城市規劃是現代社會不可缺少的一環﹐政府制定法例管理公共空間﹐讓大多數市民能夠分享使用公共空間。可是這些規則漠視露宿者使用公共空間的權利。限制公共空間不準非指定用途﹐對於一般市民影響不大﹐因為他們對去公園是散步玩樂﹐街道是從一點走到另一點的通道﹐他們在家中有私人空間作私人活動﹐如睡覺吃飯或大小二便。但對於露宿者來說﹐街道公圍天橋底便是他們的家﹐不許他們在公共空間活動﹐便等於對他們趕盡殺絕。Jeremy Waldron在Homeless and the Issue of Freedom一文中﹐嘗試指出限制公共空間的用途﹐等同剝削露宿者的個人自由﹐否定他們身為人類的尊嚴。我這篇論文主要檢視他的論點﹐並挑出其中數點漏洞作出反證。在原文設定的特定條件下﹐把露宿者驅逐出城市﹐並不會構成侵犯自由的問題。
Homeless and still free
In “Homeless and the Issue of Freedom” , Jeremy Waldron argues that imposing restrictions to forbid unwanted activities on common properties will limit the freedom of homeless people and violate their human dignity. In this essay, I am going to first examine and illustrate Waldron’s claim. Then I will provide a counter argument to demonstrate the freedom of homeless people is violated even with all the restrictions imposed on common properties.
Waldron lay out the foundation of his argument by stating distinctions between different types of properties; they are the private property, collective property and common property. Private property is owned by private citizen. The owner of the property has the power to determine who is allowed to access and what is allowed performed in his property. If someone violates his property rights, say by sneaking into his property, the owner can persecute the trespasser with the aid of the government by simply asking the police to remove unwelcome trespassers. In contrary to private property, collective property is not owned by any private citizen, it is owned by the government. Some collective properties, such as government office and military base, are not open to the public, but a subset of the collective property is fairly accessible to everyone. The collective property marked for public use is common property that includes parks, streets, sidewalks, subways, wilderness area, etc. No private person has the power to determine the usage of common property. The usage is usually determined by the government, acts in the name of the society.
By definition, homeless people are those who have no access to private property, whether the property is owned or rented. Property owners may invite homeless people to their home, but the homeless people are on the mercy of the property owners. Homeless people do not have a place called home that they have the exclusive rights to do whatever they want whenever they like. People with private property perform fundamental human activities like urinating, washing, sleeping or cooking in their own private place. However, since homeless people are excluded by all private property, they have no where to perform those primal human tasks except on common properties. If the government restricts what kind of activities is allowed in common prosperities, it would be disastrous to the homeless people who have no where to go. They will have no place to sleep and no place to urinating without breaking the law.
In the traditional notation of freedom, it usually applies to actions rather than locations. A person is free to perform a certain action or not free to perform another action. This notation neglects the fact that man is a three dimensional being that occupies space. If a person is free do something, he ought to do that thing at some place. If a person is not allowed to be in a place, he is not free to be there and not free to do anything there. If a person is not free to be in any place, he is not free to do anything, hence he is comprehensively without any freedom [1:435]. The freedom of homeless people depends on their use of the common properties since they have no where else to perform their actions freely.
Waldron criticize our society is willing to tolerate an economy system in which a large numbers of people are homeless and at the same time not willing to allow those who are in this predicament to act as free agent, looking after their own needs, in public places [1:436]. He further argues that the freedom to perform those basic human needs is a very important freedom in our society. Unlike traffic laws or commercial regulation that limits the freedom of certain actions, the freedom of sleeping and urinating is the pre-condition of living, which is a freedom on par with the freedom of speech or freedom of religion. In order to preserve the freedom of homeless people, Waldron suggests the government should either provides public facilities, such as public washroom or shelter to the homeless people to attend their basic needs or allow them to perform those actions in common properties by taking care of themselves. The problem of homeless is not just a welfare problem; it is also a problem require us seeing homeless people as agents with freedom and dignity.
Waldron has considered many objections in his article. He examined the objections from positive freedom, general prohibitions, intention and responsibility and refuted all of them successfully. I am not going to repeat the same arguments in the essay. However, Waldron failed to consider one of the strongest objections. He argues that if an action X is prohibited (to everyone) in public places and if a person A has no access to a private place wherein to perform it, then action X is effectively prohibited to A everywhere, and so A is comprehensively unfree to do X. [1:441]. Indeed if X is prohibited to do every where, the unintended cumulative effect restraint A from doing X universally. How about A has access to one and only one public place to perform action X. In this case, A is no longer comprehensively unfree to do X. If we deliberately leave an exit, set aside a place that everyone can do X, then A is still free to do X, although he is not free to do X anywhere he likes.
Let us revisit the two questions posed by Waldron in [1:436]. He claims that most people with a home and a job are willing to tolerate an economic system with a large number of homeless people. I am afraid he is making a false assumption in answering this question. It is possible for us to answer NO to both questions. What if it is not that we are willing to tolerate the homeless people in our society; it is rather we are not willing to spend extra tax money to serve the homeless people? Operating and maintaining a public washroom or homeless shelter is expensive. If the homeless people who use those facilities could not pay for their cost, then who is going to foot the bill? What if we actually do not tolerate any homeless people at all? Giving the above loop hole in Waldron’s argument, forbidding homeless people to look after their own needs in public places, could very well means we simply want to drive them away, so we don’t have to tolerate them anymore.
