Download Law in Politics: On the Lower East Side

University of Massachusetts - Amherst
From the SelectedWorks of John Brigham
Spring 1996
Law in Politics: On the Lower East Side
John Brigham, University of Massachusetts - Amherst
Diana Gordon
Available at: http://works.bepress.com/john_brigham/22/
American Bar Foundation
!"#$%&$'()%*%+,-$.*/011)2,$(32/$'/(42/*5$"&6$'07)%+$.4"+2$(&$82#$9(/:$;%*5<,$!(#2/$=",*$.%62
>0*?(/@,A-$B(?&$C/%1?"D$"&6$E%"&"$FG$H(/6(&
.(0/+2-$!"#$I$.(+%")$J&K0%/5L$M()G$NOL$8([email protected]/%&1L$OPPQAL$44G$NQRSNTU
'07)%,?26$75-$C)"+:#2))$'07)%,?%&1$(&$72?")V$(V$*?2$>D2/%+"&$C"/$W(0&6"*%(&
.*"7)2$XF!-$http://www.jstor.org/stable/828844
>++2,,26-$YZ[YT[NYOY$YQ-RR
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at
http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless
you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you
may use content in the JSTOR archive only for your personal, non-commercial use.
Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at
http://www.jstor.org/action/showPublisher?publisherCode=black.
Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed
page of such transmission.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].
Blackwell Publishing and American Bar Foundation are collaborating with JSTOR to digitize, preserve and
extend access to Law & Social Inquiry.
http://www.jstor.org
Law in Politics:
Struggles over Property and
Public Space on New York
City's Lower East Side
John Brighamand Diana R. Gordon
This articleexaminespoliticson the LowerEast Sideof Manhattan,
New YorkCity,for evidence
level.Wesee legal
of lawat theconstitutive
relations
overpublicspaceandhousingas foshaping
grassroots
struggles
instrumental
conrums,claims,andpoliticalpositions.Thisviewchallenges
in somesocial-scientific
ceptions
of lawstillprominent
approaches.
On NewYorkCity'sLowerEastSide,politicsis omnipresent.
Thispart
of Manhattan
hasan extraordinary
racialandclassmixandthe community
seemsalwaysto be in transition.In the periodof this study,roughlyfrom
the economicboomof the mid-1980sto the recessionthat usheredin the
1990s,politicalconflicteruptedfrequently.BuildingsfromChinatownto
St. MarksPlaceworebannersproclaiming
rentstrikesor boregraffitidenouncinglocal developers.Leafletsand postersthroughoutthe neighborhood calledmeetingsor offereddistinctivepointsof view on local and
international
Violencebrokeout severaltimesbetween
politicalstruggles.
activistsandpoliceoverthe useof the Tompkins
SquareParkandthe occuof
pation city-ownedbuildingsby squatters.1
Althoughperhapsnot "lawless,"neitherdoesthe LowerEastSide readilysymbolizethe Ruleof Law.
John Brigham is a professorof political science at the University of Massachusetts,
Amherst. Diana R. Gordon is a professorof political science at the City College, City
Universityof New York.This researchwas presentedto the Law and Society Colloquium
Seriesat New YorkUniversity,13 April 1992, and the Lawand Society Associationmeeting
in Berkeley,Cal., June 1990. The authorsthankChristineB. Harringtonand MartinShapiro
for their commentsand dedicatethis articleto the memoryof David Gordon.
1. The violent confrontationscontinue, but with less frequency.See Shawn G. Kennedy, "Squattersof 13th Street vs. Powerof City Hall,"N.Y. Times,12 July 1995, at B1, and
© 1996 AmericanBarFoundation.
0897-6546/96/2102-0265$01.00
265
266
LAW AND SOCIAL INQUIRY
We use this seeminglyunlikely place to discuss how law in society
helps constitutethe politicallandscape.While law in generaltakesthe form
of rules, procedures,codes, and commandsemanatingfrom the sovereign,
the "constitutive"approachto law describesa role that law playsin society.
In this article, we look at law as what E. P. Thompson called "visibleor
invisible structures"that define political institutionsand become the substantive basisfor politics.2Lawconstituteswhen the "mythof rights"takes
on practicalsignificanceand becomesa "politicsof rights,"as describedby
Stuart Scheingold.3In this role, law is more significantand more present
than scholarssometimesacknowledge.When we look at the constitutionof
political claims by law, it is essential to look beneath legislation and the
opinionsof courtsto law in practice.4We proposeto show how local struggles over power,that is, politics, involve law in the constitutivesense. We
treatlaw as an independentvariable,as a sourceratherthan a consequence.
This position is in responseto the prevailingparadigmin sociolegal
scholarship,which holds that politics and other social forcesdrive law and
that putting law in the driver'sseat-looking at things "the other way
around"-either smacksof formalismor simplyis not interesting.The "politics driveslaw"positionis often simplygroundedin an instrumentalview of
law. This instrumentalview is not held to the same degree in every disciremainsquite strongin political science, and in the
pline. Instrumentalism
guise of "publicchoice" theory it seems to be gaining steam. In the legal
academy,instrumentalismhas links with LegalRealismand growscurrently
underthe bannerof Law and Economics.In Law and Society scholarship,
instrumentalismis weaker,at least from the evidence of public statements
and current importanceof interpretivism.But even here the prominent
workwe turn to in the next section suggestsattachmentto an instrumental
perspective.
We don't mean by a constitutivetheoryof law that all politics, much
less all social life, is law. When someonechooses to live on the LowerEast
Side, we don't say that decision is constitutedby law. But when that choice
involves purchaseof a house or condominiumand a politics in defense of
the value in that purchasefollows, the law of propertymay featureprominently in that politics. For instance, agitatingto remove a homeless encampmentin the neighborhood-one form of politics on the LowerEast
"Riot Police Remove 31 Squattersfrom Two East Village Buildings,"N.Y. Times,31 May
1995, at Al.
2. E. P. Thompson,Whigsand Hunters:The Originof the BlackAct 261 (New York:
Pantheon, 1975).
3. StuartScheingold,The Politicsof Rights(New Haven, Conn.: Yale UniversityPress,
1974).
4. PatriciaWilliams'scommentaryon propertyin "AlchemicalNotes"arguesfor a conception of propertythat would include the powerheld by clerks in Manhattanstores who
control the buzzerthat opens the door. PatriciaWilliams,The Alchemyof Raceand Rights
(Cambridge:HarvardUniversityPress,1991).
Law in Politics
Side-is legally constituted.To constitute means to stand at the core. A
constitutiveapproachlooks at those instancesin which law is at the core of
the phenomenabeing studied. In this case we look for law at the core of
variouspolitical activities.
