Blomley

Rights of Passage
Sidewalks and the regulation

of public flow
Nicholas Blomley
Copyright © 2010. Taylor & Francis Group. All rights reserved.
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Blomley, Nicholas K.
Rights of passage : sidewalks and the regulation of public flow /
Nicholas Blomley.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-415-57561-4 (hbk : alk. paper) – ISBN 978-0-203-84040-5 (ebk)
1. Pedestrians–Legal status, laws, etc.–Social aspects. 2. Sidewalks–Law
and legislation–Social aspects. 3. Walking. I. Title.
K3492.B58 2010
343.09'81–dc22 2010017766
ISBN 0-203-84040-2 Master e-book ISBN
ISBN 13: 978-0-415-57561-4 (hbk)

ISBN 13: 978-0-203-84040-5 (ebk)
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Chapter 1
Pedestrianism
In 2002, radical anti-poverty activists occupied the site of the former Woodward’s
department store, located in the centre of Vancouver’s impoverished Downtown
Eastside, in what became a high-profile protest over gentrification, government
cutbacks and homelessness. Forced out of the building, the squatters established
an encampment in the surrounding sidewalk that quickly grew in size, attracting
many other activists and homeless people (Figure 1.1). ‘Woodsquat’, as it was
quickly dubbed, was many things to many people: a visible expression of radical
anger, a deliberate attempt at embarrassing the provincial government and city
in the run-up to the bid for the 2010 Winter Olympics, a symbolic space of oppo-
sition to private property and an affirmation of the commons, an eyesore and
a civic embarrassment, a space of carnival and celebration, an affront to public
salubrity and a resource centre and safe refuge for many homeless people. Tents,
sleeping bags, posters, couches, dogs and people intermingled. Highly politicized,
Woodsquat activists invoked a language of rights, social justice and insurgent
citizenship. The City obtained an injunction, compelling the protestors to remove
the encampment. Finally, a negotiated settlement occurred, and the protest was
disbanded in late 2002.

How are we to make sense of Woodsquat? What analytical frame can be brought
to bear? I suspect that for many scholars, the temptation is to fit Woodsquat into
prevailing conceptual categories. We can think of the protest and the official
response through the lens of social justice and citizenship, for example. Imbued
with a language of rights, the protest can be described as a critique of the fairness
of a social order and its attendant distributions of rewards and costs. We may also
view the protest through the lens of property, as a challenge to dominant forms
of private property, and a defence of popular, localized commons. Located on the
street, in public view, we may also be tempted to invoke conceptions of public
space, appealing to the importance of such sites for the exercise of expressive
rights, and the forging of expansionary forms of citizenship. The actions of the city,
conversely, could easily be characterized as a manifest injustice, motivated by a
desire for the purification of public space.
All of these perspectives are, in their way, valuable and important. Indeed, I have
contributed to them myself (Blomley 2008a). But they are, I wish to suggest, partial.
2 Rights of passage
Figure 1.1 Woodsquat, 2002 Photo by author.
Levi (2009) notes a ‘law-first’ tendency in socio-legal scholarship in which, all

too often, phenomena are subsumed within a legal category. When presented with
a material phenomenon, such as the gated community (his example), legal scholars
tend to reduce and explain it with reference to an ‘underlying’ legal category (such
as private property). Arguably, something similar happens in relation to public

