Geoforum 36 (2005) 281–296
www.elsevier.com/locate/geoforum
Flowers in the bathtub: boundary crossings at the
public–private divide
Nicholas Blomley
Department of Geography, Simon Fraser University, Burnaby, BC, Canada V5A 1S6
Received 5 November 2003; received in revised form 29 June 2004
Abstract
Legal spaces are said to be a crucial materialization of law, serving to communicate legal meaning and, in so doing, helping to
produce a liberal–legal consciousness. Given its centrality to legal ordering and liberal ideology, the spatial manifestation of the
public–private divide, especially when related to property, would appear to be particularly important in this regard. Public and private are assumed to be both mutually exclusive and exhaustive. Drawing upon empirical research conducted in a neighbourhood in
Vancouver, Canada, I argue that spatial and legal categories such as public and private may be more fluid than one might suppose.
While the public/private divide is clearly powerful, and informs much policy and governmental action, it is not necessarily the case
that it has the purchase on everyday life that some scholars have suggested. People may live in more complicated and overlapping
worlds when it comes to supposedly determinate categories such as property.
Ó 2004 Elsevier Ltd. All rights reserved.
Keywords: Property; Public–private; Gardens; Encroachments; Law and geography
ÔThe qualities of public space as ‘‘public’’ depend
not only on the forms of the space itself or on what
happens within it, but on the ways that the distinction between public and private is marked. What
we think of as urban public life implies a modulation of interaction along a public/private continuumÕ (Brain, 1997, p. 243).
1. The geographies of law
Law in general, and property in particular, are preoccupied with categorical and, thus, spatial distinctions
(Sypnowich, 2000). For example, the divide between
the public and private sphere is central to liberal notions
of property. This appears to have a straightforward
geography: the public sphere appears easy to locate,
being obviously contained within determinate public
spaces, such as the street. The domestic home, conversely, is the archetype of the private sphere. 1 As people and things move between these spaces they take on
different legal standing (Blomley and Bakan, 1992).
However, there are certain activities that, though traditionally private, spill over into public space. Gardening,
a particularly interstitial activity, is one of these. Frequently, private owners extend their gardens onto the
boulevard outside their homes. Formally speaking, this
entails a boundary crossing, or private encroachment
onto public land. In this paper, I draw upon empirical
research into popular evaluations of such encroachments, conducted in Vancouver. I begin by reviewing
the literature on legal geography, which tends toward
a view of lawÕs spaces as determinate and influential.
1
E-mail address: [email protected]
0016-7185/$ - see front matter Ó 2004 Elsevier Ltd. All rights reserved.
doi:10.1016/j.geoforum.2004.08.005
A number of commentators have alerted us to the centrality of the
private home as a model for structuring our thinking on property
rights (see, for example, Robertson, 1995, p. 282).
282
N. Blomley / Geoforum 36 (2005) 281–296
This is echoed, I note, in treatments of the public–private divide. The geographic manifestations of the public–private division, put simply, are said to be
important in shaping popular consciousness and behavior. My case study, however, suggests that the meaning
and location of propertyÕs spatial divisions can be open
to conversation, ambiguity and nuance.
As legal geographers point out, legal arrangements
frequently entail forms of spatial organization and representation. A legal concept like jurisdiction, for example, necessitates the creation of spaces, such as that
bounded by national borders (Ford, 1999). However,
these legal spaces are more than a disinterested by-product of law. They are, critical legal geographers argue, a
means by which legal power is made possible. Legal
spaces (such as the private home, the factory, or the
state) are Ôpart of the material form that power is given,
without which power cannot be realizedÕ Delaney et al.,
2001, p. xviii). So, on the principle that Ôa rule without a
materialization is just a formless formalismÕ (Delaney
et al., 2001, p. xix), propertyÕs spatial manifestations—
the ÔNo TrespassingÕ sign, the barbed wire fence, or
the material markers of ÔimprovementÕ—are as important to propertyÕs reproduction and enactment as John
LockeÕs parables of propertyÕs beginnings, rendering
property visible and enforceable (Blomley, 2003). Robert SackÕs account of territoriality (influential within
legal geography) is useful here. He argues that the territorial organization of power is a particularly efficient
means for its realization, serving as Ôan indispensable
means to powerÕ (Sack, 1986, p. 1). In part, this is
because as an areal classification, a territorial claim (as
in Ôeverything within these boundaries is mineÕ) is a
much more succinct and determinate claim than one
that lists the individual items by type (Ôall these trees,
rocks, chairs etc . . . are mineÕ). 2
The spatialization of law, moreover, is said to be
important to the extent that it communicates legal meanings. Sack argues that along with its classificatory
advantages, human territoriality (including, by extension, legal territorialization) is important as a message
to others. The boundary, in particular, is said to be a
remarkably succinct and efficient statement, serving as
perhaps the only symbolic form Ôthat combines a statement about direction in space and a statement about
possession or exclusionÕ (Sack, 1986, p. 21). Critical legal
geographers similarly argue that:
2
Legal categorization, it has been argued, is also definitional,
grouping objects together on the basis of their inherent and objective
properties. Hamilton (2002) notes the importance of a spatial
metaphor to this theory of categorization, such that categories are
understood as spatial containers for their members, with Ôinteriors,
exteriors and boundaries. The essential physical representation of a
container in the metaphorical sense is that of a bounded region in
spaceÕ (p. 122) (cf. Varley, 2002).
ÔBoundaries mean. They signify, they differentiate,
they unify the insides of the spaces that they
mark. . . And the form that this meaning often
takes—the meaning that social actors confer on
lines and spaces—is legal meaning. How they
mean is through the authoritative inscription of
legal categories . . . The trespasser and the undocumented alien, no less than the owner and the citizen, are figures who are located within circuits of
legally defined power by reference to physical location vis-à-vis bounded spacesÕ (Delaney et al.,
2001, p. xviii, original emphasis).
The communicative power of such legal geographies
rests, in part, on their visibility. This can be seen in
the case of property, which, it has been argued, relies
upon sustained forms of engagement, designed to communicate a claim to others. Property, in this sense, is a
form of persuasion (Rose, 1994; Strang, 2000). Carol
Rose has argued that propertyÕs persuasive power rests,
in part, upon its visual markers: ÔA claim of title depends
on the claimantÕs ability to signal dominion to the
world, but those signals are notoriously visibleÕ (1994,
p. 267). Within both the formal legal realm and popular
culture, there is an expectation that property will be
communicated through visual markers, such as fences,
hedges, buildings, ÔimprovedÕ land, and so on. Visibility
can make a difference: Rose (1994, p. 267), for example,
points out that if you use a neighbourÕs property in such
a way as to leave some Ôvisible residueÕ, such as cutting a
track across it, you may well acquire some prescriptive
rights to it. Yet if you do so without leaving visible
traces—for example, through the enjoyment of the light
that crosses their property—you are less likely to acquire any interest in the land.
But lawÕs spatial inscriptions are said to not simply be
admonitory, but productive, helping shape a particularly
legal consciousness. According to many scholars, law can
shape peopleÕs understandings of themselves, their obligations and their relations with others. At an extreme,
law can produce particular ways of thinking. Even
though resistant understandings are possible, these are
still constructed with reference to a set of schema that
law helps create (cf. Unger, 1975). For other scholars,
law has a more contingent, yet important effect upon subjectivity (cf. Yngvesson, 1988). Yet in either case, law
does more than act upon the world: to varying degrees,
it makes the world, helping to constitute the understandings and beliefs that make the world unfold this way,
rather than that way. In particular, law provides hegemonic categories through which social life is ordered,
helping to persuade people that the world as rendered
by these categories Ôis the only attainable world in which
a sane person would want to liveÕ (Gordon, 1984, p. 109):
Ô. . . [C]onsider all the habitual daily invocations of
law in official and unofficial life—from the rhetoric
N. Blomley / Geoforum 36 (2005) 281–296
of judicial opinions through advice lawyers give to
clients, down to all the assertions and arguments
about legal rights and wrongs in ordinary interactions between police and suspects, employers and
workers, creditors and debtors, husbands, wives,
and neighbors, or television characters portraying
such people. Sometimes these ways of speaking
about law. . . appear as fancy technical arguments,
sometimes as simple common sense. . . In whatever
form, they are among the discourses that help us to
make sense of the world, that fabricate what we
interpret as its reality. They construct roles for us
like ’’Owner’’ and ’’Employee’’ and tell us how
to behave in the roles. . . They wall us off from
one another by constituting us as separate individuals given rights to protect our isolation, but then
prescribe formal channels (such as contracts, partnerships, corporations) through which we can
reconnect. They split the world into categories that
filter our experience—sorting out the harms we
must accept as the hand of fate, or as own fault,
from the outrageous injustices we must accept as
wrongfully forced upon usÕ (Gordon, 1986, p. 14,
15, my emphasis).