Calling attention to the constitutiverole of law is, of course,not original to us. It had been statedwell some time ago by KarlKlare5and Robert
Gordon6and has been articulatedin depth by Alan Hunt more recently.7
The term is definitelybecomingmore common,8yet, we feel that the constitutive role of law is insufficientlyinstantiatedin sociolegal scholarship
and deservesto be addressed.We don't say that law is alwaysan independent factorin politics.Some politicsmakeslaw.We know that. But some law
makespolitics. We don't seem to know that as well.
The powerof the instrumentalparadigmin sociolegalresearchreflects
the successof Legal Realism.Realismbroughtpolitics into such hallowed
institutionsas the SupremeCourt and spreadthe messagethat the key to
law was throughdissentand disputes.The LowerEastSide seemslike a very
political place. Without bringingback the pre-Realistconception of law as
neutral rules, we hope to call attention to the constitutive role of law in
grassrootspolitics. We begin by examining the relationshipbetween law
and politics in some contemporarysociolegalanalysis.We then offerexamples of how law constitutespoliticson the LowerEastSide. We believe that
this work offersa contrastto the instrumentaltraditionand hope that is
providessome clues to the constitutivesignificanceof law.
THE PROJECT
Our projectis both jurisprudential
and sociological;that is, we seek to
correcta perceptionthat inhibitssocial researchon law. It is as much about
the natureof law as it is abouta particularplace. In fact, what we say about
law in this place we believe needs to be said aboutlaw generally.Realismin
law and its other manifestations,such as Behavioralismin political science,
has been so successfulthat scholarsfind it hardto move beyondthe instrumental view of law to its role in constituting social and political life.
Although some social critics aspireto see law as "partof a complex social
totality in which it constitutesas well as is constituted,"9much of the critical work in law, as well as the conventional understandingsthat support
positivist social research,sees law in instrumentalterms. Law is equated
5. KarlKlare,"Law-Making
as Praxis,"40 Telos123, 128 (1979).
6. RobertW. Gordon,"CriticalLegalHistories,"36 Stan. L. Rev. 57 (1984).
7. Alan Hunt, Explorations
in Lawand Society(New York:Routledge,1993).
8. LucyE. Salyer,"TheConstitutiveNatureof Lawin AmericanHistory,"15 LegalStud.
F. 61 (1991).
9. David Kairys,ed., The Politicsof Law: A Progressive
Critique6 (rev. ed. New York:
Pantheon, 1990).
267
268 LAWAND SOCIALINQUIRY
with rules,like a 55-mph speed limit, ratherthan practices,like drivingup
to 62 mph where a ticket gets more likely. Where practicesare considered
relevantto law, however,as in some contemporaryversionsof interpretive
we think we maybe able to help articulatethe consequencesof a
research,10
constitutiveperspective.
We drawfromtheoriesof interpretationin legal scholarshipand methodologicalconcerns in social science. The legacy goes back to the Realist
tradition incorporatedin much legal analysisafter World War II. In the
social sciences, the positivist dichotomy between theory and reality was
wearing thin by 1970, and interpretationbecame a way to view law not
governedsimplyby texts but by people readingtexts. Two stancesemerged.
The first,a relative or indeterminacyposition, combinedfeminist scholarship such as the workof CarolGilliganwith deconstruction,legal pluralism,
and a critiqueof rights."This position emphasizeddifferences,particularly
But
between women and men, and supportedscholarshipon marginality.12
associsocial
law
limited
the
a
view
of
also
as
responsibility
indeterminacy
ated with rights.The second, a constitutiveapproach,was a post-Marxist
alternativeto the indeterminacyposition. This approach,or at least affinities to it, were introducedinto the sociolegalcommunitythroughcritical
theoryand suggestedin variousscholarlypieces, such as that on the city "as
a legal concept,"13some feminism,14and CriticalRace Theory. But for the
most part,the indeterminacypositionhas dominateddiscussionin the legal
academy,leaving positivismand instrumentalismprettymuch intact.
Positivismin scholarshipabout law and politics persistsin spite of the
existence of constitutivecurrentsin the professionalliterature.Contemporaryexamplesinclude importantbooks at either end of the legal process,
Model'5and EllickSegal and Spaeth'sTheSupremeCourtandtheAttitudinal
son's OrderwithoutLaw.16This workhas been widely discussed,and its reception indicates continued enthusiasmfor the positive paradigm.The
10. CarolGreenhouse,PrayingforJustice(Ithaca,N.Y.: CornellUniversityPress,1986);
Sally Engle Merry,GettingJusticeand GettingEven (Chicago:Universityof Chicago Press,
Subjects(New York:Routledge,1993).
1990); BarbaraYngvesson,VirtuousCitizens,Disruptive
and the Pact of the
11. Peter Gabel, "The Phenomenologyof Rights-Consciousness
WithdrawnSelves,"62 Tex. L. Rev. 1563 (1984); PeterGoodrich,ReadingtheLaw (Oxford:
Blackwell,1986);CarrieMenkel-Meadow,"ExcludedVoices:New Voices in the LegalProfession,"42 U. MiamiL. Rev. 29-53 (1987).
12. MarthaMinow, MakingAU the Difference(Ithaca, N.Y.: Cornell University Press,
1990).
13. Dirk Hartog,PublicPropertyand PrivatePower:The Corporation
of the City of New
Yorkin AmericanLaw, 1730-1870 (Chapel Hill: Universityof North CarolinaPress,1983).
14. MaryJo Frug,Postmodern
LegalFeminism(New York:Routledge,1992); Catharine
MacKinnon,FeminismUnmodified(Cambridge:HarvardUniversityPress, 1987) ("MacKinnon, Unmodified").
15. JeffreyA. Segal & HaroldJ. Spaeth, The SupremeCourtand the AttitudinalModel
(New York:CambridgeUniversityPress,1993) ("Segal& Spaeth, SupremeCourt").
16. RobertC. Ellickson,OrderwithoutLaw:How NeighborsSettleDisputes(Cambridge:
HarvardUniversityPress,1991) ("Ellickson,OrderwithoutLaw").
Law in Politics
prominenceof this kind of worksuggeststhe continuingneed to presentthe
constitutiveframeworkfor law. Only if it is discussedwith referenceto current debatescan it be said to have becomeacceptable.We begin by discussing this work.
Three decadesago political scientist MartinShapirohelped to establish the propositionthat judges'decisionsreflectpolitical considerations.'7
Fromthis perspective,law as precedentwas manipulatedby judicial interests. Politicswas evident in the expressionof opinion, and it could be measured by dissents. In the social sciences, this work is associatedwith the
"behavioral"revolution which evaluatedthe attitudesof judges against a
backgroundof legal form. Insightsabout the political orientationsof the
judges became commonplacein journalism,history, and political science
and reinforcedthe pictureof legal text as naive formality.
