Contents
Volume 22 No. 2, 2007
URBAN GOVERNANCE AND LEGALITY FROM BELOW
Randy
Lippert & Kevin Stenson, Guest Editors
INTRODUCTION : Urban Governance and Legality from Below
Across the globe the governance of human populations continues to
undergo dramatic change. In liberal democracies, the now familiar
story is of responsibility migrating away from centralized federal
bureaucracies under relatively direct political control, toward myriad
local private and hybrid agencies that are neither obviously public
nor private. Through new strategies, forms of knowledge, and the dominant
language of community, these authorities have emerged to supplement
and even replace the traditional state provision of services. These
new arrangements of rule entail introduction of a variety of mechanisms
provided through enabling legislative reforms that create more distance
between the decisions of federal political authorities and those of
the citizenry.
Governmentality studies and related socio-legal scholarship have documented
these complex shifts within and across national jurisdictions to a
considerable degree. This broad set of changes is referred to as an
ascendant "advanced liberalism" or "post-Keynesianism"
in governmentality circles but is also more broadly termed "neo-liberalism".
Yet, missing in these voluminous accounts of change is acknowledgement
of less obvious and often heretofore nameless forms of governance
and legality, those forms operating in civil society, on its boundaries,
and in obscure corridors of the lowest levels of state bureaucracies.
What we call "governing from below" is an orienting concept
that seeks to shed light on these forms, and their corresponding agents,
rationalities, and knowledges that can become enrolled in the new
arrangements of rule, but which tend to be neglected due to a widely
perceived banal, immoral or even criminal character.
The urban is a key locus of transition to neo-liberalism and a clear
lens through which to view governing "from below" and its
tensions and articulations with governing "from above".
Neo-liberal forms of urban governance are often manifest within broader,
ambitious efforts to revitalize urban economies decimated by economic
globalization, with an aim of creating more secure and privately controlled
urban spaces of consumption and residential living and ever more active
urban consumers and citizens. But the agents of governance "from
below" and their strategies tend to be overlooked or dismissed
as integral facets of how this new urban governance works and-sometimes-fails
to work. Also neglected are related types of legality that amass in
the urban, most notably as city by-laws and ordinances, but also as
more mundane private codes and commonplace sets of rules targeting
conduct in vital and strategic urban spaces. Such legality is significant
since it may well prompt or be a strategic means of avoiding governance
"from above". Forms of governance and legality "from
below" can at some level befit and blur with neo-liberal urbanism,
but also can be distinct and in tension, thus drawing attention to
the local politics of urban governance which require empirically grounded
but perhaps less discursively-focused study than is typically found
in governmentality and related socio-legal studies.
This special issue of the Canadian Journal of Law and Society focuses
on forms and features of contemporary urban governance, legality,
and security provision as governance "from below" and their
relations with governance "from above". Assembled is an
international cast of scholars who address central theoretical or
methodological issues via research on urban contexts in Canada, the
United Kingdom, and Australia. Three articles focus more or less directly
on security provision and crime control, programs that are on the
frontlines of rearrangements of rule in cities and sometimes serve
as the very channel for change to flow. The other two articles explore
the governance of spaces and forms of conduct-pedestrian flow and
prostitution-just as closely associated with the urban. The agents
of governance "from below" uncovered in these five articles
range from organized criminal networks, to moralized downtown bar
owners, to low-ranking city bureaucrats, to outreach organizations
serving women sex workers. While interpreting governance "from
below" in differing ways, especially in relation to the state,
together the articles effectively unearth the fruitfulness of attending
to these neglected forms in seeking to understand the contemporary
governance of urban spaces and city life.
In the opening article, "Non-state Governance 'from below': Towards
a Critical Perspective," Kevin Stenson and John Lea provide an
introduction to governing "from below," a concept that acknowledges
a range of agents with governance projects, forms of knowledge, and
expertise used to govern in and over urban territories and populations
distinct from those of the state. In the context of crime control
these may involve organised crime, terrorist and paramilitary networks
operating in cities beyond the jurisdiction of state law within and
between nations, but which may become enrolled in forms of public
governance. Stenson and Lea argue that the traditional emphasis on
governance "from above" should be complemented by attending
to this governance "from below" by non-state actors. Challenging
the notion that the former modes of governance take over ground given
up by a retreating centralized state, they argue that new crime control
developments signify a complex re-articulation of relations of governance
from above and below, which may at times actually strengthen the central
state. Even seemingly hostile strategies of governance from below
may become involved in complex patterns of interdependence with those
operating under state auspices.