space literature: when socio-legal scholars approach the topic, they tend to do so
through already constituted legal categories, such as public property, rights and
citizenship. Indeed, to invoke ‘public space’ is to introduce, even if unwittingly,
notions such as the Habermasian public sphere. While such legal frames are clearly
germane, there is, perhaps, a related danger of missing important realities. If our
choice of vocabulary shapes our understanding, we need to be alert as to how the
adoption of a priori framing, such as ‘public space’, not only opens but also closes
down scholarly analysis, in much the way as for the hammer, every problem is
a nail.
This becomes clearer if, rather than reaching for the hammer of abstraction,
we temporarily shelve it, and pay more careful attention to the seemingly mun-
dane details of the dispute, in particular, the quite striking way in which the City
argued before the court. The City was quite clear, in its written arguments, that it
was not framing the issue with reference to abstractions. The application for an
injunction was, it stated, not ‘about homelessness and poverty. It is about the right
Pedestrianism 3
of the City … to have a valid bylaw which is presumed to reflect public policy
and to balance the competing interests of all citizens. …’1. In response to the
British Columbia Civil Liberties Association (BCCLA), who intervened on
behalf of the protestors to argue that the City should exercise its authority in a
manner consistent with constitutional values, notably the right of the protestors
to freedom of expression, the City made clear that as far as it was concerned,
constitutional rights were irrelevant to the case. The City owned the streets and
had the authority to regulate those streets in public interest. The City insisted that
it was not targeting people and their behaviours, but was concerned only about
the specific arrangement of a set of material objects in a particular space: ‘The
injunction sought is directed at structures and objects only. The City is not seeking
to enjoin lawful picketing or protest or assembly on the Sidewalks’2. Insofar as the
City was concerned, Woodsquat was not a site for politics and citizenship, but a
series of obstacles, which they dutifully listed (‘tents, sofas, chairs, mattresses,
tarpaulins, tables, buckets, shopping carts, traffic delineators, traffic cones, wood
pallets and other items or objects’)3. The presence and location of these items were
said to be a contravention of municipal law, notably Section 71 (1) of the Streets
and Traffic By-law, which forbids any person from placing ‘any structure, object,
substance or thing which is an obstruction to the free use’ of the street or side-
walk. But while the mere unlicenced presence of these objects was objectionable,
it was the particular location and spatial arrangement of these things that was
deemed more worrisome, as they compromised pedestrian passage. The City char-
acterized the sidewalks as ‘very busy pedestrian thoroughfares. The City regulates
the placing of structures and objects on its sidewalks with the primary purpose of
ensuring safe, efficient and unobstructed pedestrian access’4.
Moreover, rather than framing these objects as somehow inherently ‘public’,
to the extent that they were components of a form of public speech, or the pos-
sessions of a socially disadvantaged population, many of whom were homeless,
and thus compelled to live their lives in public view, the City characterized them
as a form of private encroachment, akin to the unlicenced sidewalk café: ‘By
placing tents, mattresses and other structures on the Sidewalks, the Defendants
have effectively appropriated large portions of the public Sidewalks to their pri-
vate use and are depriving the rest of the public of the use of those Sidewalks’5.
As such, they constituted a ‘trespass’6 on City property and an affront to the
public good.
The City’s framing of Woodsquat is an example of a pervasive and wide-
spread form of urban public space governance. While powerful, it tends to be
hidden from view, easily obscured by grander and more visible forms of urban
regulation. This book seeks to make sense of the character and effects of this
rationality, which I call ‘pedestrianism’. Pedestrianism understands the sidewalk
as a finite public resource that is always threatened by multiple, competing inter-
ests and uses. The role of the authorities, using law as needed, is to arrange these
bodies and objects to ensure that the primary function of the sidewalk is sus-
tained: that being the orderly movement of pedestrians from point a to point b.
4 Rights of passage
Obstacles that impede flow are inherently suspect, according to this logic, and are
to be limited or placed carefully so as to minimize blockage. Law provides the
essential ordering mechanism to ensure structured flow.
The motivation or inner life of the pedestrians is not an issue for pedestrian-
ism, nor is their social standing. Beggars, protestors, commuters at a bus stop or
patrons at a sidewalk café are all potential obstructions. Some of those obstruc-
tions are manifested as things, such as the ‘structure, object, substance or thing’
at issue at Woodsquat, and some as bodies, such as people waiting at a bus
stop. The bus stop and the waiting transit user are in this sense comparable.
Pedestrianism values public space not in terms of its aesthetic merits, or its suc-
cess in promoting public citizenship and democracy. Rather, the successful side-
walk is one that facilitates pedestrian flow and circulation. Rather than seeking to
promote and enhance a Habermasian public sphere that is distinct from the state,
pedestrianism views the sidewalk as a form of unitary municipal property, held
in trust for an abstract public. The municipality has a formal duty to regulate the
sidewalk in the name of the public good. Other sidewalk users – such as the
Woodsquat protestor, the beggar or the abutting merchant or homeowner – are
not thought of as members of alternative publics, so much as they are deemed
trespassers, impinging and encroaching upon municipal space.
Pedestrianism and police

To make sense of pedestrianism requires a few theoretical and methodological
tools. The first, following Levi (2009), is the requirement that we recognize and
treat pedestrianism on its own terms. Pedestrianism is clearly a form of legal
practice and knowledge, but is also distinct, eschewing a rights frame in favour
of an attention to placement and flow. Thus, perhaps it is better to think of it as
a particular legal knowledge, with its own networks, logic and internal truth
(Valverde 2003; Riles 2005). In making sense of such legal complexes, Valverde
(2003) suggests that we avoid the temptation to immediately ask the grand
questions (‘why?’, ‘what?’), or follow the path of revealing the interests that are
being furthered by law. While this is still necessary, she also suggests that we can
learn much by studying legal knowledges, such as pedestrianism, through an
exploration of their effects: that is, by asking ‘what a limited set of legal knowl-
edges and legal practices do, how they work, rather than what they are – much
less what this all means for globalization, patriarchy, or any other grand abstrac-
tion’ (2003, 11). To focus on effects, she argues, is necessarily to explore the
‘particular effects of particular practices’ (2003, 14). In so doing, we are invited
to explore ‘the particular effects of the techniques used by various organizations
and institutions to organize, sort, classify, relate and explain’ (2003, 14). Here we
can learn from fields such as science studies, in which we are encouraged to
‘bracket our familiarity with the object of study’, approaching it as an anthro-
pologist would a remote culture (Latour and Woolgar 1985, 277) or the work
of political geographers, who encourage us to consider the state as an effect,
Pedestrianism 5
produced through a set of mundane and messy bureaucratic practices (Painter

