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What kind of right is the right to the city?

Kafui A. Attoh Prog Hum Geogr 2011 35: 669 originally published online 14 February 2011 DOI: 10.1177/0309132510394706 The online version of this article can be found at: http://phg.sagepub.com/content/35/5/669

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Progress in Human Geography 35(5) 669685 The Author(s) 2011 Reprints and permission: sagepub.co.uk/journalsPermissions.nav 10.1177/0309132510394706 phg.sagepub.com

What kind of right is the right to the city?

Kafui A. Attoh
Syracuse University, USA

Abstract This essay critically examines the concept of the right to the city. While many progressive scholars have embraced the idea of the right to the city, what these scholars mean by rights has often been left unexplored. The first half of this essay focuses on the distinctions that political philosophers and legal scholars often draw between various kinds and forms of rights. The second section focuses specifically on how rights are mobilized within scholarship on the right to the city, as well as the tensions and contradictions with respect to rights that arise therein. Keywords law, right to the city, rights, rights talk, urban geography
To take rights seriously means to be aware of what is distinctive and controversial about a claim of a right . . . (Waldron, 1987: 2)

I Introduction
In recent years progressive academics have frequently invoked Henri Lefebvres idea of the right to the city (Amin and Thrift, 2002; Dikec, 2001; Harvey, 2008; Mitchell, 2003; WastlWalter et al., 2005). They have done so in discussions on gentrification, immigration, housing, citizenship, urban public space and social exclusion. While there has been considerable scholarship on who ought to have a right to the city (Dikec, 2005) and what the right to the city might mean for a more democratic urban politics (Purcell, 2005), there has been little talk about rights themselves.1 Apart from a number of very broad and peripheral remarks, rights within the literature on the right to the city remain a black box. What kind of right, we must ask, is the right to the city? Is the right to the city

a socio-economic right or a liberty right, a legal right or a moral right, a prima facie right or an absolute right? If it is simultaneously all of these rights, are such rights commensurable? In taking the idea of a right to the city seriously this essay holds that understanding exactly what is meant by rights matters.2 This essay will be divided into two sections. I will begin by examining scholarship on rights themselves; my focus will be on literature coming out of political and legal philosophy. In this section I will look at how various scholars have defined rights as well as the differences that they have drawn to distinguish one kind of right from another: moral, legal, positive, negative, second generation, third generation, etc. Second, I will look at literature in geography on the right to the city. In this section I will begin with Lefebvre
Corresponding author: Department of Geography, 144 Eggers Hall, Syracuse University, Syracuse, NY 13210, USA Email: kaattoh@syr.edu

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and end with the most contemporary work on the subject.3 As will become clear, scholars that have drawn on the idea of the right to the city have worked from widely varying conceptions of rights. While some scholars have treated the right to the city as a collective and socioeconomic right to housing or transportation, others have treated it as a classic liberty right against state surveillance or state interference in public protest. With these varied conceptions of rights, the scholarship on the right to the city remains both vague and radically open. On the one hand, the radical openness of the right to the city concept can serve to illuminate connections between varying struggles for social justice. On the other hand, it is hard to square this radical openness with the notion that the practical significance of rights depends both on how we define a right and on the specific form a given right takes.

II Rights themselves
Debates over what rights individuals or groups possess or ought to possess have long been a source of political struggle and scholarly dispute. In courtrooms and classrooms alike, disputes center not only on what rights individuals or groups possess, but also on the limits of those very rights and what it means when they are violated. While rights and the language of rights figure prominently within liberal political traditions, the institution of rights has long had its outspoken detractors. The alleged individualism, atomism, and abstraction associated with rights talk have been a consistent target of criticism from Edmund Burke and Karl Marx, to Jeremy Bentham and the new communitarians. In addition there have been a number of contemporary scholars, both within and outside of the liberal tradition, that continue to find fault with the language of rights and its implicit egoism and absoluteness (Bedi, 2009; Glendon, 1991).4 Notwithstanding such critiques, a number of scholars within political and legal philosophy have also

taken up the task of differentiating between various kinds of rights and rights-claims. While accepting broader critiques of rights, these latter scholars have pointed out that one must also be clear about what type of right is at issue (Benditt, 1982; Hohfeld, 2000 [1919]; Jones, 1994). In approaching the concept of the right to the city one must give attention to both broader critiques of rights talk by Marxist, utilitarian, and conservative thinkers, as well as specify what kind of right is actually being discussed. This section will focus on illuminating the differences between various kinds of rights as well as what they signify for understanding a right to the city. I begin briefly by engaging with a Hohfeldian conception of legal rights. Second, I look at the distinction Jeremy Waldron draws between first, second, and third generation rights. Waldrons discussion is far reaching and touches upon the important and complex relationships between these different types of rights. Lastly, I look at Dworkins (1977) notion of a moral right to break the law. Dworkins work, in particular, points to the potential problems scholars may face in situating the concept of the right to the city within a liberal democracy. In each case we will find that rights, as a concept, are far from fixed or universally accepted. Rights, as is true with duties, are sites of struggle. In making rights-claims, whether it is a right to liberty or more aptly a right to the city, how we define rights surely matters.

