Law and Intangible Cultural Heritage in the City

Sara Ross

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000024500
• Edition: 1
• Topic: Médias et arts de la scène
• Subtopic: Arts du spectacle

With disappearing music venues, and arts and culture communities at constant risk of displacement in our urban centers, the preservation of intangible cultural heritage is of growing concern to global cities.

This book addresses the role and protection of intangible cultural heritage in the urban context. Using the methodology of Urban Legal Anthropology, the author provides an ethnographic account of the civic effort of Toronto to become a Music City from 2014-18 in the context of redevelopment and gentrification pressures. Through this, the book elucidates the problems cities like Toronto have in equitably protecting intangible cultural heritage and what can be done to address this. It also evaluates the engagement that Toronto and other cities have had with international legal frameworks intended to protect intangible cultural heritage, as well as potential counterhegemonic uses of hegemonic legal tools. Understanding urban intangible cultural heritage and the communities of people who produce it is of importance to a range of actors, from urban developers looking to formulate livable and sustainable neighbourhoods, to city leaders looking for ways in which their city can flourish, to scholars and individuals concerned with equitability and the right to the city. This book is the beginning of a conservation about what is important for us to protect in the city for future generations beyond built structures, and the role of intangible cultural heritage in the creation of full and happy lives.

The book is of interest to legal and sociolegal readers, specifically those who study cities, cultural heritage law, and legal anthropology.

1
Theories of value, culture, and cultural spaces in the city

I Introducing use-value versus exchange-value in the city

The work of Logan and Molotch “construct[s] a sociology of cities on the basis of a sociology of urban property relations” that seeks to “clarify the interconnections between a wide range of urban phenomena”.¹ In doing so, they turn to a structuralist approach and the “Marxian lexicon” to propose an analytical framework that draws on the “exchange-value” and “use-value” of place, but in a manner adjusted to speak to the urban development context.² “Exchange-value”, in this context, refers to “the utilization of property to generate profit”, while “use-value” refers to “values individuals assign to property that do not enter into commodity exchange”.³

1 See generally John R. Logan & Harvey L. Molotch, Urban Fortunes: The Political Economy of Place (Berkeley: University of California Press, 1987); see especially, ibid. at viii; Ray Hutchison, “Book Review of Urban Fortunes” (book review) (1988) 94:2 Am J Sociology 459 at 459.

2 Logan & Molotch, supra note 1 at viii; Aaron Moore, Planning Politics in Toronto: The Ontario Municipal Board and Urban Development (Toronto: University of Toronto Press, 2006) at 17.

3 Hutchison, supra note 1 at 459.

The urban theorist Henri Lefebvre is often cited to have stressed that a complete recognition of use-values is needed “in order to redress the historical imbalance resulting from the excessive emphasis on exchange-values typical of the capitalist production of the urban space”.⁴ The undervaluation of the cultural capital of certain groups and individuals, and the unequal valuation of different iterations of culture, cultural practices, and attached spaces of cultural practice, is interlaced with the comparative valuation of the use-value/exchange-value of spaces within municipal legal governance frameworks. Seeking to build on Lefebvre’s notion of the production of space by people, Logan and Molotch do so “by offering specific concepts, mechanisms, and examples of how individuals and groups” produce space within the urban setting and the use-value/exchange-value framework.⁵ Where space is created by people and may also be viewed for its intangible properties, different spaces and their attached value-attribution – whether measured in terms of “use” or “exchange”, or both – can overlap and coexist within the physical boundaries of tangible space. An overlap in created spaces and alternate values can also be generated in the same space but at different times – for example, day versus night, and so on. These overlaps within the same physical boundaries and tangible space can create an antagonistic relationship between the contrasting and conflicting value interests of the parties that occupy the space. Logan and Molotch suggest that cities, as growth machines, tend to focus on the revenue potential of spaces and emphasize exchange-values in development projects, but that this often functions to the detriment of those who struggle to access or maintain these spaces for use in their everyday lives.⁶ That is, however, not to say that those for whom the use-value of a space is the focus will not also potentially derive “exchange benefits” from exchange-value focussed interests and projects in the city.⁷

4 Edésio Fernandes, “Constructing the ‘Right to the City’ in Brazil” (2007) 16:2 Social & Legal Studies 201 at 208. See e.g. Henri Lefebvre, Writings on Cities, selected, translated and introduced by Eleonore Kofman & Elizabeth Lebas (Oxford: Blackwell, 1996); Henri Lefebvre, The Production of Space, translated by Donald Nicholson-Smith (Malden: Blackwell, 1991); Henri Lefebvre, Le Droit à la Ville (Paris: Anthropos, 1968); Henri Lefebvre, La Revolution Urbaine (Paris: Gallimard, 1970).