Urban revitalization projects are emblematic of recent shifts in urban
governance and legality and are evinced enlisting forms of governance
"from below". In his article, "Urban Revitalization,
Security, and Knowledge Transfer: the Case of Broken Windows and Kiddie
Bars," Randy Lippert investigates a long-term revitalization
project involving a business improvement association (BIA) in Windsor,
Ontario. After installation of a Las Vegas-style commercial casino
in the downtown core, the rapid increase in the size and number of
liquor establishments catering to youth ("kiddie bars")
was deemed to detrimentally affect police resources, residential development,
retail business and the prospects of revitalization. Lippert reveals
the complex links among the local BIA; the institutional movement
of a private consultant's report targeting downtown security; and
the resulting measures implemented to confront the problem. In particular,
using Latourian tools, he shows how the report's "broken windows"
knowledge is transferred from distant urban contexts through local
urban institutions rendered responsible for revitalization. By becoming
the new steward of downtown security, in part actuated by this knowledge,
the BIA demonstrates political acumen as it mediates between the moralized
"kiddie bar" owners who seek to govern downtown spaces "from
below" and ongoing revitalization efforts "from above".
Yet, the BIA's role in urban governance and security provision is
nonetheless contingent on local developments and is therefore far
less self-evident and generic than previous scholarship suggests.
In his article, "Civil Rights Meet Civil Engineering: Urban Public
Space and Traffic Logic," Nicholas Blomley explores an omnipresent
but-like other forms of governance "from below"-overlooked
administrative rationality of public urban space that emphasizes pedestrian
flow, and places persons, (e.g., protestors) and things, (e.g., newspaper
boxes) on the same plane. He illustrates the prevalence and effects
of the traffic logic via reference to Vancouver's municipal by-laws
and through a detailed analysis of legal cases from several jurisdictions
involving public protests and begging. Implicated in exclusionary
practices, the traffic logic's banality, which is thrown into relief
when contrasted with more prominent urban planning knowledge and practices,
and its pervasiveness make its reach and effects difficult to determine
without further research. Besides drawing attention to this neglected
urban rationality and related forms of legality, this article effectively
suggests that governing "from below" can emanate not only
from non-state sources, but also from the bureaucratic bowels of the
lowest level of the state.
The governance of prostitution in cities in the United Kingdom has
undergone a substantial shift entailing the movement of control away
from state-centered criminal justice agencies towards multi-agency
sexual health outreach and other non-statutory agencies. In "Governing
Prostitution: New Formations, Old Agendas," Jo Phoenix examines
the complex articulation between forms of governance "from above"
that rely on coercive criminal justice interventions and forms of
governance "from below" that operate with a more welfare-based
agenda to target prostitution's effects on women sex workers' well-being.
She shows that while agencies "from below" possess a potential
for radical intervention in the lives of severely disadvantaged women,
that potentiality is curtailed by the state's ability to redefine
the target population and the sites through which governance is actuated.
In relation to prostitution, this has meant the growth of welfare-based
organizations has provided the pre-conditions for the state's enhanced
control over prostitution and over non-state helping organizations.
In the final article of the issue, "Urban Security, from Nodes
to Networks: On the Value of Connecting Disciplines," Benoit
Dupont and Jennifer Wood advocate new methodological approaches to
the study of urban security. Using a nodal governance perspective
and by drawing from research in Montreal and Melbourne, Dupont and
Wood argue for better mapping that incorporates quantitative and qualitative
methods that capture both "bottom-up" and "top-down"
empirical developments. They emphasize the need to explore the strength
and nature of ties between governing nodes operating within cities
but also to focus equally on rationalities and forms of knowledge
and capacities that inform these nodes. Dupont and Wood point to several
potential cross-disciplinary contributions to this effort from fields
as varied as psychology, economics, geography, and urban planning
in order to better illuminate urban security arrangements. Their invocation
of the concept of "node" serves as a corrective to perspectives
that would privilege either the state or non-state agents of governance.
In this way this article contrasts with the opening article's thrust
and "sheds light" not only on methodological approaches,
but also on a nascent theoretical debate about the necessary character
of forms of governing "from above" and governing "from
below".
John
Lea & Kevin Stenson
Security, Sovereignty, and Non-State Governance "From Below"
9
Abstract
Governmentality scholars document the new, pluralistic, post-Keynesian
modes of public governance linking State and non State agencies. This
emphasis on "governance from above" needs to be complemented
by a focus on "governance from below" by non State actors,
especially in urban areas. "Governance from below" may involve
actors ranging from commercial organisations and citizens' initiatives,
to organised crime and paramilitary networks operating as sites beyond
the jurisdiction of sovereign law and public authorities within and
between countries. In both rich and poor countries these may be antagonistic
to but may also become enrolled in forms of public governance. This
paper challenges the view that governance from below fills the vacuum
left by the retreat of the central nation State. Rather, these developments
signify complex forms of re-articulation of relations of governance
from above and below, which may at times strengthen the legal authority
of the central State.