1 Hohfelds rights
In differentiating between various kinds of rights we might begin with Wesley Hohfelds (2000 [1919]) classic study of legal rights and their internal structure.5 Hohfeld argued that all legal entitlements can be understood as either one or a combination of four basic rights: claim rights, liberty rights, powers, and immunities. Claim rights, to which Hohfeld gives the most attention, are rights that correlate with duties. To have a claim right is to be owed a duty. Conversely,

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liberty rights mark out exactly what their bearer has no duty to do. To have a liberty right is to be free of any duty. Powers and immunities, for Hohfeld, are seen as secondary rights. Powers and immunities allow individuals and groups to alter, override, or ignore existing legal entitlements. To have a power is to have the ability to change a legal relation; an immunity is to be free of anothers legal power. While each of these four rights can exist alone, more often than not they work together as elements of a single legal right (Wenar, 2005). The right to property, for example, equally incorporates claim rights (that confer duties on others not to trespass), liberty rights (that allow proprietors to do what they want on their property), powers (to sell or give away property), and immunities (from state confiscation). In disputes over legal rights, it is often the cleavages between rights as claims, liberties, powers, or immunities that are at issue. The right to marry someone of the same sex may be widely accepted as a liberty right, yet only in particular US states does this same right become a claim right or a legal power. Hohfelds analysis of legal rights is an attempt to see the ways in which much of the practical significance of rights rests on the form of rights themselves (Jones, 1994). For the right to the city to merely comprise an immunity, or merely a liberty right, following Hohfeld, means something very different than to envision the right to the city as a power or a claim right.

2 Generational rights
Where Hohfelds typology of rights rests on differences in the internal structure of rights, Jeremy Waldron (1993) in his essay Two sides of the same coin rests his analysis on generational differences between rights, namely differences between first, second, and third generation rights.6 First generation rights, Waldron repeats, refer to the traditional liberties and privileges of citizenship: free speech, religious liberty, the right not to be tortured, the right to a fair trial,

the right to vote, and many others. Second generation rights refer primarily to socioeconomic entitlements. Socio-economic rights encompass rights to housing and a right to a fair wage and are linked to the rise of the welfare state.7 Third generation rights are the rights attached to communities, peoples, and groups. Such rights include minority language rights, the right to national self determination, and the rights that people may have to diffuse goods such as peace, environmental values, the integrity of a culture or an ethnicity, and healthy economic development (Waldron, 1993: 5). Understanding the complex relationship between first, second, and third generation rights is of critical importance. For Waldron, second generation rights are indispensable in efforts to combat economic inequality and material poverty. In addition, Waldron, along with a number of scholars (Berlin, 1969; Shue, 1980), has argued that it is impossible to talk about traditional rights to liberty, freedom, and free expression without reference to second generation rights. It makes little sense, they argue, to debate the value of liberty while neglecting the vicissitudes of poverty, material insecurity, famine and disease that make life hard for the most marginal (Waldron, 1993: 33). If individuals lack shelter or the ability to feed and clothe themselves, to bequeath them the right to vote, to freely practice their religion, or to attend school is nothing more than to mock their conditions (Berlin, 1969: 124). Advocates of second generation rights, like Waldron, argue that liberty, if we are to value it at all, needs to be complemented by a principle addressing the distribution of the means of material well-being (Waldron, 1993: 29).8 It is such an argument which notably leads Waldron to describe laws that deny the homeless access to public space and other social services as laws that violate the homeless freedom (1993: Chapter 13).9 How we construe the relationship between first generation and second generation rights has, as can be imagined, important

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political ramifications. When we argue that first generation rights mean nothing without socioeconomic entitlements, we are calling for a set of radically different policies than were we to argue that traditional liberty rights and socioeconomic realities are wholly distinct. Many of the critiques of second generation rights hinge upon the question of how such rights to housing, or food, or economic security are to be practically secured. In a world characterised by scarcity and conflict the institutionalization of socio-economic rights poses trade-offs that are real, even if they are often exaggerated (Waldron, 1993: 33). For theorists like Nozick (1974), the central problem with socioeconomic rights is that the resources required to satisfy the material needs of some people may be already owned by private individuals. Waldron acknowledges that such trade-offs are real and argues subsequently that it is not enough for socio-economic rights to be left at the level of particular Articles in a Declaration. Proponents of socio-economic rights, like himself, must also integrate these articles into a general theory of justice, which will address in a principled way whatever trade-offs and balancing are necessary for socio-economic rights to make sense (Waldron, 1993: 33). Rightsclaims, to the degree that they pose costs, they must also rely on a theory of justice. In regards to the right to the city, Waldrons discussion of second generation rights raises an important question: must the right to the city, if understood as a second generation right, also rely upon an explicit theory of justice? Third generation rights are often referred to as solidarity rights. They are rights that are attached to groups, nations, and peoples, and refer to the rights such groups have to language, peace, culture, and healthy economic development (Waldron, 1993: 5). For Waldron, third generation rights are unique in that they are concerned with the protection of communal goods. Communal goods represent things like fraternity, solidarity, co-operative production, conviviality,

language, culture and tradition (p. 358).10 Rights to language and tradition and other communal goods are rights that are necessarily group rights. The question of group rights is itself a hairy one. On the one hand, group rights are commonplace. The rights allotted to corporations, the rights assigned to minority religions, and the rights given to marginalized ethnic groups appear in many societies. They appear in the United Nations Declaration of Human Rights and are invoked in national struggles for autonomy and for minority language schools. On the other hand, group rights can also be quite controversial. Opponents of unions, for example, are quick to argue that the rights afforded to unions undermine the rights of individual workers (Blomley, 1994: Chapter 5). If the right to the city is a group right, does it come at the expense of individual rights?

