Non-urbs: Protocols for a city without ownership

Ownership is the right to enjoy and dispose of a thing, without greater limitations than those set forth in the laws. The owner shall have an action against the holder and the possessor of the property to claim it.
Article 348, Spanish Civil Code, 1889

On October 10th, 2019, the annual report on global commercial real estate investment activity published by the firm Cushman & Wakefield displayed one major anomaly. Foreign real estate investment in the city of Madrid had increased 202% over the course of one year, the highest rise ever registered in their classification. Madrid leapt from 19th place in 2018 to 4th, just behind global financial capitals New York, London, and Paris.¹ While investors and public administrators reason that such exponential growth is derived from Madrid’s attractive cultural offerings and financial stability, a more complex reality underlies these narratives.

The housing bubble and following financial crisis of the early 2010s left the country in a frail state that woke the Spanish society from a dream which had proven too good to be true. The national median price for housing plunged 31% as Spain’s financial system began to plummet, leaving behind a drawn-out recession still felt to this day. As a rescue measure, governmental decisions were made in order to salvage an economy doomed to collapse. The ghost of a national bankruptcy, like those of neighboring Portugal or Greece, hovered over political leaders who saw liberal tax incentives and foreign investment as the only solution to get out of the crunch.

A decade later, these measures have turned the city of Madrid into a sealed paradise for real estate speculation, uncontrollably raising market prices and skyrocketing the mortgage per capita ratio to pre-recession numbers.² One of the main problems in discerning the reasons and motives for the 2008 crisis in Spain is the inability to signify what housing really is. A house is seen as a place of domestic refuge on one hand, while being on the other hand a tool of real estate profit predefined by global market forces.³ This latter understanding of architecture as an accumulation of capital is intrinsically tied to our contemporary conception of private property and individual profit. Private property is not just a legal designation for ownership but something that has a social dimension.⁴ Owning something, from a mere tool to an entire building, is a way of owning its imbedded financial capacities. Claiming the property over something specifically implies that it has economic value and therefore profit potential.

Private property: ideology and power Unlike the early 2000s, during which the real-estate fever had spread nationwide, today’s speculative wave is localized, and it is in major cities like Madrid that the boom has reignited. In a city where the belief in private property is thought to be an inalienable right and property laws bolt personal gain over public interest, Madrid’s hyper-accumulation should not be a shock to anyone. However, to fully understand the scope of property, we must take into account various circumstances that are most of the time overlooked: its historical character (constantly in evolution); its fictional nature; and most importantly its ideological background. By understanding that the claim of ownership is a subjective construct rather than a given definition, one can start to comprehend the extent of its influence.

While the argument has been made that property per se goes as far back as several millennia to the establishment of agrarian societies during the Bronze Age, it is not until first century Rome with the establishment of the Codex Justinianus that it acquired legal definition. Under this classical jurisprudence, property, dominium, was understood as the exclusive and totalizing domination of a limited good, submitted to its owner in all its aspects; a limitless power that inspired every figure of property until the fall of the Western Empire in 476 CE. The following pre-liberal or feudal years of the Middle Ages were characterized by an immobility of property, now limited to the lords of the land who exercised jurisdiction over the people settled in it, forced to be de facto useful owners. The medieval understanding of ownership separated property rights into two distinct levels; an eminent right (dominium eminentis, attributed to the lord) and a usage right (dominium utilis, pertaining to the peasant.) A single asset as a land or a building could have various owners with different rights to it.

Centuries later, following collective uprisings against the exploitation of landowners, a new right was defined: absolute property, accessible to everyone. This revolution contributed to a formulation of ownership that sharply distinguished between property “right” and property “wrongs,”⁵ where the former was pre-eminently identified as the right to absolute individual ownership.⁶ In other words, feudal property was transformed into liberal property as the fiscal privileges of established nobilities were abolished. Economic liberalism allowed a rising bourgeois class to insert their goods into the phenomenon of production and exchange and therefore of market value. Property suddenly become worthy if it could be sold, therefore permitting the individual to not only have the right to own a good but also its usufruct, as validated by the establishment of the Napoleonic Code of 1804. This collection of private laws, though not the first to be established in a European country, was the first to have a pan-European scope and owed most of its foundational framework to ancient Roman property laws, influencing neighboring countries and setting up Europe as the breeding ground for speculation and profit that is it today.

However, the emergent individualism of society was soon to be questioned. Its increasing economic inequalities lead to the socialized, public control of property and certain modes of production by the appearance of the welfare state, a form of government that protected and promoted the economic and social well-being of its citizens based upon principles of equal opportunity. Private property became state-controlled, with its scope limited to the consumption of goods needed to satisfy personal actions. And while the capitalist model of private property arose shortly thereafter, a general commitment to social control over production systems and public services was still maintained by most Western administrations in order to protect the interests of the collective.