Law, in this sense, is understood not as an instrumental force, operating on ÔsocietyÕ, but as produced in and
productive of the social world (Trubek, 1984; Geertz,
1983; Ewick and Silbey, 1998; Engel, 1998).
But a geographer would push this further, arguing
that law is more than an abstract discourse. When spatialized, it can play an even more significant role in constituting legal consciousness. The spatially defined
environments we move in—the homes, workplaces,
streets, neighborhood, shops and so on—can serve to reflect and reinforce legal relations of power, through
complex and layered spatial processes and practices that
code, exclude, enable, stage, locate and so on. From this
perspective, the spatial markers of property, such as the
fence, play an important role in shaping a particular sensibility toward spatial use, access, rights and privileges.
As we make sense of and navigate through propertyÕs
spaces, we are said to internalize and reproduce the subtle and diverse property rules that enjoin comportment,
movement, and action and thus the Ôself-restraintÕ associated with property (Elias, 1998). Jennifer Nedelsky
(1990) points to the particular ways in which we inculcate legal subjectivity with reference to the boundaries
that, in part, distinguish ÔmineÕ from ÔthineÕ. Parenting
manuals encourage parents to teach their children to respect Ôboundaries,Õ and identify things in the world that
they can claim as their property. There are echoes here
of scholarship in geography on performance, which argues that spatial arrangements, such as the layout of
the workplace can affect, as well as reflect, dominant
understandings of work (McDowell and Court, 1994).
283
Selfhood itself is thus produced through spatialized
performances.
2. Public and private
One of the most consequential of categorical boundaries relating to the spatial order of property is that
which separates the realm of private ownership from
the sphere of public ownership. 3 While the public–private division is central to much legal reasoning, it has
particularly strong connections to property. Horwitz
(1975) traces its historical emergence in English law to
the different ways in which royal lands were regarded.
Those lands held by the monarch as a feudal lord were
treated as private property, while those designated
Ôcrown landsÕ were non-alienable. Nedelsky (1990) argues that the relationship between the individual and
the collective, as conceived within American political
thought, has long placed the relation between private
property and the state as its defining instance. Blackstone (1765/1979, vol. 1, p. 135) also argued that the
public good must yield to private property, given that
the former is concerned only with the protection of private rights.
If the public–private divide, within which the distinction between public and private property plays a crucial
role, is one of the crucial axes of liberal legalism, how is
it to be configured? Bobbio (1989, p. 1, my emphasis)
characterizes this Ôgreat dichotomyÕ, as a distinction that
divides Ôthe world into two spheres which together are
exhaustive in the sense that every element of that world
is covered, and mutually exclusive in the sense that any
element covered by the first term cannot simultaneously
be covered by the secondÕ.
On the first point, private and state ownership are assumed to exhaust all viable options for property. Thus,
there may be many owners of land, Ôbut, for practical
purposes, . . . only two classes of ownershipÕ (Geisler,
2000, p. 65, my emphasis). While private ownership is
clearly the expected norm, forms of collective ownership
are acknowledged. However, these are carefully hedged:
Ôeither ownership is vested in private parties or it resides
with organized governments. Thus, in the conventional
lore, markets are based on private rights, or, when markets fail, property may be governmentally managedÕ
(Rose, 1994, p. 110). I return to this binary below.
On the second point, there is a deep-seated assumption that these domains are, and should be, separable
and distinct. Maintaining and policing the public–private divide has long been a Ôvirtual obsessionÕ within
the legal system (Horwitz, 1975, p. 1427), reflecting the
3
As Weintraub (1997) has usefully documented, public and private
are categories capable of several distinct meanings. I use them here in
the Ôliberal-economisticÕ sense.
284
N. Blomley / Geoforum 36 (2005) 281–296
Ôart of separationÕ so central to liberalism (Walzer,
1984). The boundaries of property, Nedelsky argues,
played a key organizing role in the original conceptualization of this relation: ÔThe primary content of [the]
underlying conception of autonomy is protection from
the intrusion of the collective. The autonomy the American system is designed to protect can be achieved by
erecting a wall of rights around the individual. Property
provided an ideal symbol for this vision of autonomy,
for it could both literally and figuratively provide the
necessary wallsÕ (p. 167). Maintaining the public–public
divide has re-emerged as a crucial axis for legal and judicial debate in recent years, given the ascendancy of
neo-liberal policies that seek to further curtail state regulation of private actions, while privatizing many formerly state-managed functions. A bright line is drawn
between the owner and the state. Although the state
may intervene to limit these rights if they threaten harm
to others, such interventions are seen as secondary to the
core rights of the owner. 4
The legal treatment of ÔprivateÕ actions that occur
within the public domain—my focus here—is different
but still significant. For example, the regulation of public disorder often forces a distinction between acts
deemed ÔprivateÕ, such as sleeping, and appropriate
forms of ÔpublicÕ comportment. The homeless, who are
by force of circumstance obliged to live their private
lives in public view, are thus treated as Ôout of placeÕ
(Cresswell, 1996, pp. 4–5). Graffiti is also said to be troubling not so much by its content as its location, challenging the dichotomy between the public and private realms
Ôby declaring the public private and the private publicÕ
(Cresswell, 1996, p. 47). Prostitution is also deemed a
private activity: official responses are said to be concerned less with its eradication than with the desire to
exclude it from the public gaze, and thus reaffirm the
public–private boundary (Hubbard, 2002). Religious beliefs are also held to be a private matter: any sustained
forms of public religious expression, especially those of
groups whose beliefs depart from dominant norms, are
also seen as a problematic boundary crossing. For
example, the attempt by orthodox Jews to install
ÔeruvÕ—symbolic perimeters that notionally extend the
private domain into public space, to ease Talmudic proscriptions on activities that can occur on the Sabbath—
has been met with considerable popular hostility that,
for some observers, is explicable only if the eruv is
understood as an affront to ontological ordering principles, including the public–private divide (Cooper, 1996).
A lot is said to turn on this division. For liberals, of
course, sustaining and defending this divide has long
been regarded as essential to liberty. For radical critics,
conversely, the divide is an ideological artifice, obscuring the realities of private power, patriarchal authority,
and the implication of the state in sustaining private
entitlements (Bakan, 1997; Smart, 1989). The attempt
to draw the boundary is Ôat best futile and at worst covertly ideological. Whether it is a question of line-finding
or line-drawing, it is a formal fraud that perpetuates a
substantive injusticeÕ (Hutchinson and Petter, 1988, p.
286). For other critical commentators (cf. Nedelsky,
1990), the distinction leads to an impoverished conception of the self. Yet whatever the political position of
commentators, the public–private division is assumed
to have real effects within the social world, shaping attitudes and behaviour. Radicals and liberals agree that
the distinction between the public and private realm is
a Ôfundamental, not incidental or tangential ordering
principleÕ (Elshtain, 1999, p. 24). Moreover, the public–private divide is said to be important beyond the formal legal realm, providing a pervasive vocabulary
through which the socio-spatial world is rendered intelligible. The distinction between public and private is said
to be Ôingrained in our practical experience of the spatial
organization of social lifeÕ (Brain, 1997, p. 237). Public
and private are said to be one of the organizing conventions Ôby which we experience, as though naturally, our
own bodies and movement in the space of the world. . .
They are the very scene of selfhood. . .Õ (Warner, 2002,
pp. 23–24).
3. Encroachment as a boundary crossing
This framing effect appears evident in the case of
boundary crossings by established interests, which are
also seen as suspect. The courts tend to be suspicious
of any unsanctioned intrusion by private owners upon
public space. As with a boundary crossing between private owners, such an action is characterized, legally
speaking, as an encroachment, defined by one legal dictionary as: Ôan unlawful gaining upon the right or possession of another; as, when a man sets his fence
beyond his lineÕ. 5 If an owner Ôsets his fence beyond
his lineÕ and enters onto anotherÕs property, we expect
the party encroached upon to act to defend his boundaries. The proper remedy for the injured party is an action of ejectment, or an action of trespass. As one
observer puts it: Ôan owner is expected to exercise that
degree of dominion and control over his land which will
4
Although, in practice, law tolerates a good deal more ambiguity
and overlap when it comes to the public–private divide (see Blomley,
2004a). We need to distinguish between the idea of property, as
evidenced here, and its actual practice (cf. Underkuffler, 2003, p. 142).
I return to this point below.
5
BouvierÕs Law Dictionary (http://www.constitution.org/bouv/
bouvier_e.htméè).
N. Blomley / Geoforum 36 (2005) 281–296
serve to exclude all others from wrongfully possessing itÕ
(Kelly, 1997, p. 23).