3 A moral right to break the law?

In his collection of essays Taking Rights Seriously, Ronald Dworkin (1977) focuses on the complex relationship between moral rights and constitutional law. For Dworkin, the fusion of legal and moral issues at the heart of the US constitution leaves open a number of provocative questions. First, does the constitution recognize all the moral rights that citizens have? Second, do citizens have a duty to obey the law even if it invades their moral rights (p. 185), or, even more to the point, does one ever have the moral right to break the law? Dworkins answer to the last question, in short, is yes. Dworkins answer hinges upon a quite compelling notion of rights. For Dworkin, rights are best understood as trumps against democratic tyranny. In a democracy, where the bulk of the law is said to reflect popular views of the common good (what behaviors are acceptable, how society is to be governed and how costs and benefits are to be distributed across society), rights exist precisely to protect individuals that act in ways that a

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democratic majority deems unacceptable (p. 205). In a democracy, rights represent, as Dworkin (p. 205) states, the majoritys promise to minorities that their dignity and equality will be respected even in cases where it is not politically or socially expedient. When laws infringe upon our dignity or our equality, Dworkin argues, the language of rights not only allows us to challenge such laws, it allows us to break such laws and make our case to a jury of our peers. Rights exist precisely to constrain the will of the democratic majority to pass laws that are unjust and discriminatory and to justify those instances in which we act against the written law.11 Dworkins notion of rights as trumps not only allows us to make sense out of civil disobedience, it also speaks to the ways in which the law itself in a democracy is developed through experimentation and testing.12 Dworkins conception of rights is primarily a notion of negative and individual rights. In addition, Dworkins work is mainly tied to the constitutional and legal traditions of the USA. Despite this, Dworkins conception of rights as trumps is an important one. In particular, we must ask what its purchase is for better understanding what it means to have a right to the city. Dworkins work engages with the fraught relationship between rights in a liberal democracy and the law. Following Dworkin, and in regards to the right to the city, we might thus ask, is the right to the city a right to break the law? In parsing out the practical implications of asserting a right to the city, Lynn Staeheli and Don Mitchell (2008: 106) argue that differences in the kinds of rights and their deployment shape not only the nature of political conflict, but also the kinds of publics and even the kinds of cities that are created. There are, of course, as this last section has noted, many different conceptions of what rights are and how to talk about them.13 And so the question of what kind of right is the right to the city is an important one. The classical Hohfeldian analysis of legal rights, in fact, hinges precisely upon the belief

that much of the practical significance of rights rests on the form of rights themselves (Jones, 1994). From a Hohfeldian analysis, the practical significance of the right to the city rests on whether the right to the city constitutes an immunity, a liberty right, a Hohfeldian power or a claim right. Similarly, Jeremy Waldrons distinction between generational rights raises additional questions. Is the right to the city primarily a second generation right and a response to the socio-economic needs of the urban poor, or is it more of a classic first generation right against city government overreach, or alternatively is it a third generation right to some urban communal good? Proponents of the concept of a right to the city must also acknowledge that in a world characterised by scarcity and conflict the institutionalization of any right poses trade-offs that are real (Waldron, 1993: 33) and that a larger theory of justice may be needed to reconcile such trade-offs or the potential of conflicting rights-claims. Additionally, Dworkins analysis of rights, albeit rather narrowly focused on individual rights, raises important questions with regard to the relationship between democracy, civil disobedience, the law, and the right to the city. The question of what kind of right is a right to the city is important not only in acknowledging that different kinds of rights exist, but also that varying conceptions of rights are not necessarily commensurable. In the following section I engage directly with debates over what constitutes the right to the city.

III The right to the city

Nothing is more pathetic than the image of a philosopher shouting you cant say this! or you cant say that! while the chanting crowds trample him cheerfully underfoot. (Waldron, 1993: 368)

As the preceding section sought to show, there are numerous ways of conceptualizing rights. How we define a right, the form a right takes, and how we delimit who ought to have a right, as is clear in the work of Dworkin, Hohfeld,

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and Waldron, are questions of political and practical importance.14 Recent debates over healthcare in the USA, for example, are not only about making healthcare a right but also about what form such a right should take and how this right is to be provided (publicly, privately). The concept of the right to the city, to begin, derives from the writing of Henri Lefebvre (1996 [1968]). Lefebvres notion of the right to the city exists alongside his long-standing interest in the centrality of space and urban life under capitalism (Lefebvre, 1991).15 At the heart of Lefebvres conception of the right to the city is his notion of the city as an oeuvre, or as a work produced through the labor and the daily actions of those who live in the city.16 The right to the city, for Lefebvre, thus signifies a great deal. It signifies the right to inhabit the city, the right to produce urban life on new terms (unfettered by the demands of exchange value), and the right of inhabitants to remain unalienated from urban life. Lefebvre defines the right to the city most simply as a transformed and renewed right to urban life (1996 [1968]: 158).17 As Neil Smith notes (2003), Lefebvres conception of the city marks a departure both from more classic sociological studies of urban life and from more traditionally Marxist approaches. Lefebvre saw the city neither as a reified container of social processes, as it was for many of those associated with the Chicago school (Burgess and Park, 1984 [1925]), nor as inconsequential to theories of capitalist development, as was the case for more orthodox Marxists (Castells, 1979). Although Lefebvre states that the right to the city is the summation of more traditional rights, like rights to freedom and individualization though socialization (1996 [1968]: 174), he spends little time elucidating what a right to the city might look like practically.18 Nor is it apparent in Lefebvres writing how we might understand those instances when two or more equally valid traditional rights collide. Lefebvres notion of rights was sketchy at best,19 and, worse,

the growing scholarship on the right to the city offers little clarification. Within the current scholarship on the right to the city one finds varied conceptions of what constitutes a right. In fact, when it comes to answering the question of what kind of right is a right to the city, or who has a right to the city, the current scholarship advocates a radical openness.20 The right to the city, as becomes clear, can constitute rights of many kinds and can belong to groups and individuals whose struggles may appear quite distinct. For Don Mitchell and Nik Heynen (2009), the capaciousness and the openness of the right to the city as an idea is something to be welcomed. Such openness, they argue, can serve to unify the struggles of various marginalized groups around a common rallying cry. The right to the city may allow us to see rights to housing, rights against police abuse, rights to public participation in urban design, rights against established property laws, or rights to a communal good like aesthetics, as necessarily connected. While on the one hand this openness may be beneficial, on the other hand it is hard to square this openness with an argument that holds that differences in how rights are defined, and the forms they take, remain differences that matter. Within the radical openness of the right to the city, we will surely find rights that not only collide but are incommensurable. In 2005, The International Geographical Unions commission on Public Policy and its commission on Political Geography published a collection of essays entitled Rights to the City. The essays in the volume were first presented in Rome in 2002 at the Rights to the City conference. In them we find a diverse set of reflections on why the right to the city is an important concept. Despite the diversity of contributions in the collection, Dorris Wastl-Walter and Lynn Staeheli (2005) noted in them a common theme. At the heart of much of the work on the right to the city is a critique of urban policy. Urban policy and urban design are increasingly implemented in ways that are