2006; Mountz 2003).
When we take the specific legal practices and knowledges that constitute
pedestrianism seriously, on its own terms, it becomes easier to recognize that it
entails a very specific and somewhat unfamiliar conception of state power, law
and governance. Pedestrianism can usefully be understood as a particular mani-
festation of a long-established tradition of ‘police powers’ that seek to promote
the well-ordered society through regulations governing such miscellaneous mat-
ters as weights and measures, the sale of dangerous goods, street lighting and
market opening hours. Remarkably wide-ranging, police powers have been char-
acterized as the ‘most expansive, least definite and yet least scrutinized of gov-
ernmental powers’ (Dubber 2004, 101). While police powers are operative at all
levels of the state, they are most active at the local level, exercised by minor
functionaries such as planning officials, liquor control boards, municipal engi-
neers and environmental health officers. The objects relevant to police powers,
Foucault (2007, 335) notes, are ‘urban objects’ in the sense that they exist only
in towns, existing under conditions of ‘dense coexistence’.
Police powers, Dubber (2005) argues, have ancient roots, reflecting a patriar-
chal tradition of governance, premised on the model of the household as a unit of
governance. For example, early Frankish law rested on the protection of the
mund, or household, in which the householder enjoyed authority to protect his
household against external threats, and exercised internal powers to discipline
recalcitrant members of the household. Such powers were not arbitrary, but were
to be wielded so as to ensure the welfare of the household as a whole. The cen-
tralization of royal power entailed the expansion of the kingly mund, or the royal
peace, to the nation as a whole, such that all became, in effect, members of the
royal household. The sovereign was thus charged with protecting his realm from
external threats, but was also required to order the members of his household to
ensure the survival and welfare of the household as a whole. Those who were
recalcitrant or disobedient, thus breaking the royal peace, were seen as violating
their duty of fealty and were thus disruptive of the order of the household.
This hierarchical membership model, premised on the preservation of the
household, continues to underlie modern police power, argues Dubber. So, for
example, Blackstone defined nuisance as a police offence, it being ‘an offence
against the public order and economical regimen of the state; being either the
doing of a thing to the annoyance of all the king’s subjects, or the neglecting
to do a thing which the common good requires’ (1769/1979, 167). As Dubber
(2005) notes, such omissions and commissions entail a failure to perform a duty
of orderly conduct, ‘of acting according to one’s proper place in the community-
family. Any violation of this duty amounted to a challenge to the authority of the
householder, who bore the responsibility of maintaining order’ (96). Police pow-
ers seek not to protect identifiable persons, but rather govern in the interests of
more nebulous abstractions, such as the public good, the community, or what
Blackstone referred to as the ‘domestic order of the kingdom’ (1769/1979, 162).
6 Rights of passage
Viewed this way, the actions of the Woodsquat protestors entailed a violation of
civic duty and a disruption of the orderliness of the larger community.
Police powers, therefore, should be seen as a distinct mode of governance,
unlike that operating through prevailing forms of liberal legality, argues Dubber
(2005; though cf. Novak 2008). If autonomy, or self-government, underpins law,
then police is premised on heteronomy, or government of people by the state.
The state itself, moreover, is differently conceived, he points out. From the
perspective of law, the state is the institutional manifestation of a political com-
munity made up of autonomous equal persons. The function of law is to preserve
the autonomy of these subjects. From the perspective of police, however, the
state is the ‘… institutional manifestation of a household. The police state, as
paterfamilias, seeks to maximize the welfare of his – or rather its – household’
(Dubber 2005, 3).
Police powers, such as those relating to the regulation of the sidewalk, operate
both through the suppression of ‘nuisances’ (such as sidewalk blockages) and the
promotion of desired forms of behaviour and conduct. Rather than a form of
remedial regulation, like the criminal law, police powers are also preventive in
orientation. In the Woodsquat case, the City not only punished those who had
caused an identifiable obstruction that impeded particular persons, but also pru-
dentially sought to forestall future obstructions. For Bentham, while criminal law
‘regards in particular offences already committed; [its] power does not display
itself until after the discovery of some act hostile to the security of the citizens’,
police power ‘applies itself to the prevention both of offences and calamities; its
expedients are, not punishments, but precautions; it foresees evils, and provides
against wants’ (quoted in Dubber 2004, 136). In that sense, police powers act as
a ‘hinge articulating the past-oriented punishment of wrongdoing with the future-
oriented governance of risks and dangers’ (Dubber and Valverde 2008b, 4).
Operative at lower levels of the state, through apparently mundane forms of
regulation, police powers are easily overlooked. But this would be a mistake.
Police powers are remarkably promiscuous, open-textured, flexible and far-
reaching. The objects of police are particularly heterogenous, including people,
acts and objects, exemplified by the routine production of long lists of apparently
disconnected problems and situations, the selection of which is rarely justified, in
the service of remarkably open-ended categories, such as ‘nuisance’, ‘obstruc-
tion’, or ‘morality’. Take, for example, the 1907 Streets By-Law in Vancouver
that forbade, inter alia, sports or amusements likely to frighten horses or ‘embar-
rass the passing of vehicles’, the cutting of firewood, lumber, block, rock, stone
and the mixing of mortar, ‘or any other act upon the sidewalk’ which obstructs
