On September 17, 2011, a protest movement began in Zuccotti Park in New York City's financial district. Initiated by activists inspired by the Canadian group and magazine Adbusters, the movement claimed to speak on behalf of “the 99%” disenfranchised by global capitalism. Occupy Wall Street captured the imagination of the media and the public more generally, through its rhetoric but also through the distinctive way that it sought to focus attention on economic inequality and corporate power—by occupying public space. Occupation itself is not exactly a new tool in the repertoire of collective action.Footnote 1 European workers famously occupied their factories in cities such as Turin in the period 1918–21, and the Italian Marxist Antonio Gramsci celebrated the factory councils as a new form of democracy.Footnote 2 The occupiers on Wall Street, however, were not taking control of banks and trading houses. Instead, a diverse group of citizens occupied public and quasi-public spaces—streets, parks, and plazas. Their goal was to focus attention on growing levels of economic inequality by laying claim, physically and symbolically, to sites close to the nodal points of corporate power. Their egalitarian calls for financial regulation and economic redistribution were controversial. But the tactic of occupation itself also became the focus of considerable controversy. Even among sympathizers who supported the critique of corporate power, there were many who questioned and even opposed the occupations of public space. And as the “occupy” movement spread beyond Wall Street, both the challenge that its tactics posed, and the controversies surrounding these tactics, spread with it.
There is by now an emerging interdisciplinary literature on the ideology of OWS as well as its relationship to other social movements, democratic theories, and global dynamics.Footnote 3 In what follows I explore an overlooked dimension of OWS: the tactic of occupationFootnote 4 and the theories of public and private that were used to justify removing the encampments.
There is a certain irony in the occupation of public space. What does it mean for citizens to occupy parks and plazas, places that they already own? The eviction of the occupiers revealed that these ostensibly public places are designed to meet certain needs and not others. Parks provide opportunities for recreation, and they are regulated to prevent people from using them for other needs such as shelter, food, or hygiene. These activities are deemed private and unsuitable for public space. The problem is that some people do not have any private place where they can perform these basic life functions; under such circumstances, preventing the homeless from using public space is tantamount to denying them the right to be.Footnote 5 This, of course, is part of the story that OWS tried to dramatize; the private realm of the market has proven unable to meet basic needs and a more robust public alternative is necessary.
I challenge the view that the occupation of parks and plazas was an illegitimate privatization of public space, a view endorsed by US and Canadian courts.Footnote 6 While my focus is public space, I suggest the appropriation of space was the most visible aspect of a broader assertion of collective control of the common wealth of society. In other words, we should understand the occupations synecdochally as struggles over the meaning and power of public and private. The first section of the paper introduces the case of Occupy Toronto—one especially interesting site of the broader “Occupy” movement sparked by Occupy Wall Street—and explains why critics of the occupation described it as a privatization of public space. The next section of the paper introduces two different theories of the public, which I call the sovereigntist and populist models. This distinction helps explain the polarized reaction to OWS and provides an alternative way of theorizing the public. In the final section, I identify some problems with the populist theory and consider how they illuminate the challenges faced by the post-eviction OWS movement.
The terms public and private are difficult to define not only because they are contested but also because they are used to describe a series of related but not consistent distinctions.Footnote 7 The contrast between public and private can identify the distinction between the state and the economy or the state and the family.Footnote 8 Private can mean the intimate and corporeal as opposed to the visible and accessible. More generally, the public encompasses things that are relevant to everyone and excludes private issues which are relevant only to the individual or a limited group.Footnote 9 Yet the tension is obvious when we consider that the economy (“private”) is public in the sense that it affects the entire society. The deeply contested character of the terms public and private is apparent in the debates about whether to remove the Occupy encampments. In cities across North America, occupiers and their supporters challenged the evictions in court and the resulting legal decisions rely on theories of public and private that require a more thorough examination. This article focuses on a Canadian court case, Batty v. Toronto, because the case provides a particularly detailed defense of the view that the tactic of occupation should be treated as a privatization of public space. By focusing on this case, I hope to uncover and critique some of the tacit assumptions about public space in a liberal democracy such as the US or Canada.
