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Introduction
Public disorder as rats; the Law as pest control
On a summer afternoon in June 2007, I met with a representative of a Business Improvement Association in downtown Toronto to conduct an interview with him. As soon as I entered his office, and before I even had time to sit, he queried something along these lines: ‘So you want to study public disorder, eh? Why do you want to study that?’ He then immediately blurted out: ‘It’s like pest control, you see. You can’t get rid of rats; [you can] only contain it.’ The analogy of public disorder to rats and the LawFootnote 1 to pest control is informative and illuminating. According to this narrative, public disorder – here broadly conceived as panhandling (that is, begging), squeegeeing, loitering and homelessness – is a problem like that of rats: it is a nuisance, annoying and incessant and, as a result, poses a variety of problems including concerns about public health. The Law, for its part, can only do so much. Given that the Law is like pest control, it can only contain or manage the problem, never eradicate it. The Law can be ‘sprayed’ on particular (problematic) areas, but this means – in an almost hit-and-miss approach – that some (parts of these) areas will be ‘hit’, while others will be ‘missed’. The Law then, for its all its pomp and glory, can only do so much. Even the Law, according to this narrative, has limits!
The foregoing anecdote is the perfect entry point into this article. In exploring the way the business community seeks to tackle public disorder, I was drawn to that fact that it repeatedly turns to the Law to attend to this problem despite, on many an occasion, the Law being unable to provide substantial remedy (at least as perceived by the business community). Equally, I was drawn to ways the business community thinks about and makes sense of the Law, which, as I explain in this article, helps shed some insights on why it repeatedly turns to the Law.Footnote 2
This article is about the ways the business community – here operationalised through Business Improvement Associations (BIAs)Footnote 3 – thinks about and makes sense of the Law and the legal system, its legal consciousness, in other words. I suggest that the way BIAs think about and make sense of the Law is best described as ambivalent. On the one hand, as a group that is quite well-to-do, capable of drawing on its vast knowledge, resources, connections and ‘know-how’, it is more than capable of getting things accomplished, especially in putting the legal system into motion. The Law is the place that the ‘haves’ turn to in order to resolve disputes. The Law thus is treated reverentially: the Law is (like) God. Yet there is also a sense of angst, desperation, frustration, hopelessness and powerlessness that is visible, which I call disenchantment with Law. The ambivalence towards Law – ranging from reverence to disenchantment – is an interesting story about the way the ‘haves’ view the Law, especially because the way the ‘haves’ make sense of the Law is not always as antithetical to the way the ‘have-nots’ make sense of the Law. This article then, narrates and makes sense of the ambivalence towards Law.
The legal consciousness of the ‘haves’
I thread my discussion around two theoretical frameworks within law-and-society scholarship, the first concerning the supposed disparities between the ‘haves’ and the ‘have-nots’, and the way the former always (or at least, more so than not) seems to ‘come out ahead’, and the second concerning legal consciousness.
Marc Galanter’s ‘Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change’ (Reference Galanter1974), is considered a classic in law-and-society scholarship. This article ‘has been cited more often than any other piece of sociolegal scholarship, and. . .stands among the most well cited law review articles of all time. . .[occupying] uncontested canonical status within the broad range of college and university courses in law and social science’ (Silbey, Reference Silbey1999, p. 799; see also Grossman, Kritzer and Macaulay, Reference Grossman, Kritzer and Macaulay1999, p. 803). Galanter speculates about the way ‘the basic architecture of the legal system creates and limits the possibilities of using. . .[it] as a means of redistributive. . .change’ (1974, p. 95; emphasis added). Four factors influence the outcome: the parties involved (‘repeat players’ versus ‘one-shotters’), lawyers, institutional practices and rules. The word ‘architecture’ is crucial to his analysis for it ‘tends to confer interlocking advantages on the. . .“haves”’ (p. 149; see also Thompson (Reference Thompson1975, p. 259), who discusses the ways the ‘superstructure’ of the eighteenth- and nineteenth-century English legal system favoured the elites). Thus, Galanter concludes that more so than not, the ‘haves’ come out ahead when they are participants in the legal system, either of their own volition or because they are brought into it by other groups. The ‘have-nots’, by extension, and not surprisingly, mostly come out on the losing end because the very system is structured to ensure this.Footnote 4
In the strict sense, what is narrated here is not exactly the same process as the one narrated by Galanter, for he focused specifically on litigation. What is narrated here largely has to do with the processes of law-making (see, for example, Chambliss, Reference Chambliss1979), though it does contain elements of litigation in relation to, for example, the court rulings which interpreted the constitutionality of legislation addressing public disorder. It is still possible, however, to draw on Galanter’s model as a starting point for the analysis found here precisely because Galanter was mindful of the fact that litigation constitutes just one aspect among a plethora of other aspects of the legal system. As he notes, these aspects are not mutually exclusive but rather co-exist and reinforce each other (1974, pp. 135–39).Footnote 5 This is evinced very early in his piece when he notes that ‘an analogous analysis might [also] be applied to the regulatory and rule-making phases of the legal process’ (p. 97, note 3). Equally important, many of Galanter’s followers who have sought to test his hypothesis have extended its focus and scope. As Richard Lempert suggests, in summarizing the special issue devoted to Galanter’s article (Law and Society Review, Reference Kritzer and Silbey1999), ‘Galanter was concerned primarily with how parties and groups fared in litigation, but the seminal influence of his article is not limited to those whose interests centre on courts’. Accordingly, these works have ‘recognize[d] that the analysis of who comes out ahead in legal contests between the “haves” and the “have nots” requires us to look beyond who prevails in legal disputes heard by courts’ (Lempert, Reference Lempert1999, p. 1100). Galanter’s model, then, leaves open room for incorporating the legal complex. In this work, I explore one aspect of that, namely the process of law-making and its relation to legal consciousness.
The distinction between the ‘haves’ and the ‘have-nots’ is important in this discussion which narrates the ‘battles’ between two groups – the BIAs versus the visibly poor (the homeless, for example) and their advocates – who are pitted against one another in a constant battle over public space, both in the instrumental sense of the ‘right’ to that space and in the discursive sense about the meanings of that space and its place in contemporary governance. To describe a particular group as the ‘haves’ is to say that it possesses a certain amount of wealth and resources to greater degree than other groups. Over and beyond economic capital, however, what also distinguishes this group is the range of social and cultural capital at its disposal – for example, in relation to knowledge and connections – which puts it in a more advantageous position than other groups because it is able to easily draw upon these to get things accomplished. Thus, in relation to the visible poor, who I treat as the ‘have-nots’, I take the BIAs to be the ‘haves’, in the sense that this group has the ability to draw on its economic, social and legal capital to frequently mobilise the Law. To say this is not to say something ‘new’, for the role that ‘pressure groups’ – or ‘special interest groups’ or ‘lobby groups’ if one prefers – which I take BIAs to be, play in championing legislation has been well documented (see, for example, Pross, Reference Pross1975; Friedland, Reference Friedland1984, pp. 67–112). What is interesting is making sense of the ways these groups come to make sense of and view the Law, which helps explain, partially at least, why they so eagerly and repeatedly turn to Law.