5 Logan & Molotch, supra note 1 at xi, ix.

6 Ibid. at viii–ix. For further discussion of the city as a growth machine, see ibid. at ch 3ff, and for an excellent discussion of how Logan and Molotch’s growth machine theory applies to Canadian cities, and Toronto in particular, see Moore, supra note 2, ch 2ff. Briefly, the urban growth machine is characterized by the united desire for growth – or, a “growth consensus” – of a coalition of dominant or “elite” groups, actors, and organizations in the city, even if they have otherwise divergent interests (Logan & Molotch, supra note 1 at 50).

7 Ibid. at viii–ix.

Drawing on this framework is useful in considering how the use-value generated within a space is treated, valuated, protected, and promoted in comparison to the exchange-value it carries. Where much of Logan and Molotch’s work is related to the production of neighbourhood space, residents, and use-value,⁸ use-value can also be drawn on to address the occupation, use, and/or identification of a space that is not necessarily connected with habitation. Intangible cultural heritage is interconnected with the use-value of a space and can be generated within a space of community cultural wealth and high use-value, regardless of the exchange-value the space may or may not carry. People in the city frequent spaces that are important to them beyond the limits of their home and neighbourhood. These forms of use and occupation of space often arise in relation to cultural activities and practices in addition to leisure activities. These uses of space may occur at unconventional times of the day or night where use may go unnoticed by those who use the space, or the surrounding space, at other times during the day or night. Or, they may overlap in ways that clash, causing nuisance claims to arise.

8 See generally ibid.; see also ibid. at 49.

While, today, “the iterability of sounds, odours, vibrations and dust traversing property boundaries represents the traces of different lives pursued”,⁹ nuisance clashes tend to carry a greater threat for displacement for those using the space who are relationally vulnerable – often with weaker property claims to the space and/or less social, economic, or cultural capital to ensure their voice is heard and valued.¹⁰ Additionally, an overlap in the use of space, but one that occurs less visibly at different times of the day or night, may result in one group’s complete lack of awareness of the presence of the other group. This may ultimately bring about the inability of the relationally vulnerable users of the space to preserve their use-access to the space as their invisibility can lead to a neglect in consultation when the space or the access to the space is altered or removed.

9 Davina Cooper, “Far Beyond ‘the Early Morning Crowing of a Farmyard Cock’: Revisiting the Place of Nuisance Within Legal and Political Discourse” (2002) 11:1 Soc & Leg Stud 5 at 10.

10 See also Mariana Valverde, Chronotopes of Law: Jurisdiction, Scale and Governance (Abingdon: Routledge, 2015) at 19–22 for a discussion of the legal chronotope and hegemony of conventional notions of property ownership and spatiotemporal existence in the city space.

II Culture in the city: what it is and why it matters

The cultural fabric of everyday life is seen in the micro-context of small social spaces and within the “lawscapes” where the law and the city intersect.¹¹ In addition to this, as theorist Iris Marion Young puts it, life in the city is characterized by the “being together of strangers, diverse and overlapping neighbours”.¹² Ultimately, the burgeoning diversities of cultures, subcultures, and cultural practices and spaces must coexist within the close-quartered setting of the city. Differences are inevitable and even encouraged in the context of city life as “[d]eviant or minority groups find in the city both a cover of anonymity and a critical mass unavailable in the smaller town”.¹³ But when superimposed, pushed together, and forced to coexist, often within contested terrain, clashing parties often face unequal results. As the UN’s Habitat III issue papers note – urban law “often has a dual character with an apparently neutral technical nature accompanied by a complex social aspect including the potential for differential impact on different groups within the urban environment”.¹⁴

11 Andreas Philippopoulos-Mihalopoulos, ed, Law and the City (Abingdon, Oxon: Rout-ledge & Cavendish, 2007); Valverde, Chronotopes, supra note 10 at 21; Boaventura de Sousa Santos, “Law: A Map of Misreading: Toward a Post-Modern Conception of Law” (1987) 14:3 JL & Soc’y 279. For a description of a “small social space” see e.g. Sally Engle Merry, “Anthropology of International Law” (2006) 35 Annual Review of Anthropology 99 at 106.

12 Iris Marion Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990) at 237, 240; Laam Hae, The Gentrification of Nightlife and the Right to the City: Regulating Spaces of Social Dancing in New York (New York: Routledge, 2012) at 34.

13 Young, supra note 12 at 238.

14 UN-Habitat, Habitat III Issue Paper #6, “Urban Rules and Legislation” (31 May 2015) at 2 [Habitat III Issue Pa...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• 1 Theories of value, culture, and cultural spaces in the city
• 2 Methodologies
• 3 Toronto - Music City?
• 4 Case study - waterfront development, the Guvernment, and drum ‘n’ bass
• 5 Case study - the Silver Dollar Room and Comfort Zone
• 6 Case study – Brunswick House, Albert’s Hall, and the Matador
• 7 Towards a counterhegemonic use of hegemonic legal tools for protecting spaces of high use-value and community cultural wealth
• Conclusion
• Index