Occupy Toronto
On October 15, 2011 about 2,000 participants responded to calls to march in solidarity with OWS and to occupy Bay Street, the financial center of Toronto. That night, about one hundred people camped out in St. James Park, a small park jointly owned by the City of Toronto and the neighboring Anglican Cathedral. Similar occupations were taking place around the world. The diffusion of repertoires of collective action can happen through interpersonal contacts, links between organizations, social media or mass media.Footnote 10 These all played a role in Toronto, but one distinctive factor was the leadership of newcomers from outside of existing activist organizations. In most large political demonstrations in Toronto, two organizations, one labor coalition and one anti-poverty group, had usually played leadership roles.Footnote 11 Occupy Toronto was shaped by new participants, including ones who had taken part in the Spanish plaza protests.Footnote 12 Local labor unions supported the initiative by donating nineteen portable toilets and three yurts to provide sheltered communal space. Following the model set up a month earlier in Zuccotti Park, there was an elaborate outdoor kitchen, a General Assembly, an active media tent, drumming circles, teach-ins, an extensive library, and a “free store.” The site became a nodal point for marches and demonstrations against economic injustice and, at the height, there were up to 300 campers including an estimated 100 homeless people.
The occupation was met with immediate opposition from local business owners. On the first day of the occupation, a member of the Business Improvement District told reporters that reservations at his restaurant were down. Two weeks after the start of the occupation, Toronto Mayor Rob Ford stated that he had received many calls from concerned taxpayers and business owners and was trying to find a way to remove the encampments. On November 14, Toronto police officers accompanied by-law officers as they posted eviction notices on tents in the park. The eviction was temporarily stayed in order to wait for the outcome of the court hearing on the constitutionality of the issue. The Superior Court of Ontario rejected the claim that the right to free speech and protest entailed a right to camp in public space. After 39 days in the park, most of the occupiers left voluntarily rather than face arrest.
“How do we live together in a community? How do we share public space?”Footnote 13 In his decision to evict Occupy Toronto, Justice Brown of the Superior Court of Ontario posed these questions. He agreed that the protesters had a right to express their political ideas in public, but not to occupy public space. The rationale for evicting the protesters in Toronto was similar to the rationale used in cities across the United States.Footnote 14 The core claim was that the occupation of public or quasi-public spaces amounted to a privatization of public space. According to Justice Brown, the protesters “did not practice what they were preaching when they decided to occupy the park.”Footnote 15 Although the protesters proclaimed a message of participatory democracy, “they did not ask those who live and work around the Park or those who use the Park—or their civic representatives—what they would think if the Park was turned into a tent city.”Footnote 16 Justice Brown concluded that the occupation was anti-democratic at its very core because it denied the city government's authority to regulate the use of public space.
This court decision forces us to ask a series of related questions. One set of questions has to do with public space: what is public space and how should it be regulated? Underlying these queries, however, lurks one of the perennial questions of political theory: how can democracy be both a way of legitimizing the state and a practice of dissent and critique? The traditional response is that the constitutional state and the principles of liberal-democracy enable both dimensions of democracy to flourish simultaneously. The decisions of the majority are legitimate because the liberal principles of free speech, petition, association, and individual rights ensure that the minority is neither oppressed nor prevented from becoming the majority. The Occupy movement is a response to the perceived shortcomings of this model. It is neither democratic nor liberal in the conventional sense of these terms.Footnote 17 It is not democratic in so far as it uses tactics that used to be called “extra-parliamentary.” It questions whether existing democratic institutions enable citizens to exert equal influence over politics. It works from outside the political system rather than within. The occupation is a form of political speech addressed to decision makers and citizens, but it is more than that. It is also a practice that tries to challenge the values of individualism, self-interest, and autonomy that underpin liberal theory and practice.
This article examines the legal and normative debates about Occupy Toronto and treats these debates as emblematic of issues raised by the international Occupy movement.Footnote 18 I use the term “Occupy Wall Street” (OWS) not only to refer to the Zuccotti Park encampment but also to refer to the movement in general. In other words, I am not interested in whether the decision to evict the protesters in Batty et al v. the City of Toronto was a plausible application of legal precedent.Footnote 19 Instead, I want to consider whether the underlying logic and argumentation should convince citizens who are trying to decide on the legitimacy of occupation.