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undemocratic, that exclude the poor and that create cities that prioritize the needs of business and the wealthy over the vast majority (WastlWalter and Staeheli, 2005: 2). In this context, scholars argue, Lefebvres conception of the right to the city is useful both in reframing urban politics and in counteracting such polices. Using Lefebvres language of rights, as well as the broader conception of citizenship implicit in Lefebvres work,21 scholars have sought to reframe various urban struggles along new lines. As is clear in the Rights to the City collection, these struggles are numerous. As such, the right to the city constitutes not a singular right, but a set of rights.

1 A right to what, a right for whom?

For some, the right to the city is a right to political space and is coterminous with the rights of national citizenship (Dikec, 2005). For others, the right to the city is simultaneously a right to occupy (Mitchell, 2003), design (Van Deusan, 2005), and define what public space is (Gibson, 2005). For others still, the right to the city is a right to autonomy in the face of state urban policy (Phillips and Gilbert, 2005: 70) as well as a right against police brutality, surveillance, and state overreach (Mitchell and Heynen, 2009). The right to the city is, in many instances, a socioeconomic right; it is a right to housing (Marcuse, 2008), to transportation (Bickl, 2005), and to natural resources like water (Phillips and Gilbert, 2005). In other instances, the right to the city is more of a right to a communal good, like aesthetics or community (Matilla, 2005). For most of the scholars who write about the right to the city, the question of who has a right to the city is answered implicitly. Scholars ascribe the right to the city to all manner of groups. Scholar-advocates of the homeless (Phillips and Gilbert, 2005; Van Deusan, 2005), of immigrants (Dikec, 2005), of racial minorities, of the disabled, of women, of sexual minorities, and of political activists, invoke the

right to the city in response to urban policies that, they argue, treat such groups unjustly. For Marc Purcell, the right to the city must be a right ascribed, foremost, to those who live in the city, who contribute to the body of lived experience and lived space (Purcell, 2005: 14).22 More general still, Peter Marcuse (2009) ascribes the right to the city both to the deprived (the immediately exploited, unemployed, impoverished) and to the discontent (those who are disrespected and treated unequally). David Harvey (2008: 23) argues that the right to the city must be seen as a collective right rather than an individual right. The right to the city, as the conference in Rome made clear, can constitute rights of many kinds: socio-economic, collective, negative, positive, etc. Thus, in terms of rights, the literature on the right to the city remains quite open. Against such openness, however, stands Waldron and Hohfelds work on generational and legal rights, in which the form of rights is shown to matter immensely. Against such openness also stands the work of Dworkin, whose notion of rights is powerful precisely because it defines rights exclusively as individual trumps against democratic tyranny. The distinctions, conflicts, and ultimate incommensurability of different kinds of rights are distinctions and conflicts with which the literature on the right to the city has yet to grapple. While we may embrace the right to the citys conceptual flexibility and its capacity to link disparate rights-claims under a unitary framework, we must still debate and grapple with the form that such rights may take. For example, our ability to successfully link a right to affordable transportation with a right to a clean and sustainable city will depend as much on political will as on the form that such rights take. If the right to affordable transportation is merely a call for expanding the private and individual ownership of cars, it is a right that may stand directly against a right to a clean and sustainable city. The right to the city framework offers us little help in navigating the way forward. Within the

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very openness of the concept of the right to the city we are sure to find a number of inconsistencies and sticking points. One potential sticking point within literature on the right to the city hinges upon the relationship between rights and democratic participation. While David Harvey among others defines the right to the city as a collective right to the democratic management of urban resources, Don Mitchells work on homelessness speaks to the ways in which a right to the city may also be conceived of as a right against democratic management. It is hard to see how these approaches to the right to the city are commensurable, particularly if we do not take the additional steps of parsing out what constitutes democracy. Thus, when we pair David Harveys conception of a right to the city with Don Mitchells work on homelessness, the capaciousness of the right to the city appears less as beneficial and instead as simply confused.

2 Rights, democracy, and surplus value

David Harvey (2008) situates the concept of the right to the city within a broader and more sweeping analysis of urbanization. The rise and transformation of cities, Harvey argues, must be seen as central to the reproduction of capitalist society.23 Cities, he argues, play an active role in absorbing surpluses (Harvey, 2008: 25; see also Harvey, 1982) and staving off crises of overproduction and/or under consumption. Cities are crucial in satisfying capitalisms perpetual need to find profitable terrains for . . . surplus production and absorption (Harvey, 2008: 24). If cities are indeed sites in which surpluses are absorbed, distributed, and produced, then, for Harvey, to have a right to the city has a very particular meaning.24 To have a right to the city, for Harvey, is to have some command over both the use and distribution of urban surpluses. Neoliberalism, Harvey argues, marks a period in which the right to the city is exclusively wielded by