Yet, it was not until the rise of neoliberalism in the 1980s, and the subsequent deregulation and privatization of capital markets, that we have witnessed a soaring competition for goods (many now immaterial) and possessive individualism that public administrations seem unable to manage. Spain is no exception in this derailment, as its resurgence in 1975 from decades of economic isolation made it the ideal playground for global capitalism. The rise of speculative developments in Spain did not take long to appear, rapidly exceeding any other European country as market accelerations were increased with the implementation of lax property laws and the liberalization of foreign investment. With this, real estate—perceived as a low-risk high-profit asset—became the main focus for the intense capital accumulation that finance capitalism was generating.

This “perpetual need to find profitable terrains for capital-surplus production”⁷ is still maintained as we see how, despite the economic downturn of the 2008 recession; capital ownership is once again becoming increasingly concentrated. But while market-driven fundamentalism, withdrawal of governmental support, and insulation of private wealth may have characterized the economic tone of Western countries of the last forty years, we must not forget that it is undergirded by the fundamental bedrock of western culture: a staunch defense of private property and individual profit.

Urbs vs. non-urbs

When looking at our cities, and the repercussions that societies’ reliance on property have had in our built environment, the mere notion of the “urban” must be brought into question. While many will define the urban condition as an interconnected movement of goods, people, and ideas, its foundational core is actually based in the application of private property as a tool for domination. To understand the urban as the abstraction of processes of efficiency and control is to acknowledge its capability for economic profit as the sole reason of its existence.

Unlike the Greek polis the term urbs implies an a priori conception of the city. This is, if the polis was the result of the joining of individuals into a community that recognized themselves as such, the urbs is constituted from the top down—a generic status foreign to the rules of place and time. While the polis was specific, spontaneous and bounded, the urbs was generic, deliberate, and limitless. The urbs, and its subsequent historical mutations; sub-urbs, ex-urbs, trans-urbs, neo-urbs, etc., became in service of private property, understood as the flattening apparatus that could simplify the expansionist, insatiable aim of urbanism. Urbs “came to designate a universal and generic condition of cohabitation”⁸ bounded not by customs and subsistence but the transformation of what surrounds us into a commodity. And while many will defend that it is the abstract, non-descript decree of the urban that promises citizens a liberated existence based on personal freedom and choice, one must inevitably ask: By whom were those open rules conceived, and for what reasons?

Today, as real estate market values continue to rise towards another catastrophic collapse, it is crucial to push for a city model where the exchange value of goods is rendered insignificant or irrelevant. Madrid has seen how the immense oversupply of housing that characterized the pre-recession era and the subsequent drop of the speculative value of property has not steered the market towards more sustainable interests. And it may never do so. By pushing an understanding of the city as far away from the term urbs as possible, one can start to find plausible alternatives of dwelling were use prevails over ownership. To define its contrary, that which is not urban, the non-urbs thus becomes not only an oppositional counterforce but a social responsibility for those committed to defending the common good over private interest.

Against the infinite, totalitarian character of the urbs, the non-urbs presents itself as isolated and delimited. It no longer responds to abstract, immaterial protocols or economic efficiencies but to needs for sustenance, ecological well-being and dwelling. It is tangible, material and bounded. An autonomous system that is simultaneously engaging with what surrounds it, both connected and isolated. With this, architecture (as a collection of co-dependent finite forms) acquires a renewed relevance in the material representation of the city. A constellation of individual, enclosed objects floating in the endless extension of the capitalist city is a necessary condition for their existence. Its most defining characteristic is the need to emerge within the conventions and spaces of economic systems, as an oppositional reaction towards the urbs; it is not an alternative, but a resistance: a city within the city⁹.

Demanio The belief in and support of unprofitable property models seems to be the only way of responding towards a system that is doomed to endlessly exploit the capacities of the individual. Notions like public domain acquire restored relevance in the non-urbs, as a possible ownership model that rejects economic value, exploitation and profit. Public domain, or demanio, is in principle a special legal treatment derived from the satisfaction of public interest¹⁰. It is inalienable, unseizable and indefeasible, or in other words out of reach for private consideration. A double-headed creature, demanial ownership is difficult to define—granted as a real right but not considered real property, managed by the state but not owned by it, it creates a state of belonging to no one but may be used by all. And it is precisely this definition that differentiates it from other modes of ownership; it grants right of use over a particular good without benefit from its derived profit. By giving public domain a non-transferable nature, the consideration of the community in whose favor it is constituted becomes fundamental, eradicating any possibility for individual disposition and ultimately individual gain.

Just like property, demanio may seem natural or taken for granted, but its origins can too be traced back to Roman Laws. The Institutes treatise of 161CE by jurist Gaius cast light upon the discussion regarding property rights of public and private goods. Gaius made two main distinctions: things that were subject to private ownership and able to be sold (res in commercio) and those that pertained to the public realm and thus insusceptible of being traded (res extra commercium). This distinction defined the fundamental basis of private property: its ability to grant economic value to a good by virtue of its limited nature. For Gaius the trade of private goods was only focused on material, corporeal entities; physical things (res corporale). Only what could be seen, weighed, and touched (quae tangi possunt) was suitable for exchange and therefore speculation. Incorporeal entities, such as contracts, usufructs or obligations, were hence objects of non-economic value.