pedestrians; required that road users keep to the left side; prohibited indecent
exposure, the public display of ‘obscene materials’ and displays of books and
pamphlets devoted to criminal accounts, police reports or accounts of criminal
deeds, or ‘pictures or stories or deeds of bloodshed, lust or crime’; and banned
the use of poison for man, animal or fowl in public places, the throwing of
sharp things that may damage trees or injure horse’s feet; and the discharge of
Pedestrianism 7
‘liquids which cause filthy effluvia’. Some of these prescriptions were quite spe-
cific, such as the requirement that youths remain under curfew between 9 pm and
6 am, unless with an adult or on an errand, and then to not loiter, shout or yell.
Others seemed remarkably open-ended, such as the injunction against ‘loitering’,
‘collecting in crowds’ and ‘encroaching’7. The City’s contemporary preoccupation
with the offending ‘tents, sofas, chairs, mattresses, tarpaulins, tables, buckets, shop-
ping carts, traffic delineators, traffic cones, wood pallets and other items or objects’
in the Woodsquat case, and their invocation of ‘access’ and its negative, ‘obstruction’,
continues this pattern.
Similarly, Dubber (2004) notes that police is comprehensive and universalizing:
it could be ‘applied to everyone and everything and everywhere … Police was
an end, the means to that end, and the institution enforcing the means. In other
words, police was the goal that the police achieved by means of police’ (142).
The apparently open-ended discretion of police reflects, in fact, its roots in a
form of ‘practical wisdom that knows which concrete measures will work in the
particular circumstances’ (Dubber and Valverde 2008a, 5) to promote order and
well-being. It is not surprising, therefore, that observers have an extremely hard
time defining the essence or extent of police powers. Halsbury’s, the supposedly
definitive encyclopedic treatise on English law, opens its discussion of nuisance,
a central concern of police powers, by frankly noting that, as is it used in law, the
term ‘is not capable of exact definition’8.
Pedestrianism, in its own right, and as a form of police power, is thus quite
distinctive, as the City’s argument in Woodsquat reveals. Most immediately, it
seems to depart from framings of Woodsquat that rely on categories such as
rights, public space and purification. One of my goals is to illustrate how onto-
logically different pedestrianism is from prevailing scholarly perspectives on the
sidewalk, such as that which views it through the lens of ‘public space’. Public
space is a topic of considerable interest to scholars and students in many fields,
including political theory, urban design, geography, law and urban studies. The
regulation of public space, like at the Woodsquat protest, has spawned a large
literature. Progressives worry that it undermines the publicness of public space to
the extent that it excludes and marginalizes. Public space, they argue, is valuable
in that it allows certain people and voices to enter into the public sphere. Excess
regulation and control, they insist, negates this function, and must be opposed.
They worry that cities have been too eager to purify public space, such that the
indigent, oppositional or merely different are increasingly excluded, leading to a
narrowing of the public.
Yet, despite their ideological differences, both view public space in broadly
similar ways. All embrace a form of what we can term ‘civic humanism’. First,
both regard public space as serving certain valued political and ethical ends,
such as expression and democracy. So in the Woodsquat case, for example, the
BCCLA argued that the City had erred in its definition of the public interest
underlying the regulation of public space, which it had ‘exhaustively defined as
involving unimpeded access through the streets’9. Public space, argued the BCCLA,
8 Rights of passage
was much more than this, and should also be seen as a site for expression and
speech, advancing desirable forms of human flourishing and intersubjective
engagement. Second, both treat public space as a space, first and foremost, of
people. It is the encounters among these people, whether for better or worse, that
are at the centre of their analysis. The expression so valued by the BCCLA, of
course, requires both speakers and an audience. Not only must the autonomous
rights-bearing subject be allowed to speak, but a democratic dialogue between
citizens should ensue. Third, the site in which these encounters occur is under-
stood as a space of and for the people, in which the public sphere can be made
manifest. Publicness is understood not as synonymous with the state, but distinct
and autonomous. Indeed, the state (as well as other ‘spheres’, such as the market,
or religion) is seen as a potential threat to this very publicness.
Pedestrianism departs from civic humanism on all three counts. First, it is less
immediately interested in the directly ethical or political dimensions of public
space than in more functional concerns – notably flow, placement and circulation,
and is at least facially apolitical. The rationality at work here may appear mundane
and everyday. Indeed, proponents cite it as an obvious and uncontested goal for
urban governments. Its practitioners – notably engineers, but also judges – appear
to operate in the realm of the technical and practical, rather than the ideological.
Second, pedestrianism is non-humanist in that it does not take the person as its
primary focus. Rather, it is interested in both bodies and things, and their interre-
lationship. On occasion, as in Woodsquat, pedestrianism severs things from bod-
ies, focusing on the objects and structures that are said to impede circulation. At
other times, as we shall see, bodies and things are treated as essentially compa-
rable insofar as they can both compromise circulation. Finally, as we shall see, if
the sidewalk is public, this is understood as denoting public ownership, in which
the state acts as trustee, acting to advance collective welfare and the public good.
Its job is to act as an impartial referee between those competing factions that seek
to use public property, to prevent the expropriation of property by particular inter-