It is important, however, to recognise that there is a range of ‘have-ness’, which means that some groups will be in a much better position to get things accomplished. I do not suggest that BIAs necessarily represent the top tier in the range of ‘have-ness’, though they do represent a vast array of interests – ranging from big business chains to individual merchants – which necessarily bestows them with immense power and responsibility to govern the everyday workings of these businesses in relation to the wider business community. In that sense, BIAs, in consultation with these businesses, set the ‘tempo’ and other policies regarding the businesses in these areas. Thus, BIAs are important ‘players’ in the business community, wielding enormous power and influence (see ‘The scope, purpose and function of Business Improvement Associations’ below).
Galanter’s article about the ‘battles’ between the ‘haves’ and the ‘have-nots’ has been the subject of many a critical inquiry seeking to explore whether in fact the ‘haves’ occupy such an advantage – including the varying degrees to this advantage – and come out ahead (see, for example, Law and Society Review, 1999). That these studies (see, for example, Edelman and Suchman, Reference Edelman and Suchman1999; Harris, Reference Harris1999; Kinsey and Stalans, Reference Kinsey and Stalans1999) have been unable conclusively to verify Galanter’s speculations is quite clear now. In other words, it is still not possible to ‘safely conclude, based on the empirical research that has been done to date, that the “haves” come out ahead in court’ (Lempert, Reference Lempert1999, p. 1111).
This is so for several reasons. In the first place, Galanter’s speculations are more nuanced and multi-faceted than appreciated at first glance (Grossman et al., Reference Grossman, Kritzer and Macaulay1999). In the second place, ‘Galanter’s article was a period piece’ (Lempert, Reference Lempert1999, p. 1100), which is to say that since it was published ‘there have been major changes in. . .[the US] legal system and political cultures as well as in the distribution of power and the content of political discourse’ (Grossman et al., Reference Grossman, Kritzer and Macaulay1999, p. 809). The other, more interesting and pressing, issue is discerning exactly what is meant by coming out ahead, which is not very clear, either in Galanter’s original formulation or in the studies which have followed (cf. Edelman and Suchman’s (Reference Edelman and Suchman1999) nuanced and sophisticated analysis). In other words, ‘even identifying the winners and losers in litigation can be difficult. “Coming out ahead” is not necessarily a synonym for legal success. Often, the problem is knowing what was actually accomplished’ (Grossman et al., Reference Grossman, Kritzer and Macaulay1999, p. 809). To pose this question – What does it mean to ‘come out ahead’? – is to pose a very basic question, though it is quite surprising that little attention has been paid to the importance of it. One example, from Galanter’s own work, highlights its importance. In his ‘Jokes Corpus’, Galanter recites a joke about ‘justice’ that goes something like this: A businessman who is facing a lawsuit by one of his competitors has to leave town prior to the end of the lawsuit. He instructs his lawyer to notify him immediately of the result. A few days later, he receives a telegram that reads: ‘Justice has triumphed’, to which the businessman replies immediately: ‘Appeal at once’ (Galanter, Reference Galanter2002, p. 2225). While Galanter reads this joke through the prism which is meant to shed light on the many facets of ‘justice’ (p. 2226), it is also possible to read it through the prism which highlights the many facets of what coming out ahead might look like and mean. While it is not clear what the lawyer and client view as a ‘victory’, it is quite clear that this ‘victory’ is made sense of in different ways: where it is so for the lawyer, it is not necessarily so for the client.
I suggest, therefore, that even to begin exploring whether the ‘haves’ come out ahead necessitates clarifying what to ‘come out ahead’ might mean and look like to the ‘haves’ themselves. Rather than necessarily narrating a story about top-down, hierarchical relations of power, law and its subjects – in the traditional Marxist sense – I wish to narrate the same story through the lens of the participants of this process. This is where the analytical concept of legal consciousness is helpful. In drawing on legal consciousness, I am able to narrate a story not just about success or defeat in terms of whether the ‘haves’ come out ahead, but also about what exactly coming out ahead might mean and look like to the ‘haves’, and locate their perceptions of these successes and defeats within the historical contexts which came to shape these perceptions.Footnote 6
Legal consciousness, Susan Silbey writes, is:
‘a theoretical concept and topic of empirical research developed within law and society [scholarship] in the 1980s and 1990s to address issues of legal hegemony, particularly how the law sustains its institutional power despite a persistent gap between the law on the books and the law in action’ (2005, p. 323; emphasis added)
Like law-and-society scholarship, legal consciousness has been ‘traditionally less concerned with what the law is than with what the law does (p. 324; emphasis in original). The key point to underscore is the (dis)connection between the law on the books and the law in action, specifically in relation to the ‘persistent gap’ (Nelken, Reference Nelken1981; Silbey, Reference Silbey, Smelser and Baltes2001a, p. 8539), which has now become well entrenched in law-and-society scholarship, often said to be its decisive entry point and claim to fame.Footnote 7 This ‘gap’ is crucial to the story narrated here, for it is responsible for shaping and producing the ambivalence towards Law.
There is now a voluminous literature on legal consciousness (see, for example, Engel, Reference Engel1984; 1993; Engel and Munger, Reference Engel and Munger2003; Ewick and Silbey, Reference Ewick and Silbey1992; 1998; Hoffman, Reference Hoffman2003; Larson, Reference Larson2004; Merry, Reference Merry1990; Neilson, 2000; Sarat, Reference Sarat1990; Yngvesson, Reference Yngvesson1993), though, as Silbey’s (2005) review quite rightly points out, there are several issues that are in need of serious attention. In the first place, what exactly is meant by legal consciousness is not fully settled, and this further influences what is studied, and how so. The studies on this subject, she opines, are so diverse in their methods and scope, that what is produced is essentially a ‘public survey’ about the way people, in abstract terms, think about the Law, which merely ‘contribute[s]. . .to the loss of the social, leaving us with studies of individual psychology’ (p. 359). A similar concern has also been made highlighting the (supposed) divide across the Atlantic, between US and European legal consciousness scholars, who have two very different understandings of it, leading to two very different research agendas (Hertogh, Reference Hertogh2004); this, in part, might also explain the paucity of such studies in the UK (Cowan, Reference Cowan2004). Linked to this fuzziness is the (supposed) (dis)connect between ‘culture’ and ‘consciousness’ – as analytical devices for making sense of the way people think about and make sense of the Law (Garcia-Villegas, Reference Garcia-villegas2003; cf. Silbey, Reference Silbey, Smelser and Baltes2001b) – which creates further conceptual problems (see below).