The traditionof seeing politics as an influence on law continues to
appearin upper court scholarship.One influentialbook on the Supreme
Court, StormCenter,by David O'Brien,18is indicative. O'Brien describes
the SupremeCourt as the eye of the political stormin Americaand enlivens the portrayalwith storiesof political influencelike that wieldedby Justice Black over President Roosevelt. Instrumentalismis even more
prominentin "the attitudinalmodel"associatedwith Segal and Spaeth19
and others.20This is a radicalempiricistconstructionin which the case
votes of justicesare codedon an attitudescale and the Courtis describedin
terms of the political movement on the scale. Placing the judge at the
center of the law gives appellatecourts great power while narrowingthe
conception of law.21
At the other end of the legal process,Ellickson'sOrderwithoutLaw
examinesdisputesbetweenthe traditionalcattlemenof ShastaCounty who
revere the open range and the newcomers who fence in their small
"ranchettes."The generaldemeanorin the communityis "neighborliness,"
and Ellickson finds that the "longtimeranchersof Shasta County pride
themselveson being able to resolvetheir problemson their own."22Ellickson finds the law which lawyersknow to be uncommonin cattle country,
even though he studies the tension between the "pro-cattleman'fencingout' rule"(which providesthat a victim of animaltrespasscan recoverdamagesonly when he has "protectedhis landswith a 'lawfulfence' ") and Cali17. MartinShapiro,LawandPoliticsin theSupremeCourt(New York:FreePress,1964).
18. David M. O'Brien,StormCenter(New York:W. W. Norton, 1986).
19. Segal & Spaeth, SupremeCourt.
20. PaulBrace& MelindaGann Hall, "StudyingCourtsComparatively:
The View from
the AmericanStates,"48 Pol. Res. Q. 5 (1995).
21. John Brigham& ChristineB. Harrington,"Realismand Its Consequences:An Inquiryinto ContemporarySociolegalResearch,"17 Int'lJ. Soc. L. 41 (1989).
22. He does note, however,that "ranchetteowners... unlike the cattlemen,sometimes
respondto a trespassincidentby contactinga countyofficialwho they think will remedythe
problem."Ellickson,Order59.
269
270 LAWAND SOCIALINQUIRY
fomia'sEstrayAct, passedin 1915 in light of increasedsettlement.23In spite
of this distinctlylegal focus, he minimizesthe terrainof law by separating
law fromsociety. This perspectiverevivesthe formalismwhich earlierconfined law to codes and commentaries.LikeRealismin the studyof appellate
courts,we are askedto take a sociallythin slice of law as the whole thing.24
The researchequateslaw with the formalrulesand says,in effect, that law
is not presentin ordinarylife.
This kind qf Realismorientsstudentsof communitiesawayfrom legal
material,distortingthe relationshipbetween law and politics. When disputesrangefromthe rulesof trespassto the fact of ownership,we see law in
operation.In lookingat the LowerEastSide we develop that perspectiveby
examiningthe formsof law in grassrootspolitics and their interactionwith
economic and culturalforcesthat shapethe neighborhood.If law and political institutionsare seen only instrumentally,either as goodies to be acquiredor as processesto use, it followsthat the political actor and political
activitywill only be superficiallyaffectedby the law. Yetwe know, fromthe
renewed interest in institutions,that the Rule of Law, specific laws, and
legal institutionsare majorinfluenceson politics.25We challengethose who
would place law in the backgroundof politics and fail to note its conseand MacKinnon28have adquences. DerrickBell,26William E. Forbath,27
dressedthese consequencesin the areasof race, labor,and gender.We wish
to do the same for propertyand publicspace as a way of groundingpolitics
in law.
THE NEIGHBORHOOD
The LowerEast Side runsfrom the EastRiver to FourthAvenue and
the Bowery,about a third of the way acrossManhattan,and from Chinatown to 14th Street.At its peak in the early20th century,the districthad a
populationof over 500,000. It declined to 154,800 until it began to grow
23. "Oneof the most venerableEnglishcommonlaw rulesof strictliabilityin tort,"the
"fencing-outrule"makes the owner of livestock liable for damageto neighboringproperty
even in the absenceof negligence.Id. at 42.
24. Althoughthe landownersin ShastaCountydidknow whethertheir own landswere
within the open or closedrangedesignation,Ellicksonspeculatesthat the level of knowledge
wasprobably"atypicallyhigh"becausethe rangelaw had been the subjectof politicalcontroand
versy.He foundthat the residentshe interviewedwereunfamiliarwith termslike "estray"
"lawfulfence"and knew little aboutsubtletiesin the law. Thus, he observesthat disputing
takes place "largelyindependentof formallaw."Id. at 49-51.
25. John Brigham,Property
183 (Philadelphia:TempleUniandthePoliticsof Entitlement
the 'New Institutionalism'and
versity Press, 1990); RogersSmith, "PoliticalJurisprudence,
the Futureof PublicLaw,"82 Am. Pol. Sci. Rev. 89 (1987).
26. DerrickBell, And We Are Not Saved(New York:Basic Books, 1987).
27. William E. Forbath,"Courts,Constitutions,and Labor Politics in England and
America:A Studyof the ConstitutivePowerof Law,"16 Law & Soc. Inquiry1 (1991).
28. MacKinnon,Unmodified(cited in note 14).
Law in Politics 271
again in the 1980s. Roughly 20% of its population received some form of
public assistance within the last decade, with 20,000 people on Aid to Families with Dependent Children (AFDC) or Home Relief. Housing is extraordinarily diverse. In 1990, the area contained 60,000 government-subsidized
housing units, one of the greatest concentrations of public housing in New
York City, 19th-century brownstones, tenements, condominiums, squatter
settlements, homesteaders, and a significant share of the city's homeless
population.29
Politics in the neighborhood involves not just party contests between
Republicans and Democrats (or, rather, regular and reform Democrats, in
this area) or appeals for city services, but struggles over the definition of
ownership, claims to the enjoyment of public space, and appropriate neighborhood responses to economic opportunity.30One source of political conflict-government support for investment in luxury co-ops juxtaposed with
reduced subsidy (and consequently a diminishing supply) for decent, affordable housing for low and moderate income people-can be easily understood by looking at residential land use in the late 1980s relative to all of
Manhattan. In 1987 almost one-third (31.7%) of the district's residential
space was made up of "old law" tenements, the unventilated buildings built
in the early 19th century. The proportion for Manhattan as a whole was
10.2%. On the other hand, only 11.1% of the residential units were condominiums. For the rest of Manhattan, 33.7% of the residential units were
condominiums.31
Another set of issues involves the use of public space. Some of the
public space has been recently claimed, like the community gardens that
sprung up in vacant lots, and some is more traditional, like the area's largest
municipal park, Tompkins Square. In the mid-1980s, developers backed by
the city and those who lived on the Lower East Side, clashed over the community gardens. Some of the gardens were communal experiments born in
the 1960s, and others manifested a public life style brought by Puerto Rican
residents from the Caribbean.32While state institutions from law enforcement to the Housing Authority were mobilized to enforce the dominant
norms of ownership, grassroots groups and individual squatters acted on alternative claims.33
29. EmmanuelTobier,"HousingClassesof the LowerEastSide"(paperdeliveredat the
LowerManhattanSeminar,New School for Social Research,1 Feb. 1990).