ests (such as protestors) and to ensure that its primary purpose is maintained.
Pedestrianism, people and things

For the civic humanist, then, the sidewalk is a space of people. If objects appear,
they tend to be treated as extensions of the human subject. In the Woodsquat case,
the protestors and their allies resisted the City’s plan to remove the structures
on the sidewalk, by framing them as integral to the expressive liberties the protes-
tors were exercising. For the BCCLA who intervened on behalf of the protestors,
the objectionable ‘structures’ were not just obstacles, but themselves media of
expression:
The BCCLA submits that one cannot separate these physical structures, and
these physical chattels, from a person’s freedom of expression… If you
remove these chattels in the case before Your Lordship, you remove the
Pedestrianism 9
content of their expression. The content of their expression is precisely the

household items.
The message these items deliver, the content of the expression that these
ordinary household items carry, is: ‘I have no home. That is why the objects
you have in your bedroom, or that you have in your kitchen in my case, are
here on the public sidewalk. Please do something; please assist me in doing
something about this.’10
The objects, put another way, were humanized, imagined as extensions of the
personhood of the protestors. To remove the objects was to compromise the
autonomy of the rights-bearing subject. Pedestrianism, however, is concerned
with both people and things, the interrelation of which is a crucial legal concern.
In the Woodsquat case, the City neatly severed the protestors from the objects on
the sidewalk, noting that they had no objection to lawful protest or speech by
persons, only to the blockage occasioned by their objects. These objects were not
extensions of the person, but simply obstructions in their own right.
Pedestrianism’s attention to the relation between people and things will be a
recurrent theme. Police powers more generally focus on what an eighteenth-
century German police scientist described as ‘the good order and constitution of
a state’s persons and things’ (in Dubber 2004, 140). Police’s interest in both
things and people is distinctive. For liberal legality, the tendency is to treat things
as secondary to law such that ‘[t]hingness is prior. The law is post’ (Madison
2005, 382). Realist property theorists, for example, have long insisted that prop-
erty is not things, but rights. This tendency relies upon a categorical distinction
between society, governed by human subjectivity, and nature, a sphere in which
physical causality is the effective principle.
Pedestrianism, however, both reconstitutes this divide in consequential ways,
and moves across it with ease. If, at Woodsquat, the City sought to sever things
and people, on other occasions, people are essentially assimilated to things.

Pedestrianism, like police more generally, is not particularly interested in the
motivation of the person: the principle of mens rea, for example, does not apply
when it comes to the placement of obstructions. Similarly, the alleged motiva-
tions of the Woodsquat protestors were irrelevant, the focus being on the nui-
sance that their objects generated. For police, ‘it is a question not of imposing law
on men, but of disposing things’ (Foucault 1991, 95, my emphasis). And if polic-
ing ‘disposes’, it need not worry about, act upon or seek to regulate the interior
life of the person. In that sense, pedestrianism can treat the person as an object,
either in motion or at rest. As we shall see, this is evidenced by the Engineering
figure of the abstract pedestrian, or ‘ped’. What is important about the body is
whether (rather than why) it is in motion or static. Put another way, it is not the
‘soul’ of the ped that is of interest, but it’s size.
Pedestrianism’s particular relation to bodies and objects is worth considering,
echoing recent scholarship that explores the intersections of people and things
(e.g. Pels et al. 2002; Pietz 2002; Brown 2001; Pottage and Mundy 2004), and
10 Rights of passage
treats objects not so much as extensions of the self, but as ‘actants’, with inherent
agency. Such theoretical moves signal a rejection of a humanist categorical distinc-
tion between materiality and sociality, and related claims that treat material objects
as a backdrop to processes of symbolic signification and the production of human
meaning. In so doing, the ‘modern constitution’ that separates things from people
is reworked through the gathering of a ‘parliament of things’ (Latour 1993, 144–45).
The goal of such scholarship is to think of the ‘mutual involvement of people and
materials in an environment’ (Ingold 2000, 68). Viewed this way, if the BCCLA
sought to characterize the objects on the streets in a style akin to post-structuralism,
as dense with human signification, the City relied upon a post-humanist character-
ization of the objects as exercising (problematic) agency in their own right (cf.
Latour 2000). However, while a Latourian might be tempted to celebrate the
remaking of the thing/person divide, when pedestrianism convenes the ‘parliament
of things’ the effects can be both productive and restrictive, as I discuss below.
To focus on the things of law, and the way they are produced and made legible
and meaningful through legal knowledges, would seem to offer useful insights
into pedestrianism. However, the things and knowledges of law have a crucial and
unexamined spatiality that also requires more careful scrutiny (Blomley 2008b).
Again, rather than starting our conversation with abstractions, such as rights, or
‘public space’, perhaps it is also productive to focus upon the material space within
which Woodsquat, like so many other public protests, engagements and encounters,
unfolds: the sidewalk. Given its pervasiveness and mundane materiality, such
spaces are easily overlooked, or treated as simply a backdrop for more exciting
dynamics. Yet the sidewalk, quite obviously, is a space, upon which certain bod-
ies and objects are arranged. The Woodsquat protest entailed a particular use of
sidewalk space, in which people, tarps, dogs, signage and furniture intermingled.
The sidewalk, however, is not simply a space in abstraction, but is both produced
by and made meaningful through prevailing forms of knowledge and practice.
That the protestors were permitted to occupy the sidewalk, once expelled by the
police from the building itself, alerts us to the fact that this is a legal space, gov-
erned by regulations, and subject to oversight by legal actors, such as judges and
municipal officials.
By referring to the sidewalk as a legal space, I draw from scholarship that
notes that the spaces of social and political life are frequently shot through with
and made intelligible by legal forms of ordering and categorization (Blomley
1994a). Such legal spaces, in turn, help materialize and constitute the legal in the
social world. The sidewalk, as we shall see, is governed, produced and interpreted
according to multiple codes, rationalities and practices, many of which are law-
like. Pedestrianism helps constitute particular delineated spaces, worries about
relative placement and location, relies upon notions of circulation and fixity,
constructs relational spaces, such as the public-private divide and is frequently
framed in scalar terms, with reference to notions of jurisdiction, for example. The
sidewalk itself is understood as a particular space, owned by the city, in trust for
the ‘public’. People and things are only problems when, like dirt, they are deemed
Pedestrianism 11
to be at the wrong place. Similarly, solutions to sidewalk problems are spatial-

ized. Once removed, or governed through a permit or licence, the problem disap-
pears. In that sense, pedestrianism is not simply a legal knowledge. It is also a
legal geography. If we are interested in ‘public space’, therefore, it is important
to understand how such spaces, like the sidewalk, and their conjunctions of
people and things are produced, stabilized, interpreted and ordered through
rationalities such as pedestrianism.
Pedestrianism and social justice