I do not intend to resolve these concerns, only to highlight that a precise definition of legal consciousness does not exist (Engel, Reference Engel, Garth and Austin1998, pp. 111–20), nor one way to study it (cf. Ewick and Silbey, Reference Ewick and Silbey1998; Engel and Munger, Reference Engel and Munger2003). More importantly for the purposes of this article, many of the studies have focused on the lives of everyday people (Engel, Reference Engel1984; 1993; Engel and Munger, Reference Engel and Munger2003; Ewick and Silbey, Reference Ewick and Silbey1992; 1998; Hoffman, Reference Hoffman2003; Merry, Reference Merry1990; Neilson, 2000; Yngvesson, Reference Yngvesson1993), including the marginalised and vulnerable (Cowan, Reference Cowan2004; Sarat, Reference Sarat1990). In other words, very little has been written about the legal consciousness of the ‘haves’ (cf. Cooper, Reference Cooper1995; Larson, Reference Larson2004). In fact, I am only aware of one study (Ewick and Silbey, Reference Ewick and Silbey1999) which explicitly fuses these theoretical strands. This fact alone might suggest why it is commonly believed that the ‘haves’ and ‘have-nots’ are so dissimilar in their legal consciousness.
While admitting that a consistent and precise definition of legal consciousness does not exist, and yet in an effort somehow to circumvent some of these problems, I draw on and fuse a variety of studies. I begin with the influential study by Patricia Ewick and Susan Silbey, The Common Place of Law (Reference Ewick and Silbey1998; see also 1992), which sought to develop a model of legal consciousness in an effort to ‘understand. . .the basis of. . .American romance with the law’ (1998, p. xi). That work explores legal consciousness through the words and actions of people (p. 46), and defines legal consciousness as a study of (and about) ‘how legality is experienced and understood by ordinary people as they engage, avoid or resist the law and legal meanings’ (p. xi; emphasis added; see also 1992, pp. 741–42). This is a useful definition to work with for it captures not just the way people think about the Law, but also how and why they come to think this way. In other words, legal consciousness is not static, but produced and reproduced, shaped and reshaped over time, owing largely to the experiences that people have with the Law and the legal system (see also Engel and Munger, Reference Engel and Munger2003; Cooper, Reference Cooper1995; Sarat, Reference Sarat1990). In addition, part of thinking about Law must account for the way people do not think about it, that is, what Laura Nielson says concerns ‘the assumption[s]. . .about law that are simply taken for granted’ (Reference Nielson2000, p. 1059). This, as I explain throughout this article, is crucial to making sense of the ambivalence towards Law.
One important issue requires attention here, and this concerns the distinction, briefly mentioned above, between ‘consciousness’ and ‘culture’. In this article, I speak of the legal consciousness of BIAs, which gives rise to the question of whether BIAs themselves can have a consciousness, that is to say, think about Law. This is only problematic if it is believed that the distinction between ‘micro’ (consciousness) and ‘macro’ (culture) should be thought of dualistically. I follow Anthony Giddens (Reference Giddens1976/1993, p. 7) who treats these concepts as analytical devices rather than sociological ‘fact’. Also, as Silbey (Reference Silbey, Smelser and Baltes2001b) has cogently argued, the legal consciousness versus culture distinction fails to appreciate the (dis)continuities between individuals and institutions, that is, that there is fluidity between institutional and individual practices. Given that I attend to the inner-workings of the BIAs, that is to say, the way their mandates and policies are thought about and put into practice, I am attending to the way these are constructed at the individual level, ‘translated’ into institutional practice and then retranslated back into individual practices. Thus, I can speak of a legal consciousness of BIAs, for I am attending to the way this institutional consciousness (or culture, if one prefers) is produced and shaped.
Method and scope of the study
This article draws from two sets of sources, the first textual, the second interviews. The textual material is comprised of two sources. In the first place, I draw on print-media coverage of public disorder in Vancouver, relying on The Province (a right-leaning tabloid-style newspaper) and The Vancouver Sun (a left-leaning one) for the period between 1990 and 2007. In the second place, I draw on various laws (municipal by-laws and provincial legislation) and court rulings as they relate to public disorder under discussion here. I rely on these sources to situate the concerns about public disorder and to explore the legal responses to this problem in the city. I focus in detail on Vancouver in order to explore fully the complexities associated with getting law on the books, which is important to understanding the legal consciousness of the ‘haves’.Footnote 8
The second set of data is based on twenty-five interviews conducted with representatives of various BIAs in the cities of Toronto and Vancouver. The interviews in Toronto were conducted during the summer of 2007, and comprised a total of ten. The interviews in Vancouver were conducted during the summer of 2006, and comprised a total of fifteen. The interviews were open-ended and semi-structured. Each interview lasted, on average, forty-five minutes (for the sake of anonymity, I refrain from mentioning the names of the interviewees or the Association they represent, save in one instance). In addition, I also draw from the proceedings of the Executive Committee Meeting on Panhandling in the city of Toronto in May 2007. This meeting allowed interested parties to voice their concerns to the city council regarding public disorder. In all, some thirty groups, most comprising BIAs and residential groups, made submissions in person, lasting on average about five minutes. What is narrated here is based on my observations of that meeting.
There are several limitations with the data, namely with respect to the interviews, which require some attention. In the first place, this study was originally designed to explore how and why public disorder was seen as a grave concern to the business community. Relatedly, I was interested in exploring the business community’s heavy involvement in the enactment of several pieces of legislation regarding public disorder. Thus, the study was originally designed to explore the processes of law-making, focusing on specific pieces of legislation (see, for example, Chambliss, Reference Chambliss1979).
What struck me initially – and would continue to be the case in virtually all subsequent interviews – was that these discussions focused not only on the specific pieces of legislation that I was interested in, but on the Law in the broader sense. In some cases, these introspections were explicitly about the Law in the broader sense; in others, they were implicit. In all cases, however, it was almost impossible to miss the fact that these interviewees were speaking not only about specific legislation, but about the Law, especially with respect to the assumptions and expectations about the latter. One example, discussed in the ‘Introduction’ to this article, captures this well. In analogising public disorder to rats and the Law to pest control, this interviewee was highlighting not just the limitations of the particular law, but the limitations of Law in the broadest sense. Another example is one which repeatedly cropped up, related to the fact that panhandling is constitutionally protected. Here, these interviewees were speaking not just to the fact that panhandling cannot be banned outright, but about particular constitutional principles – that is, the Law in the broadest sense – which protects the rights of the indigent, which were seen as antithetical to business interests.
It is in this way that I came to write an article about the legal consciousness of the ‘haves’, though given how I came to this, it was virtually impossible to follow in the methodological footsteps of earlier studies (though, as I have noted above, there does not exist one way to study this subject). If there is any similarity, this study fits closely along the lines of Engel and Munger (Reference Engel and Munger2003), who focused specifically on the law in the life stories of everyday persons with disabilities, rather than the approach of Ewick and Silbey (Reference Ewick and Silbey1998), who first examined the life stories of people, and only then sought introspections about law.
There is a related limitation as well, and this relates to the number of interviews conducted. At least in legal consciousness terms, the number of interviews conducted is quite low, especially given their duration. However, given that I focused on a particular population – the business community – and drew on BIAs as proxy, I was limited in the number of interviews that could have been completed. Also, when considering that there are approximately eighty BIAs in Toronto and Vancouver, and that I conducted twenty-five interviews, then it can be appreciated that, at least in terms of the BIA population, my sample is somewhat representative given that one in four were interviewed. This was not, however, a random sample.