In Batty et al v. the City of Toronto, the Superior Court of Ontario decided that the Canadian Charter does not prevent the city administration from evicting the protesters who were occupying St. James Park. According to Justice Brown, the rights to free speech, assembly, and association do not entail a right to appropriate public land. It is interesting that the decision does not depend on the principle of “law and order.” The occupiers are depicted initially as “privatizers” rather than subversives. The court decision endorsed an argument that had become increasingly prominent in media accounts in the weeks prior to the eviction. Drawing on interviews from neighboring business owners, some articles concluded that the protesters were anti-democratic because they were not deferring to the will of the majority, which is expressed through the city ordinances that ban tent camping without a permit. According to Justice Brown, “The Charter does not permit the Protesters to take over public space without asking, (and) exclude the rest of the public from enjoying their traditional use of that space…”Footnote 20
This is an interesting reversal of the “traditional public forum doctrine,” which is a staple of American free speech jurisprudence.Footnote 21 The traditional public forum doctrine comes from a landmark United States Supreme Court case, Hague v. CIO. Footnote 22 In the opinion for the majority, Justice Owen Roberts wrote, “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time of mind, have been for the purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been part of the privileges, immunities, rights and liberties of citizens.” In Batty et al v. the City of Toronto, Justice Brown relies on a shorter history and identifies the traditional use of public space as recreation. He criticizes the occupation as a form of privatization that prevents local residents from accessing public space. The court decision relies on depositions from dozens of local residents living in the neighborhood surrounding St. James Park. Some neighbors complained of noise and odors, and others insisted that their ability to play Frisbee or stroll was curtailed. Much of the outrage came from dog walkers. Opponents of the occupation came to interpret it as a struggle between traditional, legitimate uses of public space (dog walking, strolling, and enjoyment of nature) and illegitimate, private uses such as camping, preparing food, protesting, and sub-cultural community building.
Two Approaches to the Public
The parties in the court case advanced two different views of the concept of public. These are not primarily legal conceptions; they circulate in scholarly, popular, and political discourses as well. I will call one approach the sovereigntist and the other the populist. The sovereigntist understanding of the public is based on the Hobbesian theory of sovereignty. Something is public if it is authorized by legitimate state institutions. This variation of the public/private distinction draws on Hobbes's use of the terms “political” and “private.”Footnote 23 According to Hobbes, “private are those (systems) which are constituted by subjects amongst themselves, or by authority from a stranger.”Footnote 24 He defines a system as “any numbers of men joined in one interest or business.” Hobbes contrasts private systems with political systems, which are authorized by the sovereign power. These include municipal or provincial governments as well as other corporate bodies (universities, churches, trade associations) that are legally instituted under state authority. Hobbes is very clear that these subordinate political systems do not have any independent authority.Footnote 25 They may legitimately govern the conduct of their members, but the sovereign retains the right to judge disputes and revoke their authority.
This understanding of the public is similar to the one that Habermas labeled “German Hobbessianism.”Footnote 26 Habermas introduced the concept in his analysis of another occupation of contested space. In the 1980s, German peace activists tried to prevent the deployment of nuclear weapons by blocking the entrance to American and German military bases.Footnote 27 The protest shared some features with OWS; seven hundred protesters lived for a week in nearby communal “Tent Villages” that served as a base for people manning the blockades. Habermas used the term “German Hobbesianism” to describe the theoretical grounds for conservative opposition to the blockades, which was based on the assumption that legitimacy stems from sovereignty. Habermas challenged this view and argued that legitimacy is not guaranteed by legality, but rather through right itself. He concluded that even in a democracy there are times when law and right diverge and in these situations the citizens may have to disobey the law in order to draw attention to their cause.Footnote 28
Habermas interprets Hobbesianism as a distinctively German trauma produced by the misinterpretation of history, notably the view that extra-parliamentary protests in the Weimar period created the preconditions for Nazism. Just as Hobbes worried about the anarchy of the English Civil War, the post-war German conservatives worried about the anarchy of Weimar. In fact, the sovereigntist model of the political is also hegemonic in Canada and the United States today. According to this approach, the public is synonymous with sovereignty and refers to a centralized, unified state apparatus that governs society by enacting and administering laws.Footnote 29 This model has two key features. First, it takes for granted the separation between the rulers and the ruled. Even when sovereignty is vested in a representative assembly rather than a monarch, there is still a sense that public power is something distinct from the aggregate of citizen-subjects. The second feature is a consequence of the first. The state has a monopoly over legislating and enforcing the law and citizens have a responsibility to comply.
The democratic variant emphasizes dissent as a crucial component of this model. By dissent I mean non-violent expressions of political disagreement such as political speech, petition and assembly. Although dissent was not a prominent feature of Hobbes's original formulation, it plays a decisive role in legitimizing the state today. Dissent is what makes sovereignty legitimate. The protection of non-violent dissent within the bounds of the law is supposed to guarantee that the law reflects the will of the people, which is the source of legitimacy. As Habermas points out, however, this rests on an unrealistic view of democratic procedures. In practice, a range of factors including the impact of money on politics and the structure of the mass media distort the process of political representation. Nevertheless, the right to dissent is consistent with key sovereigntist assumptions. First, dissent is justified in terms of the need to prevent internal violence, which is the primary goal of the state. Second, dissent is acceptable only in so far as it functions “within the bounds of the law”; this caveat reinforces sovereignty in so far as government officials decide what constitutes legitimate dissent and what constitutes disobedience.