30. Fora provocativestudyof city politics that puts the neighborhoodin a largersocial
and economic context, see John H. Mollenkopf, The ContestedCity (Princeton, N.J.:
PrincetonUniversityPress,1989).
31. Dep't of City Planning,City of New York,CommunityFactsat a Glance41 (New
York, 1989).
32. BlancaSilvestrini,"The WorldWe EnterWhen ClaimingRights:Latinosand the
Quest for Culture"(deliveredto the AmherstSeminar,19 April 1991).
33. Fora historyof squattingin Americasee EricHirsch& PeterWood, "Squattingin
New YorkCity: Justificationand Strategy,"16 N.Y.U. Rev. L. & Soc. Change605 (1988);
272 LAWAND SOCIALINQUIRY
With the decline of tradeunionsand the political machines,grassroots
politics have assumedimportanceas vehicles for collective action by the
workingand lower-middleclassesand by minoritygroupson the LowerEast
Side. Spurredby the 19th-centurylegacyof immigration,settlementhouses
to serve (and discipline)them, and political activismaroundsuch issuesas
joblessnessand public assistance,the activistsof recent decadeshave challenged the authorityof the state and city to define propertyrelationsand
allocate land use. Although these challengeshave often been met by state
coercion-the appropriationof abandonedbuildingsin defianceof neighborhoodclaims on them, police repressionof protest-citizen activistscan
also cite victories in which they forced officialsto compromiseand influenced the definitionof the neighborhood.Housing,social service,and community development organizationsin the area-Cooper Square, Pueblo
Nuevo, Good Old LowerEast Side, the Local EnforcementUnit, and the
Joint PlanningCouncil, the coalition that has generateda comprehensive
plan for the area-have succeededin returningabandonedbuildingsto the
housingstock,held privatelandlordsaccountablewith strictenforcementof
housing codes, and forced the city to endorsecooperativehousing that is
managedby residents.
In these neighborhoodconflicts,law constitutes"visibleand invisible
structures"for political life. By focusing on one of the most politically
chargedcommunitiesin the United States at a time when its residentswere
mobilized-voting, speaking out, resisting, confronting the police-we
wish to make the case for a greaterrole for law in politics at the grassroots
level. Here, even the name of the areais contested.The "LowerEastSide"
is geographicaland recallsthe easternEuropeanimmigrationthat give the
region its identificationin Americanhistorywith the huddledmassesimmortalizedon the Statue of Liberty.In the 1960s, a vibrantcounterculture
population,assistedby realestate developers,appendedthe name "EastVillage"to part of the neighborhoodin a move to link it with the Bohemian
spirit and higher real estate pricesof its neighborto the west. Becausethe
areais beyondFirstAvenue to the East,where the Avenues are designated
by letters, it is sometimesderisivelycalled Alphabet City. Most recently,
the Latino populationwas able officiallyto renamepart of Avenue C for
the community'sown versionof its place. They call it Loisaida,"Spanglish"
for Lower East Side. The politics of naming is a highly visible aspect of
communitypolitics often involvinglaw, and when a name becomesofficial,
displayedon street signs or city buses or designatinga political entity, it
takes on extra significance.
Researchfor this projectfocusedon severalpolitical arenas,including
local CommunityBoardmeetings,the allocationby New YorkCity of lowJohn Opie, TheLawof theLand:TwoHundredYearsof Farmland
Policy(Lincoln:Universityof
Nebraska,1987).
Law in Politics 273
income housingresources,and the anti-gentrificationmovement.Data collection over a two-yearperiod beginning in the fall of 1988 consisted of
attendance at about half of the monthly community board meetings,
lengthy interviewswith 11 communityactivistsof varyingpersuasions,participant observationof at least a dozendemonstrationsin the area,and the
collection of dozensof fliersand other materialsintendedto encourageparticipationin grassrootspoliticalactivity.All this was informedby the experience of daily life in the community.
Some Illustrations
In the next sections, we describethe way law constitutesa forumfor
political discourse,go on to show how legal formsshape political claims,
and concludewith law'sinfluenceon politicalposition. Our categoriescapture some of the legal aspectsof politics on the LowerEastSide in the late
1980s.We call attentionto distinctiveplaceof law when we can see the law
in politics moreclearlythat way.We do not, however,mean to suggestthat
law in this sense operatesin the sameway we once imaginedthat precedent
operatedfor the appellatejudge.
Law as Forum
Law structuresthe communitypolitics throughgoverninginstitutions
meant to constitute a political space. Fromconstituent service to protest
and mobilization,differentinstitutionsdirect,satisfy,and frustratepolitical
interests.34One of the most salient institutionsfor politics on the Lower
EastSide in the late 1980s was the CommunityBoard.Establishedby revision of the New YorkCity Charterin 1975, the 59 communityboardsrepresent districtswith 100,000-200,000 residentsdesignatedby the Department
of City Planning to reflect the traditionalgeographicboundariesof New
York'sneighborhoods.35
The approximately50 membersof each community
boardare appointedby the BoroughPresidentsand the City Council and
serve for two years (they are usuallyreappointed)without compensation.
Technical and informationservicesto the boardsare providedby the Departmentof City Planning.The LowerEast Side is representedin this arrangement by Community Board #3.36
34. At this writing,the Speakerof the New YorkAssembly,Sheldon Silver is fromthe
LowerEastSide. His prominencein the legislaturegivespoliticsin the areaheightenedsignificance and real meaningto constituentservice.
35. New YorkCity Chartersec. 84, vol. 1, pp. 41-44, New YorkCityCharterandAdministrativeCode, Annotated(Albany:WilliamsPress,1976).
36. The districtincludespartof Chinatown,which has its own distinctivecharacterand
problemsand is only an occasionalparticipantin communityboardpolitics.