I do agree with Waldron that posing restriction on what activities are allowed in common property will limit the freedom of homeless people given that the same restriction is imposed on all common properties. I also agree with Waldron that as long as there exists some common property allow the homeless to perform their basic human necessity, it will not violate their freedom. If we set limitation on common property by eliminating all the possibilities that contradict to the two requirements one by one, we will soon realize there exists a case fits neatly in the middle. In this special scenario, we do not have to tolerate the homeless people hanging out in public places; we do not have to spend our tax dollars building new public facilities for the homeless; and most important, their freedom is not violated at all. The solution is surprisingly straight forward. The government can impose restrictions on all common properties except a patch of designated area on the outskirt of the city or maybe even in the wilderness. The homeless people are free to perform whatever activities they like in the middle of nowhere without interfering with the rest of us in the society.
The obvious objection to my argument is by doing so we forcing them to move out of the city which seriously violates their freedom. Let us take a closer look at this objection and examine this scenario using the criteria of freedom proposed by Waldron himself. When Waldron talks about the homeless are excluded from all of the places governed by private property, he is not puzzled by the fact that most people are excluded from all but one of those places [1:434]. From this statement, we can deduce that if we are excluded from all but one place together does not violate our freedom even we are subjected to the restrictions on common property. If homeless people are allowed to sleep or urinate in a given place, they should be as free as the rest of us who are also allowed to sleep or urinate in one place, our home. Assign a piece of land to homeless people is essentially the same giving homeless people a home. Although their home is far away from the city, a home is still a home. Once a homeless person is not homeless anymore, he is subjected to the same rule as the rest of us. If restricting private activities on common property does not violate our freedom, it does not violate any homeless (now homed) person’s freedom.
Another line of objection is sometimes taken is this: if the society restricts the homeless from all of the private and common property in the city; we are confining them into a ghetto and deprive their freedom of living in the city. We have to be very careful about the conception of freedom used in this objection. In Waldron’s paper, he is arguing the along the line of traditional liberal idea of negative freedom [1:436] instead of the controversial, question-begging conception of positive freedom. The homeless people are not banned from entering the city. They are free to enter the city as long as they follow the same rules that apply to everyone. The homeless people are free to own or rent a place in the city if they can afford it. After a person secure the property rights of a place, he has the exclusive use of that place and it is his negative freedom to do whatever he likes in his place. Trespassers into private properties violate the negative freedom of the owner because they obstruct the owner from doing something in his place, such as excluding unwelcome trespassers.
It would be absurd if we allow trespasses on the ground of negative freedom as it directly contradicts with the negative freedom of the property owners. It makes more sense if owning a property is a positive freedom because it requires money to purchase or rent a place and not everyone is able to afford the price to live anywhere he wants. Even within the same city, the property price varies in different districts. For example, not everyone can afford to live in West Vancouver; they have to live in a less expensive area like Coquitlam. For those who cannot even afford a place in Coquitlam, they may have to settle in more remote areas like Abbotsford or Langley. At last for those who cannot afford any place in the city, namely the homeless, they have no choice but accept a free home in the ghetto. We would not grant the negative freedom for those who live Coquitlam to trespass the home of those living in West Vancovuer; why would we grant the same negative freedom to the homeless living in the ghetto?
Unlike the freedom of religion or freedom of speech, the freedom of sleeping and urinating is not a pure negative freedom. A society can grant freedom of speech and freedom of religion to everyone without anyone’s freedom being violated. However, space is a scare resource. If someone is using a space for one thing, it implicitly limits the freedom of another person using the same space for another thing. If some one is sleeping in the park, it violates the freedom of other people using the park for recreational purpose. Even if the park has open access to homeless people, there are only a fix number of benches in a park. When one homeless person occupies a bench to sleep overnight, he displaces other homeless people from using the same bench to sleep. Urinating in public places create hygiene problem, if the government allows people to urinate in a park, it won’t be long before the park become unusable to all. According to Waldron, there are three types of rules governing the usage of common property. The second rules maintains that if public places are to be available for everyone’s use, then we must make sure that their use by some people does not preclude or obstruct their use by others [1:439]. When homeless people using common property for activities other than the designed purpose of the places, they violated the second rules and interfere with another people who want to enjoy the common property.
At last, Waldron may try to object the idea of sending the homeless to live in ghetto on other moral reasons such as injustice, being cruel to them or violate their basic human rights. If he argues along this line of thoughts, he will fall prey on his own accusation of the “moralization” of freedom [1:438]. It will not only transform our concept of freedom into a moralized definition of positive liberty, but also excludes the concept of freedom altogether from the debate about the homeless. The insistence that the enforcement of the ghetto rules is anything but a restriction of freedom is a serious strategic mistake, since freedom is the core of Waldron’s argument. In the end, Waldron is trapped in a self-created dilemma. On one hand, he cannot give up the freedom argument or his efforts in the paper would be lost in vain; on the other hand, he cannot dispute driving the homeless people to a ghetto would not violate their freedom according to his earlier arguments in the paper. Either way he loses.
 Jeremy Waldron, “Homelessness and the Issue of Freedom,” in Contemporary Political Philosophy, R.E. Goodin and P. Pettit, Ed., MA: Blackwell, 2006, pp. 432-448