καὶ ἐντεῦθεν δὴ ἄρξασθαι νόμους τίθεσθαι καὶ συνθήκας αὑτῶν, καὶ ὀνομάσαι τὸ ὑπὸ τοῦ νόμου ἐπίταγμα νόμιμόν τε καὶ δίκαιον· καὶ εἶναι δὴ ταύτην γένεσίν τε καὶ οὐσίαν δικαιοσύνης

and from then on, they begin to make laws and covenants between them, and what the law commands they call lawful and just, and this is the origin and essential nature of justice

— Plato, Republic

 
 
What do rights mean in an urban context? Does righting the city require the (re)inscription of individual or collective rights within a legal framework? Take for instance, the right to housing which has been enshrined in international law under the UN Committee on Economic, Social and Cultural Rights, as a right to “live somewhere in security, peace and dignity.” At first glance, this statement would appear to convey a purely humanistic demand for the universal possibility of decent living conditions. In actual fact, however, the 4^th edition of the Committee (1991) codifies these rights as security of tenure, the right to private use of one’s property, and protection from unlawful eviction. The potentially ethical or even socio-economic problem of adequate housing is immediately placed within the clearly identifiable legal boundaries of property right and real estate. It concerns not so much the universal right to housing, in a broadly humanist sense, as the right to become either a property owner or tenant, in the strict legal sense.

On the surface of it, this might not be such a bad proposition. Properly formulated housing regulations, including protections for renters and alleviation of ground rents, are certainly one means to a more just distribution of urban space. Recent high-profile examples include the (short-lived) victory of renters in Berlin to impose caps on rent increases. The fact that this initiative was so quickly defeated points to a broader problem in the recourse to legal instruments in confronting property and capital insofar as the latter exerts such imposing mastery over the instruments themselves, created as they were to enshrine and protect property.

In Early Modern thought, the development of legal rights went hand-in-hand with the expansion of economic reason grounded in the free-exchange of commodities and safeguards over private wealth. However, this development was not at all straightforward. With the experience of the English Civil War still fresh in his memory, Thomas Hobbes was among the first philosophers to oppose so-called natural right to the social obligations codified in laws and constitutions. In the state of nature, natural right was the inalienable right to use one’s own power and will to preserve one’s own nature, and thus one’s own life. Ultimately, for Hobbes right coincides with and is inseparable from might; the Leviathan derives his unrestricted right directly from an unimpeded omnipotence. It’s worth remembering that this marked a significant departure from contemporary theories on natural law, which derived natural rights from the natural law. For Hobbes, the natural right to self-preservation (through mortal combat if necessary) is the basis for the development of civil laws and obligations.

This theme is transmitted, of course, in the philosophies John Locke and Thomas Paine, for whom the inalienable rights of man include life, liberty and property (or the pursuit of happiness). It’s worth mentioning this because as the growing class of merchant capitalists began to accumulate more and more personal wealth, the ideological stakes in formulations of political rights take on a distinctive character in relation to the protection of property and access to economic influence. This is clearly illustrated in the case of the Levellers’ struggle for universal male suffrage which came to a head in the 1647 Putney debates. Herein, through the restriction of the franchise exclusively to property owners, the individual’s political rights serve to safeguard individual property rights. Or as Marx put it two centuries later, one is compelled to exchange one’s “birthright for mess of potage”.

Notwithstanding certain instances where rights are approached as an inherently egalitarian principle (e.g. Rousseau makes the point that no one should be able to become rich to the detriment of others), it is perhaps the great contradiction between force and right that gets omitted in the liberal histories of right. This contradiction is of course nowhere as present as in the philosophy of Locke and its reciprocal impact upon his private ventures in the Carolinas. Here, theories justifying the appropriation of land for private use bleed into the reality of the harsh, violent practices of enclosure, displacement and in some cases genocide.