Randy
Lippert
Urban Revitalization, Security, and Knowledge Transfer:
The Case of Broken Windows and Kiddie Bars 29
Abstract
This article investigates a downtown revitalization project in a Canadian
city and the problem it encountered to shed light on neglected aspects
of urban revitalization, security provision, and knowledge transfer.
With a gradual shift to "market friendly" downtown land-use,
Windsor's core underwent expansion of a night-time, youth-oriented,
retail alcohol economy. A security problem with moral dimensions emerged
and was deemed to detrimentally affect police patrol resources, residential
development and living, and retail business. Using governmentality
and Latourian-influenced analytical tools, attention is paid to three
interrelated facets: (1) the role of Windsor's downtown business improvement
association (BIA); (2) the influential movement of a consultant's
report through urban institutions rendered responsible for revitalization;
and (3) resulting measures, including an interim control bylaw and
then a zoning bylaw targeting and redefining a particular type of
licensed liquor establishment called a "kiddie bar." The
implications of this analysis for understanding the role of BIAs,
governance "from below," and knowledge transfer are discussed.
Nicholas
Blomley
Civil Rights Meet Civil Engineering: Urban Public Space and Traffic
Logic 55
Abstract
The scholarly analysis of public space, despite ideological differences,
has tended to focus on the political and ethical dimensions of public
space, construed as a site for encounters between people. This has
been at the expense of what the author terms the "traffic logic,"
a pervasive administrative view of public space that emphasizes pedestrian
flow and motion, and tends not to discriminate between things and
bodies. The paper illustrates the prevalence and effects of traffic
logic with reference to By-Laws in the city of Vancouver. The author
notes its important consequences through brief discussions of cases
involving public protests and begging. While important, traffic logic's
pervasiveness and bureaucratic commonsensicality render its reach
and effects harder to discern. As a powerful yet mundane form of urban
governance, it demands closer scrutiny.
Jo
Phoenix
Governing Prostitution: New Formations, Old Agendas 73
Abstract
Recent governmentality literature distinguishes between government
from above and government "from below" in an attempt to
avoid "top-down" analyzes of state-centered government and
to acknowledge the multiple and diverse ways in which the governance
is achieved. By analyzing key shifts and changes in the regulation
of prostitution in the UK in the last three decades, it is possible
to complicate the distinction between the two modes of government.
Whilst some writers highlight the ways in which government from above
and below become increasingly blurred, this article argues that although
the agendas and modes of government from above and below are difficult
to disentangle, the effects on sex workers are not. Regulation remains
rooted within coercive and punitive state-centered criminal justice
responses, even though organizations "from below" may well
be the very organizations tasked by the state with carried out those
responses.
Benoît
Dupont & Jennifer Wood
Urban Security, from Nodes to Networks:
On the Value of Connecting Disciplines 95
Abstract
Based on a nodal governance perspective, this article attempts to
make the case for connecting disciplinary perspectives in the study
of urban governance. We argue for more robust analytical enterprises
that incorporate mixes of quantitative and qualitative techniques
that capture both "bottom-up" and "top-down" empirical
developments. Whilst stressing the need to measure the nature and
strength of ties between governing nodes, we suggest there must be
equal emphasis on depicting the various rationalities, and the forms
of knowledge and capacities that inform them, at various nodal sites.
We also highlight a number of cross-disciplinary contributions that
could be made to this project by research fields such as psychology,
economics, health and social work, geography and urban planning. The
authors draw from the work they are undertaking respectively in Montreal,
Canada and in Melbourne, Australia.
_______________________________________________________________________________
DOSSIER:
THE LAW COMMISSION OF CANADA
Yves Le Bouthillier
Introduction 113
Roderick A. Macdonald
Jamais deux sans trois ... Once Reform, Twice Commission, Thrice Law
117
Abstract
The decision of the Government of Canada in the fall of 2006 to terminate
funding of the Law Commission of Canada was of a piece with the earlier
decision of the government of Canada in 1993 to close the former Law
Reform Commission of Canada. Unsurprisingly, the creation of the Law
Commission of Canada was justified by the same general arguments as
those that were invoked when the Law Reform Commission was established.
The closure in 1993 occurred after the LRCC had more or less abandoned
its original mandate and had taken on a role more in keeping with
that typically performed by provincial law reform agencies. That of
2006, by contrast, was undertaken precisely because the LCC did not
abandon its statutory mandate. This note explores the conceptions
of law, of reform, and of commissions (institutional structure) through
which public engagement with, and public participation in reimagining
law have been pursued at the federal level. Rather than a lamentation
for either the LRCC or the LCC it offers an optimistic assessment
of the policy choices that a wise Parliament might well take up in
its next iteration of the law reform idea.