As Woodsquat reveals, it is also important to make sense of pedestrianism and
the prosaic legal spaces that it produces because of its implications for social
justice. However, the relation between pedestrianism and social justice is far from
straightforward. To talk of law and the sidewalk, for many, is to immediately
open the door to rights, citizenship and justice. As we shall see later, public space
scholarship has become almost synonymous with questions of social justice.
Public space, many would insist, is quintessentially a site for politics, whether
the expression of dissident views or the suppression of difference (Low and
Smith 2006; Mitchell 2003). The politics of public space has intensified, more-
over, with the increase in street homelessness, the advent of the entrepreneurial
city and the intensification of zero-tolerance regulation. Any regulatory impulse,
such as that of the City in the Woodsquat case, could thus easily be characterized
as discriminatory (i.e. targeting the marginalized and socially different) and
therefore destructive of the very publicness of the sidewalk.
As we shall see, however, pedestrianism does not have a straightforward rela-
tionship to such arguments. First, while pedestrianism is a means by which the
sidewalk may, on occasion, be ‘purified’, it does so on its own terms, the effect
of which is to effectively depoliticize the sidewalk in striking and remarkably
pervasive ways. Second, however, this is not to say that we can neatly reduce
pedestrianism to an instrument of class rule or other exclusionary logics. While
it is obviously not immune from broader relations of power, it also unfolds
according to its own distinct logic, the effects of which cannot be explained by a
singular social purpose.
The first point requires a recognition that pedestrianism operates in a distinct
register. To characterize public space with reference to politics, rights and social
justice is to draw from a civic humanist worldview. Pedestrianism, however,
relies upon different criteria. A good sidewalk, for the activist for social justice,
is inclusionary and tolerant. A successful sidewalk, for the engineer or judge, is
one that facilitates flow. Many legal conflicts entailing sidewalk use, often with
social justice dimensions, must therefore be understood not as battles within
rights, but as collisions between these two seemingly incommensurable logics.
More importantly, however, pedestrianism often wins such conflicts.
This can be illustrated by the Woodsquat dispute. As is often the case, the BC
Supreme Court agreed with the City with alacrity11. In so doing, the court relied
upon case law12 that, like the City, characterized the sidewalk in essentially func-
tional terms. As such, the protestors were only entitled to express themselves in
a public place if that expression was compatible with the ‘principal function’ or
intended purpose of the place. The structures in question were, it appears, a viola-
tion of the function of the place, which, it seems, was obviously traffic flow.
Precisely why the sidewalk’s function was circulation and not, say, expression,
was not explained (or why there was only one function, as opposed to several).
Seemingly, such a view is obvious and unproblematic: ‘Obstructing the city’s
sidewalks in breach of its by-law is clearly not a form of expression that is com-
patible with the use of the sidewalks’13. The court was also deferential to the
police powers of the City to enact and enforce municipal law. Quoting an earlier
precedent14, the Court underscored the beneficent power of cities and their duty
to regulate the sidewalk in the public interest:
As members of the city corporation the inhabitants are entitled to look to the
duly elected representatives who comprise the municipal council for enforce-
ment of the provisions of by-laws passed for their protection, and in enforc-
ing those by-laws the corporation, whether by means of a prosecution or in
a suit for injunctive relief, acts on behalf of all the inhabitants.
Arguments from rights, then, seem to get very short shrift. Sidewalks are for
circulation, not speech. Unlicenced objects, if they impede, can be removed. The
City has the responsibility, even the obligation, to regulate its sidewalks in the
public interest. All of this appears to be obvious and unsurprising. Could it be,
asks the Court rhetorically, that:
… despite the City’s responsibility to enforce the by-laws enacted for the
public’s orderly use of the streets and sidewalks in the city, the court ought
to refuse to grant a statutory injunction the City seeks to bring an end to an

obstruction of sidewalks in a busy part of the city that has persisted for two
months and that is attributable to the unlawful conduct of large numbers of
people? To ask that question must be to answer it15.
To invoke circulation and blockage, it seems, is to depoliticize the sidewalk in

striking ways, effectively deactivating rights-based claims in regard to public
space, which rely on civic humanist arguments. As we shall see, claims based on
equality or expression are not so much defeated by pedestrianism as they are
sidestepped. The sidewalk is not a site for the realization of individual rights, but
a conduit for purposeful, directed flow. As I shall suggest later, pedestrianism is
deeply rooted in judicial deliberation on the sidewalk, reflecting the centrality of
certain conceptions of the particular nature of the highway, of which the sidewalk
is a part, as a provisional form of public property, over which specific police
powers are operative. Precisely why pedestrianism is so powerful is an intriguing
question that we can only hint at. However, its combination of the technical,
Pedestrianism 13
the commonsensical and a particularly depoliticized spatialization is surely