The derivation of the word alerts us to the moral load
that ÔencroachmentÕ carries. It can be traced to the Old
French, ÔencrochierÕ. The verb ÔcrocherÕ means to hook
or crook, thus to encroach is literally to en-hook. 6 Its
meanings include: to seize, acquire wrongfully, to trench
or intrude usurpingly (especially by insidious or gradual
advances) on the territory, rights or accustomed sphere
of action of others, or to advance, intrude beyond natural or conventional limits (Compact Oxford English
Dictionary, 1971). Encroachments, one can surmise,
are regarded with suspicion. Boundary crossings are assumed to be motivated by gain, entailing an attempt to
enlarge an individualÕs land. They are in that sense a
zero-sum taking of anotherÕs entitlements. This accords
with the view of the private owner as self-regarding, concerned essentially with his or her interests. Note the way
that the boundary figures here. A boundary crossing entails more than overlap between adjacent owners, but
marks an intrusion or trespass on the property of another. We see this in the legal treatment of trespass in
which every boundary crossing, however minor, is treated as consequential. Even placing oneÕs arm over a
fence, to borrow from one famous case, can be construed as trespass. 7 For law, it is imperative that the
consequential uncertainty be resolved, the boundary line
effectively redrawn and the spatial bounds of property
reassigned. On the zero-sum assumption that property
rights cannot easily be unbundled and shared, it is assumed that one owner must be effectively sovereign
within the spatial bounds of property. The idea of multiple owners, ideologically at least, is anathema 8 (cf.
Blomley, 2004b).
This can be seen in the legal treatment of public highways in Canada, my concern below. The surface of the
road and as much of the sub-soil and associated airspace
as is required is vested in the municipal authority (Harris, 1995, p. 435). Enabling legislation in Vancouver, for
example, vests Ôthe real property comprised in every
street, park, or public square in the cityÕ in fee-simple
6
The adjective ÔcrocheÕ also implies that which is crooked and bent
and (more figuratively) signals the act of grabbing. The phrase Ôavoir la
main crocheÕ means to be grasping. ÔCrochetÕ, a small hook, is used to
describe teeth or the poison fang of a snake. To live Ôaux crochets de
quelquÕunÕ means to live at anotherÕs expense. (The New Cassells
French Dictionary, 1973).
7
Hannabalson v Sessions, 116 Iowa 457, 90 NW 93 (1902).
8
Under the British Columbia Property Law Act (section 32), the
British Columbia Supreme Court, when confronted with an encroachment entailing a building or a fence, may declare (a) that the
encroacher has an easement on the land encroached on, (b) vest title in
the owner or the encroacher or (c) order the encroacher to remove the
encroachment (see McNutt v Tedder, (1982) 34 B.C.L.R, p. 147).
Either way, it seems imperative that ownership be settled. Again, it
should be noted that property is, both formally and informally, a good
deal more unsettled in practice (Blomley, 2004a).
285
in the City (Vancouver Charter, section 289.1). 9 Case
law affirms the ownership of the street by the municipal
corporation (in trust for the public), which is empowered to regulate and remove encroachments. Private
owners cannot acquire prescriptive rights to public land,
despite improvements and sustained encroachments. 10
Municipalities are also entitled to remove encroachments without first taking proceedings against the encroacher. 11 Under VancouverÕs Encroachment By-law
(4243), any encroachment is regulated, and requires approval from the City. Section 290 of the Vancouver
Charter holds that ÔNo person shall excavate in, cause
a nuisance upon, encumber, obstruct, injure, foul, or
otherwise damage a street, except under such terms
and conditions as may be imposed by the CouncilÕ.
The City of Vancouver has aggressively protected its
streets from certain encroachments, as can be seen in a
legal battle over the degree and conditions under which
private, for-profit, telecommunication companies may
dig up public streets in order to install cables, this being
rhetorically cast by the City as an issue of Ôprivate access
to public propertyÕ. 12
Encroachments, however, may occur in an apparently more benign way, when private owners, intentionally or not, extend their gardens into the public street.
While this is perhaps less significant than, for example,
the case of a private building that intrudes onto public
land, the act of public gardening may be deemed legally
noteworthy, given the longstanding association between
gardens and gardening and the creation of private space
and private property (Seed, 1995). As with the enactment of property claims, gardening involves apparently
acquisitive acts, such as the mixing of human labour and
the soil, the erection of fences and the ÔimprovementÕ of
the land. Active cultivation, indeed, can be one means
by which title passes to an encroacher. The planting of
9
Generally speaking, municipal corporations in Canada are
empowered to acquire (through purchase, deed, and expropriation),
hold and dispose of land, although in a fiduciary capacity without the
power of disposition of the private owner (MacF. Rogers, 1971, 1067–
1096). Some provinces vest title to highways in the Crown, whereas in
other provinces, title is vested in the local authority. Again, this is
qualified by the presumption that title is held in trust for the benefit of
the public of the province, and subject to their right to Ôpass and repassÕ
without obstruction. In Vancouver v. Burchill [1932] S.C.R. 620 at 625,
[1932] 4 D.L.R. 200, Rinfret, J. held: ÔUnder statutes where the fee
simple is vested in them, the municipalities are in a sense owners of the
streets. They are not, however, owners in the full sense of the word,
and certainly not to the extent that the proprietor owns his land . . . It
holds them as trustee for the public. The streets remain subject to the
right of the public to Ôpass and repassÕ and that character, of course, is
the very essence of the streetÕ (quoted in Ian MacF. Rogers, 1971,
1182).
10
S.W. Properties Inc. v. Calgary (City) [2003] Alta D.J. 869.
11
Reynolds v The Urban District of Presteign [1896] 1 QB 604.
12
http://www.city.vancouver.bc.ca/engsvcs/crtc/index.htm.
286
N. Blomley / Geoforum 36 (2005) 281–296
flowers and vegetables, the cultivating and turning the
soil, the erection of a fence, and the use of the fence to
support tomato plants have all been taken as legally sufficient in cases of adverse possession (Anon, 1991).
Property and propriety also share important associations (Blomley, in review); similarly the geography of
gardening is also shaped by understandings of appropriate forms of deportment, which would seem to reproduce the distinction between private space and the
public domain. The informal injunction, to grow vegetables out of sight of public view, or to cut oneÕs lawn to
please oneÕs neighbours, for example, perhaps reflects
anxieties concerning defilement and impurity that, in
turn, underwrite the public/private distinction (Sibley,
2001). The assumed separateness of the private from
the public realm also sustains the gendered division between the domestic realm of femininity and the male
sphere of waged work and politics. Images of the garden
have been used to sustain this distinction (Rose, 1993,
pp. 17–18).
Yet despite this, municipalities appear to be relatively
relaxed concerning such forms of public gardening. Indeed, cities have increasingly enrolled residents in public
gardening, such as through greenway initiatives, street
tree programs and traffic circles (Blomley, 2004c). Section 3 of VancouverÕs Encroachment Bylaw grants permission Ôfor the use and existence of all encroachments
which comprise only grassed areas . . . fences, rockeries,
hedges or garden areas, provided that the Engineer is
satisfied as to the safety and advisability of such
encroachmentsÕ. However, public gardening is still characterized as an encroachment: that is, as a clear boundary crossing between defined private and public spaces.
Although tolerated, the ability to garden in public is
thus characterized by the authorities as a provisional
privilege rather than a right. When interviewed, City officials were clear that private plantings in public became
city property and could be removed at will. One official
noted that if work crews needed access to land that had
been so planted, the City would be courteous Ôbut if we
have to rip it out [i.e. for city purposes], thereÕs no question that we wonÕt. . . we wonÕt compensate you for itÕ.
The boundary between public and private, he noted, is
to be maintained, on the presumption that ÔthatÕs your
[private] property, this is my [public] propertyÕ. Public
and private, to return to BobbioÕs (1989) account, appear here unequivocally as mutually exclusive and
exhaustive. So private gardening in public space is, to
this extent, a dubious, even unruly activity, insofar as
the law is concerned.
4. Bathtubs on the boulevard
Let me summarize my argument. LawÕs geographies
are said to be important to the extent that they materi-
alize and visually communicate legal rules. In so doing,
they help produce particular forms of legal subjectivity.
The spatial division between the public and private domain, as it relates to property, is one particularly important to dominant legal conceptions of space. Formal
legal understandings assume that the public and the private are (and should be) mutually divisible and collectively exhaustive. Boundary crossings, such as the
garden encroachment, are treated accordingly. The
space they create must be either purely private or public.
There is much to be gained from the recognition of
the spatializations of law, as I shall note below. However, there has been relatively little empirical research
on everyday legal geographies; that is, on the ways people actually navigate and apprehend the spatial dimensions of law, such as property (though compare with
accounts from the non-western world, such as Drummond, 2000). In general, Ô[f]ew studies actually show
how the constitutive and hegemonic effects of law operate in society, while many examine the ideological
dimensions of law and the way it portrays social relations and naturalizes relations of powerÕ (Sarat and
Kearns, 1995b, p. 52). The problem is that legal academics Ôprefer to pitch their tents in the shadow of the Supreme Court rather than on Main Street . . .Õ (Engel,
1995, p. 124; Selznick, 2003). It is easy to find the production of the public–private divide within judicial decisions and formal state actions, as noted above. Yet if we
remain confined within statute and case law we risk a
partial account.