private interests and in which an increasingly small urban elite produces and manages surpluses for their own ends. The key task for social movements, according to Harvey, must be to democratize this right and adopt the right to the city as both a working slogan and a political ideal (Harvey, 2008: 40). In claiming the right to the city, such movements, Harvey argues, must aim to establish democratic management over the very surpluses upon which cities necessarily arise (p. 37). The right to the city, for Harvey, depends on the exercise of collective power to reshape the process of urbanization (p. 23). Other theorists have picked up on this notion of democratic management. Marc Purcell, for one, argues that the right to the city is important because of its capacity to . . . extend the limits of politics and expand the decision-making control of citizens (Purcell, 2003). Similarly, Alessandro Busa (2009), Lois Ascher (2009), and Tom Angotti (2009) all foreground the importance of democratic participation in conceptualizing a right to the city. Eugene McCann, although critical of the democratic posturing of participatory planning, also defines the right to the city in democratic terms. The right to the city, he argues, entails the right not to be marginalized in decision making (McCann, 2005: 26). What emerges from Harvey and a great deal of scholars enamored with the idea of the right to the city is an interest in democratizing the spaces of the city, both in terms of how the city is used and how the city is constructed and designed. While these scholars invoke the right to the city in order to democratize urban space, rights themselves, as the previous section made clear, are often invoked to do exactly the opposite, to put constraints upon democracy. Rights often suggest that certain areas, interests, or classifications are off limits to the democratic polity (Bedi, 2009: 7). It is this very conception of rights as trumps that rests at the center of Dworkins defense of civil disobedience. This traditional conception of rights is not alien to critical scholarship on the right to

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the city. In his book The Right to the City, Don Mitchell cites the proliferation of antipanhandling laws in American cities. Such laws, Mitchell states, make sure that homeless people have no right to the city (Mitchell, 2003: 199). In the name of re-creating the city for global capital, these laws seek simply to annihilate homeless people themselves (p. 167). Although such laws have occasionally been struck down as unconstitutional, for Mitchell they represent efforts both to redefine what is acceptable behavior in public space and to re-create the public sphere as intentionally exclusive (pp. 167 and 183). For Katherine Beckett and Steve Herbert (2010) such laws, in addition to denying the homeless a right to the city, also herald the return of banishment as a form of punishment and a tool of social control. If anti-panhandling laws prevent the homeless from asserting their right to the city, as Mitchell, Herbert, and Beckett argue they do, then the rights of the homeless are rights that stand against a possible majority who might believe that such laws are just and appropriate. When we argue that the homeless have a right to occupy a public park, it is a right that we would argue exists despite the desire of a majority (homeowners, renters, store keepers, developers) to deem otherwise. When we argue that protesters have a right to picket or occupy a street, it is a right that exists despite a democratic majority that may view such protests as nuisances, or disturbances. In these instances, when we call for a right to the city we are not necessarily doing so in the name of democratic management or in the name of collective power; quite the contrary, instead we are doing so in spite of popular opinion, or we are doing so by defining democracy in far broader terms than some might accept (Huntington, 1991). If, on the one hand, a right to the city appears as a collective right to democratically manage urban resources, then, on the other hand, following Mitchell, the right to the city appears as a right against such management. In pairing these different conceptions of the right to the city, we are confronted here with a

number of important questions. If the right to the city is a socio-economic right to housing (Marcuse, 2008), is it a right above and beyond democratic control? If the right to the city is a liberty right for youth mobility (Bikl, 2005), is it a right against a democratic majority that believes such a right to be spurious? If the right to the city is a collective right for gardeners in the Bronx to a piece of land (Staeheli et al., 2002), is it a right against democratically elected officials that see such a use of land as inappropriate? To demand a right to the city, for Harvey and a great many progressive scholars, is to demand that urban resources be managed democratically. Yet it is easy to see, as the questions above suggest, that a right to the city might also be seen as a right in opposition to democracy. Our response to such questions, of course, will reflect how we define democracy. If we define democracy differently, namely if we define democracy in more substantive terms rather than in purely procedural or majoritarian terms, then admittedly such questions are far less biting.25 However we ultimately define democracy, there remains within the right to the city a notable tension between the more majoritarian impulse to exercise collective power and an equally important impulse to protect and respect minority rights. Within the radical openness of the right to the city concept, the right to the city can equally be a right to collective power and a right against unjust collective decisions. There will certainly be times when these two equally important rights to the city come into conflict.

IV Conclusion
A number of progressive scholars argue that urban policy and urban design are increasingly implemented in ways that are undemocratic, that exclude the poor, and that create cities that above all prioritize the needs of business and the wealthy (Wastl-Walter and Staeheli, 2005: 2). In response, these scholars have latched onto the idea of the right to the city. Taken directly

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from the work of Lefebvre, the right to the city has become a rallying cry for numerous organizations interested in questions of urban justice. However rich we find Lefebvres initial notion of the right to the city, rights themselves remain a black box. The work of Hohfeld, Waldron, and Dworkin, among others, points to the ways in which debates about rights and the forms that rights take remain of practical and political importance. For Hohfeld, much of the practical significance of a given right rests on whether the right can be described as a liberty, an immunity, a power, or a claim right. For Waldron, a great deal of political debate hinges upon the distinction, or lack thereof, between first and second generation rights. He also argues that proponents of second generation rights, like himself, must address in a systematic way whatever tradeoffs and balancing are necessary for socioeconomic rights to make sense (Waldron, 1993). Dworkins classic liberal defense of civil disobedience rests on his notion of rights as trumps against the whims of a democratic majority. There are many kinds of rights and a great deal of debate over how rights should be conceived. It is not only that there are many different kinds of rights but that some rights-claims are not necessarily commensurable with others. Group rights are not necessarily commensurable with individual liberty rights, nor in a world of limited resources can all socio-economic rights be addressed equally. If rights are thought of as trumps against democratic tyranny, then it becomes very difficult to consider rights as anything but individually held. In the literature on the right to the city, rights appear in many kinds and little discussion is given to issues of how we square competing socio-economic rights, or how we reconcile, as the work of Harvey illuminates, our democratic right to make the law and our civil right to break the law. One possible way to square such conflicts is to integrate the right to the city into a general theory of social justice