The findings reached here should be treated as an initial step in exploring the legal consciousness of the ‘haves’, requiring further research and inquiry, rather than as a definitive or final statement. My intention is to carve out a space for what I hope will be a productive line of inquiry in law-and-society scholarship.
The next section of the article provides a brief account of BIAs and the work they do. A short discussion of the problem of public disorder in Vancouver follows next, which is further complemented by an in-depth examination of what the business community there sought to do to attend to this matter. Next, I explore the legal consciousness of the BIAs in Toronto and Vancouver, exploring their ambivalence towards Law. In the concluding section, I return to the question of what coming out ahead might mean and look like to the ‘haves’, and how and why their legal consciousness is crucial to making sense of this question.
The scope, purpose and function of Business Improvement Associations
A BIA – a Business Improvement District (BID) as it is referred to in the US and around Europe – is an association of property owners in a given geographical area who come together in an effort to further their business and property interests. In Canada, BIAs emerged on the scene in the 1970s. The Bloor-West Village BIA in Toronto, the first in the country, was founded in 1970. Since then the number of BIAs has proliferated greatly. Currently, there are some sixty BIAs in Toronto – the highest number in any city in the country – and some twenty in Vancouver. Today, BIAs play a critical and influential role in city governance.
More often than not, the formation of a BIA is tied to ‘building’ and cleaning up the area in question, in order to create and maintain a prosperous shopping district. As one BIA representative explained its mandate: ‘As a Business [Improvement] Association we want to help our businesses stay here, and attract other businesses to come to the area.’ Another added that the primary purpose of the BIA is to ‘improve the shopping experience’. The BIA is thus an important launching pad for business interests, providing a ‘space and forum’ for interested persons to voice their concerns. As one representative put it, it is about ‘giving a voice to our neighbours’ and ‘empowering each other to make a difference’.
In more recent times, it has fallen upon BIAs to spend considerable time, effort and resources to deal with petty crime and public disorder (in fact, in Vancouver, where the history of the BIA is relatively new, several BIAs were formed in the late 1990s and early 2000s, specifically to deal with public disorder matters). Thus, it is not uncommon today to find BIAs playing a significant role in order and safety matters, including the ‘policing’ of public spaces (Huey, Ericson and Haggerty, Reference Huey, Ericson, Haggerty and Cooley2005; Lippert, Reference Lippert2007). As a representative of a BIA explained, street safety is a ‘fundamental role of the BIA’ (emphasis added), especially given that perceptions about safety heavily influence the wellbeing and viability of businesses. Not surprisingly then, where public disorder is concerned, BIAs play an important role in ‘restor[ing] order on the streets’ and this, as one representative put it, ‘occupies a big portion of our effort’.
Public disorder in Vancouver
Unequivocally, all my interviewees in Vancouver (and Toronto as well), stated that (aggressive) panhandling and other public disorders were a grave concern to the wellbeing of businesses. ‘Businesses do not like panhandlers, whatsoever’, one representative told me, while others noted that panhandling is a ‘critical concern to businesses’, or is ‘not conducive’ to it. It was the sheer persistence and numbers of panhandlers that was of concern. Statements such as, it ‘never lets up’, ‘it’s constant’ or ‘all over the place’ aptly capture these sentiments. The long-lasting effects – and ‘constant’ nature of it – had led to a drastic deterioration in the ‘quality of life’ of residents in the city, such that reference to the ‘area. . .going down hill’ was frequently mentioned. What resulted was an ‘enough-is-enough’ type attitude. As one interviewee bluntly put it: ‘We have had enough; this has gotta stop.’ Another said much the same saying, ‘We are compassion exhausted!’ (emphasis added).
Panhandling was certainly not a ‘new’ problem facing the business community. Vancouver, it would seem, at least if one were to turn to the print media’s construction and depiction of the problem, has been dealing with public disorder in various forms, ranging from prostitution, open drug use and homelessness, for quite some time, this especially so given its close proximity to the Downtown East Side, a skid row ‘housing’ the most vulnerable members in the city (Huey, Reference Huey2007, pp. 132–36). By the early 1990s, however, panhandling had also come into the limelight, not surprisingly, for all the ‘wrong’ reasons.
Panhandling was constructed as problematic on three fronts. The first was a concern not just about the rise in the number of panhandlers, but also about the aggressive nature of panhandling, which was now believed to be more ‘in-your-face’ (see, for example, The Vancouver Sun, 10 April 1993, p. C10). Second, the belief was that panhandlers sought money not because they truly needed it, but because they wanted to ‘feed’ their urges for drugs and alcohol. Illustrative of this link are two headlines in a local paper which read ‘Boozy Panhandlers’ and ‘Beg, Drink, Beg, Drink’ (The Province, 19 July 1992, p. A3; 19 February 1996, p. A12). Finally, panhandling was problematic because many believed that panhandlers were lazy and greedy rather than genuinely needy. A local paper, for example, expressed its disdain towards the ‘daily gauntlet of suspiciously able-bodied, sound-minded street people and squeegee kids’ who ‘pose. . .as victims and exploit. . .the sympathy of passing strangers who are themselves struggling to stay afloat’ (The Vancouver Sun, 24 September 1998, p. A19).
Though the media paid little attention to panhandling in relation to aesthetic norms, my interviewees repeatedly highlighted this issue. Virtually every interviewee loathed panhandlers simply for the way they looked and smelled. As one said, it creates a ‘negative image’ and ‘is an unsightly thing’. This aesthetic concern was tied not just to the person, but also to the physical and material disorders generated by panhandlers, which was commonly and derogatorily referred to as ‘the mess’. Thus, representatives of BIAs spoke of the ‘trappings’ or ‘products of. . .life’ of panhandlers – for example, sleeping bags, shopping carts, garbage, as well as urine and faeces – and the problems created by these material disorders. ‘They’ll be just lying there’, a representative explained, ‘sitting with sleeping bags and their worldly possessions and look intimidating and scary.’
Concerns about panhandling were addressed through both legal and extra-legal means. However, and rather surprisingly, it took some six to eight years – from when the problem had garnered serious attention – for legal remedy to materialise. In what follows I explore the processes through which legal remedy unfolded in an effort to highlight how the experiences of putting the legal system into motion play a profound role in shaping and producing the legal consciousness of the ‘haves’.
Panhandling and legal remedy
The absence of legal remedy between 1990 and early 1998 is in no way a reflection of the hard work of the business community in canvassing support and heavily lobbying the city council for a by-law to address the problems of panhandling. The absence of legal remedy can be chalked up to that fact that the climate for such a by-law was not favourable during this time and place. For one thing, the federal government decriminalised begging in 1972 in its sweeping reforms of the criminal law, including the vagrancy section of the Criminal Code (Criminal Law Amendment Act, 1972, c.13, s.12; see also Ranasinghe, Reference Ranasinghe2010). In responding to the gap created by these reforms, the city of Vancouver, in 1974, amended its By-law to Regulate Traffic and the Use of Streets in the City of Vancouver (City of Vancouver, 1974). This amendment banned begging as a whole, save where a person had a licence to solicit, that is, charitable organisations. However, in R. v. Snobellen (1974) the ban on begging – only a few months in existence – was ruled ultra vires the city of Vancouver, and accordingly struck down. In that case, Sedgwick, P. C. J. held that section 272 of the Vancouver Charter did not provide authority for the city to ban begging as a whole.