It was in order to try and make sense of the degree to
which propertyÕs geographies, including that relating to
the public–private divide, were determinative of popular
consciousness Ôon Main StreetÕ that I undertook a research project in Strathcona, a small neighbourhood in
inner city Vancouver. Located to the east of VancouverÕs Chinatown (see Fig. 1) Strathcona is VancouverÕs
oldest residential neighbourhood, housing past waves
of Ukrainian, Jewish, Italian and British immigrants.
The neighbourhood is now predominantly ChineseCanadian: as of 2001, 58% of the population recorded
Chinese as a mother tongue. Overall, the population is
poor (with an average household income of $26,887,
the city average being $57,916) made up predominately
of renters (nearly 85% of the dwellings were rented in
2001). However, there is evidence of gentrification,
mostly in the form of incipient upgrading, as well a
few speculative projects. It is also an intensively gardened space. Small lots, occupied by a diverse and shifting population of renters and homeowners, Anglos,
Italians, and a dominant Chinese-Canadian population
make for a complex cultivated landscape (Fig. 2).
Both due to the methodological difficulties associated
with asking people about a concept like property, and
because of the associations between property and cultivation, noted above, I chose to try and get at propertyÕs
N. Blomley / Geoforum 36 (2005) 281–296
287
Fig. 1. Map of Strathcona.
Fig. 2. Gardens in Strathcona (photo by author).
geographies by exploring everyday practices and understandings associated with gardening, conducted in both
private and public spaces. This has entailed an examination of domestic garden boundaries (Blomley, 2004b),
local attitudes toward a conscious attempt to enroll local residents in public gardening (Blomley, 2004c) and
the contradictory interplay of privacy and propriety as
imperatives (Blomley, in review). Here, I consider gardening at the interface of public and private space. Data
were obtained using qualitative methods. These were ob-
tained through my residence in Strathcona (from 1994
to 1999), observation and photography of the urban
landscape, and—most importantly—semi-structured
interviews. In 2000, with the help of several research
assistants, I conducted 36 interviews with 42 respondents (some interviews were conducted with more than
one person). Interviewees were initially selected based
on personal contacts of the research assistants or myself,
with some additional contacts made through ÔsnowballingÕ. The intent was not to construct a representative
sample but rather to interview as diverse a group of residents as possible. Respondents included renters and
owners, white and Asians, men and women, and were
conducted in English, Cantonese and Mandarin. The
sample also included a number of gay and lesbian
respondents. As part of these interviews, respondents
were shown photographs (mostly taken in Strathcona)
of particular examples of propertyÕs spaces—such as a
security fence, abutting houses, hedges, and encroachments. Interviews were transcribed and coded, using
N4 Classic, a qualitative software package (cf. Buston,
1997; Kitchin and Tate, 2000; Crang, 1997). Although
interviews have their shortcomings, they seemed appropriate, especially as I was keen to encourage reflective
exploration, rather than a replicable set of responses
(Valentine, 1997; Dunn, 2001; Mullings, 1997).
A few general points on the data are in order. First,
while there some striking consistencies concerning
288
N. Blomley / Geoforum 36 (2005) 281–296
popular attitudes and practices relating to the spaces of
property, these did not easily align with social cleavages
such as tenure, gender, or ethnicity. Though, as noted,
this was not a representative sample, I was struck by
the categorical complexities of the data. For example,
some renters (but not all) expressed attitudes that appeared supportive of private ownership, while some
owners (but not all) appeared to adopt a remarkably relaxed attitude to similar questions. Secondly, the empirical record was remarkably rich. While this is testament
to the abilities of my capable research assistants, respondents also gave nuanced, surprising and subtle answers.
With Ewick and Silbey (1998, p. 38) I found remarkable
Ôthe rich interpretive work, the ideological penetrations,
and the inventive strategiesÕ of my informants. That
said, it is also clear that individuals were capable of
holding multifaceted, even contradictory positions,
depending on the context within which they spoke.
There are undeniable methodological challenges
associated with making empirical sense of ÔconsciousnessÕ, however it is theoretically conceived. This is all
the more challenging given the diverse meanings that
legal scholars give to legal consciousness (Engel, 1998).
I cannot claim to have uncovered the consciousness of
my respondents, especially if we recognize the degree
to which consciousness includes understandings of the
world that Ôrequire no self-awareness, that seem so
much a part of the natural order of things that the self
never reflects on them, never needs to rationalize their
truth nor consider the possibility that they may be falseÕ
(Engel, 1998, p. 116). However, to the extent that consciousness can be discerned in the ways Ôpeople conceive of the ‘‘natural’’ and normal ways of doing
things, their habitual patterns of talk and action, and
their commonsense understandings of the worldÕ
(Merry, 1990, p. 5), the interviews offer a partial approximation. It is also by no means easy to determine the
causal effects of law and its geographical arrangements
upon consciousness. Things are slightly easier here,
in that law has clearly defined expectations of what
people are to do and think in relation to the spatial
arrangements of public and private land. This gives us
a useful yardstick against which to evaluate the empirical record.
It needs also to be noted that peopleÕs evaluations of
garden spaces included schema that, while potentially
related, were not always identifiably legal. Other cultural norms may have played a role. For example, several of the respondents who espoused beliefs that
appeared to depend on a sharper public–private distinction were Asian-Canadians (though others were more
relaxed). Yet while this may reflect different attitudes
to law and public order, and a more privatized view
of property, it may also speak to a desire to maintain
collective harmony. In other words, encroachments
were bad not so much because they signaled inappro-
priate ÔprivateÕ behaviour, but because they threatened
social peace. 13
As noted, the assumed divide between public and private space was one facet of the Vancouver research.
Here, I consider unsanctioned forms of boundary crossing: private households who garden in public space. As
discussed above, the official attitude is to regard such
public gardens as encroachments that, while tolerable,
are still a clearly private action in an exclusively public
space. Interestingly, one City planner characterized
Strathcona itself as a clear instance of the public–private
divide.
ÔIn Strathcona you can see the attitude towards
what’s public and what’s private is very different,
and I donÕt know whether that’s a Chinese thing or
not. When you walk through the streets of Strathcona you can see where the property line is, and there
will be a garden behind that, and between the sidewalk and the line, gravel and weeds, it’s like ‘‘It’s
not mine, it has nothing to do with me, I’ve nothing
to do with it’’ (interview with author).
Yet there are several examples where the ÔprivateÕ
bleeds over into ÔpublicÕ space (indeed, in describing gardens in Strathcona, several residents pointed to this as a
distinctive characteristic). One striking example is on
Hawks Avenue, next to an old bakery, now occupied
by a group of artists, who placed a series of household
items, such as an old washing machine and a laundry
tub, on the boulevard, and filled them with exuberant
plantings. Other grasses and perennials are placed
around these items (Figs. 3 and 4).
I was interested in respondentÕs evaluation of this site,
as well as encroachments more generally. As this is a
small neighbourhood, it is not surprising that most
respondents knew the site well. Adjacent to a park, it
was a site that many people traversed on a regular basis.
People were shown a photo of the site (not those shown
13
There are at least two responses to the existence of such non-legal
interpretive schema for those interested in the legal consciousness
thesis. The first is to argue that the existence of such supplemental
meanings is not a weakness, but a critical component of lawÕs power,
given these meanings and their contradictions can in fact be appropriated for multiple legal projects (see Ewick and Silbey, 1998). A
second argument, to which I am more predisposed, worries that such
claims over-privilege the colonial reach of law and risks missing the
Ôlively normative resources of the everydayÕ (Sarat and Kearns, 1995b,
p. 56) that do not reduce to law. By abandoning a Ôlaw-firstÕ
perspective, it becomes possible to see that Ômore is at stake than
law, that motives, needs, emotions, anxieties, aspirations that are not
entirely fixed by legal meanings or by legal forces operate throughout
without totally losing their identity to law. In fact, it is law that
regularly buckles and is resisted, or reinterpreted, or distortedÕ (Sarat
and Kearns, 1995b, p. 55, cf. Collins and Blomley, 2003).
N. Blomley / Geoforum 36 (2005) 281–296
289
ward, 14 a younger Chinese-Canadian resident saw it
as Ôwrong’:
Edward:
Q:
Edward:
Q:
Edward:
Q:
Edward:
I think it’s wrong.
Mmm hmm. Why?
It . . .it just looks really ugly.
What if it looked very nice? Would it be
appropriate still to use public space?
It may [look] nice, but at the same time,
it’s . . .it’s not right.
Why not?
Because it’s. . . public land.
Darlene, a Chinese-Canadian owner, had a similar
evaluation:
Darlene:
Fig. 3. Bathtubs in Strathcona (photo by author).
Q:
Darlene:
. . . that bathtub looks pretty grungy.
I probably wouldn’t approach it.