This distinction between public and private domains was de facto ignored for centuries, as demonstrated with the Edict of Moulins (1566) in which it was stated that all inalienable goods pertained to the property of the Crown¹¹. It was not until the French Revolution that the term “public domain” recovered a more precise jurisdictional feature and returned to the public powers, now controlled by the State. Nevertheless, the world would have to wait until 1833, for Victor Proudhon’s “Treatise of the Public Domain,” to again see demanio become a universal, legal definition that belonged to all.

Today, with the rise of finance capitalism, we have witnessed in the last few decades the appearance of new, unprecedented immaterial assets that have challenged the ability of property laws to establish clear boundaries on the scope of the public domain. Land, buildings and objects have now been replaced by bonds, derivatives and stocks--sets of goods that not only are unperceivable but also limitless, an infinite financial structure that is able to accommodate the never-ending hyper-accumulation that neoliberal economies are generating.

But while we can agree that capitalism has always implied some kind of “financialization” in its own cyclical structure, saturating markets that inevitably fall into speculation and failure¹², it had never reached today’s unprecedented scale. With this rise, real estate has become a primary medium of stable goods, transforming architecture into a key element for the exchange of value and simplifying its components to financial assets that allow greater fiscal efficiency. This radical understanding of architecture as an accumulation of capital value and short-term profit continues to have a pronounced effect on our built environment and the fabric of daily life. Global financial markets have violently affected the production and consumption of architecture, which has become a social and spatial avatar of finance capitalism, and functions less as the framework of our social life and more as an investment asset. In a time when the free-floating of capital and speculation continues to shape our built environment, the unprofitable dimension of demanial ownership may provide plausible solutions to this derail. To bring the horizontal, egalitarian principles of the public realm—of the common—into individual pursuits may allow, once and for all, a system where private financial interest is taken over by common use.

¹ Cushman & Wakefield, “2nd Quarter, Spain Market” 2019.
² EP, “La firma de hipotecas firma su peor septiembre en cinco años tras desplomarse un 31,6%,” El Pais, November 29, 2019.
³ Jack Self, Shumi Bose, and Pier Vittorio Aureli, Real Estates: Life without Debt. London: Bedford Press, 2014. ⁴ Karl Marx, Capital: a Critique of Political Economy. 1867.
⁵ Anthony Scott, “Property Rights and Property Wrongs.” Revue Canadienne d' Economique, Vol. 16, No. 4 (Nov., 1983), pp. 555-573.
⁶ Michela Barbot. “When the History of Property Rights Encounters the Economics of Convention. Some Open Questions Starting from European History.” Historical Social Research Vol. 40, No. 1 (151), Special Issue: Law and Conventions from a Historical Perspective (2015), 78-93.
⁷ David Harvey. Rebel Cities: From the Right to the City to the Urban Revolution. (London: Verso, 2012), 5.
⁸ Pier Vittorio Aureli and Maria Sheherazade Giudici, “Islands: The Settlement from Property to Care.” Log 47, ed. Cynthia Davidson (New York: Anyone Corporation, 2019).
⁹ Massimo De Angelis, “Grounding Social Revolution: Elements for a Systems Theory of Commoning”, Perspectives on Commoning: Autonomist Principles and Practices, ed. Guido Ruivenkamp and Andy Hilton (London: Zed Books, 2017).
¹⁰ Edward Lee, “The Public Domain: The Evolution of Legal Restraints on the Government's Power to Control Public Access through Secrecy or Intellectual Property,” Hastings Law Journal, vol. 55, November 2003.
¹¹ Pierre Bon, “El dominio público ante el derecho administrativo francés”. Revista Chilena de Derecho, vol. 25, n.2, 1998. 309-327.
¹² Fredric Jameson, ‘Culture and Finance Capital’, Critical Inquiry, 24, 1 119971, 246—265 lat pp. 249—2501

Eduardo Mediero is an architect, researcher and educator. Mediero is the founder of HANGHAR, an architecture practice based in Madrid that works on the confluence between post-property scenarios and alternative financial models. He is the 2019-20 inaugural Fishman Fellow at the University of Michigan’s Taubman College of Architecture and Urban Planning.

Mediero holds a Masters in Architecture from the Harvard University Graduate School of Design and a Masters in Architecture with Honors from the Polytechnic University of Madrid. His work has been exhibited at the XIV Biennial of Spanish Architecture and Urbanism, the 16th Venice Architecture Biennale and the Colegio de Arquitectos de Madrid. Eduardo is the recipient of the 2018 KPF Traveling Fellowship, the Real Colegio Complutense Fellowship, and the Arthur Lehman Fund.

www.hanghar.com

Eduardo MedieroMay 12, 2020