Uninhabited and En-habited spaces: thoughts on private law’s public space
April 4, 2014 Leave a comment
The following piece has been written as a teaser for my paper entitled “Old habits die hard: owners, liability anxiety and accidental territoriality” which I’ve been invited to present at an ESRC symposium at Warwick University later this month. The theme of the conference is ‘Private Law’s Public Face’ and my paper’s argument will run somewhat against the grain of the event’s likely focus on resistance, ‘right to the city’ and private law’s role in urban enclosure processes.
Essentially my concern is with more mundane – abandoned – spaces and whether (and if so in what sense) we can meaningfully say that law’s territorial effects subsist there even when no-one is present and/or after an owner or use has vanished. The only thing left to encounter in these spaces is the remnant fences and faded signage. But is law within that remainder, or are the signs only activated when someone is looking at them? (yes – I know – that’s getting a bit like ‘if a tree falls in the empty forest does it make a sound?‘).
Anyway, I quite like this idea of ‘en-habited’ uninhabited space – space with habit written materially onto it, a space controlled dead-hand like by its material arrangement and ordering…
The signs just sit there, flapping in the wind held fast by now rusting drawing pins, their texts becoming indistinct as their home-printed inks are bleached by the monotonous daily succession of the harsh summer suns passing overhead year upon year. Along this fence lie aging signifiers of a stale something. But the fence itself is crumbling now, a structure collapsing in upon itself. Eventually these messages will self erase, fully succumbing to the elements, but until then they continue to send out their signals – weak now and indistinct, vague messages of warning, deterrence, liability aversion. Like a dying radio beacon, carrying on long after the ship has sunk, marking out a vestige, a ghost territoriality of the orders and arrangements that once were intended here.
I’ve been keeping an eye on this signage for over 10 years, intently so for the last six. I’ve seen the pub that the signs relate to pass through a succession of ownerships, then finally close and be redeveloped as apartments. I’ve seen each incoming publican – amidst buoyant commercial talk of ‘turning over a new leaf’, perpetuate this signage – perhaps reprinting it with his new logo – but keeping all else the same as before. The base text of these signs is silently handed down between the parade line of owners, and replicated by their own sign-affixing actions.
Even now, the remnant signs greet the passer by with exclusionary intent. Why would you enter a field festooned with lots of dense, textual messages? Why would you even go up to them and read them, engage with their specificity?
In the above description I’m seeking to raise a challenge to a rationalist belief that legal signage is deployed by place owners for reasons of clear purpose, and that whenever encountered it will still be valid, intended and territorial in intent.
Clearly there will be instances where space is conspicuously under control – and where the facilities of private law (ownership, trespass) are actively being invoked in order to enclose space and/or to channel possible (or permissible) uses within it. But scholarship must not just seek out and dwell upon those extreme spaces, it should also have a way of understanding invocations of private law in more mundane, more ambivalent spatial settings.
Also (in my view) we need to be careful in how much intentionality (and legal sophistication) we impute to the managers of everyday spaces. They are busy people, they have many things to mediate – suppliers, customers, neighbours, lenders, councillors, spouses, children, friends – they do not have time to dwell on the finer points of legal detail (unless locked into the disproportionate attentiveness of a spatial dispute of some sort). For most commercial place managers the signification of their property is an incidental – a tick line on a checklist of place managing rather than an entree to a grand scheme of territorial dominion.
My presentation will outline research that I have been doing in recent years, looking at small case studies of how place managers formulate a pragmatic understanding of what occupiers’ liability law requires of them – and work out (individually and via professional networks) what is a reasonable safety provision for visitors and trespassers who may pass through their spaces. These studies have explored occupiers’ anxieties attached to unstable tombstones in municipal cemeteries, street trees, derelict buildings and open bodies of waters, working variously in conjunction with RoSPA, the Forestry Commission, the Arboricultural Association, the British Mountaineering Council and the Mineral Products Association. In each instance the law (and legal duties) appear in the minds and hands of these lay actors as understood through wider frameworks of task orientation, organizational purpose, and short-hand stereotypes of visitors and the likely behavior of them. Yes, at times their spatial management behavior can betray a quest for privacy or territorial dominion, but at others apparently territorial behavior has appeared – on closer inspection – inchoate, habitual and/or related to received rules of thumb about how properties of a particular type ‘should’ be managed.
And thus, we return to the aging fence. My presentation will draw out provocations from my longitudinal study of this fence, and its material traces of occupier engagement with private law: in this case disclaimers of liability for any customers who might choose to enter this occasional ‘beer garden’ area at the periphery of this pub. I will show how, having watched this accretion of cautionary signage I approached the then owner and enquired of the motivations behind this ranked mobilisation of the liability restricting principles of private law – of its ‘story’ – only to find that there was no story and that this sign affixing behavior was a ritual practice. How this pub ‘should’ be operated – including the refreshing of the fence’s signage – was encoded into the fabric and deportment of the pub itself, acting back upon the succession of owners, the pub presenting as an unwritten user’s manual on how to run it. The publican could not account for his signage, the best he could do was link to a notion of performing (and perpetuating) the proper ways of doing and being within this urban fringe pub:
“…Here you’ve got to be kid friendly where we are, in like the Tap Room you’ve got to be dog friendly: because that’s how it’s always been…so it’s easy for me to come and say “I’m not having any dogs in there” – but it’s not; its part and parcel of this, the history of the pub I suppose”
Here we confront a strange dead-hand effect, a force of habit – the permeation of approximate, sufficient and workable approaches to place management, decisions and actions implemented in thousands of establishments day by day, hour by hour based not upon deep, lawyer aided deliberation on how to control space, but instead replicating – as part of a dull facilities management performativity – generalized, materially sedimented practices which may only incidentally have any connection to a notion of ‘legal’ aspects of the world.