or substantive democracy, but what theory of justice or democracy, we will ultimately ask, ought we to choose?26 While the right to the city has generated excitement among urban grassroots organizations, within the scholarship it remains a fuzzy concept. If to take a right seriously, as Jeremy Waldron (1987: 2) writes, means to be aware of what is distinctive and controversial about a claim of a right then the right to the city may seem wholly unserious. From Marx and Bentham to more recent scholarship (Bedi, 2009; Blomley, 2008; Glendon, 1991), rights talk has long engendered critique. Of what value, we are left to ask, is the right the city? In Don Mitchells work we can find both a defense of the conceptual fuzziness of the right to the city as well as an implied call for scholars to parse out what kinds of rights create what kinds of cities. On one hand, the value of the concept of a right to the city, Mitchell and Heynen (2009) argue, is precisely its capaciousness. Such capaciousness is valuable because it allows for solidarity across political struggles, while at the same time focusing attention on the most basic condition of survivability (p. 616). The ability to link the rights of bus riders to those of the homeless or those of welfare recipients must be seen as a strength. The right to the city is, in this sense, strategically fuzzy. At the same time Mitchell and Lynn Staeheli argue that differences in the kinds of rights and their deployment do matter. Such differences shape not only the nature of political conflict, but also the kind . . . of cities that are created (Staeheli and Mitchell, 2008: 106). Staeheli and Mitchell are joined here by the likes of Hohfeld, Waldron, and Dworkin, who show that different definitions of rights speak to different political projects. To construe the right to the city as a civil liberty as opposed to a positive right to the democratic management of surpluses, or to construe the right to the city as a socio-economic right as opposed to a moral right to break the law, will surely matter. Whereas at times we may wish

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to defend the fuzziness of the right to the city (Mitchell and Heynen, 2009), we must also acknowledge as this paper has argued that not all rights are created equal and that different kinds of rights are not necessarily commensurable. Where does this lead us? The goal of this essay has been to explain why it is important to think critically about rights and what kind of rights rights to the city are. I have tried to lay down a groundwork for further interrogation of the right to the city and I have attempted to explain why such a critical interrogation is necessary. Strategic fuzziness might be politically expedient but ultimately it only forestalls or displaces contradictions that ought to be met head on by those who wish to see the progressive potential of the right to the city realized. Such critical work and analysis must, of course, be a collective process. It is not for me alone to declare an agenda for the proper way to develop the idea of the right to the city or a proper agenda for its geographical analysis. I do suggest, however, that as this project develops it is worth turning again to the work of Jeremy Waldron. Waldron argues that it is important to address the ways in which the institutionalization of any right [particularly within a world characterized by scarcity and conflict] poses tradeoffs (Waldron, 1993: 33). In conceptualizing the right to the city, scholars ought to start here. While this essay has argued that debates over the right to the city ought to give attention to rights themselves, part of the task for scholars involved in these debates should be to emphasize the degree to which all rights, including rights to the city, pose costs, necessitate trade-offs and may come at the expense of other rights we deem important. Whatever right or set of rights we ultimately take the right to the city to be, we must necessarily grapple with the consequence of instituting such rights. Ignoring or eliding those instance when rights to the city come into conflict with each other, dismissing the necessary trade-offs that come with demanding a right to urban space, or turning a blind eye to those

instances in which a right to the city comes at the expense of rights others deem important does a disservice to all those who wish to take the right to the city seriously and who wish to engage in hard discussions about what a right to the city can and ought to entail. The question of what kind of right is a right to the city is not, as Jeremy Waldron writes, an attempt to cut the discussion short or police the concept, but rather an attempt to reveal the level of incoherence within the current debate and therefore to sharpen through critique the right to the citys political edge. The idea of the right to the city, for all its potential, deserves as much. Acknowledgements
I would like to thank Don Mitchell, Katie Wells, Nancy Hiemstra, Nick Blomley, and Sandra Greene for reading various versions of this essay and providing both valuable feedback and encouragement. I would also like to thank the reviewers whose comments I believe have improved this paper immensely.

Notes
1. In his essay Making space for law, Nick Blomley (2008) makes note of the rather ambiguous place of rights within the literature on the right to the city. In many ways this essay builds from and expands on Blomleys skepticism by looking more specifically at the different ways rights have been defined both within the scholarship on the right to the city and beyond. 2. One might argue that equally important in discussing the right to the city is how we define the latter term. That is to ask: what do we mean by the city? This question, while beyond the scope of this essay, is important nonetheless. What the right to the city means surely depends on whether we define the city as an oeuvre, following Lefebvre, or if we define it as something else. Additionally, to view the city as somehow distinct from the country would certainly impact the kind of politics and alliances possible (Williams, 1975). 3. Much of the literature and many of the examples I draw on in this essay are specific to the United States. Notwithstanding the possible charge of narrowness, the questions raised in this paper are in fact quite broad and