274 LAWAND SOCIALINQUIRY
The boardsadvisethe city on planning,budgeting,and servicedelivery
and can be quite powerful,37
althoughit is usuallyby coaxing or embarrassthan
rather
by outrightgrantsof authority.Boardsare staffedwith a
ing
district managerwho helps coordinate sanitation, fire, parks,and police
services. These relationshipsand the manner in which membersof the
boardsare appointedensurethat the communityboardsare not forces for
changingpowerrelationsin the city. "Rather,they seek to gain a hearing
and to attain the capacityto operatecommunityprograms."38
Community
Board#3 on the LowerEastSide followsthis model (but also chafeswithin
it).
The board'scharacteras a "legal"arenaremindsneighborhoodpeople
of the authorityof the city. Boardmeetingscall attention to the city as a
coercive powerthrougha law enforcementpresenceat meetings.The service component of the city is evident in the informationand technical
assistancethat comes to the boardfrom municipaldepartmentslike Parks
and Recreation.Moresubtly,law constitutessome very significantpolitical
activity on the LowerEast Side throughCommunityBoard#3. The board
sets political constraintsand influencesformsof resistance.39
The responses
to decisionsof the boardby activistswho appearat meetingsare evident in
the choices they makeaboutwhat kindsof politicalclaimsare feasible.The
boardconstitutesa political forumthroughlaw. Here activists shape their
claims to fit legal categoriesthat have been definedby the city and state of
New York (e.g., tenant co-ops) and by the legacy of the Anglo-American
legal system (propertyrights,the right to assemble).
Monthly boardmeetings became chargedin the late 1980s over the
allocationof housingand the usesand hoursof TompkinsSquarePark.Not
only werepolice in attendance,but they weresometimespositionedaround
the roomwith their nightsticksout and helmets ready.Their presence(not
generallydeemednecessaryat communityboardmeetings)was intended at
least as much to symbolizethe city authoritybehind the boardas to keep
order.As both symbol and physicalforce, the police contribute to order
maintenance,and in both of these capacitiesthey delineate a distinctive
forumunderthe authorityof the city. A dozenofficersmight cover a meeting attendedby as few as 20 boardmembersand an audienceof only 40 or
so. Despite the police presence, tempersflared,verbal threats were common, and fist fights occasionallybroke out.
37. Peter Marcuse,"NeighborhoodPolicy and the Distributionof Power:New York
City's CommunityBoards,"16 Pol'yStud.J. 277 (1987).
38. SusanS. Fainstein& NormanI. Fainstein,"TheChangingCharacterof Community
politics in New YorkCity: 1968-1988,"in John H. Mollenkopf& ManuelCastells,eds., Dual
New York320 (New York:RussellSage Foundation,1991).
City: Restructuring
39. Fordiscussionof what counts as resistanceand the place of resistancein contempo& Susan F. Hirsch, ContestedStates
rarysociolegal scholarship,see Mindie Lazarus-Black
(New York:Routledge,1994).
Law in Politics 275
The meeting of 22 May 1990 illustratesthe use of the community
boardas a repositoryof "visibleand invisible structuresof law"that shape
political life in this contentiouscommunity.It startedwith angryprotests
aboutthe role of the state in disturbancesin TompkinsSquareParkon May
Day. Mary,a womanfromthe squattergroup,statedthat police surveillance
of the parkprovokedratherthan preventedscufflesat what was billed as a
"resisters'festival"(expressingsupportfor resistanceto police effortsto put
squattersout of otherwiseabandonedbuildings).A neighborhoodjournalist
claimed that political people were being kept out of the park,and he decried the transformationof the neighborhoodinto a "warzone."A local
block associationchairmandescribedthe heavy police presencein the park
as putting the area"undermartiallaw."An artistand activist invoked the
vocabularyof civil libertiesto decry beatingsby police on the night of 1
May and subsequentharassmentsof variouskinds.When the boardtook up
homelessnessin the area, a speakerfrom the RevolutionaryCommunist
Partysaid the police "createhomelessnessand then they attack the homeless."40A local priest describedthe fundamentalissue as "who owns the
land, who has a right to the buildings."As the meeting turned to tenant
evictions linked to redevelopmentand housinglegislation,the participants
had been "made"into an audience.
This meeting showeda communityboardprovidinga forumfor political discoursewhere the legal dimensionsof the boardinfluencedthe discourse. Mary couched her complaint about police behavior within a
frameworkthat assumedthe institutionallegitimacyof those she criticized.
On less alien terrain-a street corer or a parkbench, for example,where
squatters'claims are often heard-Mary might have made a more extreme
claim (she is an anarchist)such as abolition of the police and community
control of public security.Her stance at the board meeting supportsthe
view that communityboards,with their rulesand officiallysanctionedleaders, may deflect more extreme political positions.41Some housing professionals who attend meetingsfeel that the meetingsbringout the extremes
of viewpoint and behavior, that the forumbecomes a stage for otherwise
thwarted performers.Whether stage or channel, the legally constituted
communityboardis a distinctivepolitical forum.
The boardas a sanctionedsite of politics bringstogether a varietyof
people-renters and landlords,homelessand squatters-with a broadrange
of ethnicities and economic levels represented.Speakersset aside for the
durationof their participationin the arenathe trappingsof hierarchythat
make some worlds and lives more authoritativethan others. While the
40. In this view, the police who backup the boardsareequatedwith those who allocate
housingresources,determinethe statusof squatters,and enforcecity policy in the parks.
41. The forumis a force not unlike the narrowingthat takes place in transforminga
conflictinto a disputesuitablefor resolutionin a court.RichardAbel, "ConservativeConflict
and the Reproductionof Capitalism:The Role of InformalJustice,"9 Int'lJ. Soc. L. 2 (1981).
276 LAWAND SOCIALINQUIRY
marksand featuresof the homeless stand out, it is hard to tell an owner
froma renterin this setting.Presentationsat boardmeetingsare also leveled
by assumptionssharedby speakersand boardmembersabout the protected
positionof at least some kindsof speech in a constitutionaldemocracy.The
law createsthe boardas a forumthat diminishesin political space the divisions of authoritythat wouldexist betweenownerand renter,or renterand
homelessat the doorstepof an apartment.
The board'sauthorityis acknowledgedat the most fundamentallevel.
In this setting, parliamentaryprocedureis one exampleof the constitutive
dimensionof the boardas a legalforum.A characteristicof meetings-even
on occasionswhen fist fightsthreatento breakout-is laboredattention to
Robert'sRulesof Order.Even the neighborhood'ssmall groupof anarchist
squatters,who reject the authorityof the state, acknowledgethe board's
significanceby attendingand speakingat meetingswherethey think a decision will affect them. Despite their utopian strugglefor housing, in the
meetings,their politics reflectsat least a nod to the prominenceof the possible. Neighborhoodactivistsdefine their orientationand their clout in relation to decisions taken by the board. In each of these instances, law
operatesconstitutivelyand politics is affected.