significant here.
For those of us interested in social justice in the city, it is surely important to
acknowledge and explore the particular way that pedestrianism can serve to con-
stitute the sidewalk in ways that diminish ethical and political possibilities. In so
doing, however, we may be tempted to focus more on pedestrianism’s effects than
its particularities. After all, does it matter precisely how the Woodsquat protest
was disbanded? This would be a mistake, however. If we want to understand how
it is that pedestrianism seems so powerful in shaping public space, or what chal-
lenges could be made to it, it is vital that we understand precisely how it works.
But there are other reasons for recognizing the specificities of pedestrianism.
To do so makes it less easy to quickly reduce it to a logic of purification, in which
law is used to constrain marginalized groups. Public space law, for many critics,
is objectionable on at least two grounds. First, it has exclusionary and unjust
effects. For Fyfe et al. (2006, 854), cities seek to use law to secure the public
realm for the respectable ‘through the exclusion of the unrespectable [such that]
the city becomes increasingly hostile to difference’. Second, the regulation of pub-
lic space is also often criticized by many not as neutral or disinterested, but as
reflecting darker, often hidden agendas, such as fear and revulsion. For Mitchell
(2003, 196–97), commenting on law regulating the public poor: ‘[i]f there has
been an overriding discourse about homeless people over the past decade, it has
been that they are nuisances (or worse) to be rid of – pests and vermin who sap
the economic and social vitality of the cities and nation’. Such exclusionary logics,
however, are said to be concealed behind apparently benign window dressings,
such as ‘broken windows’ or ‘civility’.
As such, pedestrianism could easily be characterized as a reflection of ‘larger’
or hidden logics. With its celebration of circulation and flow, many might also
point to commercial imperatives, such as the necessity of promoting the flow of
commodities, consumers and workers. So, for example, a Seattle ordinance that
banned sitting on city sidewalks has been explained according to the need to
‘exclude abject poverty from “prime” consumption spaces’ (Feldman 2004, 43),
with sidewalks constituted exclusively for the free circulation of goods, consum-
ers and workers in the service of a consumptive public sphere. However, follow-
ing Riles’ (2005, 985) suggestion that we need to bring what she terms the ‘legal
technicality’ into view, and to do so by considering it ‘… not as an effect or a
byproduct, a tool of more important agents and forces, but as the protagonist of
its own account’, my second argument is that while logics such as consumption,
exclusion and purification can be served by judicial pedestrianism, it cannot, I
think, be reduced to them. It is also a mistake, I think, to characterize pedestrian-
ism as a convenient veil, concealing ‘deeper’ hidden agendas. What is needed
(Valverde 2009) is to recognize law’s ‘technicalities’ to be as important as the
social relations of power within which they are situated.
For to fail to treat pedestrianism on its own terms is mistaken. First, as noted,
we miss the important political work that pedestrianism does. Pedestrianism is
deeply embedded in institutional practices and cultures, with its own historical
momentum. To characterize it as smokescreen is to both misdiagnose it and to
overlook its social ‘truthfulness’. That Seattle’s ordinance was decisively upheld
by the court suggests something about the power of pedestrianism to constitute
the space of the sidewalk. If we are concerned about the manifest injustices of
some aspects of sidewalk regulation, we need to attend to the work that pedestri-
anism does, not simply bemoan its effects or assimilate it to other, bigger, more
sensational logics. Second, while pedestrianism may have inequitable effects, it
cannot simply be characterized as serving a unitary agenda, for its reach is perva-
sive and wide-ranging. While beggars and protestors are, indeed, subject to its
effects, so are many other, less-marginalized users of public space. As we shall see,
this can include newspaper publishers, homeowners, restaurant and café owners
and merchants. In a departure from much of the public space literature, which
emphasizes the socially directive nature of much public space regulation, reduc-
ing it to either commercial or cultural anxieties about profit or identity, I wish to
acknowledge pedestrianism’s broader social reach and effects, while not losing
sight of some of its more ethically troubling characteristics. To do so requires
a careful dissection of its commitments, logics, institutional reach, history and
diverse manifestations.
Overview of contents
If we are interested in public space and its politics, in other words, we need to
acknowledge and make sense of pedestrianism, a remarkably pervasive yet over-
looked logic that shapes the ways in which public space is regulated, conceived
of and argued about. This logic, I wish to argue, is important in shaping the way
in which public space is practically produced and governed, represented within
the courts, and argued about by proponents of law. Pedestrianism, I will argue,
can be discerned in three important areas of legal practice: administration, judi-