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address an idea that increasingly has global currency. One has only to attend one of the various world social forums to note this. As an idea with growing global import, to ask what kind of right is a right to the city thus speaks not only to issues in the USA but additionally to those places where the right to the city as a slogan is being taken up with both excitement and consternation. As an example, Abahlali baseMjondolo (the shack dwellers movement) in South Africa has organized around the idea of a right to the city. They have also expressed concerns that hinge directly on whether the power of the right to the city might be compromised if it simply becomes a legalistic issue of human rights fought over in the court of law between lawyers rather than a moral right that can inspire (Abahlali baseMjondolo, 2010). This essay arises from a similar concern over the idea of rights. 4. Glendon and Bedi primarily take issue with the exaggerated absoluteness of rights and the ways rights talk often distorts political discourse. Marxs critique of rights, particularly the rights of man, is well known. For Marx, the concept of rights rested upon the faulty assumption that men were self-sufficient, isolated, and withdrawn nomads. Rights thus appeared not only as a fiction but as an instrument of alienation. They symbolized, for Marx, the alienation of men from their species being (Marx, 1994 [1844]). Feminist critiques of rights similarly have focused on the way in which the laws ethic of rights corresponds poorly to the social relations of family and personal life where engagement and not detachment are the norm (Young, 1990). While rights are important for social justice, Young argues that a new conceptualization of rights is necessary. While Marxs critique of rights may be different from that of Burke, Bentham, or Young, their critiques all hinge upon the way rights forward a radically impoverished view of what constitutes human society (Waldron, 1987: 3). 5. Legal rights as opposed to moral or natural rights are those rights recognized and protected by state institutions. 6. Waldrons notion of generational rights is less a reference to a progressive evolution of rights than a way of categorizing rights that often, but not always, emerged from particular political moments (i.e. the progressive eras liberal invocation of second generation rights versus the classical liberalism of John Locke). Carl Wellman (1999) in his book The Proliferation of Rights

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draws explicitly on this concept of generational rights. Michael Zukert (2007) in his essay On constitutional welfare liberalism suggests a similar categorization of rights, albeit he makes the relationship between various kinds of rights and liberalism more explicit. He notes the existence of what might be called five regimes of liberalism; original liberalism, libertarianism liberalism, welfare liberalism, identity liberalism, and constitutional welfare liberalism. Each regime, he argues, mobilizes a different conception of rights. The rights associated with Zuckerts original and libertarian liberalism would be most similar to Waldrons first generation rights. The rights associated with Zuckerts welfare liberalism are most similar to Waldrons notion of second generation rights. Lastly, the rights associated with Zuckerts identity liberalism speak most readily to Waldrons third generation rights. While Zuckert is far more of a libertarian than Waldron, both offer a similar categorization of rights. Where they part ways is at Zuckerts defense of the negative-positive distinction in rights, which for Waldron as for many others (Barber, 2003; Sunstein and Holmes, 1999) is a false distinction. This distinction rests on understanding negative rights as primarily rights to non-interference and positive rights as rights associated with the provision of some good (healthcare, education, etc.). 7. First generation rights are the rights we find enshrined in the 1789 Declaration of the Rights of Man as well as in the United States Bill of Rights. Alternatively, we find second generation rights most prominently in the UNs 1948 adoption of the Universal Declaration of Human Rights. Second generation rights were also invoked by Franklin Delano Roosevelt in his call for a second Bill of Rights. 8. Waldrons advocacy of socio-economic rights further muddles the distinction that is often drawn between negative rights and positive rights. 9. Such a view, as Waldron himself notes, subordinates socio-economic rights to first generation rights. Rights to housing, food, or shelter merely become the means by which liberty, freedom, and various other first generation rights can be secured. For many, conversely, rights to food, housing, and shelter are rights that are important regardless of their relationship to broad conceptions of freedom or liberty. Waldrons notion of rights has been critiqued not only by those with more libertarian inclinations but by those who believe Waldron does not go far enough. While Waldron critiques

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anti-panhandling laws that deny the homeless rights to freedom he leaves the legal relations surrounding private property untouched and unexamined (Blomley, 2009). On the first point and in an effort to distinguish third generation rights from other types of entitlements, Waldron makes a distinction between rights to public goods (non-excludable and jointly produced) and rights to what he calls communal goods. While one can talk coherently about an individuals right to a public good, like public transportation, clean air, or parking, it makes little sense to talk of communal goods in the same way. The idea that people have a right to public goods is totally compatible with the individualism of first generation and second generation rights-claims; it is, for Waldron, rights to communal goods, like language and culture, which separate third generation rights from the former. For Dworkin, if a local law is passed that makes it illegal for people to speak freely on political issues, then one is perfectly justified in breaking the law. Dworkin notes that for many people there is little difference between disobedience and lawlessness. Those who engage in disobedience, many argue, simply ought to be punished. This popular view, although straightforward, is a mindless one and it obfuscates a number of key points. Such a view, Dworkin (1977) begins, refuses to distinguish the man who acts on his own judgment of a doubtful law from the common criminal (p. 216). Such a view also obscures the way in which our doubts about the validity of law are essential to the laws testing, and development through experimentation and the adversarial process (p. 217). More crucially it serves to conflate the rights people have only with the rights that legal institutions dictate. The will theory of rights and the interest theory of rights are theories on who can have a right. They are important theories particularly in debates over the rights of children or animals or the rights of people in public office. In the interest of space I will not elaborate on either theory, but they remain important theories to consider particularly in discussions over who has a right to the city (Wenar, 2005). Waldrons liberalism, which takes seriously the implementation of second generation rights, is a far cry from the libertarian politics of Nozick or even Dworkins impassioned and liberal defense of civil disobedience.

