Plurality and Freedom: an Arendtian Account of Property Law

Ben Beiles, Volume 84 Co-Editor-in-Chief

Introduction

We live in a crowded world that is full of people, each of whom has distinct perspectives and objectives. The constant clash between individuals and groups manifests in formal political settings and in the day-to-day negotiations that occur in rush hour traffic, bustling parks and public squares, and other public spaces. Plurality of action and opinion is a basic reality of our modern existence. It is in this context that I turn to the political philosopher Hannah Arendt for insights into the nature of property law.

Arendt is not often cited as the basis for legal theory, and perhaps with good reason, given that her reputation is predominantly as a political theorist. However, I want to suggest that a close reading of Arendt reveals viable building blocks for a comprehensive theory of law. I recognize that such an endeavour is beyond the scope of this brief Forum post. So, for now, I will introduce the basic contours of an Arendtian framework for law and then consider that framework with reference to several property law concepts.

Conceptual Framework

Action, Plurality, and Freedom

In The Human Condition, Arendt describes action as the pinnacle form of human activity. We realize our uniquely human capacity for action when we act and speak with others, thereby revealing our “unique personal identities and thus mak[ing our] appearance in the human world.”[1] This dialogue can be more familiarly described as politics. The essential and somewhat intuitive point is that distinct people relating to one another through words and acts is necessary for democracy and is an essential part of the human condition.

More significant for this post is Arendt’s proposition that action depends on plurality and freedom.[2] Freedom is the capacity of all humans to bring something new and unexpected into the world. Plurality, on the other hand, corresponds to the fact that we live among a multiplicity of free people. For Arendt, plurality has “the twofold character of equality and distinction,”[3] in the sense that we “are all the same, that is, human, in such a way that nobody is ever the same as anyone else.”[4] In simpler terms, we can understand each other as equals because, by virtue of our birth, all human beings are free. At the same time, because freedom entails the capacity for the unexpected, each person will have a distinct perspective on the world and will engage in acts that no other person could predict. Just as our shared humanity allows us to understand each other, our distinction requires us to communicate through mediums like speech and action. This is how plurality, and its constitutive elements of equality and distinction, are the basis for political discourse (action).

Though plurality is linked to natality and the fact of difference, relations of equality and distinction are not automatically realized in every society. To enable action in the context of plurality, we require: (1) a public sphere in which to relate to others as equals, and (2) a private sphere that ensures each person has a distinct location in the world.[5]

Private and Public Spheres

Equality of the Public Sphere

The public sphere is the realm of equality. It is in the public sphere that people bring forth their unique perspectives and appear on equal terms in front of others who can see, judge, and respond.

The public sphere is not a free-for-all because, in crowded modern life, people live “together in such a way that space itself [is not] a sufficient guarantee for assuring each of them [their] freedom of movement.”[6] Simply put, the public sphere is full of many people who each have differing opinions and interests, which they will seek to express and enact. To stabilize the constant motion of human affairs, we need a “common world” that guarantees a space in which to exercise our freedom on equal terms. The basis for this common world is law.

The common world is made up of legal boundaries that assure each person of their freedom within the tumultuous conditions of public life.[7] The law creates boundaries “designed to restrict” the capacity for unexpectedness of “each citizen so that room may be left for [that] of his fellow citizens.”[8] We cannot act without restraint because two people will inevitably try to use the same space at the same time. 

Arendt also characterizes the common world as a meeting ground in which people can relate as equals.[9] In a sense, the boundaries between people are themselves public meeting grounds because we can understand law as a public institution that is known and created by the public. We can also think of the common meeting ground as having a spatial or physical dimension. The common world must include public spaces like parks, town squares, courts, and legislatures where distinct people may come together to discuss, debate, and resolve conflicts on terms of equality. These common meeting grounds are simultaneously governed by laws of equality and host the discourse that is the basis for those laws. As Arendt writes, “man can act in and change and build a common world, together with his equals and only with his equals.”[10]

Distinction in the Private Sphere

Equality alone is not enough for action. As discussed above, we must also be capable of recognizing each other as distinct. We enter the public sphere and recognize each other as having something new to offer because each of us emerges from a unique location in the world. That unique location is secured by the private sphere.

The private sphere is conditioned by its opposition to the public sphere. In public, we are seen by and relate to others. The private sphere assures us of our distinctiveness by shielding each of us from the constant visibility and movement of public life.[11] When we have privacy, we have total control over how we act. We do not need to translate our thoughts into a form suitable for public understanding, and so we are free to think in any manner of unexpected ways. In the security of the private life, we can strengthen our distinct perspectives without being judged. When we emerge from the private sphere and engage with others, we have something new to bring to the common world.

One form of distinction involves the ways that we use spaces and objects to differentiate ourselves from each other. In a world full of other people and property, it is important that we can claim things as our own and have spaces where no one else can dictate our actions. Within the confines of our homes, we can act in a manner that would be unacceptable in the public sphere. The fact that we have experiences, relationships, and creations that are hidden from others means that, when we step into the public sphere, we must transform these private aspects of life into something suitable for public understanding. We introduce something new into the world.