This contradiction continues to resonate today, e.g. in the war in the Palestinian territories. In this instance, too, arcane legal instruments are juxtaposed with violent appropriation in a de facto apartheid state. In reaction to this, the Palestinian cause frequently invokes human rights and international law, enshrined in the liberal legal tradition, thus entering into conflict with both Israeli lawyers and Israeli tanks. Radha D’Souza makes the point that human rights articulate fundamentally a right to return in reaction to forced displacement, but she astutely recognises that this counts for very little in the face of the overwhelming force. There is fundamental crisis in human rights discourse: it doesn’t join the ends to the means!

Rights mean nothing without the means to enforce them. International jurists may well in good faith advance the rights of refugees, vulnerable economic migrants, victims of political oppression, climate catastrophe, drought, war, famine, etc., but a person will still die of thirst or exposure while claiming his right to clean water and housing. Still, D’Souza asserts that the problem is not merely logistical in the sense that sufficient will and/or means could in fact actualise any petitioned rights. Rather, she frames them as constitutionally contradictory, since they rely on a conception of right that enshrines the very principles of capitalist supremacy which render exploitation, appropriation and misery merely the unfortunate backdrop to the history of economic reason. Invoking rights to oppose the inevitable symptoms of the misery that capitalism creates is like trying to dismantle the master’s house using the master’s tools. Claiming your rights risks reinsertion into the logic of private property and capital.

Returning to the question of housing, the example of property speculation and debt in contemporary China provides a topical illustration of the dilemma. Deng Xiaoping’s reforms of the 1980s began a creeping transition towards Chinese state capitalism, resulting in the exponential growth of industry and the urban centres that inevitably accompany industrialisation. The need to house economic migrants from the country has given rise to an explosion in construction, the scale of which far exceeds any historical precedent: between the years 2011 and 2013, China consumed more concrete than the USA had used in the entire 20^th century. Eye-watering statistics like these would have us believe that the demand for housing was equally staggering. However, in reality, much of this concrete was poured into speculative construction projects.

The idea that supply responds to demand is indeed slightly misleading. No doubt the expansion of Chinese cities is anything but chimeric, nevertheless from a purely ethical (or even legal) standpoint the growth in construction is more epiphenomenal. This is due in large part to the coincidence of Chinese property law and the fiscal devolution of its autonomous regions. Land, all of which is owned by the state, has become a lucrative source of income for local governments, who don’t hesitate to forcibly evict tenants in order to reclassify the land and sell it off for profit to private investors. As a result, financial speculation on property markets has created a volatile spiral of debt, aided by low interest rates. Chinese property developers currently owe an estimated collective debt of around $5tn (USD), and it remains to be seen how well Xi Jinping’s tightening of borrowing regulations will be able to avert economic meltdown.

This serves as a cautionary tale – albeit one that has been repeatedly played out throughout the history of 19^th and 20^th Century urban development – insofar as China’s need for housing has produced its spectral mirror-image in the form of investment vehicles, meaning that as things stand one fifth of China’s housing stock lies empty. Against this background, Xi’s assertion that housing should be “for living, not for speculating” falls on deaf ears, echoing through the empty halls and corridors of China’s countless ghost cities.

It can of course be objected that the urban boom has given untold millions of Chinese first-time access to property ownership, simultaneously creating an urban middle class. While this is not untrue, it comes with a political corollary in the form of the realignment of class interests. What the Chinese reforms have created is a more docile class of urban dweller, less willing to risk their status through political agitation. The price of engineering class-allegiance however has been immensely high. With so many housing units lying empty, the demand for housing is not being met through legitimate construction projects. Rather it falls to the construction of informal housing to fill in the cracks for those who can’t pass the financial means-test for property ownership.