[laugh] Apparently this looks quite nice in
the summer. This was taken in the fall, but
just pretend this is overflowing with daffodils
. . . flowers and things . . . I mean, it may look
quite nice, I just think they could do the same
thing on this side, on their yard
[original emphasis].
Others objected to the content of the planting as well
as its location. For Mr. Chan, an older Chinese-Canadian owner:
I don’t think it’s right. It should simply be grass.
Just green. This is privately grown. If it is on government land, then it is not right at all. It should
be grass. Then the entire city would be green. The
government should lay grass there [translation from
Cantonese].
Others were less worried about the look of the bathtub, as its placement. For Winnie, a Chinese-Canadian
owner, if it were on private space, it was unobjectionable:
Winnie:
Q:
Winnie:
Fig. 4. Encroachment viewed from the north (photo by author).
here) and asked, in part, whether they thought it
ÔappropriateÕ.
4.1. Public or private
A few respondents were adamant that this was ÔinappropriateÕ, that the bathtub was clearly Ôout of placeÕ.
This was not just because the bathtub was deemed ugly;
the placement of the item was also problematic; Ed-
Q:
Winnie:
Q:
Winnie:
Is this on their property?
I don’t think so
If it is on public space, it won’t be a very
good idea.
If it was on it’s own space?
That would be OK
Basically, if something is on one’s own
property, you don’t care what they do?
Yeah.
For others, the bathtub was Ôjust in the wrong
placeÕ: For Georgina, a renter of Chinese-Vietnamese
background:
14
All names have been changed.
290
N. Blomley / Geoforum 36 (2005) 281–296
Georgina:
Q:
Georgina:
The bathtub shouldn’t be there.
And why not?
It’s just in the wrong place. Bathtub
should be in a bathroom.
ÔUgly! The bathtub doesn’t seem to suit. Maybe if it
was by their house instead of out there’ (Jack, Chinese-Canadian owner).
However, this was often tempered:
Q:
Karen:
If they look after it, do you mind?
No I don’t (Filipina owner).
Others objected on the grounds that the planting was
a potential hazard, echoing the official presumption
(reproduced in some legal decisions, such as Federated
Anti-Poverty Groups of B.C. v. Vancouver (City)
[2002] B.C.S.C., 105; and Vancouver v. Burchill [1932]
S.C.R. 620) that the primary function of the street is efficient movement. However, such comments were in the
minority.
ÔMy personal preference would be not to see something like that, for example in this photo, with the
bathtub, I think that could pose a potential safety
issue. It could be a blind person that doesn’t know
that there is a bathtub sitting in the middle of the
boulevard and could walk into it (Darlene, Chinese-Canadian owner).
While some did not object to the placement of the
bathtub, they interpreted it as a marker of ownership.
The land was thus deemed essentially private because of
the labour that had gone into it: Carolyn, an Anglo renter
expressed surprise at learning that this was public land:
Carolyn:
Q:
Carolyn:
Q:
Jay:
Actually I never thought about them
encroaching on city land, which of course
is our land, I suppose. It always seemed like
theirs.
Seems like their land, why’s that?
Because they do all the work, plant the stuff,
I never thought about this as mine.
Would you feel comfortable going there, say
for example you didn’t know them, going
there, kind of sitting there, smelling
the flowers?
No I wouldn’t. I wouldn’t be camping out on
their section, because I feel that’s an
extension of their house. It’s their space,
it’s not where I would set up (Anglo owner).
In all these responses, a line was drawn between public and private space. The tub and its associated garden
were private objects that, for some, rendered the space
itself private. For at least a few respondents, the fact
that these private objects were in public rendered them
out of place.
4.2. Public and private
Yet these reservations were easily matched by those
of the majority of respondents who did not find the
bathtub inappropriate—indeed, many actively welcomed the Ôencroachment’. I want to suggest that these
residents, in general, thought of the bathtub in ways that
complicated the conventional public–private divide.
They did not think of the bathtub as either a private
encroachment, or a pure public good: rather, they regarded it as both. Put another way, the bathtub was
not out of place but had, in a sense, created a different
place, one that was neither purely private nor public
but partook of both (cf. Blomley, 2004c, in review). This
departs from the central presumption that Ôno element
can be both public and private simultaneously or even
neither public nor private’ (Bobbio, 1989, p. 9).
Thus, many saw the bathtub not as a private Ôtaking’
but rather as a collective sharing by a group of private
individuals. One resident saw it as Ôinvolving everybody,
it’s art shared into space’ (Sam, Anglo owner, my
emphasis). For Pauline, an Anglo owner:
I don’t feel like it’s a taking possession of public
space in a selfish way, it’s more like extending the
care that you give your own space to the public
space (my emphasis).
Niles and Diane, Anglo owners, agreed:
Diane
Niles:
Diane:
Niles:
I like that. . .
I do too
I think that’s really pretty . . . I thought it was
sort of like giving something to the community.
I thought it was very. . .doing something for
the public pleasure.
Mmhmm [assent].
Some were explicit in identifying this as an essentially
public, rather than private, venture. The absence of an
enclosure was seen as probative. Comparing the bathtub
photo with other encroachments that had used fences,
John, an Anglo, owner noted that:
John: This one’s great . . . They have kept the fence
back but they have improved the public boulevard
with all kinds of funky stuff, and that’s great
(my emphasis).
Q:
That’s fine with you?
John: Yeah.
The bathtub had become, in effect, public. Thus Nigel, an Anglo renter, noted that he would not pick a
flower from the space, as this was a selfish act that took
from Ôeveryone’:
If I pick a flower I’m the only one who gets anything
out of it. If it stays there then it is for the enjoyment
of everyone.
N. Blomley / Geoforum 36 (2005) 281–296
The bathtub was thus not Ôout of placeÕ; quite the
contrary:
If it was sitting in someone’s back yard overturned
and rusting and not really. . . just overgrown. . . probably for me, I wouldn’t like it. But the fact that they
used their imagination and used it as planters is kind
of cool (Jocelyn, Chinese-Canadian owner).
So for many, the tub was not a private encroachment.
Yet, while it was deemed a sharing with the community,
respondents were also uncomfortable with the idea that
this was a pure public space. This was the attitude of
some City officials, who argued, in keeping with the legal
principles outlined above, that private encroachments
into public space became public property. Thus, the tree,
planted on the boulevard:
‘. . . belongs to the public now . . . The fact that you
planted it, it’s no different than if you planted it on
your neighbour’s property. If you wanted it to be
under your control you should have put it on your
property . . . People have often planted trees behind
the sidewalk . . . that have become public trees,
sometimes to their sorrow because then they’ll want
to cut it down and we’ll say you can’t cut it down
because it’s our tree. It belongs to the public now
and we’ve maintained it, we’re going to maintain it
and the fact that you planted it, it’s no different than
if you planted it on your neighbour’s property. If you
wanted it to be under your control you should have
put it on your property’ (interview with author,
my emphasis).
However this straightforward binary was not the
norm for local residents. Many respondents thought of
the space as partly private. In part, this was because of
the hard work that the artists had put into the space,
but also because of what observers took as the intention
of the space (one for shared visual enjoyment, not use).
Thus, Niles and Diane noted that they would feel nervous sitting in the space. The fact that the creators
had not included a bench, they felt, signaled that it
was designed more for Ôenjoying as you walk byÕ.
But while some thought they could divine the intention of the encroachment as partly unwelcoming (because of the absence of benches, for example) others
thought differently. Nora, an Anglo renter noted that
Ôit definitely feels like their yard, it is their yardÕ. She
went on, however, to say that Ôit doesnÕt mean you canÕt
smell the flowers, or walk through there. . . walk this way
or that way. . . itÕs okayÕ. John went so far as to claim
that he would feel comfortable using this space as if it
were public land given his reading of the purpose of
the site:
‘When people do this they have to understand that it
is public land that they are improving and if some-
291
body wants to come and hang around their bathtub
planter then that’s okay. Hopefully they have done
that to encourage people to come and hang out
there’ (my emphasis).
In either case, the space allowed for visually encoded
ÔconversationsÕ over its purpose. Values associated with
exclusion and inclusion, and privacy and openness, taking and sharing were discerned from the landscape,
though often in conflicting ways.