cial evaluation and legislative debate. Pedestrianism takes on slightly different
forms in each arena, I suggest. In all cases, I reveal the important effects of pedes-
trianism on the use of urban public space, and the ways in which it departs from
and conflicts with alternative views of public space.
To do so requires that we review these perspectives and trace their common-
alities. Thus, my account begins by briefly reviewing prevailing accounts of public
space, particularly concerning the sidewalk, noting the prevalence of a form of
civic humanism. The sidewalk is understood, to public space scholars, as a political
space. Urban designers, relatedly, treat it as a civic arena. Mobility scholars,
finally, treat it as a site for walking. The sidewalk, in all cases, is understood as
predominantly a space for people, the encounters between which generate desired
forms of politics, sociality and engagement.
The contrast with pedestrianism becomes clearer in Chapters 2 and 3 in which
I illustrate and unpack what we might term ‘administrative pedestrianism’. City
bureaucrats and experts – in particular, urban engineers – have long viewed the
Pedestrianism 15
sidewalk through such a lens, to the extent that it has become both a pervasive
and unexamined orthodoxy16. Reliant upon a spatial logic of placement, ‘competing
use’, ‘levels of service’ and specifications, the purpose of the sidewalk is to allocate
space for pedestrians, as one engineer explained it to me. Other uses are deemed
provisional at best, intrusions, at worst. The sidewalk is literally produced, encoded,
rendered legible and operational by a dense array of codes, diagrams, specifica-
tions, academic and professional networks, engineering rubrics and regulations,
all in the name of unfettered circulation. Other ‘sidewalk agendas’, such as the
aesthetic or commercial, are reworked, appropriated or opposed in the name of
pedestrian circulation.
Urban engineers have a hard time tracing where pedestrianism comes from, it
being a taken-for-granted aspect of a professional culture. However, as an urban
rationality, administrative pedestrianism has a particular history, with strong
associations to the emergence of the early modern city and the professionalization
of urban engineering. Chapter 4 traces the historical emergence of pedestrianism
as a professional mindset, closely tied to the zoning and specialization of urban
public space, and the desire to order street users into appropriate forms of behav-
iour and movement. The perceived chaos of the street gave way, in the modern
city, to a view of the sidewalk as a system of movement. Other uses, particularly
those that were static, were deemed ‘obstacles’: imagined as fully public, the
sidewalk was to be cleared of ‘private encroachments’. Vigorous and highly
detailed programs of regulation attempted to police and remake the sidewalk.
As with contemporary regulation, such programs were often incomplete and
contested. Yet their momentum was such that a pedestrian commonsense was
successfully installed.
Pedestrianism is not only practiced by engineers, but is taken up, although with
different inflections, in other official sites. As in the Woodsquat case, pedestrianism
is routinely used by judges to make sense of the sidewalk, which I treat in Chapters
5 and 6. Indeed, it seems that judicial pedestrianism has deep roots in common law
principles relating to the designation of rights of way, the public’s right to ‘pass and
repass’, and police powers and related principles of ‘nuisance’. As an ambiguous
form of property, the highway is judicially defined in restrictive ways, with a deep-
seated antipathy towards nuisances and ‘encroachments’ that depart from or conflict
with unfettered mobility. The consequences can be diverse, as I note in Chapter 6.
On the one hand, the effect has often being to negate arguments for other functions,
such as speech and expression. While the sidewalk may be a forum for expression,
the courts argue that this is trumped by their primary purpose: traffic. This may
limit opportunities for public dissent. Those such as the homeless, who are obliged
to spend long periods of time in public spaces, often while immobile, are also likely
to be disproportionately caught up in pedestrianist logics. Yet, as we shall see, it is
not just the marginalized who may be deemed ‘obstructions’. Many corporate and
other private interests may also run in front of pedestrianism.
Chapter 7 considers the presence of pedestrianism in more formal, public argu-
ments made in support of law regulating public space, such as begging controls.
Rather than relying on morally charged discourses, such as ‘civility’, ‘order’ or

fear of the ‘other’, political pedestrianism tends to be scrupulously neutral, reliant
upon a particular conception of the atomistic self-governing individual, engaged
in dyadic relations, and structured according to a logic of negative rights, auton-
omy and mobility. Begging entails an encounter between two autonomous, rights-
bearing individuals. Each is to govern their interactions according to certain rules
of behaviour and conduct. Frequent reference is made to a contract that is assumed
to encode an appropriate balance. Begging is understood as a matter of legal con-
cern to the extent that it violates the terms upon which individuals are to encoun-
ter each other in public. Put simply, the importuning beggar threatens the ability
of the pedestrian to move purposefully through urban space, compromising what
some characterize as the ‘right of free passage’.
Chapter 8 briefly makes the case for the significance of pedestrianism in the
study of public space, noting that its apparently mundane and routinized qualities
make it hard to discern. Hidden in plain view, it nevertheless organizes the side-
walk and its functions in important and often ethically troubling ways. This is
not, however, to characterize it, as some may be tempted, simply as a convenient
shield for more sinister motives of social purification, prompted by deeper logics
of capitalism and globalization. While such dynamics may be at work, pedestrian-
ism must be recognized as distinct and relatively autonomous, and operating in an
ambivalent relationship to such logics.

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Rights of Passage

Sidewalks and the regulation

The right of Nicholas Blomley to be identiﬁed as author of this work has

A catalogue record for this book is available

ISBN 13: 978-0-415-57561-4 (hbk)

disbanded in late 2002.

Figure 1.1 Woodsquat, 2002 Photo by author.

Levi (2009) notes a ‘law-ﬁrst’ tendency in socio-legal scholarship in which, all

as private property). Arguably, something similar happens in relation to public

Pedestrianism and police

produced through a set of mundane and messy bureaucratic practices (Painter

to use public property, to prevent the expropriation of property by particular inter-

Pedestrianism, people and things

content of their expression. The content of their expression is precisely the

and people, on other occasions, people are essentially assimilated to things.

to be at the wrong place. Similarly, solutions to sidewalk problems are spatial-

Pedestrianism and social justice

to refuse to grant a statutory injunction the City seeks to bring an end to an

To invoke circulation and blockage, it seems, is to depoliticize the sidewalk in

the commonsensical and a particularly depoliticized spatialization is surely

can be discerned in three important areas of legal practice: administration, judi-

Rather than relying on morally charged discourses, such as ‘civility’, ‘order’ or

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