The idea that we have our own spaces, things, and relationships is only possible with a legally protected private sphere. The private sphere is the legal construct that provides people with the space in which to engage in personal life. Though the physical home is an intuitive way of thinking about the private sphere, the private sphere is ultimately about the privacy of people, not places or things. Arendt warns that we are not to protect the privacy of the activities that occur in the private sphere or the physical objects that we possess. Rather, the law must maintain a space of privacy around each person such that we can be recognized as having a unique position in the world. Although in a crowded modern world we require physical privacy in our homes, it is not the physical walls that assure us of privacy, but rather the private law of property.

Public and Private Property

Private Property and Distinction

Trespass demonstrates the role of private law in maintaining the concept of the private sphere.[12] If someone intrudes on my private property without my permission, they act in such a way that treats my private sphere as though it is public. Such an intrusion is inconsistent with my ability to relate to others as a person with a distinct location in the world. Unless I have control over who does and does not come onto my property, I cannot go out into the world and be seen by others as emerging from a space in which I was free to cultivate my unique perspective. My legal right to exclude others from my home is crucial if I am to relate to others as someone capable of bringing something new into the world.

Seeing trespass as a denial of the private sphere also explains why the typical remedy for trespass is an injunction. Only by eliminating the interference with my private property can I reaffirm the status of my home as a manifestation of my distinctiveness.[13] This is why we can conceive of trespass as a private wrong. No one but the trespasser has wronged me, and no one  but the trespasser is capable of reaffirming my status as a person with a distinct location in the world. This also offers insight into why my capacity to exclude people from my private property can be described as an in rem right. The rights I have in my property must be good against all other people if I am to be recognized in my relations with others as having a location of my own in the world.[14]

Public Property and Public Law

While the private law doctrines of trespass and acquisition demonstrate ways in which the law protects distinction, the structure of public property is focused on our capacity to relate on terms of equality. This proposition applies to public law at large, but public spaces like legislatures, courts, parks, and town squares are instructive examples.

For people to engage in equal relations in a public space, that space must belong to everyone. If it belongs to no one, then some arbitrary quality like strength, intelligence, or charisma could dictate who gets to use the space. If the space belongs to someone or some people, then those people get to dictate who gets to use the space. When some can dictate what goes on in a space at the expense of others, it is impossible for people to relate as equals in that space because non-controlling individuals cannot disclose their opinions without the risk of being excluded.

Therefore, a basic requirement for public space is a legal prohibition against individuals or groups treating public spaces as though they belong to them alone. For example, the law must prohibit me from unilaterally burning down the playground, putting up a fence around the soccer field, or barring the doors of Parliament.[15] When I exclude others from these spaces, I commit a public wrong because I am denying the legitimacy of the common meeting ground in which we can relate as equals. Relatedly, for a space to be an effective manifestation of the public sphere, it must realize equal relations between distinct people. As such, we must have constitutional and legislative prohibitions against restricting groups of people from public spaces merely because they are different.[16] To impose a prohibition because of mere difference would be plainly inconsistent with the public purpose of facilitating relations of equality between distinct people.

The fact that no one person can control what happens on public property at the expense of others does not mean that public property is a free-for-all. Relations of equality can take numerous forms, and many of these relations necessitate specific forms of public property. Each of these spaces must be physically and legally defined such that different forms of action and relation can occur. For example, there need to be laws that tell us the legislature is not for singing showtunes. These laws are stable, shared, and accepted such that we can relate as equals in the many ways in which action can manifest. This is consistent with seeing the public law as a manifestation of the common world, which serves to stabilize the constant unexpectedness of political life.

Conclusion

Based on Arendt’s theory of the public sphere, we can think about public property and public law at large as being about assuring us of relations of equality. Correspondingly, Arendt offers an orientation to private property and private law that focuses on the ways in which law allows us to see each other as distinct.

In addition to being somewhat descriptive of existing property law doctrines, this Arendtian approach to law has some normative appeal. Given the recent rise in political polarization and the drift towards nationalism and homogeneity, there is some value in thinking about law as a mechanism for protecting and facilitating relations between people who disagree with each other.

[1] Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958) at 179 [Arendt, The Human Condition].

[2] Ibid at 27.

[3] Ibid at 175.

[4]Ibid at 8.

[5] Ibid at 29–30.

[6] Hannah Arendt, “The Great Tradition: I Law and Power” (2007) 74:3 Soc Research 713 at 716 [Arendt, “The Great Tradition”].

[7] Arendt, The Human Condition, supra note 1 at 54–56.

[8] Arendt, “The Great Tradition”, supra note 6.

[9] Arendt, The Human Condition, supra note 1 at 57–58.

[10] Hannah Arendt, Origins of Totalitarianism, (Cleveland: The World Publishing Company, 1951) at 301.

[11] Arendt, The Human Condition, supra note 1 at 71.

[12] See e.g. Didow v Alberta Power Limited, 1988 ABCA 257.

[13] See e.g. Gross v Wright, 1922 CanLII 16 (SCC).

[14] See e.g. Marrone v Washington Jockey Club, 227 US 633 (1913).

[15] See e.g. Batty v City of Toronto, 2011 ONSC 6862.

[16] Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; Human Rights Code, RSO 1999, c H.19.