Picking a flower felt like theft, consequently, but this
was a Ôproperty crimeÕ committed against both the creators of the space, and the wider collective. Sam (who
had described the encroachment as Ôart shared into
spaceÕ) had a very nuanced response to the site, in which
vision, as a form of communication, played a central
role. He argued that Ôeven though there is no ownership
[i.e. private ownership], itÕs like the enjoyment is a visual
thingÕ, by which he meant, I think, that the creator of the
space had a moral claim to the space to the extent that he
or she enjoyed looking at it. Yet others were also able
(and were implicitly invited) to visually appropriate this
site, Sam claimed. This opened the possibility for dialogues between the creator of the space and others: Ô. . .
if somebody wanted to ask: ‘‘oh, thatÕs a beautiful
flower’’ then the person might be willing to give them that
flowerÕ. That said, Ôyou canÕt just go in. . . thereÕs a sense of
stealing if you just take itÕ. But this Ôsense of stealingÕ was
qualified: it wasnÕt so much that the taking of a flower was
a theft from a private individual, as it was a affront to the
collective intent of the bathtub. The creator, Sam noted,
had put ÔenergyÕ into the creation of the space that was
construed as a visual ÔgiftÕ. ÔThe gift has already been
given by doing it, whether someone is looking at it or
not, the gift is givenÕ. To take a flower would compromise
this gift. However, ÔitÕs taking away from the next person,
then you will come walking along and suddenly there is
no flower to look atÕ. Interestingly, Sam characterized
his own ÔencroachmentÕ as a sharing. When asked what
his motivation was for gardening, he noted that it was
to Ôincorporate more of the community because itÕs not
just myself itÕs the community around me. . . So itÕs a lot
for the community. And itÕs also for myself. Because I like
that environment, so I like to share itÕ
The space, for many, was thus an amalgam of the
public and the private. This hybridity is captured by
the comments of a couple, Denise and Nora, a pair of
Anglo renters:
Denise:
Nora:
Denise:
Nora:
It’s definitely public property . . .
. . . but it’s theirs, I feel like that it’s their space
. . . they’re claiming it
. . . but I appreciate what they’ve done with it.
As an aside, this created an interesting uncertainty,
for some, over where the borders lay. However, respondents did not seem overly concerned at this ambiguity:
292
Karen:
Q:
Karen:
N. Blomley / Geoforum 36 (2005) 281–296
Doesn’t it [the bathtub] belong to
their property?
I think the property line is about here . . .
Ohhh [realization] . . . I didn’t know that . . .
I thought it was their property, I never knew
that! [laugh] I thought what you referring
to is like, there’s the sidewalk, and there is
a piece of grass and they utilize the grass by
the sidewalk (Karen, Filipina owner).
This hybrid space was not a given, however, but was
actively produced. As hinted at above, the actions and
intentions of those ÔencroachingÕ combined with the responses of local residents to produce a particular coding
of a space. Private and public, in other words, appeared
not as static or pre-given categories but like property
more generally, dependent on iteration, reproduction
and reworking (Blomley, 2003). While some respondents, as noted, used fairly stark binaries, many evidenced complicated and nuanced evaluations of the
intent and character of the creators. The way that space
looked was central to these evaluations. As noted above,
the spaces of property are said to have a particular relation to vision. While the assumed determinacy of vision
is supposed to lend itself to certainty in property (Ôwhat
you see is what you getÕ), the evidence here and elsewhere suggests not only a fuzziness to the visual communications of property, but also the possibility that these
communications are inter-subjective, rather than monadic, such that Ôpresenting and seeing take[s] place in a
kind of conversationÕ (Rose, 1994, p. 285). PropertyÕs
visibility, Rose (1994, p. 268) claims, Ôis especially attuned to letting people speak to each other, over time,
about their relation to placeÕ (p. 268). This clearly departs from the assumed visual certainties of legal spaces,
such as SackÕs confident assertions, noted above, as to
the communicative effects of the boundary.
Of particular importance to the way the bathtub was
received was the creative impulse that was said to underlay it. Viewing the photograph, Sam noted that it would
be easy to misread the site, and assume that ÔOh my God,
somebody has left their bathtub in there!Õ However, as he
knew the place he knew that was an intentional space:
Ôthese guys put tons of time and money into their gardenÕ.
Ô[T]hese people are artists living there, so the extension of
their design, and their environment, is so important to
them that they want to share it with the neighbourhoodÕ.
Some described it as breaking Ôthe monotony of the street
up, thereÕs some imagination happening there (Mark,
Chinese-Canadian condo owner) while for others, ÔitÕs
great, it shows personality, and people should aspire to
eclectic viewsÕ (Denise, Anglo renter).
The act of cultivation was also deemed important. As
noted above, the planting was described as a gift to the
community. For one commentator, however, this was
appropriate when flowers were planted.
Bonnie:
Q:
Bonnie:
Q:
Bonnie:
Q:
Bonnie:
Q:
Bonnie:
Q:
Bonnie:
It’s good. Growing flowers.
This is good?
Yes, I really like to grow flowers.
But this space is not privately owned, but
public space.
Public land, it’s good to grow flowers as
well.
So you think using private land to grow things
is good?
Yes, growing flowers is good.
If they put garbage or other stuff there all over
the place . . .
Of course if it’s garbage, it’s not good. Growing
flowers is good.
So, here you think it’s okay
Yes, it’s pretty nice (Chinese-Canadian, renter,
translated)
Several noted that they approved more of the creative
intent of the bathtub planting, than the results. In so
doing, they seemed to value a public domain that was
characterized by individual acts of ÔbeautificationÕ even
at the expense of difference. While such interventions
created diverse expressions of ÔbeautyÕ, the creative impulse that motivated such interventions was in itself
valuable. However, such an acceptance required a tolerant sensibility. Nigel and Jeffrey, a pair of Anglo renters,
mused on this question:
Jeffrey: I think that kind of thing should be given
some leeway. Efforts at beautification . . .
Nigel: . . . everybody’s going to have a different idea
of what’s beautiful, there’s. . .
Jeffrey: . . . there’s millions of aesthetics, but there’s
only a single effort to try and make it. . .it’s
the same impulse to try to make your
neighbourhood better, even if there are widely
differing ideas of what would make that better
Q:
Are you saying that you appreciate the effort even
if the aesthetic is not maybe the same as yours?
Jeffrey: Exactly. I think that it is a single impulse that
everyone has when they do that to try to make
their neighbourhood better. You have to sort of
accept that, whether or not whether or not you
completely like it.
Q:
Even though it’s public land?
Nigel: Yeah.
Jeffrey: Yeah. If it causes trouble that’s generally
when it gets pulled out.
Nigel: Well, I think that being part of a collective
entity means coping with other people’s
opinions and letting them do a certain amount.
Too many people feel that they should have
control over too much, that they should be able
to deny people anything that they don’t think is
appropriate, in all facets of life. People need to
learn to become a little more relaxed.
N. Blomley / Geoforum 36 (2005) 281–296
5. Conclusions
My account is a modest and limited one, and any conclusions must be qualified. First, Strathcona is undoubtedly a distinct place. Several respondents claimed that a
more relaxed attitude toward the probities of gardening,
including encroachments, set Strathcona apart from
more strait-laced places. For one couple, this helped
Ôkeep this neighbourhood looking differentÕ, as compared
with Ôthe American suburb with all the lawns looking exactly the same with a few annuals around the houseÕ.
However, any place, by definition, has its particularities.
This, in one sense, is the point, for law imagines a utopic
world where difference is the exception. Selznick (2003)
notes that property is especially prone to non-contextual
thinking or what he terms Ôthe lure of absolutesÕ (p. 183).
This encourages a view of property as abstract and ahistorical. The local specificities of the real world, conversely, complicate such claims. While we should not
expect every place to be like Strathcona, in other words,
it is quite likely that other places will provide equally
complex stories. Put another way, it is insufficient to argue that law is constitutive of social life: Ôit is evident that
law is involved in different ways and is given different
meanings in different social locales. We need a way of
thinking about these variations in texture, meaning,
value and behavior. . .Õ (Engel, 1995, p. 127).
Second, the response of residents to the broader issue
of encroachments may also have been different had the
encroachment been more obviously motivated by selfregarding behaviour. So, for example, I know from
experience that residents are often resentful when streets
are blocked off for film production, a common occurrence in Strathcona. It is also possible to imagine that
a more obviously privatized garden encroachment (such
as one with fences) would be treated differently. However, even when describing other such encroachments,
many respondents were also tolerant, often regarding
them also as a collective amenity.
Also, a laundry tub and old washing machine also appear to be relatively insignificant and quotidian objects
compared to the Ôgreat dichotomyÕ of the public and
the private, especially when filled with flowers. However,
as noted, there may be more to flowers, insofar as property is concerned, than meets the eye. Gardening, I have
noted, signals a property claim in both a popular and legal register. That said, while law certainly worries about
maintaining the public–private boundary, the encroachment in question seems, quite frankly, mundane, compared to more obviously controversial boundary
crossings, such as the privatization of public space (Sorkin, 1992). Yet again, if it is the case that law Ôdoes not
just happen to the everyday; it is produced and reproduced in everyday encountersÕ (Sarat and Kearns,
1995a, pp. 7–8), it is these very qualities that make a
laundry tub in Strathcona worth considering.
293
These and other caveats aside, I hope that my argument has some value. I have treated the laundry tub as
a transgression, albeit humble, of an important legal
boundary. Legal spaces more generally are said to be a
crucial materialization of law, serving to communicate
legal meaning and, in so doing, helping to produce a
particular legal consciousness. As noted, law is said to
produce a particular understanding of the world, shaping peopleÕs beliefs concerning their own identity and
their relationship to others. Property, in particular, produces a highly individuated self, anxious of others.