Law as Claim
A good exampleof constitutivelaw on the LowerEastSide is the law
of ownership.Lawdelineatesthe social relationshipof occupantsor potential occupantsto types of housing.By housing,perhapsas much as by anything else short of ethnicity42(to which housing is highly correlated),
people areknownand their interestsemerge.The lawsof ownershipand the
social relationsthey constituteare the terrainof politics.43The LowerEast
Side has been a focus of housing politics for over 50 yearsbeginningwith
the innovative "FirstHouses"constructedby the New YorkCity Housing
Authority in 1935. The political manifestationof the law on ownershipis
to differentiateclaimants-as homeless,or owners,or squatters.
Housing on the LowerEast Side takes more formsthan most Americans can imagine:co-ops, condominiums,apartmenthouses, and brownstones;rental arrangementsincludemarket-rent,rent-controlled,and rentstabilizedapartments,sublets,subsidizedunits, conventionalpublichousing
("the projects"), and middle-class state-supportedhousing ("Mitchell-
42. The role of law in constitutingethnicityseemsto be a gooddeal smallerthan its role
in definingproperty.
43. For attention to how rent control laws contributeto political mobilization.see
Michael Lipsky,Protestin City Politics(Chicago:Rand, McNally, 1970).
Law in Politics 277
There are other typesof ownershipbest describedas transitional,
Lama").44
some strictlylegal and some not; homesteadingis in the formercategory,as
are shelters.45Lofts vary. The "squats"are not legal, although the city's
"thirtyday law"decreesthat a squatterwho can prove residencefor at least
30 daysis no longera trespasserunderthe law and mustbe accordedthe due
process protection of formal eviction. There are also the homeless, on
benches, in tents, and in doorways.The nontrivial sense in which laws
"make"people homeless is the sense in which law constitutesour claims.
Forthose occupyingthis panoplyof housingforms,as well as those who
deal in them, the legal definitionsand the hierarchiesthey create are critical. Formsof propertyestablishingdifferingrelationsto the governmentare
evident in the regulationof construction,the maintenanceof buildings,and
the processesof conveyance.The law of propertyshapespeople'spolitical
rights,their actualand potentialaccessto instrumentsof political leverage,
and their objectivesas politicalactors.The residentsof the LowerEastSide
participatein a politicsof propertyevident in their use of legal categoriesto
describetheir housing.For instance, tenants can tell you that they live in
"Section 8" or "old law"housing. Abandonedtenements link the area to
earlierwaves of immigration,providingopportunitiesfor squattersand developers.The communitygardensin abandonedplots provideanotherfocus
for claimsof entitlement.Formanyresidents,activismmayfade once he or
she has acquiredlegal stability through tenancy or ownership.Here, the
law's imprimaturon propertysymbolizespolitical resolution.46
We know that ownershipframesthe physicaland social world.What a
politics of law needs to account for is the way that propertydemarcations,
such as those betweenprivateand publicspacereflectingthe lawsof ownership, constitute social relationson the LowerEast Side. TompkinsSquare
Park is terraincontested by many differentusers.Under city control, the
park drawspolitical struggles.The park is a forum, like the community
board,but becauseits use is contested we say that the law designatingthe
land betweenAvenues A and B at 9th Street a parkmakesparticularclaims
possible.Use of the parkis highly contestedcomparedto rentalpropertyor
that held as "feesimple"title. The legal distinctionbetween ownershipand
opportunityfor use is constantlyat issue on the LowerEast Side. Walking
(down the sidewalkusually),one is madeawareof what is public and what
44. These formsof ownershipare not the only waythat buildingsmaybe constitutedin
law. On the LowerEast Side one speaksof "old law tenements"to referto buildingsconstructedbeforelegislationin the late 19th centuryset minimumstandardsfor air and light in
tenements.RichardPlunz,A Historyof Housingin New YorkCity 262 (New York:Columbia
UniversityPress,1990).
45. Anne Clark & Zelma Rivin, Homesteading
in UrbanU.S.A. (New York:Praeger
Publishers,1977).
46. MarlisMomber,a participantin the homesteadingmovement,comments,"When
the ownershipthing takes over, they no longercare about their fellow man."Interview,16
March 1990, with John Brigham.
278 LAWAND SOCIALINQUIRY
is not. Fora homelesspersonsleeping,tentatively,on the steps of the 10th
Street public library,the possibilitiescontained in the laws of propertybecome behaviors.Ownershipis representedin materialways (locks, fences,
razorwire) and morediscursively(in languagethat says"Get out,""Where
is the rent,""Comein").
Communityprofessionalsin the neighborhoodmobilizeand interpret
the law as a partof their political life. One interpreterof this sort is Donna
Ellaby,Directorof Good Old LowerEastSide, who characterizesher activism as organizingtenantsto "raisethe stakeson what it meansto be a property owner."47She says that she carriesher version of the housing code
aroundin her head and rarelycalls a lawyeror the police. For Ellaby,the
law is "aluxuryitem"in politics.Yet, she is keenly sensitiveto the effect of
the economyon ownership.As marketsdropshe notes that ownershipshifts
from individuallandlordsto banks.This is followedby federalbanking insuranceand regulatoryagencies,"the RTC and the FDICor FreddyMac or
Ginny Mac."
Law in politics is influencedby nonprofitgrassrootsorganizationsthat
have replacedlocal party machines on the LowerEast Side as mediators
between citizens and officialdom.The politics of the paid organization
staffs-artists, city planners,housing and public health specialists,social
workers-areshapedby their state createdstatusas professionalscertifiedto
assumethe role of advisorsas to the politics of propertyclaims.48They put
together tenant managementschemes and get financing to rehabilitate
abandonedbuildingsinsteadof helping raisethe proverbialbarn.More importantfor politics, their planningprovidesan informationbase and forms
for mobilizingpolitical demand.Where partybosseshad access to officials,
the organizersadd expertisein the officialcultureof ownership.The communityprofessionalsunderstandanti-gentrificationpolitics as a function of
economic developmentpressuresand the rules aroundwhich groupscan
mobilize.49
Law as Position
Conventionally,politics exists along a spectrumwhere intensity and
comprehensivenessof claims defines the position of actors. Law plays a
formativerole in giving meaning to the ideological perspectivesheld by
activists in the neighborhood.Laws put some politics at the center and
47. Donna Ellaby,interview,13 Oct. 1992, with Diana Gordon.
48. ProminentLESorganizationswith communityprofessionalsusingthe law in politics
includeG.O.L.E.S.(for Good Old LowerEastSide, a tenant organizinggroup),Charas(the
biggestartsgroup),NENA (NortheastNeighborhoodAssociation)Health Center,Tompkins
SquareParkNeighborhoodCoalition (the local homeowners),and the Joint PlanningCouncil (a coalition of all the housingorganizations-generallyreformist,professionallystaffed).