By about the mid-1990s, however, the climate for legal remedy was made more favourable, in part because of what was taking place elsewhere in the country. For example, the cities of Ottawa (City of Ottawa, By-law No. 117-91, 1991) and Oshawa (City of Oshawa, By-law 72-94, 1994) passed public nuisance by-laws, which, among other things, banned panhandling outright. Also, in 1995, the city of Winnipeg enacted The Panhandling By-law, which regulated – rather than banned – panhandling (City of Winnipeg, By-law No. 6555/95, 1995). The city of Vancouver deemed this approach to be a more appropriate – and constitutionally foolproof – manner in which to attend to panhandling, mainly given the city’s prior experience of having a total ban on panhandling struck down. Thus, following in the footsteps of Winnipeg – rather than Ottawa or Oshawa – Vancouver enacted A By-law to Regulate and Control Panhandling (City of Vancouver, By-law No. 7885, 1998), which came into force on 30 April 1998. This by-law regulated and controlled the time, place and manner (for example, aggressive versus passive panhandling) in which panhandling would be deemed legal.
While the by-law was a welcome relief for many Vancouverites, concerns emerged when it was discovered that the by-law was not being enforced (The Province, 17 June 1998, p. A3; 10 December 1999, p. A50; The Vancouver Sun, 25 May 1999, p. A12). It is not entirely clear why the by-law was not enforced, especially during its early days, though according to my interviewees, the police were not too keen on enforcing the by-law despite heavily lobbying for it. This was so for several reasons. In the first place, research has now documented that the police see their duties as encompassing more serious matters such as crime (Kelling and Moore, Reference Kelling, Moore, Greene and Mastrofski1988; Kelling and Coles, Reference Kelling and Coles1996, p. 71–107). In the second place, the logistics associated with writing and handing out tickets is seen as a waste of time, because panhandlers will often not show up in court, and where this happens, it is difficult to (re)locate them because they often do not have fixed addresses.
The other problem with the by-law was that it was being challenged in court. By late 1999, the validity of panhandling by-laws, such as Vancouver’s, were coming under constitutional attack. In Winnipeg, for example, the National Anti-Poverty Organisation (NAPO) – a noted anti-poverty group across the nation – challenged Winnipeg’s The Panhandling By-law. In that case, the judge noted – during pre-trial proceedings – that the by-law would be, more likely than not, problematic on constitutional grounds (The Vancouver Sun, 5 March 2001, p. B1). Based on these observations, and rather than risking a protracted legal battle, the city of Winnipeg repealed The Panhandling By-law and replaced it with the less restrictive The Obstructive Solicitation By-law in 2000 (City of Winnipeg, By-law No. 7700-2000). This by-law banned solicitation deemed ‘obstructive’. Given that Vancouver’s by-law was closely modelled on Winnipeg’s The Panhandling By-law, and given the observations of the judge in that case, the city of Vancouver was of the opinion that a similar fate would befall its by-law. Thus, in an effort to circumvent these concerns, the city followed in the footsteps of Winnipeg and repealed its A By-law to Regulate and Control Panhandling and amended its Street and Traffic By-law (City of Vancouver, By-law No. 2849, 2001) to include a provision pertaining to obstructive solicitation.
Unsurprisingly, the new by-law was met with a lukewarm reception. ‘I think it’s a good by-law’, Vancouver’s Mayor Phillip Owen proclaimed, but added, ‘I would’ve preferred a stronger by-law, but this apparently is the best we can put forward without being struck down by a judiciary decision’ (The Vancouver Sun, 7 March 2001, p. B1). Even this amendment, however, did not bring an end to things. For one thing, the NAPO now chose to wage battle over the new by-law. In that case, however, the Court ruled in favour of the city, noting that because the by-law did not seek to prohibit panhandling as a whole, but only focused on obstructive solicitation – which was deemed inimical to pedestrian movement – it was an appropriate use of the city’s authority and thus constitutionally sound (Federated Anti-Poverty Groups of BC v. The City of Vancouver, 2002). In the second place, the new by-law, just like its predecessor, was said to be ineffective, again owing to poor enforcement.
To say that both by-laws had failed to provide significant remedy is an understatement. By 2003, the problem had reached grave proportions, which is well reflected in a statement by one interviewee who summed up the mood succinctly: ‘things were really out of hand [and] people were upset.’ Thus, it was widely believed that a different sort of legal mechanism – provincial legislation, rather than municipal by-laws – was necessary to address this matter meaningfully.Footnote 9 Also, by 2001, squeegeeing had become a major worry not only in the city, but throughout the province (see, for example, The Province, 3 November 2002, p. A24). This provided further fodder for provincial legislation, the rationale being that one set of clear rules was necessary to spell out what would and would not be tolerated.
The result of these concerns, and heavy lobbying on the part of the business community, was the passage of the Safe Streets Act (Bill 71-2004) and the Trespass Amendment Act (Bill 72-2004) – the twin Bills introduced to deal with public disorder – which came into force in January 2005. Getting these pieces of legislation passed, however, was a far from easy task, for they were contentious and fraught with numerous difficulties that needed to be attended to.Footnote 10 It is worthwhile, therefore, to discuss briefly the difficulties associated with the passage of these Bills.
Making Law: even the ‘haves’ have it toughFootnote 11
In June 2001, the Liberal Party of British Columbia came to power in a landslide victory that saw them win seventy-seven seats in the legislature (as opposed to the opposition, the New Democratic Party, which won a mere three).Footnote 12 In that same year, MLA (Member of the Legislative Assembly) Lorne Mayencourt of the Liberal Party, approached Dave Jones – while he was still an Inspector with the Vancouver Police Department (VPD) – seeking suggestions as to how the legislature and the police could work in tandem to make the streets and communities safer (this was after the amendments to the Streets and Traffic By-law which banned obstructive solicitation, but which – as discussed above – was viewed as quite ineffective). Jones immediately suggested that Vancouver required a Safe Streets Act – similar to that in Ontario – as well as a modernised Trespass Act. The government, however, was not at all keen on following in the footsteps of Ontario, for it did not wish to come off as overly harsh on, and unsympathetic towards, the plight of, the poor. The VPD and the Downtown Vancouver Business Improvement Association (DVBIA), again in 2002 – at which time Jones had taken early retirement from the VPD to become Director of Crime Prevention Services of the DVBIA – lobbied the province for provincial legislation. Yet again, this request was turned down, and again for the reasons cited above. Then, in early 2004, the DVBIA once again lobbied the legislature for province-wide legislation. In this instance, several MLAs were more open and sympathetic towards the pleas of the DVBIA, largely due to the stringent criticisms levelled against the government by concerned businesses and residents regarding the government’s ‘soft’ position on public disorder. However, the government needed to be sure that provincial legislation was necessary. In particular it sought ‘proof’ that aggressive panhandling and squeegeeing were of serious concerns to businesses and residents across the province, and that provincial legislation would be effective in attending to these problems.