When spatialized, law is, if anything, said to be more
determinative of consciousness, it has been argued.
Yet again, the evidence here suggests a more complicated picture (compare also with Blomley, 2004b,c).
Certainly when appraising this garden on Hawks
Avenue, some responded in ways that appeared to
reproduce formal legal understandings. They seemed
to see it as a boundary crossing that was simultaneously
a violation of a legal and a spatial category. They had no
particular objection to bathtubs or perennials: what they
seemed to find inappropriate was the placement of both.
The tub was just Ôin the wrong placeÕ, as one put it. If it
were in private space, it would be fine. One should not
suppose that these respondents were simply espousing
a narrow legalism: later on in the interviews, they frequently came up with more nuanced responses. However, it is reasonable to suppose that they were
reproducing dominant understandings of the geographic
organization of the public and private domain. GeorginaÕs comments, repeated below, are instructive:
Georgina: The bathtub shouldnÕt be there.
Q:
And why not?
Georgina: ItÕs just in the wrong place. Bathtub should be
in a bathroom. 15
As Bobbio suggests, the public–private divide is supposed to be mutually exclusive and exhaustive. Similarly, perhaps, for Georgina, a public bathtub is
clearly Ôin the wrong placeÕ (that is, has crossed a clear
divide) and should be located Ôin a bathroomÕ (in other
words, in the only other possible spatial domain, the private realm).
However, as suggested, these readings—which in
varying degrees accorded to the formal interpretation—were the exception. For many, the planting was
15
A reviewer of this paper expressed reservations at my interpretation of GeorginaÕs response, noting that she may feel it was in the
Ôwrong placeÕ not because it was in public, but rather because as a
bathtub, it was designed to be installed in bathrooms. As I note above,
the interpretation of interview data as it relates to legal norms should
indeed be undertaken with caution. However, at least in this case, I
would note that the interviewer went on to ask her whether she would
still object to the planting if it were in some Ônice lookingÕ object. She
still felt that it would be inappropriate.
294
N. Blomley / Geoforum 36 (2005) 281–296
read as a public gift from a group of private individuals,
to be shared by all. This clearly departs from the moral
logic of the ÔencroachmentÕ which, as noted, is assumed
to be a privatized ÔtakingÕ, motivated by the desire to entrench upon anotherÕs rights (in this case, those of the
res publica). Rather, respondents characterized it as
Ôsomething for the public pleasureÕ. Rather than it being
Ôa taking possession of public space in a selfish way, itÕs
more like extending the care that you give your own
space to the public spaceÕ. Yet while the garden was public by intention or location, and proffered a public ÔgiftÕ,
it was still partly private, given the physical labour that
had been put into it (echoing the pervasive notion,
drawn upon by Locke, though prefiguring him, that
ownership is produced through human labour), as well
as the creative energy. For Denise it was Ôdefinitely public propertyÕ, yet for her partner Nora, ÔitÕs theirs, I feel
like that itÕs their spaceÕ.
Public and private, in this sense, did not emerge as
neatly exclusive or exhaustive categories. Legal understandings and their spatial articulations are clearly
important to everyday understandings and practices.
They do provide an important vocabulary through
which things such as the laundry tub on Hawks Avenue
are understood. However, while any vocabulary comes
with linguistic and grammatical rules, people may speak
it and remake it in unexpected and creative ways. Even a
master vocabulary such as English is locally inflected
with diverse and even resistant meanings. Similarly,
legal spaces may be produced in heterodox and intricate
ways that depart from dominant legal geographies.
Boundaries, such as that between public and private
space, are Ôequally social, political and discursive constructs, not just static naturalized categoriesÕ (Newman
and Paasi, 1998, p. 187; see also Paasi, 1999).
One of the essential qualities of territoriality, argued
Robert Sack, is its communicative effect in signaling a
claim to space to observers. I have argued that the interpretation of the meanings of legal space may well
be more diverse than his terse account suggests. It may
also be the case that the form of communication is
also far less uni-directional than this imperative
model supposes. The evidence here suggests that popular legal meanings can be produced through dialogical
encounters. Respondents looked to the material form
of the site (its lack of fences or benches; the use of flowers, not vegetables; the choice of unorthodox planters)
and its location, in order to discern the intent of the
space and thus shape a moral and aesthetic response
to it. While vision is, as noted (Rose, 1994), clearly
important to the enactment of property, we need not assume that the visual meanings assigned to propertyÕs
spatial markers are straightforward.
Perhaps spatial and legal categories such as the
public/private divide, deemed central to the prevailing
ideological architecture, are more fluid, empirically
speaking, than one might think. While they are clearly
powerful, and inform much policy and governmental action, it is not necessarily the case that they have the purchase on everyday life that is supposed. People seem to
live in much more complicated, fluid and hybrid worlds
when it comes to categories such as property, which relies upon clarity, order and fixity.
This is important. In their review of the importance
of the public and private to social life, Benn and Gaus
(1983, p. 6) argue that Ôwe apprehend a great deal of
our social world by distinguishing things that are public
and things that are privateÕ. This is said to Ôinform not
only what we ourselves say and do but also what responses to our actions we expect from others [and]
how we assess their actionsÕ. Critical legal scholars, feminists, and many others have argued that these distinctions can have invidious effects. And the evidence that
the public–private binary can allow unjust distinctions,
with real consequences, is undeniable. Certainly, judges
seem to have internalized the public–private distinction,
reproducing it in numerous legal decisions. However,
the determinative effect of a legal categorization like
the public–private binary outside the courtroom may
be a little less certain, particularly when spatialized. If
law is thought of not just as ideology, but also as practice, this seems significant. Perhaps the purchase of legal-liberalism in the everyday world is less certain and
straightforward than we have been lead to suppose.
If these findings are important in the analysis of how
property works, in the world, they also seem useful in
thinking about what property actually is. As noted
above, law leans heavily on a definitional model of what
property is, and what it is not (Blomley, 2004a). Law
acknowledges the existence of two categories of ownership, the private, and the public (or state-owned). However, evidence here, as well as elsewhere, suggests that
property can appear in ways that are both more heterogeneous and hybrid. Public property need not reduce to
state property, for example (Rose, 1998) but can also
accommodate other forms of group property. Further,
ownership appears here as layered—thus, the bathtub
can be both private and public, in defiance of the categorical strictures of dominant understandings of property. The bathtub in Strathcona is thus perhaps an
example of a form of hybrid ownership, informally constituted—a third (legal) space, perhaps. The determinacy
of the public–private distinction, in that sense, may be as
much aspirational as real.
Such claims do not invalidate the argument that lawÕs
geographies are important—quite the reverse. Nor
should my argument be taken for a plea that we collapse
the distinction between the public and the private (cf.
Elshtain, 1997). However, I hope it alerts us to the possibility that law has multiple and nuanced geographies.
In the movement between formal and more everyday
legal geographies, as well as the complications of both
N. Blomley / Geoforum 36 (2005) 281–296
and their effects upon the social world, a more intriguing
set of analytical and political possibilities begins to
emerge.
Acknowledgements
My thanks for the helpful comments of three anonymous reviewers. Versions of this paper were presented at
the Annual Meetings of the Canadian Association of
Geographers (2003) and the Association of American
Geographers (2004). Research was funded by the Social
Science and Humanities Research Council. I am extremely grateful to the participants in the study cited here,
as well as the hard work of Lorraine Gibson, Milo
Wu, Aurian Haller and Kathleen Yan, my research
assistants.
References
Anon, 1991. Adverse possession suit goes to trial on conveyance issue:
Aitola v. Chickara, Supreme Court IA Part II, Justice Ramirez.
New York Law Journal 26 (Feb), 21.
Bakan, J., 1997. Just Words: Constitutional Rights and Social Wrongs.
University of Toronto Press, Toronto.
Benn, S.I., Gaus, G.F., 1983. The Public and the private: concepts and
action. In: Benn, S., Gaus, G.F (Eds.), Public and Private in Social
Life. Croom Helm, Beckenham, pp. 3–30.
Blackstone, W., 1765/1979Commentaries on the Laws of England, vol.
1. University of Chicago Press, Chicago.
Blomley, N., 2003. Law, property and the geography of violence: the
frontier, the survey and the grid. Annals of the Association of
American Geographers 93 (1), 121–141.
Blomley, N., 2004a. Unsettling the City: Urban Land and the Politics
of Property. Routledge, New York.
Blomley, N., 2004b. The boundaries of property: lessons from Beatrix
Potter. The Canadian Geographer 48 (2), 91–100.
Blomley, N., 2004c. Un-real estate: proprietary space and public
gardening. Antipode 2, in press.
Blomley, N., in review. The borrowed view: privacy, propriety, and the
entanglements of property. Law and Social Inquiry.
Blomley, N.K., Bakan, J., 1992. Spacing out: towards a critical
geography of law. Osgoode Hall Law Journal 30 (3), 661–690.