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15. Lefebvres writing on the right to the city is concen` la Ville (2000 [1972]) and trated in his work Le Droit a even here it appears sporadically, giving scholars little to work with. 16. The city, Lefebvre writes famously, is an oeuvre, closer to a work of art than to a simple material product (1996 [1968]: 101). 17. The right to the city signified, for Lefebvre, a reclaiming of the city by the working class and a reassertion of the city as use value (Mitchell and Villanueva, 2010). The right to the city for Lefebvre was a right in direct contrast to what he saw as urban dwellers increasing alienation from urban life. The language of rights may be attractive precisely because of rights supposed inalienability (1996 [1968]: 86). 18. In their introduction to the recent collection of Lefebvres essays, State, Space, World, Neil Brenner and Stuart Elden (2009) situate Lefebvre within French and Marxist debates over the role of the capitalist state. Brenner and Elden note that Lefebvres advocacy of the more anarchist notion of autogestion can be traced to then ongoing debates among the French Left over political strategy. Insofar as Lefebvres work on autogestion emerged from a critique of the capitalist state and a critique of political rights, it remains difficult to pry from such writings any clearer sense of how to understand Lefebvres notion of a right to the city. Contemporary scholars often invoke the right to the city to counter neoliberal state retrenchment and to push for greater state support for public services. In its appeal to self-management and worker control, autogestion is conversely a rejection of the state altogether. If anything, viewing the right to the city in the context of autogestion or in the context of French debates over the state only raises more profound questions on how Lefebvre has been interpreted. Such questions are unfortunately for another essay. 19. In his book The Survival of Capitalism Lefebvre mentions the need for a global project aimed a defining and asserting the right to the town and the right to be different. Such rights, Lefebvre argues, would provide a radically different way of living. In the same section Lefebvre even asks how we can conceive of and maintain the old principle of habeas corpus in the context of bourgeois liberalism (1976: 35). Alternatively, in his book The Sociology of Marx, Lefebvre (1968: 179) argues that the doctrine of rights itself has always been aimed at distributing the products of a basically

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unequal society. Here Lefebvre takes a quite critical and skeptical approach to rights talk. Lefebvres writing on rights is thus hard to interpret. In neither a clear nor a concise way does Lefebvre address what rights are or the different forms that rights may take. Marc Purcell (2005) argues that the right to the city has indeed almost become something of a catch phrase and one that is rarely interrogated in depth (Purcell, 2005: 13). The loose usage by a variety of movements, Purcell continues, tends to trivialize Lefebvres [concept of the right to the city] (p. 13). Very few of these movements, he continues, are claiming a fully developed right to the city as Lefebvre imagined it. While not the focus of this paper, the idea of the right to the city obviously suggests new forms of citizenship (Amin and Thrift, 2002). Whatever the nature of this citizenship is shown to be, it will nevertheless depend on how we understand rights. T.H. Marshalls (1950) classic definition of citizenship rested on defining citizenship in terms of civic rights, social rights, and political rights. Engin Isin (2000: 5) has defined citizenship as a social process through which individuals and social groups engage in claiming, expanding and losing rights. If the right to the city offers a new definition of citizenship, we must first outline what kinds of rights such a concept deems central. This paper holds that a discussion of rights must be a prerequisite for understanding what a right to the city means in terms of citizenship. For Purcell, the right to the city grants inhabitants a central role in any decision that contributes to the production of urban space. In addition, the right to the city signifies the right of inhabitants to physically access, occupy, and use urban space to meet their needs (Purcell, 2005: 15). For Purcell this necessarily raises issues of scale and who or what groups can be said to contribute to the body of lived experience. Purcells conception of the right to the city has been duly criticized for giving too little emphasis to the way that a right to the city must be a right to produce urban space (Mitchell and Villanueva, 2010). Focusing on issues of homeless, Mitchell and Heynen (2009) also argue that the right to the city should not be conflated merely with the right to inhabit, particularly if inhabit means no more than survival. Cities and urban areas remain crucial sites in which capitalisms necessary contradictions can be resolved. These contradictions have played out in the explosive

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rise of shock cities, the reconfiguration of Paris under Baron Haussmann, the suburbanization of the USA in the 1950s, and the recent and startling pace of urbanization in China. 24. As Harvey is clear to articulate, there is a necessary connection between urbanization and surplus value production. The question of how this connection is managed and by whom is central to his conception of the right to the city (Harvey, 2008: 40). For Harvey, to demand a right to the city is not only to lay claim to a greater share of surplus uses but also to assert new modes of urbanization and to do so by mobilizing surpluses in radically new ways (p. 40). 25. In substantive terms, democracy is defined in terms of fairness, justice, and normative concerns over the outcomes of democratic practice (Bell and Staeheli, 2001: 179). Anti-panhandling laws, even if the product of a referendum, would thus hardly be deemed democratic. By focusing less on the procedures of democracy or the messiness of majoritarian impulses, a substantive account of democracy is also not without its critics. As Dahl (1991: 163) argues, carried to an extreme, the insistence that substantive results take precedence over process becomes a flatly antidemocratic justification for guardianship. Substantive democracy, he continues, simply becomes a deceptive label for what is in fact a dictatorship (p. 163). In calling for a right to the city, it would certainly be a mistake to ignore the processes by which individual judgments are translated into authoritative decisions (Dowding et al., 2004: 19) not only because procedures matter, but because, for many, it is procedures that constitute democracy (Huntington, 1991). Differences between substantive and procedural approaches to democracy also reflect what Barnett and Low (2004: 13) argue are the inherent tensions within democracy itself, tensions between individual liberty and collective action, between majoritarian principles and minority rights and between participation and delegation. 26. This paper has taken the strategic and perhaps narrow approach of focusing primarily on the language of rights and less on the way particular theories of justice might be useful in reconciling or making sense of competing rights-claims. In taking up such a task, David Smiths (1994) Geography and Social Justice along with Harveys (1973) Social Justice and the City would certainly serve as a starting point. Both

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texts give a great deal of attention to the relationship between rights to space and different theories of justice. While appealing to a theory of justice might go a long way in clarifying the idea of the right to the city, some might simply resort to Marxs claim that rights talk has little value. Simply put, between equal rights to the city it is ultimately force that decides.

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