The responsibility and burden of coming up with this ‘proof’ fell on the shoulders of the DVBIA – the largest and richest BIA in the province – and it quickly sought to gather the necessary support for the legislation. Within a span of a just a few months, under the stewardship of the DVBIA, the Safe Streets Coalition was formed, in March 2004. The Coalition, comprised of various BIAs and Residential Associations across the province – of which membership consisted of some thirty organizations at that time – became the ‘mouthpiece’ in the fight against disorder and heavily lobbied the government for both a Safe Streets Act and various amendments to the Trespass Act, by clearly and vividly describing the problems facing residents and businesses in the province (see, for example, The Vancouver Sun, 11 March 2004, p. B8; The Province, 11 March 2004, p. A11).
The formation of the Coalition and its fight for provincial legislation, however, was still not enough to sway the government to introduce provincial legislation, though what it did do, at a minimum, was show the government that something needed to be done immediately. In particular, a provincial election was slated for the following year, in 2005. Thus, to ensure that it was not seen as too punitive on the poor, but at the same time sympathetic towards the plight of residents and businesses, the Safe Streets Act Bill (Bill M202) and the Trespass to Property Act Bill (Bill M203) were introduced as Private Member Bills by MLA Lorne Mayencourt on 6 May 2004. This ‘gesture’, it was hoped, would satisfy all parties concerned and ‘buy’ the government some much-needed time in deliberating on which course of action to take.
Nothing of substance materialised between May and September 2004, at which time the Safe Streets Coalition – which quickly realised that the chances of Private Member Bills passing in the House were slim to none – took its message and concerns to the Union of British Columbia Municipalities (UBCM). The UBCM was formed in 1905 to provide a common voice and represent the interests of local governments in the province. The ‘voice’ of the UBCM – as well as the fast-approaching election – was sufficient for the government to act decisively. Even then, however, two matters needed attention. In the first place, amending the Trespass Act would have disturbed some thirty-four pieces of provincial legislation and the government was more than wary of tackling this arduous task. Also, the government was still concerned that the proposed legislation would simply be used to ‘criminalise the poor’ and wanted to disassociate itself from such tactics. Thus, the DVBIA was ‘forced’ to sign a commitment that it would examine the ‘root causes’ of public disorder – namely, poverty – so that both law-and-order approaches would work in tandem with welfarist-type approaches (social services or housing, for example). With these matters resolved, the Private Member Bills were withdrawn by Mayencourt on 7 October 2004, and on that same day the government introduced the Safe Streets Act Bill (Bill 71-2004) and the Trespass Amendment Act Bill (Bill 72-2004). These took effect in January 2005.
Thinking (and not thinking) about Law
In exploring the ways the business community in Vancouver sought to mobilise the Law, I have shown that it is not an easy and straightforward matter for the ‘haves’ to get legislation passed. In fact, as I have shown elsewhere (Ranasinghe and Valverde, Reference Ranasinghe and Valverde2006), this is not all that dissimilar to the struggles that the ‘have-nots’ and their advocates face in getting legislation enacted. In a period of some fifteen years (between 1990 and 2005), the business community worked tirelessly to get legislation passed, but its ‘success’ did not come easy. Between 1990 and 1998 little happened, owing largely to concerns about the constitutionality of by-laws regulating panhandling and other public disorders. Even when a by-law was finally enacted, it was swiftly repealed, owing to the very problem that originally hindered its enactment. While the persistence of the business community ensured that an amendment to an existing by-law would salvage at least a modicum of control over panhandling, that by-law too was subjected to constitutional scrutiny, though in this instance it was ruled constitutionally sound. Yet both by-laws provided little relief in the material sense, owing largely to poor enforcement. This led to further problems, which were reconstructed as a need for a different legal mechanism – provincial legislation rather than municipal by-laws. Even then however, it took some two-and-a-half years for the legislation to materialise, owing largely to concerns that the legislation would be viewed as too harsh on the poor. In the end then, provincial legislation proved to be quite the arduous task, which taxed the time, resources and patience of the business community to its limits.
The experiences associated with mobilising the Law is crucial to making sense of the way the ‘haves’ come to think about and make sense of the Law. Their legal consciousness is predicated on these experiences, particularly in relation to the taken-for-granted expectations and assumptions about Law. In what follows, I examine the legal consciousness of BIAs in Toronto and Vancouver, exploring their ambivalence towards Law.
Despite the numerous obstacles faced, the fact that BIAs repeatedly turn to the Law is indicative of the importance and faith they place in it. On the face of it, this seems to suggest that they view the Law as the most effective means by which pressing problems can be addressed, and where one legal mechanism (by-laws) fails, other, more potent, mechanisms (provincial legislation) are readily available. Yet this fails to fully explain what transpired because the Criminal Code, the most potent of all legal ‘weapons’, would have sufficed quite well to attend to these problems, and yet the business community sought not the (better) enforcement of the relevant sections in the Code, but new legislation.
Most representatives of the BIAs I spoke to made a concerted effort to point out that they had resorted to the Law (-and-order approach) with a specific purpose in mind, and therefore espoused the view that the Safe Streets Act (and the Law) should not be seen (or at least, that they did not see it) as simply an attack against the poor. Rather, the Law was an important resource to be drawn upon when the problem had become dire, and when all other avenues had been exhausted. Thus, as one interviewee put it to me, there is a ‘difference between compassion and understanding, and tolerance’. For her, it was not that the business community had no compassion towards the poor. Rather, the problem had become so unbearable – recall the ‘enough-is-enough’ or ‘compassion exhausted’ type attitudes – that something needed to be done. It is this desperation, to the point of exhaustion, that led the business community to seek recourse in the Law. Thus, a spokesperson representing the tourism industry in Vancouver said that the Safe Streets Act ‘is not an attack on the poor per se. It is [about] trying to respect what the people in downtown are saying’. The Act, according to the words of another interviewee, was to be relied upon only ‘in the worst case scenarios’, that is, ‘when the public good is compromised’ or when such behaviour is ‘poisoning the public domain’.
Yet, as I have documented above, this was not necessarily the case, for the business community turned first to the Law (-and-order approach), though it took some time for it to materialise. Equally interesting to note is that if the Law is the place to turn to, to attend to pressing matters, as the business community sees it, then why is it necessary to tax all other resources prior to seeking recourse in the Law? In part this has to do with the belief among the business community that the Law works for the benefit of the ‘haves’ and, by extension, against the marginalised (this also explains why they so eagerly and repeatedly turn to Law, for they knew – or at least, assumed – that the Law will be there for them, on their side). This is also why, in seeking recourse in the Law, the business community was bent on ensuring that ‘more than [just] the heavy hand of [the] government was coming down’, as a representative of the tourism industry in Vancouver put it. This statement is revealing because it highlights not just their belief that the Law works for the ‘haves’, but that they also have a duty and responsibility to ensure that the Law does not unduly oppress the poor.
