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Innovating to Support the Transition to the City of the 21st CenturyBox 3.2.3Individual versus collective interestsThe legal foundation of the 20th-century city lies in theancient tenets of Roman Law and the Napoleonic Code,together with the subsequent elaboration into modern civiland common law. The gist of this legal corpus is the preeminenceof the individual, who is considered as possessedof inherent rights as represented in the 18th century FrenchRevolution’s Declaration of the Rights of Man and the Citizen.Within this individualistic legal tradition, property rights reignsupreme, with the emphasis on the rights of owners to thedetriment of their social implications and other, broader,collective interests, including duties and responsibilities. Withparticular regard to urban settings, ‘land and property areconceived largely as commodities whose economic value isdetermined by the owners’ interests.’ 52 In this system, therole of the State at all levels is relegated to harmonizing andmediating these interests, and to oversee those assets andfacilities that require collective use.energy consumption and poor regard for the potential foragglomeration economies.Towards a New Legal-Urban Order forHolistic ProsperityDuring the last two decades, the pitfalls of the conventionalurban development model have become more glaring. Asshown in the previous section (Urban Prosperity throughPlanning and Design) the potential of cities has not beenfully harnessed, a more common trend has developed whereurban development tends to be spatially fragmented and thebenefits of prosperity remains socially segmented.In contrast, over the past two decades some Braziliancities have taken to re-examining the prevailing urbanlegal order, with bold practical schemes inspired by a setof alternative, radical urban doctrines and jurisprudencewhich depart from the classical liberal legalism exaltingindividualism and private property. After a long periodof consultations andnegotiations, a nationwidethose fewCity Statute was adoptedfact cities featuring in 2001 enshrining a Rightbalanced andto the City. The Statutesustainable prosperitymakes an importanthave effectivelycontribution to urbandeployed adequatelaws, regulations and law, facilitating sharedinstitutions in support of prosperity, particularlytheir transformation. in the context of afactAlthough the 20th-century city tends to exhibit fairdegrees of vibrancy and dynamism, whatever attendantprosperity it experiences is often skewed and unsustainable – andtherefore ridden with perennial crises.developing country. The Statute also “broke with thelong-standing tradition of civil law and set the basis ofa new legal-political paradigm for urban land use anddevelopment control.” 53 A prominent scholar highlightsfour dimensions of Brazil’s 2001 City Statute: “Aconceptual one, providing elements for the interpretationof the constitutional principle of the social functions ofurban property and of the city; the regulation of newinstruments for the construction of a different urban orderby the municipalities; the indication of processes for thedemocratic management of cities; and the identificationof legal instruments for the comprehensive regularisationof informal settlements in private and public urbanareas.” 54 This new urban legal order has had highlyvisible effects. As a nation and at macro-economic level,Brazil is among a handful of countries in the world thathas been able to achieve remarkable growth rates formuch of the early years of this century, despite the globaleconomic turbulence. More significantly, Brazilian citieshave been able to expand the middle class segments oftheir populations and to improve economic and livingconditions for substantial numbers of poor residents.Although still very high, cities are reducing incomeinequalities, as measured by the Gini coefficient, whichdecreased from 0.606 in 1990 to 0.569 in 2009. 55Revitalized ‘Rights to the Commons’ andExpansion of the Public Realm‘Commons’ reinforce the social function of property andthat of the city as a whole, while recognizing the dynamismof private assets. Laws, regulations and institutions asfactors of restraint, opportunity and action, act as the leversthat can optimize the socialfunction of property andbalance it out with privateShared urbanpolicy prosperityrights and assets. It mustis about enhancing thebe stressed here that thispublic realm, equitablesocial function is not about sharing of public goods andownership rights or theirconsolidating rights to thetransactional implications. commons for all.Rather, it is essentially117
State of the World’s Cities 2012/2013about user rights forAs cities work enhanced human value.policy on the fiveThe ‘Right todimensions of prosperity,the Commons’ is anthere also occurs aprogressive expansion inancient concept in legalthe size of the commons. jurisprudence originatingMore amenities are brought in feudal England, whereinto collective use and more it referred to the extensionaccess is provided, enabling of user rights for all onlarger numbers of urbana manor’s grazing land.residents to use and enjoyshared spaces, services andLately, the notion hasfacilities.resurfaced in urban settings(including public goods,societal institutionalarrangements, publicculture, and heritage sites),The capacity forfact a city to maintain where it is perceived as anextensive and qualityeffective way of counteringshared spaces and facilities not just rampant enclosuresprovides a good indication and appropriations, butof its degree of prosperity.also the rise of dualityunder the form of inequityand segregation.In this respect, cities such as Helsinki, Toronto andBarcelona, which achieve high rankings on the UN-Habitat City Prosperity Index (CPI), feature moreextensive public realms than Monrovia, Nairobi or Dakar,or similar cities with low CPI readings.Legal and regulatory instruments exert a majorbearing on the origination and preservation of thecommons, and also in ensuring indiscriminate access.Statutes, ordinances and regulations are the bases for theguidelines and standards regulating spatial layouts andconstruction designs. The same applies to institutionalrelationships, functionalallocations and authoritydesignation, besidesIn this era ofresource distribution. Thefact enclosures,privatization and evenlegal framework in turninvasion of the traditional enables civic organisationsurban commons (including and community activities.beaches, river banks,Equally significant is theforests, school yards andoverall manner in whicheven pavements), the sizelegal-regulatory andand quality of a city’s overallpublic space acts as ainstitutional frameworksgood indicator of shared delineate the public andprosperity.private spheres and guidethe interaction betweenand within them in the everyday workings of the city.One component of the commons that lately hasattracted a lot of attention is the management of publicspaces. 56 In Panama City, one of the local experts surveyedby UN-Habitat put it as follows: “The more degradedpublic space, the more degraded the citizen, because publicspace is not only about quality of life but also the expressionof citizenship”. 57 Another local expert, in Santo Domingo,underscored the same point perhaps more incisively:“Citizens need to gain positive empowerment, to defendspace enclaves where public life is still alive and where lawsand norms for doing so are available.” 58Revisiting Urban Codes for sharedProsperityRules and regulations constitute a key instrument in urbanmanagement and development. That is why appropriateinstitutions are required to ensure implementationand enforcement as well as awareness building andmobilization. Rules and regulations have significant rolesto play, as they generally steer and circumscribe planningand construction. One author has even gone so far as toascribe the ‘shaping and misshaping of American cities’ topoor planning regulations. 59 Indeed, zoning regulations,building codes, utility standards, deed restrictions andthe many other instruments that shape the urban builtenvironment, will determine not only the pattern, useand form of spaces and structures, but will also stronglyinfluence the quality of life in cities.The review of regulatory frameworks is of particularimportance for those cities in the developing world thathave long operated withexternally derived standardsand codes, who, mustalso tend to effective policy Laws,rules andimplementation andinstitutions mustenforcement capacities.be kept alert, notinert, to current andRevisiting the codesevolving needs anddeveloped for formerlyrisks if a city’s wholecolonial or apartheid cities human potential islike Nairobi, Dar es Salaam to be harnessed,or Johannesburg in a bidnot repressed –to achieve an inclusiveempowering the wholepopulation with “basicurban form is a challengingcapabilities” or “genericendeavour. This calls notconditions of agency”only major for institutional at the service ofrestructuring, but also atoday’s and tomorrow’srevision of zoning andprosperity.118
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AcknowledgementsCore TeamDirector:
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Chapter 1.1Conceptualizing UrbanPro
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Part Two
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