Theodor Adorno remarked in the short essay entitled “On Homelessness” from Minima Moralia, that “wrong life cannot be lived rightly.” We should interpret this as a reminder that framing the universal right of access to decent housing as a right to private property ownership is an inadequate and ultimately contradictory aspiration. This is an age of the explosion of informal urbanism, of the rise of gated-communities, of homelessness in the midst of empty housing units, not to mention the depopulation of our city centres by treating homes as mere investment vehicles. More than ever, it is essential that we be critical of any discourse that sticks rigidly to outdated models. As Marx observed, “the tradition of all the dead generations weighs like a nightmare on the minds of the living”; in times of unrelenting crisis, we should remain critical of the potential of rights discourses, for all the good that they might have historically offered to the people of the world, to bring about any material transformations in our standards of living.

Black Lives Matter is an interesting example of the relative success and failure of rights discourses. In the 1960’s, the Civil Rights movement, albeit a great leap forward in altering the popular consciousness concerning perceptions of race and identity in America, was essentially an unfinished project, and as a result, the “colour line” remains ultimately defining in the policing of economic and political spaces in American society. BLM seems to recognize this by forgoing any refuge in rights discourse, and frontally attacking the institutions themselves through protest, on the streets and in the media, and popular demonstrations. This comes at a price, however, since it nevertheless lacks any clear political purpose or goals.

It couldn’t be more ironic, therefore, to hear accusations of Marxist-Leninist sympathies aimed at its supporters. If Lenin was adamant that one’s identity is never a legal question, but is always a political problem, then we might say that BLM is caught somewhere in the middle – reluctant to repeat the rhetoric of human rights, but unable (or unwilling?) to form a coherent political movement. This is no-doubt exasperated by the impossibility of articulating a radical left politics within the American political mainstream. But, it nevertheless comes as no surprise that some of the main protagonists in the BLM movement have few scruples in signing their image rights over to corporate giants such as Nike, and cashing in on the rise in their public profile – a clear indication of the political inaptitude characteristic of certain protest movements. Rights aren’t sufficient, but political resolve is found wanting.

This is a story that has been too often repeated, however it shouldn’t be forgotten that at the height of his renown in the mid 1960’s, Martin Luther King’s criticism of the Vietnam war signalled a realignment of his politics to encompass a more anti-imperialist perspective, even at the risk of the damage to his reputation. This chapter in his life and thought is often elided in favour of a celebration of his achievements in advancing the rights of black people in America. It might, however, mark the most important development of his thought – the moment at which the articulation of rights gave way to the necessity for real political practice; the recognition that rights cannot be made coherent within the given political context.

Returning to the topic of housing, a right to housing that doesn’t simultaneously target the exploitation of living labour for the production of capital and the abolition of ground rent, simply remains in awe of the fetish of consumption. Echoes of de Sade are impossible to ignore here, as with each right universally claimed and asserted in abstraction of material conditions, the spirit of capital appears ever more beautiful and enchanting, always strengthening its grip. In his essay Kant avec Sade, Jacques Lacan asserts in typically aphoristic style that “if we consider human rights from the vantage point of philosophy, we see what, in any case, everyone now knows about their truth. They boil down to the freedom to desire in vain.” From the point of view of philosophy, then, rights appear enchanting, universal and ideal. But the point of philosophy is not to understand, but to change the world! A philosophical praxis must therefore confront the violence that underpins right, or else it is condemned to desire in vain.

What then can be said about rights in an urban context? No rights discourse will overcome this impasse by ignoring the roots of the problem of the production of urban space. As Henri Lefebvre knew all too well, the urban question is above all a question of production, and the right to the city is the fundamental principle on which to construct an urban commons. The city is both a place of revolution and the production of new values and new spaces, where no appeals to abstract notions of eternal, natural justice can ever sufficiently ground the struggle for the creation of a new urban commons. The right to the city implies rather the production of a new idea of justice through the creation of commonalities, both spatial and practical.
 
 
 
 
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Cover image photo: Up to 10,000 people at a rally in Dublin, Ireland, demanding an end to the housing crisis, 3 October 2018. Source: Tom Honan / The Irish Times

Volume 5, no. 1 Jan-Jun 2022