49. LisaKaplan,interviews,3 Dec. 1990 & 30 Jan. 1992, with Diana Gordon.
Law in Politics
some on the peripheryof the political spectrum.On the LowerEast Side,
political activity covers effortsto maintain traditionalpower relations in
the neighborhood,variousreforminclinations,and an imaginativearrayof
transformative
positions.Lawssuch as those aboutthe responsibilityof renters and the expectationsof ownersdelineate the relationshipof one political claim to others.Lawsare often the variablein reformmovementswhile
they act as impedimentsin more transformativepolitics and resourcesfor
those who would maintainthe statusquo.
Operatingwith referenceto the legallyconstitutedhegemoniesof state
and market,reformmovementson the LowerEast Side envision different
practicessuch as public housing and sweat equity. The "In-Rem"housing
programof New YorkCity is a characteristicreformmovement."In-Rem"
refers to housing taken over by the city as a result of default on taxes
owed.50Duringthe 1970s and 1980s the city took over thousandsof buildings, creatinga vast arrayof small, run-downpropertiesfor which the city
was responsible.These propertieswereput to a varietyof uses, includingthe
self-helpprojectsthat are at the centerof the In-Remprogram-tenant coops, for instance, and sale of the propertiesto nonprofit organizations,
which develop them as low-income housing.51 Several community-based
nonprofitorganizationstook advantageof the city'sdistributiveschemesto
get abandonedbuildingsbackon the tax roles,adaptingScandinavianmodels of cooperativehousingto urbanAmericanneeds. Since the propertywas
not commerciallyviable, reformershad an opportunityfor experimentation.
Even as activismslowedin the 1990s,some reformeffortscontinuedaround
the creation of a "mutualhousing association"which provides low- and
moderate-incomeresidentsa kind of social ownershipthat avoids the risks
of both markethousing and "the projects."52
A somewhat more radical reformeffort was the movement against
or the withholding of scarce apartmentsfrom the rental
"warehousing,"
market.53
Given the legal rightsof rentersin New YorkCity, landlordsneed
to empty a building when contemplatinga change in its propertystatus,
such as convertingfromrentalunits to condominiums.Housingactivistson
the LowerEastSide dubbedthis activitywarehousingand challengedit as a
"crime."The point is not the empiricaltruth of the claim, but ratherhow
50. This legal developmentderivesfrom the city's position as sovereign,where, in the
context of defaultsfor nonpaymentof propertytaxes, the city governmentoperatesas the
ultimateauthority.
51. TheIn-RemHousingProgram
AnnualReport(City of New York,Departmentof Housing Preservationand Development,1985-90).
52. Mutualhousing involves a combinationof centraland tenant management,heavy
involvementby communityorganizations,100%financingforconstructionplus sec. 8 subsidy
for some tenants. Id.
53. PaulKneisel,"TheAnti-WarehousingMovementin New YorkCity,"Downtown,11
April 1990, at 8a.
279
280 LAWAND SOCIALINQUIRY
the claim directedmany reformers'marchthroughthe institutions.54Like
the chant "Abortion is Murder"or "Educationis a Right," the slogan
"Warehousingis a Crime"is radicalin its rhetoricalrefusalto acknowledge
the traditionalhierarchiesof legal authority.Although this slogan is often
found in "illegal"contexts,such as graffiti,for the most partthe very nature
of the claim, unlike that of many anti-abortionactivists,situatesthe claim
in the context of reformpolitics.Those seekingreformmakeuse of rhetoric
that relies on the symbolicconnotationsof legal categoriesin orderto advance a political project,ratherthan to bringformalchargesagainstwarehousing landlords.
Some political activistson the LowerEast Side preferto mount more
radicalattacks on the basic political economy of property.The squatters
of housing,
(and a few of the homeless) envisioned "decommodification"
and they have been aggressivein usingforumsfromthe CommunityBoard
to the New YorkTimesto state their case. They seek to establish social
ratherthan individualownershipand remove housing (at least for lowerincome people) from the private market.55Here need, rather than legal
right, establishesthe claim and possessionis its realization.The law, in this
sense, "makes"them radicals.FrankMorales,a clergymanwho worksto organizesquatters(and is one himself),describedthe movementto take over
unoccupiedbuildingsas "a logical and ethical responseto suffering"which
creates"possibilitiesfor people to take chargeof their own lives."56Morales
expressedbewildermentat the resistanceof liberalsto squatting,illustrating
his point with a referenceto the Dinkins administrationthen in City Hall
calling squatters"hardenedcriminals."Here the claim "Housingis a Right"
aspiresto a transformationin propertythat goes well beyond the reach of
conventional institutionsor the politics of reform.The squattersexplicitly
place themselveson the peripheryof the law and wage a culturalpolitics
that appropriates
the languageof rightsto their own ends. ForMorales,"the
of
of hunger,can extinguishconceptionsof right,but people
need,
language
areforcedto play the gameof rights"becauseclaimsbasedon expressionsof
need do not receive a hearing.To the extent that the law is state power,its
adoption in formsof communitypolitics is limiting.
The squatterdiscourseincludesnot only legal imagesbut innovation.
In a flyerproducedby the City-wideAction Committeeto End Homelessness for the "Freethe Land Mayday1990"celebration,activists made the
claim that the principlesof the FifthAmendmentprovidea basisfor taking
privatepropertyfor the "greaterpublicgood,"not by ordinarygovernmental
54. MaryKatzenstein& Carol McC. Mueller,The Woman'sMovementsof the United
Statesand WesternEurope(Philadelphia:Temple UniversityPress,1990).
55. Emily ParadiseAchtenberg & Peter Marcuse,"Towarda Decommodificationof
on Housing(Philadelphia:Temple
Housing,"in RachelG. Bartet al., eds., CulturalPerspectives
UniversityPress,1986).
56. FrankMorales,interview,8 Nov. 1990, with Diana Gordon.
Law in Politics 281
processes,but by physicaloccupation-and not just on the LowerEastSide,
but throughoutthe nation.57This aspirationalpoliticsusesthe languageand
formof the law to make intelligiblea claim that would transcendthe traditional institutionsand expectationsof law.The squattersexplicitlyand consciously redefine the meaning of eminent domain. Two of the squatters
defendedtheir decision to mount armedresistanceto any potential efforts
by the city to remove them from their buildingsby assertingtheir right to
self-defense.When challengedby reform-oriented
activistsas to the lack of
a positiverightto defendtheirdwellingin such a situation,the squattersfell
back on a kind of natural law argumentfor which their conception of
human dignity replacedpublic authority.