Bobbio, N., 1989. Democracy and Dictatorship: The Nature and
Limits of State Power. Polity Press, Cambridge.
Brain, D., 1997. From public housing to private communities: the
discipline of design and the materialization of the public/private
distinction in the built environment. In: Weintraub, J., Kumar, K.
(Eds.), Public and Private in Thought and Practice: Perspectives on
a Grand Dichotomy. University of Chicago Press, Chicago, pp.
237–267.
Buston, K., 1997. NUD * IST in action: its use and its usefulness in a
study of chronic illness in young people. Sociological Research
Online 2 (3), <http://www.socresonline.org.uk/socresonline/2/3/
6.html>.
Collins, D., Blomley, N., 2003. Private needs and public space: politics,
poverty and anti-panhandling by-laws in Canadian cities. In: Law
Commission of Canada (Ed.), New Perspectives on the Public–
Private Divide. University of British Columbia Press, pp. 40–67.
Cooper, D., 1996. Talmudic territory? Space, law and modernist
discourse. Journal of Law and Society 23 (4), 529–548.
295
Crang, M., 1997. Analyzing qualitative materials. In: Flowerdew, R.,
Martin, D. (Eds.), Methods in Human Geography: A Guide for
Students Doing a Research Project. Longman.
Cresswell, T., 1996. In Place/out of Place: Geography: Ideology and
Transgression. University of Minnesota Press, Minneapolis.
Delaney, D., Ford, R.T., Blomley, N., 2001. Preface: where is law? In:
Blomley, N., Delaney, D., Ford, R.T. (Eds.), The Legal Geographies Reader. Blackwell, pp. xiii–xxii.
Drummond, L.B.W., 2000. Street scenes: practices of public and
private space in urban Vietnam. Urban Studies 37 (12), 2377–2391.
Dunn, K., 2001. Interviewing. In: Hay, I. (Ed.), Qualitative Research
Methods in Human Geography.
Elias, N., 1998. The social constraint towards self-constraint. In:
Mennell, S., Goudsblom, J. (Eds.), Norbert Elias on Civilisation,
Power, and Knowledge: Selected Writings. The University of
Chicago Press, Chicago, pp. 49–66.
Elshtain, J.B., 1997. The displacement of politics. In: Weintraub, J.,
Kumar, K. (Eds.), Public and Private in Thought and Practice:
Perspectives on a Grand Dichotomy. University of Chicago Press,
Chicago, pp. 166–181.
Elshtain, J.B., 1999. Public and private in American political life and
thought. In: Abe, H., Sato, H., Otsuru, C.K. (Eds.), The Public and
the Private in the United States, Japan Center for Area Studies
Symposium Series, No. 12. Japan Center for Area Studies, Osaka,
pp. 23–34.
Engel, D., 1995. Law in the domains of everyday life: the construction
of community and difference. In: Sarat, A., Kearns, T.R. (Eds.),
Law in Everyday Life. University of Michigan Press, Ann Arbor,
pp. 123–170.
Engel, D., 1998. How does law matter in the constitution of legal
consciousness? In: Bryant, G.G., Sarat, A. (Eds.), How Does Law
Matter? Northwestern University Press, Evanston, IL, pp. 109–
144.
Ewick, P., Silbey, S.S., 1998. The Common Place of Law: Stories from
Everyday Life, Chicago.
Ford, R.T., 1999. LawÕs territory (a history of jurisdiction). Michigan
Law Review 97 (4), 843–930.
Geertz, C., 1983. Local Knowledge: Further Essays in Interpretive
Anthropology. Basic Books, New York.
Geisler, C., 2000. Property pluralism. In: Geisler, C., Daneker, G.
(Eds.), Property and Values: Alternatives to Public and Private
Ownership. Island Press, Washington, DC, pp. 65–86.
Gordon, R., 1984. Critical Legal Histories. Stanford Law Review 36,
57.
Gordon, R., 1986. Law and ideology, 3, 1. Tikkun 14, 15.
Hamilton, J.W., 2002. Theories of categorization; a case study of
cheques. Canadian Journal of Law and Society 17 (1), 115–138.
Harris, J.W., 1995. Private and non-private property: what is the
difference? Law Quarterly Review 111, 421–444.
Horwitz, M., 1975. The history of the public/private distinction.
University of Pennsylvania Law Review 130, 1423–1428.
Hubbard, P., 2002. Maintaining family values: cleansing the streets of
sex advertising. Area 24 (4), 353–360.
Hutchinson, A.C., Petter, A., 1988. Private rights/public wrongs: the
liberal lie of the Charter. University of Toronto Law Journal 38,
278–297.
Kelly, A.J., 1997. Averse possession examined: not a beautiful day in
the neighborhood. New York Law Journal 24 (March), S1.
Kitchin, R., Tate, N.J., 2000. Conducting Research into Human
Geography: Theory, Methodology and Practice. Prentice Hall.
Merry, S.E., 1990. Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans. University of Chicago Press, Chicago.
McDowell, L., Court, G., 1994. Performing work: bodily representations in merchant banks. Environment and Planning D, Society
and Space 12, 727–750.
296
N. Blomley / Geoforum 36 (2005) 281–296
Mullings, B., 1997. Insider or outsider, both or neither: some dilemmas
of interviewing in a cross-cultural setting. Geoforum 30, 337–350.
Nedelsky, J., 1990. Law, boundaries and the bounded self. Representations 30, 162–189.
Newman, D., Paasi, A., 1998. Fences and neighbours in the
postmodern world: boundary narratives in political geography.
Progress in Human Geography 22 (2), 186–207.
Paasi, A., 1999. Boundaries as social practice and discourse: the
Finnish-Russian border. Regional Studies 33 (7), 669–680.
Robertson, M., 1995. Property and ideology. Canadian Journal of
Law and Jurisprudence 8 (2), 275–296.
Rose, G., 1993. Feminism and Geography. University of Minnesota
Press, Minneapolis.
Rose, C.M., 1994. Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership. Westview Press,
Boulder.
Rose, C.M., 1998. The several futures of property: of cyberspace and
folk tales, emission trades and ecosystems. Minnesota Law Review
83, 129–182.
Sack, R.D., 1986. Human Territoriality: Its Theory and History.
Cambridge University Press, Cambridge.
Sarat, A., Kearns, T.R., 1995a. Editorial introduction. In: Sarat, A.,
Kearns, T.R. (Eds.), Law in Everyday Life. University of Michigan
Press, Ann Arbor, pp. 1–20.
Sarat, A., Kearns, T.R., 1995b. Beyond the great divide: forms of legal
scholarship and everyday life. In: Sarat, A., Kearns, T.R. (Eds.),
Law in Everyday Life. University of Michigan Press, Ann Arbor,
pp. 21–61.
Seed, P., 1995. Ceremonies of possession in EuropeÕs conquest of the
New World, 1492, 1640. Cambridge University Press, Cambridge.
Selznick, P., 2003. Law and society revisited. Journal of Law and
Society 30 (2), 177–186.
Sibley, D., 2001. The binary city. Urban Studies 38 (2), 239–250.
Smart, C., 1989. Feminism and the Power of Law. Routledge, New
York.
Sorkin, M. (Ed.), 1992. Variations on a Theme Park: The New
American City and the End of Public Space. Hill and Wang, New
York.
Strang, V., 2000. Showing and telling: Australian land rights and
material moralities. Journal of Material Culture 5 (3), 275–299.
Sypnowich, C., 2000. The civility of law: between public and private.
In: Passerin dÕEntréves, P., Vogel, U. (Eds.), Public and Private:
Legal, Political and Philosophical Perspectives. Routledge, London
and New York, pp. 93–116.
Trubek, D., 1984. Where the action is: critical legal studies and
empiricism. Stanford Law Review 36, 575.
Underkuffler, L., 2003. The Idea of Property: Its Meaning and Power.
Oxford University Press, Oxford.
Unger, R.M., 1975. Knowledge and Politics. Free Press, New York.
Valentine, G., 1997. Tell me about. . . : using interviews as a research
methodology. In: Flowerdew, R., Martin, D. (Eds.), Methods in
Human Geography: A Guide for Students Doing a Research
Project. Longman.
Varley, A., 2002. Private or public: debating the meaning of tenure
legalization. International Journal of Urban and Regional
Research 26 (3), 446–491.
Walzer, M., 1984. Liberalism and the art of separation. Political
Theory 12 (3), 315–330.
Warner, M., 2002. Publics and Counterpublics. Zone Books, New York.
Weintraub, J., 1997. The theory and politics of the public/private
distinction. In: Weintraub, J., Kumar, K. (Eds.), Public and Private
in Thought and Practice. University of Chicago Press, Chicago, pp.
1–42.
Yngvesson, B., 1988. Making law at the doorway: the clerk, the court,
and the construction of community in a New England town. Law
and Society Review 22, 409–448.