In feudal society there was no such thing as a ‘right’, in the sense of a domain of autonomy held in principle by everyone. Any domain of autonomy was unique to a particular group, the result of their particular status or negotiations. The merchants of a city or a baron might hold certain ‘liberties’ – to elect a mayor, for example, or to export a particular item, be exempt from a tax, or levy toll duties. Feudal society was an intricate patchwork of immunities and benefits, all of which had the status of privileges, an allowance conferred by the grace of an over-lord or the king.
There is something feudal about the status of rights in contemporary society. It has become very difficult for groups or individuals to make a general claim for their rights as citizens, as allied in principle with those of other citizens. Instead, there has been a return to claiming rights only as a form of privilege.
The distinction between positive and negative rights – the classic freedom-from or freedom-to distinction – has been eclipsed. In many cases rights are seen as privileges, and vice versa. People talk about their ‘right to a quiet life’ or ‘right to self-esteem’, but then say that freedom of speech is ‘not a right’ but a ‘privilege’ or ‘responsibility’. In fact, these different claims have the same status, as a benefit conferred by some higher authority.
One of the ways one can defend interests today is by demanding special exemption from a restriction, on the basis of the special qualities or needs of your particular group. Musicians may claim that they should be exempt from entertainment licensing, for example, because of the particular value of music in social life. Or homeless organisations may seek to exempt rough sleeping from public space regulation, on the grounds of this group’s particular vulnerabilities or needs. For campaigners the pressures pushing you to pose your demand in these terms are very strong indeed: this is the existing way in which demands can be put and positions defended.
There is again a sense that one sphere of autonomy is exclusive of and set against those of others. This is why it is common for groups, in defending their own ‘rights’, to call for restrictions upon the rights of other groups. Big Issue sellers in Oxford supported the council’s ban on begging; local buskers supported a busking license because it benefits them over outsiders. Street traders often support leafleting licenses, as do institutions which are already prevented from leafleting as a result of their alcohol licenses.
In feudal times, if you had a right to export cloth, this in principle excluded others from carrying out this activity: a liberty was a monopoly. Now councils horse-trade over the use of public space in a similar way, as if one use were exclusive of other uses.
We are seeing the official micromanagement of public spaces as a patchwork of distinct and rival privileges. Woking Borough Council, for example, has divided up the town centre into a series of ‘event zones’, each with special allowances and restrictions for activities such as busking, leafleting or charity collecting. (The only activity allowed in all areas is ‘council events’: this is the right of the over-lord). So charity collection can take place in seven different zones, but a permit is required, and only one organisation with a maximum of four representatives can collect at any one time. Leafleting can occur in two locations, but is limited to one ‘booking’ a month.
There is no conception within this schema of any rights of free action in public space. Your realm of action exists only as sanctioned by authority, as licensed in some way. There are now licences for busking, leafleting, playing music, charity collecting, even for dancing: one can act only when one has a permission slip, and generally paid a fee. Your activity is not a right but a privilege, and a privilege explicitly set against the unauthorised group who are excluded from performing this action. A local musician will wave their ‘licensed busker’ card at an out-of-town musician who has just set up, showing their permission slip and so claiming their superior rights to use the space. In certain local authorities buskers must actually audition for council officials before receiving their licence.
And yet, the nature of these new privileges are quite different to those in feudal times. Feudal privileges represented fixed status divisions and customary rights, a hierarchical stratification which structured social relations from top to bottom. A particular licence was a recognition of the dues owing as a result of a person’s status as baron or churchman, or of past agreements or custom. By contrast, the pseudo-feudal divisions in today’s public sphere have an artificial quality. They are entirely contingent, constituted only through the whim of officialdom or the chance of circumstance.
There is a great difference between the status of different activities in official regulations, and their status in social life. There is no recognised Woking custom that leafleting should only happen once a month, or in certain areas of the town: Woking Borough council’s ‘public realm usage policy’ is a pristine invention of the realm of officialdom. The licensed busker takes on a status that is quite alien to their status among a public audience or fellow buskers: their position depends not on the quality of their music but on whether they have been compliant and jumped through the hoops. Therefore, the new realms of privilege are not a reflection of social reality, but an official construction laid upon it.
In this context, it is a progressive task to pose claims in terms of general rights, held by all people as citizens. In truth, homeless people have a right to use a bench, or buskers to set up in a spot, not because they are special but because they are citizens as much as anyone else; they have the same rights to use the space as anyone else. It is only by defending such general rights that the interests of groups could coincide, that the autonomy of one is also the autonomy of the other.
There is an objective potential for the uniting of different parts of civil society. The distinctive quality of state regulation today is that it is turned without exception against every part of social life. Public space regulations are not exclusively targeted at homeless people, buskers, or any other particular group, but against activities of almost any kind. War veterans must queue up with Greenpeace protesters to gain their ‘charity collection licence’; lost cat posters and nightclub adverts are equally prosecuted for unlicensed flyposting. The contemporary state has no favourites among the different sections of social life.
This suggests that there is a state-consciousness, already in existence. We dearly need a civil society consciousness to rise up in counter and opposition to these measures.