The populist model of the public is different. I choose the term populist because it signals the political mobilization of the people outside the institutional structures of the state. One vivid expression of this idea is found in Machiavelli's Discourses, where he describes the perennial conflict between the grandi and the people.Footnote 30 Based on his reading of the history of Ancient Rome and Renaissance Italy, Machiavelli concludes that elites seek power and domination, which make them a threat to a republic. The common people, on the other hand, only want to avoid being dominated; therefore, their interests naturally promote a free way of life (vivero libero). Thus, Machiavelli's analysis rests on a deep appreciation of class conflict as something endemic to political life. Instead of describing sovereignty as coherent and unified, Machiavelli enables us to see the state as something produced and reconstructed through the struggle between conflicting groups.
This populist reading of Machiavelli differs from the influential republican reading of Machiavelli, which emphasizes three features of his analysis in the Discourses: the importance of balancing the interests of the people and the elite; the rule of law; and the prudential benefits of promoting the common good.Footnote 31 I want to draw attention to a different feature: the extralegal expression of popular dissent.Footnote 32 It is worth quoting the key passage at length because it so fully captures the populist approach to the public. In the passage, Machiavelli defends his controversial claim that the clashes between the nobility and the people helped preserve Rome's freedom. He writes,
And if someone were to argue the methods employed were extralegal and almost bestial—the people in a mob shouting abuse at the senate, the senate replying in kind, mobs running through the streets, shops boarded up, the entire populace of Rome leaving the city—I would reply such things only frighten those who read about them. Every city ought to have practices that enable the populace to give expressions to its aspirations … The city of Rome had a number of practices of this kind. For example, when the populace wanted a law passed, either they demonstrated, as I have described, or they refused to enroll for military service, so that in order to pacify them it was necessary to give them at least part of what they wanted. The demands of a free people are rarely harmful to the cause of liberty, for they are a response either to oppression or to the prospect of oppression.Footnote 33
The scene described by Machiavelli does not involve the exchange of public reasons that is envisioned in theories of deliberative democracy. Nor does he seem particularly concerned with harmony and the rule of law. It is interesting that Machiavelli describes the people as “almost bestial.” Just as Machiavelli urged the prince to be both a fox and lion, he implies that the people are not doing anything wrong when they stampede like a herd of wild animals. It is precisely this bestial quality that is the source of their strength. It is the expression of power, unity, and resolution that wins concessions from the government.
Although Machiavelli does not use the term public, this passage describes the key features of the populist theory of the public. First, Machiavelli notes that the rule of law itself requires the extralegal as a kind of supplement. A supplement works in paradoxical ways because it is both an addition and a substitution. The extralegal is a substitute for the legal in the sense that it asserts the legitimacy of collective power outside the state. It involves the claim that the people assembled on the plaza or marching down the street serve as a more legitimate expression of the demos than does the government enacting laws in the Senate. At the same time, however, it is an addition that supports and facilitates the operation of the law. Because aggrieved citizens can express the intensity of their discontent through protest and non-compliance, the government is forced to negotiate and compromise, thereby incorporating the people's desires into the law. In stark contrast to the sovereigntist approach, the extralegal is not defined as private or unjust. From the populist perspective, this public is an important way of ensuring a free way of life.
Machiavelli's account justifies dissent as a matter of power and interest rather than individual rights. Machiavelli does not argue that the plebeians of Rome have a right to run through the streets. Instead, he suggests that the elites should recognize “the good effects that derive from them.”Footnote 34 This is a prudential argument and one that is based on a certain conception of self-interest. According to Machiavelli, a republican government unleashes the productive and martial energies of the population because the people feel that they will benefit from their efforts.Footnote 35 This in turn provides a compelling reason for the elite to support a republic: this vitality makes it more likely for society as a whole to prosper. The danger is that the personal ambition and greed of elites may sometimes jeopardize this greater good. The way to prevent this from happening is to promote institutional mechanisms and norms that ensure that the people, the natural custodians of liberty, can limit the corruption of the elites.Footnote 36 Machiavelli's analysis points to two additional features of the populist approach to the public. It is collective rather than individualistic and it makes claims based on power and interest rather than petitioning for the recognition of rights.