Of course,framingan issuein legal termsis a traditionalway to defend
the statusquo. Duringone of the battlesover TompkinsSquarePark,representativesof residentsnear the park,manyof them homeowners,circulated
a plea, titled "BringBack the Park,"to their neighborsto attend a special
meeting on the condition of the park.They urgedthat residentsinsist that
the city enforcelocal law to get the homelessout of the park.Prominently
appendedto the memo were the parkrules regardingstorageof materials,
camping, fires, etc. Here political strategistsrelied on law to defend the
propertyinterestsof homeownersand small businessproprietors.Invoking
the rulesassuredless politicalresidentsa legitimatebasisfor denyingothers
access to a publicspace.The parkrules,to which middle-classhomeowners
and more conservativeresidentsturn, function in both instrumentaland
symbolicways at least in partbecauseuses of the law allow intereststo be
maskedas an expressionof belief in the statusquo.
Our purposeis not to uncovera true politics behind the mask of the
law. Rather,we wish to understandthe ways in which law, in the form of
parksdepartmentrules,communityboards,formsof housing,and claims of
rightdeterminethe sort of politics that is possible.Sometimesit seemsas if
the use of legal formand vocabularymay be nothing more than a convenience in an instrumentalpolitics. And, of course,some uses of law on the
Lower East Side are instrumental.As shorthand,calling warehousinga
"crime"is an attemptto marshalat least imagesof law in the processesof
struggle,bypassingthe role of governmentin definingwhat is "criminal."
Still, these retortsare primarilyexpressive,using law to inform us about
what groupswant. But law is also the terrainof politics. Indeed,enforcinga
curfewin the park,an old rule whose adherencewas only proposedin the
late 1980s, spawnedthe violent police riot duringthe summerof 1988.
57. Leafleton file with authors.
282 LAWAND SOCIALINQUIRY
CONCLUSION
Our portrayalof politics on the LowerEast Side helps us to see law
whereothershave not. Lawinformspolitics in manyways.We supposethat
law is alwaysmoresignificantin politicalstrugglesthan contemporarycommentarywouldhave it be. By focusingourattentionin an areaknownfor its
politics we hope to establishthat law is not something that is alwaysopposed to or simplythe resultof politics.We see politicalactivistsconstituting their politicsdifferentlybecauseof the language,purposes,and strategies
which exist as law-federal, state, and local. We have tried to show that
these influencestake a numberof forms.
Some of the work on which we rely illuminatesthe variousformsof
law in the politics of such activitiesas an assertionof right (gay activismin
the context of the AIDS epidemic)and the challengeto law as remedy(the
legal academy'sclaim that law has no force but is merelyrationalization).58
The present study takes another perspectivewith its attention to forums,
claims, and political position. The differentroles of the law in politics reveal political activity in a mutuallyconstitutiverelationwith the law. This
is not a precisedetermination.
Sometimessocial factorsinfluencedby law in one arena, such as divorce in familylaw, will have consequencesin anotherarea,like eviction,
in the law of property.Both may contributeto alienation,which may well
erupt as political dissent. Nor is the logic of legal claims an issue for us.
Squattersmay simultaneouslyclaim that their right is establishedby their
need and not by public authorityand also plead for concessionsfrom the
government.Propertyownersbringvarioussocial connectionsand formsof
wealth to bear when they struggleagainst less well heeled activists. Our
point is not to mapall the influencesof law on politics or establishlimits to
the political that are distinctlylegal. The point is ratherthat we sometimes
ignore law by operatingat the instrumentallevel with referenceto what
laws do.
At the heart of our studyis a case in point, TompkinsSquarePark,"a
barometerof New YorkCity'spassions."59
The parkis a 10-acresquarethat
has been a public forum for a changing community since Irish and German
immigrants, thrown out of work by the economic panic of 1857, demanded
that the city give them jobs and tore apart the park benches for bonfires to
dramatize their desperation.60 Between 1988 and 1992, many confrontations, some verbal and others violent, took place over various issues: a pro58. JohnBrigham,
2
Formsof Lawin PoliticalDiscourse,"
"Right,Rage,andRemedy:
Stud.Am. Pol. Dev. 303 (1987).
59. MarciReaven,"Tomkins
PastandPresent"
(TextforExhibition,
Square:
Municipal
ArtsSociety,1989).
60. HerbertGutman,"TheTompkinsSquareRiot in New YorkCity on January13,
6 LaborHist.44 (1965).
of ItsCausesandItsAftermath,"
1874:A Re-examination
Lawin Politics 283
posed curfew for the park (to oust both revelers and the homeless at
midnight),a tent city constructedby the homelessin the park(and housing
more than 200 people duringthe summerof 1989), the use of the park's
bandshellfor rockperformances,and the closingof the parkfor renovation.
The park is a legally constitutedforum.In a sense analogousto the
communityboards,it constitutesa politicalspace.Concertsand happenings
now are the orderof the (political) day with May Day events bringingout
legionsof New YorkCity Police. At anothertime campsof homelesspeople
in individualsheltersoperatedunderthe cover of the park'sno curfewpolicy. Here, the parkbecamea causeor a claim. It was somethingto fight for.
But in the struggle,differingpositionson its use determinedwhat side one
was on and the parkbecame the basisof whether one was a radical,a reformer,or a conservative.
Does that makelaw whateverone wants it to be? Is this the fallacyof
the positionwe have offered?Of course,we hope not. Rather,it seems that
law in the constitutiveratherthan the instrumentalsense operatesin politics without necessarilydetermininganythingin the limited sense we usually use to talk aboutpolitics.But then, the law does often determinea great
deal and its limitscan be quite precisewhen it comesto the presumptiveuse
of public force or a priorright to allow access on a cold winter'snight.
In the end, for some reasonswe hope have been made evident, we
conclude with a rejectionof the slogan "Die YuppieScum."Realizingthat
many have expressedthe willingnessto die for the right flat in New York
City, this is the sortof rhetoricthat tells us verylittle aboutthe constitutive
role of law in politics.Likeformalsourcesof law, the highly chargedrhetoric of politicson occasiontakesus awayfromthe morefundamentalwaysin
which much of politics depends on law. Sometimes, in fact, because we
understandpolitics as the play of interestswe pay little attention to the
waysin which the law structuresthese interests.This inattentionis a barrier
to understandingthe natureof politics. On the LowerEastSide, it is also a
threat to a distinctive neighborhood.