclusion has become considered an unacceptable evil. Of course, no one should want historically marginalized groups to remain marginalized or to have their hard-won political and social gains rolled back. Xenophobia, racism, homophobia, and transphobia are clear forms of exclusion that should be rejected, and it is not in this sense that exclusion can be used toward progressive ends.

There is, however, another way to approach the seemingly binary categories of inclusion and exclusion. As the political theorist Chantal Mouffe explains, when political decisions are characterized as products of a consensus, this often obscures the extent to which there are inevitably winners and losers in such choices. A “properly political” framework, according to Mouffe, instead recognizes conflict and the existence of competing groups’ interests. From her perspective, anytime someone claims that a consensus exists, it is in reality created by a “constitutive exclusion,” usually of those groups who lack voice or power in society. In other words, consensus is always created through the unacknowledged exclusion of certain group interests. Granted, in any context, a political decision may have greater or fewer constitutive exclusions, but there will always be dissenters who are disavowed. Exclusions are always present, even if we don’t want to admit it or can’t see those who have been left out.

Second, for Mouffe, once one understands the impossibility of consensus, it should become clear that to treat the general population as a singular whole is impossible and counterproductive. When one does this, it most often results in the most powerful groups excluding the less powerful ones in the decision-making process, as is the case with proponents of the open city. Mouffe calls this framework “post-political” (vs. the “properly political”), and it needs to be challenged in our thinking about politics.

Returning, then, to the issue of the open city, it is important to remember that, just like progressive activists, developers and allied municipal politicians want barriers to come down, too. It’s just that the barriers they want removed are those to investment and the circulation of capital. This should motivate socialists to rethink the open city model so popular in contemporary urban thought. Instead, they should understand and talk about the city through the lens of collective property rights and ownership — and seek legal arguments for these claims.

Not All Property Is Private

When most people hear the word “property,” they are likely to think about stuff they own, whether this stuff is everyday objects like toothbrushes and cell phones, or larger, more permanent things, like houses or  land. In the eyes of the law, these things are examples of a specific category of property, that is, private property. Private property can be defined by the right of individuals or a collection of individuals to exclude others from the use of a particular object. Here, exclusion is not an incidental character of property in general but at the core of all forms of property, as Thomas W. Merrill explains in the context of a US Supreme Court decision:

The Court has said of the right to exclude that it is “universally held to be a fundamental element of the property right”; that it is “one of the most essential rights” of property and that it is “one of the most treasured” rights of property. Although all these statements imply that the right to exclude is not the only right associated with property, no other right has been singled out for such extravagant endorsement by the Court.

In other words, the essential way to think about private property in the abstract is that the owner of private property can legally exclude all others from using it, leaving the owner to do with it what they will. Even though private property is the dominant way that people think about property, most are also familiar with the category of “public property.” In a nutshell, public property is state ownership, whereby the government can exclude others from the use of resources or access to certain buildings. It’s important to note that the core concept at the heart of both definitions of property is who gets to allow or prevent others from using the thing in question. If you are the private property owner of, say, a lawnmower, then you have the legal right to not allow your neighbor to use it. That is the fundamental right that defines you as the owner of the lawnmower. When the government says that you are prevented from accessing a high-security military base, or you’re only allowed to visit a government building during certain hours, it clearly demonstrates that the state is the legal owner of those buildings (despite being paid for by taxpayers).

The point is that ownership is defined by the right to exclude, and this is precisely what most leftists hate about property: society becomes divided by those who own much and those who own little property, or none at all. Therefore, the group who owns the most property (increasingly a smaller, elite group of people) has the ability to exclude the non–property owners (the masses) from using and accessing space and resources that, perhaps, should be open to all. This begins to explain resentment against property ownership and the popularity of the open city in certain progressive circles.

Yet perhaps the answer to the problem of exclusion by elites is not greater inclusion, as most progressives would instinctually assert. Rather, we should use exclusion in a manner that aids vulnerable communities. If an unequal distribution of property is the source of social and economic inequality, perhaps the goal should not be less property, but instead that those with little property need more of it — though not in the form of private property. Because property is defined by the right to exclude, this means that any claim to ownership will by definition be advocating exclusion.

So how is it possible for those who lack the general preconditions for acquiring property (financial resources, social connections, being a government), to become property owners? We do so by moving away from thinking of property exclusively as private or public. There is, in fact, a third category of property, recognized by law, that can be used to accrue de facto ownership rights to those who don’t own much else. It’s called “common property.”