What does this mean for OWS? I think that the polarized response to the OWS movement reflects these two very different understandings of the term public. The first is the sovereigntist model, which identifies the public with the state. A public space is one that is owned, authorized, or regulated by the state. From this perspective, erecting a tent in a park is a form of privatization because it violates ordinances that prohibit camping. This is true even if the tent is a large yurt that houses a library and has a sign inviting anyone to come in, read a book and talk about political issues. The second approach to the concept public is the populist model, which sees the public as a force that emerges outside of state institutions in order to challenge policies and publicize issues that do not make it onto the agenda of the government. The populist model defends contentious politics as a necessary means of persuasion;Footnote 37 it justifies the extralegal as a way of ensuring that the law does not protect the interests of the elite at the expense of the common people.
OWS tried to create a space for discussion about questions of freedom and justice, instead of simply petitioning government for specific reforms, and it was this aspect of OWS that many commentators found so perplexing and irritating. The first newspaper articles on Occupy Toronto already posed the questions, “What do they want? What can they accomplish if they ask for nothing?” These commentators were dismissive of the movement because it issued no demands and thus departed from the familiar script of contentious politics. Groups are supposed to demonstrate in order to pressure leaders to take specific steps such as removing Pershing missiles, divesting from South Africa, or ending the war in Iraq. According to Machiavelli, this script actually dates back to Roman times when the plebes would demonstrate in order to force the grandi to pass a law, but this isn't the only possible goal of popular emancipation. Machiavelli also noted that the people tend to promote a free way of life because the people, unlike the grandi, do not wish to rule others but simply desire not to be ruled. OWS took seriously this ideal of “no-rule.”Footnote 38 This strand of the populist theory of the public inspired many of the features of the encampments: the free stores, general assemblies, communal kitchens, and decentralized decision making. This idea of “no-rule” also informed the assumption that the state should not prohibit people from engaging in peaceful activities like camping or distributing food in public space. Of course some uses are incompatible with others but this means that the different users should work together directly to decide on the terms of their shared co-existence. For example, Occupy Toronto made sure to respond to the needs of other users by not erecting tents on the ornamental gardens and the pathways through the park.
Privatization and Protest
The sovereigntist definition of the “public” is the core rationale for the decision of the court in Batty et al v. the City of Toronto, the decision to evict the occupiers from St. James Park. Similarly, in Waller v. New York, Justice Michael Stallman agreed that evicting the protesters from Zuccotti Park constituted a reasonable time, place, and manner restriction that did not place an excessive burden on free speech.Footnote 39 Justice Stallman acknowledged that the rules prohibiting camping in Zuccotti Park were adopted after the start of the protest with the express purpose of removing the protesters, but he endorsed the New York Police Department's view that the encampment posed a general threat to hygiene and fire safety. In other words, the NYPD is authorized to draw the line between peaceful protest and unlawful disruption. Justice Stallman also emphasized that the protesters' right to free speech should not trump “public access by those who live and work in the area …. the intended beneficiaries of this zoning bonus.”Footnote 40 The “zoning bonus” refers to the statute that allowed real estate developers to build taller buildings in New York City in exchange for the creation and maintenance of privately owned public spaces.Footnote 41 Stallman's statement hints that public space is not really intended to be used by all of the people. It is there for people who “live and work in the area.” It is a place for office workers to eat their lunches. Similarly, the Ontario court made it clear that St. James Park in Toronto was intended to be a place where condo dwellers could stroll their children or walk their dogs, rather than a place for homeless people to sleep or political activists to organize. This reminds us that the legal discourse about public space also draws on an underlying set of cultural assumptions about what the public should look like. The term public refers both to places that are legitimately regulated by the government and to people who use this space in legitimate ways, “the people who live and work in the area.” Interestingly, this phrase describes the public in terms of their private identities as workers and the occupants of private dwellings. The public are private individuals who use public space for recreation and leisure rather than disruptive political activity.