For many in the business community, then, the Law was an important source by which (their) public spaces could be reclaimed. This reclamation functions on two levels: instrumentally or materially and symbolically or discursively. There is certainly evidence that the business community wanted immediate reprieve in the instrumental sense, and turned to the Law for this reason (the ‘enough-is-enough’ attitude that ‘this has gotta stop’). There is also evidence, however, that the business community turned to the Law not necessarily (or at least, not only) for this reason, but rather sought in it the symbolic and discursive import and message that a piece of legislation provides.
The business community was well aware of the limits of the Law, and what the Law could, and could not, do for them in relation to public disorder. They saw the Act as but one aspect of a broader ‘holistic approach’ which sought ‘to be constructive’ and create ‘workable solutions’. In other words, they viewed the Act (and the Law) as merely ‘one small step’, which is ‘by no means the [only] solution’. In these narratives, there is clearly a view that a hybrid or mixed approach – between law-and-order and welfarism – needs to be implemented for workable solutions. In that sense at least, there appears to be a recognition that problems such as panhandling are complex issues tied to broader structural conditions. This recognition also highlights that the business community was clearly mindful of the limits of the Law (-and-order approach) in dealing with public disorder.
What is not entirely clear, however, is whether this knowledge about the limits of the Law was something that the business community was mindful of even prior to, and while, campaigning for a law-and-order approach, or whether they only learned this (the hard way) once the Act was passed and, at least as they saw it, hardly enforced. My suspicion is that they were well aware of the limits of the Law from the onset. One example of this pertains to the fact that panhandling is constitutionally protected, as ruled recently by the courts in Canada (R. v. Banks, 2001; 2005; Federated Anti-Poverty Groups of British Columbia et al. v. City of Vancouver, 2002). Thus, one representative stated that the Safe Streets Act ‘is a bit dodgy’ because ‘the law is not specific as to what constitutes “aggressive” behaviour’. Given these problems, what the Act can do for the business community itself is quite unclear. As another representative put it to me, ‘you can’t just legislate these problems away’, and then added: ‘We can’t just sanitise the sidewalks, legally [that is].’
It is for these reasons that I suggest that while the business community viewed the Act (and the Law) as ‘one small step’, they were more than mindful that the Act is not the ‘be-all and end-all’. As another interviewee put it, ‘it was not the case that any of us had [this] idea that there was this miracle thing called the Safe Streets Act and everyone would disappear’. In this statement, the mindfulness about the limits of the Law is plainly evident, and highlights that a problem such as public disorder requires a ‘miracle’. The Law, as perceived by the business community, is far from a miracle. This is why the query by the representative in Toronto, as to why I was studying public disorder, makes more sense when located in these contexts: given that public disorder is like rats, and the Law like pest control, the problem can only be contained, never eradicated. The Law, too, has limitations!
The repeated turn to Law then, cannot be meaningfully made sense of solely in instrumental terms, but must also account for the symbolic and discursive import that comes with the Law and the passage of particular legislation. The Law, regardless of its limits, carries with it a powerful message. ‘Even if the law is not enforced or enforceable’, Joseph Gusfield writes, ‘the symbolic import of its passage is important to the reformer. It settles controversies between those who represent clashing cultures’ (1963, p. 4; emphasis added; see also Arnold, 1935/1941; Edelman, Reference Edelman1964; 1971; 1977; Gusfield, Reference Gusfield1981). Here, it is fully settled that public disorder is a grave threat to businesses, residents and the wellbeing of the community. In that sense, the law, at a minimum, recognises the problem. It translates the fears, qualms, apprehensions and concerns of the business community into rationalised, logical and even legitimate language. They have every right, so the law says, to be fearful, to worry and to be concerned. Many interviewees explained that while the Safe Streets Act may have done little to alleviate public disorder, it ‘recognizes’ or ‘at least. . .acknowledges that there is a problem’. The law (and Law) then, as another representative put it, ‘is not. . .the perfect thing, but it is something’. The Law provides them with, as another representative put it, ‘one very important element’ (emphasis added). One aspect of this ‘very important element’ is the symbolic import which states ‘loudly’ and unequivocally that public disorder is problematic to the community at large. Thus, the Law is not just the place to turn to to settle controversies, but turning to the Law provides a discursive resolution that cannot be matched or sought anywhere else. If not for any other reason, then, the very fact that it is in the Law that controversies between clashing cultures can be settled, is why the BIAs treat the Law with such reverence. That is, given that the Law is (like) God and provides the ultimate and definitive word about a particular issue, it is the place to which to turn unequivocally to resolve matters, even if that resolution is largely discursive and symbolic.
Based on the discussion thus far, it would not be a stretch to say that the ‘haves’ do come out ahead: if, partly at least, their repeated turn to Law is predicated upon what a particular piece of legislation will grant them discursively and symbolically, then the very fact that they often muster such victories – despite the arduous task that goes hand-in-hand with it – must be chalked up as an indication of their ability consistently and successfully to ‘flex their muscles’. While this is certainly the case, it is only one side to a story of the same coin, so to speak, because what the foregoing fails to highlight is the disenchantment with Law which also takes hold of the consciousness of the ‘haves’. My interviewees repeatedly revealed the angst, desperation, disgust, frustration, hopelessness and powerlessness they feel about the Law and the legal system. In particular, what concerned them the most and angered them to no end was the apathy on the part of the agents of the Law – the city and the police – about business concerns and the almost wilful abdication of their responsibilities. It was this apathy and abdication of duty that produced and shaped what I call disenchantment with Law, which also forced them to rethink their belief that the Law works for, not against, them.
The indignation of the business community was loud and clear during my interviews. Many interviewees simply reduced the value of the Act to its success, which was interpreted as amounting to very little given the (perceived) lack of enforcement. Some interviewees were sympathetic to the plight of the police. The police have ‘more important things to do than go about and pick up panhandlers off the streets’, one representative told me. Another, echoing these sentiments, stated that there is ‘no manpower to enforce the Act’. Despite these more nuanced introspections, many bluntly said that the Act had done little for them. ‘The Act’, one said, ‘has not done anything’, while another added: ‘it is all good on paper [but], you gotta get somebody enforcing [it].’ The end result, as another put it, was that ‘Something is clearly not working’. It thus fell upon the BIAs to explain to its members why, after all the time, effort and resources spent, little had materialised, because as one interviewee put it, the ‘merchants are not seeing the results’.
The indignation evident here is directly related to the taken-for-granted expectations and assumptions about Law. While I suggested above that the BIAs were more than mindful of the limits of the Law, especially given that they saw it as unable to eradicate public disorder, they were not prepared for the apathy and abdication of responsibility they believed to be evident in the agents of the Law. Their shock and disbelief, in other words, was a product of their expectation and assumption that, at a minimum, the Act would be put to some use.