If private property refers to an individual or a specified number of individuals who own something, and public property refers to something owned by the state, common property refers to something owned by a community. Its legal definition, according to Merrill’s “Property and the Right to Exclude,” is the following:

Common property may be said to exist where all qualified members of a particular group or community have equal rights to valuable resources. An example would be a common pasture open to all members of a particular village for the grazing of livestock.

The big difference between common property and the other two types is that ownership is not determined by who is in possession of, say, a bill of sale, a deed to an estate, or a legislated monopoly, but instead on what we call “traditions of use.” A tradition of use is related to property ownership in that when someone or a collection of people can show that they have used a specific piece of property in a certain way, for a certain amount of time, and that no one (who may be considered the private or public owner) has attempted to prevent them from using it, then they are considered owners of that property. This individual or community of users can be said to own the property, but only in the sense that they have the continued right to use it in the way that they always have. In this way, common property can be used as a tool for communities, especially those who own little in the way of property traditionally conceived, to claim ownership of things and, in the process, legally exclude others from using them.

Most scholars on the issue look back to pre-1700s England, when common property was quite prominent in the agricultural world. At this time, much of England’s pasture land was split up into distinct parcels of land that local farmers would use to graze their sheep and other livestock. By law, the local community of farmers had a right to use the land as they saw fit, and no individual farmer had the right to mark off a piece of that land and declare it to be their own (i.e., their private property). They did not have the right, in other words, to exclude their neighbor from using part of the land, as long as their neighbor intended to use the land for the same type of livestock farming for which it had long been used. Land was used this way for centuries, until the great enclosure movement in the early 1700s in England, in which the English state began to privatize the land and destroy its “common” character. Nonetheless, common property continued and continues to exist in English law and in other national legal codes.

Another example of common property is used in what’s called the “right to roam” doctrine. Walking pathways that have traditionally been used for either commuting or for leisurely hikes are protected from the public or private owner of the land on which the pathways exist. The right to roam doctrine thereby protects them from development and maintains access for commuters or hikers. So, for example, if a trail that has been used for centuries as a shortcut to walk from one village to another happens to cross the private property of a farmer’s field, and the farmer has never attempted to prevent people from using it for this purpose, it may be considered illegal for the farmer to one day declare that no one can use this trail for commuting, even though it is on his or her private property. If that trail is declared common property, the users may still have the legal right not to be excluded from the use of the trail. So, in this case, the land exists both as private and common property simultaneously. On Vancouver Island in Canada, many of the locals have developed an acrimonious relationship with logging companies, who have a tendency to close down logging roads that have been used as hiking trails for several decades. By asserting the community’s right to use these trails, these locals are (unknowingly) asserting the right to roam principle against private property.

Similarly, in Canada, common property has been a crucial legal category used by First Nations people to establish the borders of their land during treaty negotiations. For example, on Vancouver Island, the Tla-o-qui-aht people are currently attempting to convince the Canadian government that their ancestors lived in certain areas by identifying traces of their everyday activities. For the Tla-o-qui-aht, the bark of cedar trees has been used traditionally for making clothes, dyes, and everyday objects like baskets and hats. The way they harvest this bark is by ripping off a roughly ten-yard-long strip from relatively young trees. So, when the Tla-o-qui-aht can find old cedar trees (literally hundreds or thousands of years old) and show the Canadian government that these trees have a ten-yard-long strip of bark missing at their bases, they can prove that their people used that specific resource, in that specific area, for millennia. They thereby establish a tradition of use that gives them a common property right claim to ownership of that space and helps expand the borders they can legally claim as their land.

A more contemporary example of common property is a legal category called “adverse possession.” The principle of adverse possession, as Nicholas Blomley explains in Unsettling the City, states that “if the owner of a piece of land ceases to use it, and someone else openly and continuously encroaches on that land, title can shift to the encroacher.” For many, the most familiar example of adverse possession is what is often called “squatters’ rights,” the notion that if someone or, again, a community of people, begins living in, say, an abandoned apartment building for long enough, with no attempt by the property owner to prevent them from doing so, the actual title of the building can be transferred to the squatters. Another example of adverse possession includes transferring land titles to peasants who “make the land productive” when absentee landowners have simply left it fallow for years, seemingly with no intention to resume farming it.

So how might common property and associated laws around ownership of property be relevant to people living in urban neighborhoods and resisting changes in their community that threaten their livelihoods? Can a discourse of “traditions of use” be mobilized in the inner city to claim ownership of urban space and infrastructure? If so, is there any legal standing for such claims?

There are no clear answers to these questions because the idea of specifically urban common property does not have as long a tradition as does its rural counterpart. Still, it may prove powerful for communities threatened by gentrification to develop a sophisticated understanding of common property. It should be an understanding based on the right to exclude, rather than an ideal of maximizing inclusion, as most references to “the commons” assume.