Nathalie
Des Rosiers
In Memoriam : La Commission du droit du Canada /
The Law Commission of Canada, 1997-2006 145
Abstract
In Memoriam I explained how the Law Commission of Canada developed
a law reform model that sought to respond more effectively to the
gap between law and reality and to democratize the process of law
reform itself. The Law Commission situated its work directly at the
interstice between law and action and experimented with different
ideas about democratizing its research agenda, its networks of partners
and its output. The LCC decided to firmly engage with interdisciplinary
and community-based scholarship in the definition of its plan of action
(from legal categories to dynamic social facts), in its research process
(from legal expertise to social sciences and humanities and to action-based
research) and its product (from legislative responses to mechanisms
of empowerment). In Memoriam II is organized around four themes: first,
that a democratized law reform project requires a process of "translation"
between different audiences, second, that it necessarily implies a
painful exercise of destabilization of the intellectual status quo,
third, that it must support the empowerment and capacity building
of the different social actors to embrace and demand change and fourth,
that it must do so with care. The paper includes testimonies and case
studies derived from the work of the LCC.
_______________________________________________________________________________
Nir Kedar
Law, Culture, and Civil Codification in a Mixed Legal System 177
Abstract
Comparatists usually describe mixed legal systems as being built upon
dual foundations of Romano-Germanic civil law and Anglo-American common
law. This widely accepted description examines mixed systems from
a formal internally legal perspective. My paper offers a new yardstick
for investigating mixed systems by posing an external perspective
for examining the complex interplay between law and culture in a mixed
jurisdiction. The case study is the codification of private law in
the mixed system of Israel. A civil code does not reflect the inner
logic or history of the Israeli legal system, as this system has been
mostly shaped along Anglo-Saxon lines which generally discourage the
enactment of codes. But seen from a cultural perspective, a civil
code is not alien to Israeli society because its perception as a symbol
of legal independence and modernization is inherent in the European
political culture that most Israelis are familiar with. The story
of civil codification in Israel demonstrates that beyond the common-law-civil-law
"mixedness" in Israeli law, the Israeli legal system is
also mixed in a more profound sense: while the country's law is primarily
(though not exclusively) influenced by the Anglo-Saxon tradition,
its political culture is mainly inspired by ideas embedded in continental
Europe which were imported to Israel by Jewish immigrants.
Avner
Levin
Big and Little Brother: The Potential Erosion of Workplace Privacy
in Canada 197
Abstract
Recent research shows that monitoring and surveillance of workers
in Canada is increasing. The Canadian Federal Government, at the same
time, is calling for increased access to proprietary databases for
lawful purposes. Employers therefore face a distinct possibility that
their monitoring and surveillance data will be routinely accessed
by various government and law enforcement agencies. Since in many
provinces workers enjoy little legal protection of their right to
a private life, and since new legal protective measures are unlikely,
employers must look to their role as socially responsible members
of a liberal and democratic society, and respect the rule of law by
minimizing their collection of personal worker information.
_______________________________________________________________________________
Review Essay
Elsa Acem
Legal Expertise, Scientific Knowledge, and Medical Ethics at a Crossroads
231
_______________________________________________________________________________
Book Reviews
A Response
to a Review by Randy Lippert of:
Governing From Below: Urban Regions and the Global Economy
New York: Cambridge University Press, 2002.
J. M. Sellers 245
Trudo
Lemmens & Duff R. Waring (eds.)
Law and Ethics in Biomedical Research: Regulation, Conflict of Interest,
and Liability
Toronto: University of Toronto Press, 2006.
Marie-Andrée Jacob 248
Paul
C. Friday & Xin Ren (eds.)
Delinquency and Juvenile Justice Systems in the Non-Western World
New York: Criminal Justice Press, 2006.
Jim Hackler 251
David
Szablowski
Transnational Law and Local Struggles: Mining, Communities and the
World Bank
Oxford & Portland: Hart Publishing, 2007.
Bonnie Campbell & Myriam Laforce 254
Philip
Slayton
Lawyers Gone Bad: Money, Sex and Madness in Canada's Legal Profession
Toronto: Viking Press, 2007.
Paul Millar 260
Vincenzo
Ruggiero
Crime in Literature: Sociology of Deviance and Fiction
London: Verso, 2003.
Dale Spencer 262
Sharon
M. Meagher & Patrice di Quinzio (eds.)
Women and Children First: Feminism, Rhetoric and Public Policy
Albany: SUNY Press, 2005.
Lorna Turnbull 265
Jean
McKenzie Leiper
Bar Codes: Women in the Legal Profession
Vancouver: UBC Press, 2006.
Joan Brockman 270