It is not entirely clear how this indignation ought to be viewed. The perception that the Act was hardly enforced is somewhat difficult to square with what (seems to have) transpired. For example, in Toronto, the Safe Streets Act was vigorously enforced during its early days (Ruppert, Reference Ruppert2006, p. 76), and led to the near eradication of squeegeeing, though many who squeegeed undertook other ‘disorderly’ behaviours such as panhandling and prostitution. More recently, in what data there is, there is evidence that the Act is still being heavily enforced (CBC News, 17 August 2007). In Vancouver, such heavy enforcement does not seem to have taken place either when the Safe Streets Act was enacted or more recently (though when I visited the city in the summer of 2006, there was hardly a squeegee person to be seen; I was told, however, that there were many ‘problematic’ corners full of squeegee people). Thus, while squeegeeing was virtually eradicated in both cities, the perception was that the Act was hardly put to use, perhaps because panhandling continued to be a serious concern and was believed to have become worse. This is difficult to make sense of, for if the Act was hardly put to use, how can the virtual eradication of squeegeeing be explained? Given the limitations of my data, I am unable to explore this conclusively. However, I draw on this discrepancy – between what (may have) happened, and what BIAs think did or did not happen – to further probe the disenchantment with Law, for it is here that it is possible to appreciate the ways that the ‘haves’ and the ‘have-nots’ might be more similar than is assumed.
During the Executive Committee Meetings Regarding Panhandling in Toronto in May 2007, one member of the business community exhorted the city council that it needed to ‘find the right balance’ between those who live ‘marginal lives’ and those who ‘live, work, play and reside in the community’ (emphasis added). Another, echoing the same theme, urged the council to ‘retake our public sidewalks from panhandlers and return [it] to the city’ (emphasis added). I suggest that in urging the city to ‘find the right balance’ and ‘retake our public sidewalks’, these businessmen were speaking not only about public disorder and the concerns it posed to their wellbeing. Rather, they were also speaking up against the city and the police who had abdicated their responsibility and were rather apathetic about it. This is plainly evident in the questions posed to councillors during that same meeting – such as ‘What about us?’ or ‘Do we not matter?’ – which underscore the concerns of the business community who felt that their needs and wants were given little attention.
This indignation translated into a state of desperation, frustration and hopelessness which was palpable. ‘Many people’, one representative said, ‘feel quite powerless to stop this’ and it is ‘kind of a drag’ (emphasis added). Similarly, during the Executive Meetings in Toronto, one BIA representative almost cried out: ‘Small business merchants need your help!’ These statements are revealing in that they explain, partly at least, the repeated turn to Law, for here the BIAs, by their own admission, know that they require the aid of the Law to attend to these problems, despite being cognisant of its limitations. As one representative put it, the ‘community is never going to be able to do much alone’. Thus, while the BIAs turned to the Law because they recognised that they need ‘outside’ help, it was a deep hit to their consciousness that the turn to Law was also responsible for creating a feeling of powerlessness. Where these experiences shattered their commonly held beliefs and assumptions about Law – that the Law works for, not against, them, and that their concerns will be taken seriously – a sense of disenchantment with Law took shape in their consciousness.
Equally interesting is the inversion of the powerful position of the ‘haves’, from being a major player in the game, capable of repeatedly mobilising vast amounts of resources and people in order to get legislation on the books, to being merely a ‘hapless spectator’, watching from afar while things unfolded. This is best captured in the exhortation of a representative of a major hotel chain in Toronto to the city council: ‘We beg you, you have to do something about this’ (emphasis added). In ‘begging’ the city for something, the desperation, frustration and hopelessness of the business community was plainly evident. In fact, at this very meeting, of the approximately thirty submissions made, more than twenty-five were from concerned business and resident groups. This in itself shows the lengths that the business community was willing to go to – and felt necessary to so do – in order to get their voices heard. In ‘begging’ to be heard, the powerful position of the business community, in an ironic twist, had shifted dramatically: they had become a victim of sorts, pleading merely for the opportunity to be heard.
The disenchantment with Law, as I have sought to show, is illustrative of the (somewhat) similar ways that the ‘haves’ and ‘have-nots’ view the Law. For example, welfare recipients and the homeless view the law as working against them, subjecting them to demeaning treatment and depriving them of dignity (Sarat, Reference Sarat1990; Cowan, Reference Cowan2004). Similarly, many everyday Americans speak of the law working ‘against’ them – at particular moments in their lives – serving to reproduce status and hierarchical relations (Ewick and Silbey, Reference Ewick and Silbey1998; 1992). These ways of thinking and making sense of the Law are not that dissimilar to the way the ‘haves’ also view the Law. I do not mean, however, that these two groups are situated the same, or that they think alike generally. Rather, I merely wish to highlight that the supposed dissimilarities between the two groups are complicated because desperation, frustration, hopelessness and powerlessness also form the consciousness of the ‘haves’.
Conclusion
The ‘haves’ are, at least more so than not, better situated – owing to their vast resources, connections and knowledge – than the ‘have-nots’, to engage the Law and mobilise the legal system to get things accomplished, at least in the story narrated here. That they know – or at least, believe(d) – that the Law works for, not against, them is crucial to making sense of their repeated turn to Law. This, however, captures only a small part of the way they think about and make sense of the Law, for the repeated turn to Law also needs to be situated within the symbolic and discursive framework in which their legal consciousness takes shape.
In exploring the legal consciousness of the ‘haves’, I have sought to show their ambivalence towards Law, ranging from reverence to disenchantment. That the Law is (like) God is clear, for it is the place that ‘orderly’ and ‘civilised’ people turn to in order to attend to problems. The Law might be egalitarian insofar as it does not discriminate – theoretically at least – against anyone from drawing upon what it stands for and has to offer, but the ‘haves’ fully believe(d) and assume(d) that the Law works for themFootnote 13 (this also explains why they see it as their duty to ensure that the rights of the poor are not trammelled, and thus act as ‘shepherds’ of sorts, when mobilising the Law against the poor).
I have paid detailed attention to the experiences of putting the Law and the legal system into motion, for it is these experiences – some good, others bad – which profoundly shape and reshape, produce and reproduce, the way the ‘haves’ come to think about and make sense of the Law. In particular, I have suggested how some of these experiences challenge and force them to rethink many of their steadfastly held expectations and assumptions about Law. The realisation that the Law also works ‘against’ them is crucial to the story in shaping and producing their legal consciousness. Equally important is that the ‘haves’ and the ‘have-nots’ often think about the Law in similar ways. The disenchantment with the Law – the desperation, frustration, hopelessness and powerlessness – that is commonly believed to take hold of the consciousness of the ‘have-nots’, is also evident, though perhaps to lesser degree, in the ‘haves’.
These experiences with the law, however, do not necessarily affect the reverence towards Law. In other words, it is my contention that while the specific pieces of law – for example the Safe Streets Act in both Ontario and British Columbia, and the by-laws in Vancouver – were viewed negatively and disparagingly, the Law was (and still is) treated reverentially. This partially explains the repeated turn to Law, because despite the numerous obstacles and (in some cases) defeats faced by the ‘haves’, what they still steadfastly hold on to is the virtues of the Law: the Law is the place to turn to in order to settle problems decisively, even if that resolution is only discursive. Thus, while legal consciousness is not static, but produced and reproduced over time and place, there still appears to be a general reverence towards Law. While specific pieces of legislation might ‘come and go’, the Law is here to stay. The very fact that they still view the Law with reverence might suggest that, at least to a degree, they see themselves as capable of coming out ahead, which is perhaps more important than coming out ahead itself.
