STATE OF THE WORLD'S CITIES 2012/2013 Prosperity

Box 3.2.3
Individual versus collective interests
The legal foundation of the 20th-century city lies in the
ancient tenets of Roman Law and the Napoleonic Code,
together with the subsequent elaboration into modern civil
and common law. The gist of this legal corpus is the preeminence
of the individual, who is considered as possessed
of inherent rights as represented in the 18th century French
Revolution’s Declaration of the Rights of Man and the Citizen.
Within this individualistic legal tradition, property rights reign
supreme, with the emphasis on the rights of owners to the
detriment of their social implications and other, broader,
collective interests, including duties and responsibilities. With
particular regard to urban settings, ‘land and property are
conceived largely as commodities whose economic value is
determined by the owners’ interests.’ 52 In this system, the
role of the State at all levels is relegated to harmonizing and
mediating these interests, and to oversee those assets and
facilities that require collective use.
energy consumption and poor regard for the potential for
agglomeration economies.
TOWARDS A NEW LEGAL-URBAN ORDER FOR
HOLISTIC PROSPERITy
During the last two decades, the pitfalls of the conventional
urban development model have become more glaring. As
shown in the previous section (Urban Prosperity through
Planning and Design) the potential of cities has not been
fully harnessed, a more common trend has developed where
urban development tends to be spatially fragmented and the
benefits of prosperity remains socially segmented.
In contrast, over the past two decades some Brazilian
cities have taken to re-examining the prevailing urban
legal order, with bold practical schemes inspired by a set
of alternative, radical urban doctrines and jurisprudence
which depart from the classical liberal legalism exalting
individualism and private property. After a long period
of consultations and
negotiations, a nationwide
those few
City Statute was adopted
FACT cities featuring in 2001 enshrining a Right
balanced and
to the City. The Statute
sustainable prosperity
makes an important
have effectively
contribution to urban
deployed adequate
laws, regulations and law, facilitating shared
institutions in support of prosperity, particularly
their transformation. in the context of a
Innovating to Support the Transition to the City of the 21st Century
117
FACT
Although the 20th-century city tends to exhibit fair
degrees of vibrancy and dynamism, whatever attendant
prosperity it experiences is often skewed and unsustainable – and
therefore ridden with perennial crises.
developing country. The Statute also “broke with the
long-standing tradition of civil law and set the basis of
a new legal-political paradigm for urban land use and
development control.” 53 A prominent scholar highlights
four dimensions of Brazil’s 2001 City Statute: “A
conceptual one, providing elements for the interpretation
of the constitutional principle of the social functions of
urban property and of the city; the regulation of new
instruments for the construction of a different urban order
by the municipalities; the indication of processes for the
democratic management of cities; and the identification
of legal instruments for the comprehensive regularisation
of informal settlements in private and public urban
areas.” 54 This new urban legal order has had highly
visible effects. As a nation and at macro-economic level,
Brazil is among a handful of countries in the world that
has been able to achieve remarkable growth rates for
much of the early years of this century, despite the global
economic turbulence. More significantly, Brazilian cities
have been able to expand the middle class segments of
their populations and to improve economic and living
conditions for substantial numbers of poor residents.
Although still very high, cities are reducing income
inequalities, as measured by the Gini coefficient, which
decreased from 0.606 in 1990 to 0.569 in 2009. 55
REvITALIzED ‘RIGHTS TO THE COMMONS’ AND
ExPANSION OF THE PUBLIC REALM
‘Commons’ reinforce the social function of property and
that of the city as a whole, while recognizing the dynamism
of private assets. Laws, regulations and institutions as
factors of restraint, opportunity and action, act as the levers
that can optimize the social
function of property and
balance it out with private
rights and assets. It must
be stressed here that this
social function is not about
ownership rights or their
transactional implications.
Rather, it is essentially
POLICy
Shared urban
prosperity
is about enhancing the
public realm, equitable
sharing of public goods and
consolidating rights to the
commons for all.