The Waller v. New York decision was not surprising, given the legal precedents. The most important precedent is a United States Supreme Court case Clark v. Community for Creative Non-violence. Footnote 42 Activists wanted to publicize the plight of the homeless by camping on the grounds of the Mall and Lafayette Park, two prominent public spaces in Washington D.C. The Supreme Court upheld the National Park Service's decision to deny a permit on the grounds that such a demonstration would damage the lawns.Footnote 43
Batty et al v. the City of Toronto draws an even starker opposition between the public (the government and the community of law abiding citizens) and the occupiers who “exclude the rest of the public” through “unilateral occupation” that appropriates the common public space for their own use. Participants in the Occupy Toronto movement dispute this way of thinking about public and private. The disagreement extends both to the accuracy of the description of their tactics and the values that underpin them. They do not concede that the occupation excluded other people and other uses of the park. Although tents did cover about half of the small park, the pathways through the park and a large ornamental garden were free of any kind of obstruction. This enabled people to stroll through the park and to sit on benches in the garden. Furthermore, some of the structures were explicitly designed to be welcoming to people who did not reside at the camp. These included the library yurt, a free university tent, a free “store,” and the gazebo where the assemblies took place. There was also a large area with paints, markers, cardboard and paper where people could make their own signs and display them alongside hundreds of others. This area was a mix between public art and the Hyde Park speakers' corner. The signs became a kind of mosaic of political expression. The encampment “disrupted the familiar phenomenology of the street.”Footnote 44
In their affidavits to the court, the Occupy protesters also described a distinctive understanding of the public, one that flourished outside of the state and therefore could serve as a site of critique. According to Lana Goldberg and Bryan Batty, the encampment had a threefold purpose. It served as real shelter for homeless people in the community; it was a symbolic expression of the dispossession caused by the financial crisis; most importantly, it was also a place to create a new form of community that practiced the values that inspired the protest. One of the prominent signs at the camp featured a quote from Gandhi, “Be the change that you want to see in the world.” They tried to do this by including the local homeless population and meeting participants' basic needs without the mediation of state or market. Another key idea was that values must be lived before they could be espoused. This is a particularly striking departure from academic ethics and political theory. Theories of deliberative democracy and discourse ethics identify truth and sincerity as underlying preconditions of successful communicative action.Footnote 45 Many of the occupiers, however, took the idea of sincerity and placed it at the core of their approach. They insisted that before you preach against inequality and injustice you must practice non-domination in your relationships with others. This practice not only deepens your understanding of your values, but it also transforms the relationship between citizen and state. It positions the citizen as an agent rather than a supplicant who is asking the state to provide some good or service.
The City of Toronto's authority to evict the protesters from the park was based on the Trespass to Property Act, an act designed to protect the rights of private property owners. In invoking this act, the City of Toronto asserted a private property right over public space. The court had to decide whether this property right should have priority over the rights to free speech and assembly. The court recognized that the occupation was clearly a form of political expression and therefore the eviction required judicial review.Footnote 46 The legal issue that the courts had to settle was whether the erection of tents and the occupation itself could be construed as a kind of symbolic expression that should be protected as a form of free speech. Other Canadian courts had already decided that the creation of structures was a form of protected speech. These included a tent on Parliament Hill and a hut used for a peace vigil. Given these legal precedents, Justice Brown accepted the claim that the encampment itself was a legitimate “part of the manner of expressing the political message.”Footnote 47 The central question was whether the government's right to regulate the park like private property could be construed as a reasonable limit “prescribed by law” that “could be demonstrably justified in a free and democratic society.”Footnote 48 The court affirmed that the ban on camping was a reasonable restriction.
Given the legal framework of liberal constitutionalism, it was almost impossible for the courts to recognize the claims made by the protesters. The key terms that the court used to adjudicate the dispute between the government and the protesters were “law,” “democracy,” and “reasonable.” Yet these words turned out to be almost synonymous. The law is democratic because it is enacted under the oversight of representatives who are selected by the citizens through near universal suffrage. The term “reasonable” seems to function as the glue that holds the law and the demos together. In his analysis, Justice Brown asks whether a rational citizen would choose to have parks where anarchy reigns. His description of such a place recalls Hobbes's famous depiction of the state of nature. According to Brown,
Without some balancing of what people can and cannot do in parks, chaos would rein; parks would be battlegrounds of competing uses, rather than oases of tranquility in the concrete jungle. Our parks would become places where the stronger, by use of occupation and intimidation, could exclude the weaker or those who are not prepared to resort to confrontation to carve out a piece of the park for their own use.Footnote 49
Despite the testimony of city officials that the occupation was peaceful, Justice Brown paints a picture of St. James Park that resembles the war of all against all.Footnote 50 The rational citizen must choose the Leviathan. Law, democracy, and reason are all linked together. While this constellation is explicit in the language of the Canadian Charter, it is implicit in the decisions of the courts in the United States as well.
The Populist Conception Reconsidered
Studying OWS and the evictions enables us to see the powerful legitimation that comes from this confluence of law, democracy, and reason. OWS challenged this account of democracy in the name of a public outside of the state. The effective use of the phrase “We are the 99%” was an artful populist move. It invoked the people; it signaled a fundamental antagonism between the people and elites; and it advanced an argument for direct participation in order to overcome institutional dysfunction.Footnote 51 Of course, the occupiers and their supporters realized that they were not embraced by the overwhelming majority of the people, but they were asserting that they should be. As Jason Frank put it in his study of post-revolutionary America, “the people are a political claim…. not a pre-given, unified, or naturally bounded empirical entity.”Footnote 52 Similarly, the public is not meant to be an empirical description synonymous with demos but rather a claim to be the force advancing the public good of non-domination.
