ICON S Conference 17 – 19 June 2016 Humboldt University Berlin

Michèle Finck: The Right to the City From a
Legal Perspective
My paper engages with the so-called ‘right to the
city’, a concept that has recently gained in popularity
in urban studies and urban social movements. In its
essence, it refers to the fact that the inhabitants of a
city should have the right to actively shape their city,
and hence minimize the power of politics and markets
in this regard. The paper briefly introduces the concept
and then sets out to examine it from a legal perspective,
taking into account a number of different legal orders. I
analyze whether the law can actually recognize any such
thing as a ‘right to the city’ or whether any precise legal
rights may flow from the concept, such as for instance
the right to political participation or housing at local
level. In this context, I will examine, for instance, the
right to the city as it exists in Brazil as well as elements
of direct democracy at local level in Germany, in particular
in Berlin. The paper will conclude that despite the
existence of these tools most legal orders, as they currently
stand, are incapable of recognizing ‘the right to
the city’ for a number of reasons, including the conflict
that would arise between this right and a number of established
rights, especially the right to private property.
Tilman Reinhardt and Michael Denga: From
Dupnitsa to Inner London – Exploring the legal
dimension of Lefebvre’s “Right to the City”
Two major trends are changing the face of Europe’s
capitals: Migration and Privatization. Whilst they are
turning them into vibrant, cosmopolitan centers of our
civilization, they are also associated with increasing
segregation and social stratification. Be it at the limits,
as in Paris’ sprawling Banlieues, or right in the center,
as in London’s Borough of Tower Hamlets, migrant
communities are often clustered together in socioeconomically
marginalized quarters. As more and more
public goods are left to the private sector, this clustered
distribution may result in material differences in living
conditions (insurance costs, access to health and
education, “food deserts”, etc.).
States and municipalities, when trying to counter
spatial inequalities, are typically relying on topdown
approaches, such as urban planning, housing
schemes, and regulation. A recent ECJ-judgement
C-83/14, CHEZ however, draws attention to the potential
of addressing spatial inequalities “bottom-up”
through European Antidiscrimination Law. Various legal
questions arise in this context: Which subject matters
are covered by Art. 21 CFR? Could the unequal treatment
of residents from multiethnic quarters be considered
a “racial or ethnic” discrimination? How could one
define appropriate spatial reference frames? Does Art.
21 CFR imply positive duties to prevent unequal results?
Our presentation seeks to answer these questions
and put the results into the larger context of Antidiscrimination
Law, European Social Law and Urban Governance.
78 HOW CAN THE ABSENT SPEAK?
PRESUMPTIONS AND PARADOXES
OF PRESENCE IN PUBLIC LAW
As states exercise power outside of their territory and
against nonmembers, public law is made to step out
of its national and territorial context to negotiate its
place within and beyond its own borders. As boundaries
of state power become less fixed, the boundaries
between national, transnational, and international principles
and domains are also being redefined. Where
public law is so intimately dependent on democratic
legitimacy for its authority, the transgression of borders
and the exercise of state power over ‘others’ raises
questions of how public law deals with the absent. This
panel tackles the conference themes by considering
the relationship between presence, absence and legitimacy.
How does public law negotiate legitimacy of
authority over the ‘other’ who is physically absent, as in
the case of migrants? What role does the ‘reasonable
person’ play in creating legitimacy through absence?
And how does the mere presence of the state complicate
how we think about legitimacy?
Participants Dana Schmalz
Valentin Jeutner
Nino Guruli
Name of Chair Michaela Hailbronner
Room DOR24 1.404
Dana Schmalz: The part of the absent – or:
physical boundaries and democracy
Every notion of democracy operates with an idea
of the respective people (or demos). My focus here
is on those notions, which have abandoned any essentialist
conception of the people, notably different
approaches of radical democracy. Whereas the demos
in these approaches is generally understood as open,
the possibility to participate in actions identified as
democratic typically hinges on the physical (co-)presence
of persons. This gains significance for the question
whether and how rules, which condition or hinder
physical presence, can become subject to democratic
contestation. We find numerous examples of such
rules in the area of border and migration policies. In
analyzing how these rules become contested, several
scholars have drawn on a Rancièrian account of democratic
struggle as the “climbing of a stage” (Rancière
1999, 81). It is my suggestion that this Rancièrian account
can be misleading when thinking about the position
of persons, who are physically distanced by the
rules from the polities and publics that decide about
these very rules. Against this background, I would like
to discuss the significance of physical presence for
democratic processes and possible consequences
for conceptualizing rules of physical deterrence.
Anél du Plessis: Commentator
Concurring panels 119