From Displacement to Dispossession

The concept of common property is useful in our thinking about gentrification and its destructive powers. Most people think of gentrification as a force that displaces people: wealthy investors, real estate developers, and yuppies slowly move into a neighborhood, causing property values and rents to rise beyond the ability of residents to pay. As a result, the existing class composition of the neighborhood changes as poorer people are forced out and richer ones move in. In such a community, there is a marked difference in the experience of gentrification between those who own property and those who don’t: if you own a house or an apartment complex, the process can be lucrative! If you’re a renter, then it can be terrible — those who are forced to move are typically those who have the fewest resources to do so. The logic of private property maintains that those who own it have the right to exclude others from its use, and therefore they also have the right to evict their tenants (within the limit of what is allowed by the local tenancy act).

But if we think of neighborhoods faced with encroaching gentrification in terms of common property rather than private property, we can see that they typically have long traditions of use. There are places where people work, shop, socialize, engage in political activities, gain access to social services like food banks or health clinics. For a long time, people have moved through those streets in particular ways, every day repeating and consolidating the way they are used. This is, in legal terms, a tradition of use.

Might these everyday, repetitive actions be used to make a legal argument for ownership of the space? The moral position is clear — that members of the community shouldn’t be forced to relocate or have their neighborhood radically changed against their own interests. But is it possible to make a legally binding communal ownership claim on apartments, streets, parks, meeting places, and shops that would allow the community to exclude the agents of gentrification from forcing out its members?

As Blomley argues, this would shift the discourse of anti-gentrification struggles away from a conceptual framework of displacement and toward one of dispossession, i.e., the violation of property rights. From this perspective, when community members stand up to the forces of gentrification, they are saying not only that they should not have to move but that “your actions are akin to stealing our property, and as owners we can exclude you from doing so.”

This may be the most effective way of fighting gentrification for several reasons. First, even if the legal aspect of common property is determined by the courts not to apply to urban neighborhoods, it is a stronger way to present the argument to the general public. To an outside observer, the dislocation of poor people seems both lamentable and like an inevitable process that cannot be stopped. People come to think of it as natural because it is difficult to imagine that anyone other than its owner should have any say over how private real estate is used. But things change considerably when the discourse of gentrification shifts from private property owners making decisions in the market, to the forced destruction or theft of a community’s property.

Second, common property is an inherently collective concept and therefore presents rights as communal in nature, as opposed to individual. Instead of isolating individual cases of injustice, it points to whole communities whose legal rights are being violated. It can also help to organize community members by creating a stronger sense of shared interests — by invoking common property, in other words, a community can come into existence.

Third, if urban common property does become recognized as a legal category with corresponding legal rights, using the courts to fight the city, developers, and landlords becomes a potentially powerful tool to resist gentrification. This is perhaps the most important possibility for activists and community members to explore, while also being the most uncertain, due to the lack of a long legal tradition of thinking about common property in an urban context. It would be fantastic to be able to point to successful examples of specific legal common property claims that have been used to defend urban communities threatened by gentrification, but they do not exist. That is how new this idea of specifically urban common property is.

Every community interested in the value that common property might contribute to their own struggle needs some legal knowledge of the jurisdiction in which they live. So, for example, adverse possession is on the books in only seven Canadian provinces (Manitoba and all provinces eastward), two of which have significant restrictions to the conditions under which adverse possession can be used (Manitoba and Ontario). Every American state has some form of adverse possession law, but they all vary in terms of the continuous duration of use, whether the user has paid taxes on the property, and so on. Additionally, treaties and land claims with indigenous people point to the legitimacy of such common property laws, as well as the emerging fight for the right to roam. In British Columbia, the right to roam is increasingly likely to be tested in the courts. A legal basis does exist for creatively exploring the value of common property as a tool to advance ownership claims for gentrifying communities.

Ultimately, focusing solely on the value of inclusivity in urban struggles is counterproductive because it doesn’t recognize the reality of conflicting interests. Exclusion, as a defining feature of property, may be a more important value to invoke when fighting for urban social justice.

The superiority of this framework becomes clear when one considers the increasing popularity of inclusionary zoning and development processes. Requiring community input and consultation before any significant changes are initiated is an increasingly conventional approach to urban development. However, the real significance of such a consultation will often be determined by the leverage the community holds against the forces of gentrification. If the community can make legal claims to common ownership that are likely to be held up by the courts, this consultation process all of a sudden becomes a lot more meaningful. Inclusion is not enough: we need a vision of power and ownership as well.