Nevertheless, this gap between the constitutive and the descriptive public is important, and Machiavelli's theory is not too much help here. In the Discourses, Machiavelli was writing about Ancient Rome, a society divided into slaves, plebeians and patricians; here, it is easy to see that the people and the plebeians are one and the same. In both Ancient Rome and Renaissance city-states such as Florence and Venice, political institutions were organized to promote the corporate interests of different social classes. Political theorists differed about whether the elites or the people were most likely to advance the public good, but there was an underlying shared assumption that the demos, the majority, and the poor were different names for the same group. The same chain of equivalence between these terms does not exist today. The phrase “We are the 99%” was an attempt to constitute the people through an act of political identification. One of the initiatives organized by OWS was a blog where people could post pictures of themselves with a cardboard sign recounting their struggles as part of the 99%. Featured on the blog were unemployed, indebted college graduates but also older workers struggling with illness and immigrants supporting families.Footnote 53 The signs displayed in the photos evoked the cardboard signs that homeless people often use to solicit donations on the street. Like the tent cities, this served symbolically to link the struggling middle classes to the most dispossessed strata of society.
Representative democracy may be superior to the existing alternatives, but it also functions ideologically to erase the distinction between the public and the state. The existence of groups such as the poor, the people, and elites is obscured by the modern category of the sovereigntist public, which is made up of the majority that chooses the government through legitimate elections. Without a plausible socio-political category such as the proletariat or plebes to fall back on, there is no obvious alternative way to imagine the people. OWS was not only an occupation of public space but also an attempt to represent the people. At first this might sound like an odd claim, given the movement's strong emphasis on direct democracy and its critique of representative democracy. The word “representation,” however, corresponds to two different German terms: vertreten and darstellung. Footnote 54Vertreten signifies the type of political representation that is realized through elections and assemblies.Footnote 55Darstellung, on the other hand, is more like creating an image or painting a portrait. This was the type of representation performed by the Occupy movement. It created an image of the public that was different from the famous illustration on the cover of Hobbes's Leviathan depicting a sovereign composed of the multitude.
The occupy movement made visible the contradictory character of the term people, which means both the marginalized (the excluded, the poor) and the source of political legitimacy and power.Footnote 56 In what sense could a motley assortment of activists, street youth, students, homeless people, aging hippies, and leftist intellectuals claim to represent the public? Jacques Rancière helps answer this question. Rancière distinguishes between politics and “the police,” a broader category which includes aggregating consent, regulating behavior, distributing resources, defining roles, and legitimizing these distributions.Footnote 57 He reserves the term politics for an activity that is disruptive and antagonistic to policing. Politics is whatever breaks the rules, patterns, assumptions, and habits that fix bodies into their place.Footnote 58 For Rancière, the political is the rupture produced when the excluded confront the regulatory order of the police.Footnote 59 This confrontation does not provide new answers but it poses new questions, such as whether labor or maternity are public or private matters.Footnote 60 OWS posed questions in this way, such as, “What is the public good and how is it secured when private interests are so powerful?”
According to Rancière, the political is produced through “polemical scenes, paradoxical scenes that bring out the contradiction between two logics” or by positing existences that are at the same time nonexistences.Footnote 61 OWS, perhaps unintentionally, was extremely effective at staging these polemical scenes. Occupiers, many of whom were not experienced political activists, organized alternative institutions to replace ineffective ones that were based on economic power rather than political equality. When citizens occupied public space they were called privatizers and accused of trespassing on public property. In Slovenia, the local Occupy movement tried to stage a teach-in on the property of the national bank (NLB). When a security guard said that they could not enter private property, one activist insisted that the bank was public property because it had originally been state property and had been illegitimately appropriated by private interests.Footnote 62 As the guard hesitated, the protesters were able to enter the bank. The occupation in London also focused attention on the way that non-democratic institutions and actors control ostensibly public spaces. After receiving an eviction notice, Occupy London challenged the authority of The City of London Corporation, a remnant of feudal autonomy that governs the city center but is exempt from national law.Footnote 63
These incidents illustrate the way that the occupation functioned synecdochally. The occupation of physical space was one part of a broader attempt to reclaim the ideal of the public. By occupying a diverse range of public, quasi-public and even private spaces and turning them into sites of deliberation, community, and political activity, the activists were trying to make a broader claim about the need to re-distribute the common-wealth that has been appropriated or controlled by a narrow stratum of society.
Conclusion
In the year since the encampments were dismantled, Occupy groups have continued to organize demonstrations and engage in local struggles against foreclosures, privatization, and poverty. Yet the question has changed from “how did OWS generate such incredible enthusiasm?” to “how did it disappear so quickly?” Although this paper does not directly address this question, the discussion of public and private may still provide some insight.
In his influential book Power in Movement, Sidney Tarrow argued that collective action is effective when marginalized groups build solidarity and create uncertainty, thereby challenging elites.Footnote 64 OWS created solidarity among disparate groups through the experience of sharing physical space and the rituals of living together. It challenged the state by claiming that the state acted to advance the interests of the grandi rather than the people. The most critical feature, however, was the ability to create uncertainty. Tarrow used Italo Calvino's story The Baron in the Trees in order to illustrate how this works. In the novel, a young nobleman defies his father's authority by going to live in the trees. Not only does he embody his challenge in physical space, but he performs a seemingly excessive and irrational act that creates uncertainty. Like the baron in the trees, the people in the plaza were engaging in what appeared to be an excessive and irrational act. People with homes were living outside among homeless people, and were willing to stay for weeks in spite of inclement weather. They tried to carry out the seemingly impossible task of collective self-rule. The success of OWS was at least partially due to the uncertainty that was created by linking an assertion of sovereignty outside the law with the practice of “no-rule.” After the evictions, however, the main source of solidarity—physical co-presence and collaboration—was gone. Moreover, the uncertainty created by the growth of an alternative in the heart of the city disappeared as well.
One lesson of OWS is the significance of public space. The political work of post-eviction occupy activists is important and may even be successful at advancing social justice, but it has been much less effective at inspiring hope and stimulating a broader political debate. If this is correct, then it also reveals something very important about public space.Footnote 65 We need public space not only for recreation, consumption, and leisure but also for survival, communication, and dissent. But what exactly is public space? Spaces can be public in at least three ways: they are owned by the government; they are inclusive and accessible to everyone; they facilitate sociability among friends and encounters with strangers. This analysis of OWS has suggested a fourth dimension of public space. It is a place for staging polemical scenes, a site where the conflict between opposing interests is made visible and subject to dispute.
It may seem ironic that OWS took place in Zuccotti Park, a privately owned public space. Zuccotti Park was created under the “density bonus” provision of the planning code, which allowed real estate developers to build taller buildings if they created and maintained spaces that were accessible to the public. Since Zuccotti Park was not owned by the City, it was not subject to regulations, which mandated curfews in all city parks. Prior to the demonstration, there were signs prohibiting skateboarding and bike riding, but no one had anticipated an extended occupation and so it was not explicitly forbidden. This regulatory uncertainty gave the protesters the opportunity to establish their presence and secure the media attention which made violent eviction more difficult. This element of surprise did not exist a month later when Occupy London protesters were prevented from setting up a satellite camp in Canary Wharf, London's second major financial centre.Footnote 66 The Canary Wharf Group, the corporate owner of the 97 acre urban renewal project, got an injunction banning protesters from their massive property. In the case of Zuccotti Park, private ownership of the park provided an opportunity but in many other cases private ownership prevented protesters from using space for political activity and protest. Public-private partnerships such as Canary Wharf have put entire neighborhoods under corporate control but this control is only visible to those who are excluded. The state, like the corporate owners of Canary Wharf, can function as a landlord who exercises the right to exclude, but this right is much more constrained. The landlord is also a politician who fears loosing power. Furthermore, the state is limited by constitutional provisions requiring that regulations be reasonable and not excessively or arbitrarily burden citizens' right to free speech. These two factors explain why public (state owned) space is the most likely setting for polemical scenes that start conversations about the public good.
Public space should not be viewed only as a site for leisure or recreation but also as a place where people can come together to meet as citizens rather than as consumers or clients.Footnote 67 Public space is a place where individuals can unite in order to overcome the disempowering effect of isolation. Even in the age of the internet, embodiment and visibility are still important features of publicity. The protesters camping in parks and plazas across North American made economic inequality visible in a way that it had not been before. This is because the populist public is made up of both spectators and actors.Footnote 68 A successful performance requires a stage. Civil disobedience differs from conscientious objection because it is an activity performed by groups and oriented toward an audience of fellow citizens.Footnote 69 Words and deeds must be visible to others. These polemical scenes do not have to convince the spectators and elicit sympathy, but the actors must at least be able to confront them.
