Working Paper 93-16, September 27, 1993(1)
By Penelope Canan
Professor of Sociology
University of Denver
(1) This paper is an edited transcript of a talk given by Penelope Canan for the Intractable Conflict/Constructive Confrontation Project on April 10, 1993. Funding for this Project was provided by the William and Flora Hewlett Foundation and the University of Colorado. All ideas presented are those of the author and do not necessarily represent the views of the Consortium, the University, or Hewlett Foundation. For more information, contact the Conflict Resolution Consortium, Campus Box 327, University of Colorado, Boulder, Colorado 80309-0327. Phone: (303) 492-1635, e-mail: firstname.lastname@example.org.
© 1993. Conflict Resolution Consortium. Do not reprint without permission.
I suggest that NIMBYs, LULUs and NOPEs are really citizen reactions to having been essentially left out of the initial decision-making calculus; we are in the third generation of such reactions as has been suggested.2 When people start saying, "Not in my backyard," it is because they need protection for their own rights and property. What we are seeing is not necessarily a distinction between social services and land-use, but a kind of a geographical difference--"my backyard, my locale." These issues differ from those that attract people having more global concerns and express their rights through "environmental issues" in the larger sense.
Thus it is a question of boundaries. The question that Spense3 asked, "What is your backyard?" is essentially just one of changing the microscope from up to down. In NIMBY, LULU and NOPE cases, usually, the ADR and conflict resolution practice finds it desirable to bring more people to the negotiation table and to get more neighborhood organizations involved early and in more meaningful ways. But I would like to focus on the exact opposite notion--when people get meaningfully involved and then hurt because they have been involved. For ten years I have been studying how lawsuits have been used to hurt or punish people for getting involved in the political process. I call these lawsuits against public participation, SLAPPs--strategic lawsuits against public participation. SLAPPs often occur over LULUs, NIMBYs, and NOPES.
When discussing SLAPPs, three themes have to be considered in the context of less-tractable conflicts: 1) The intersection of power and the definition of intractability; 2) the tension between economic freedom and political liberty; and 3) the need, in a constructive sense, to conceive of citizen involvement in land-use of any public policy decision, as persons-in-community, rather than as pursuers of individual rights.
When I was asked to come to a session on less-tractable conflict, I thought, "less-tractable for whom?" Is this really a topic on the social construction of tractability? It bothers me sometimes that we want to reserve this term for these difficult issues and how they can be solved, when in fact maybe they should not be solved. Maybe labeling NIMBYs, LULUs, NOPEs, and SLAPPs intractable is really saying, "we want more resources to float toward getting these smoothed out because they are in our way." And who is "our"? It becomes a power position to say, "that's a problem that needs to be solved so that WE can go on." I would suggest that maybe the conflict itself is good and thus, the intractability could be good.4
It bothers me that power sets the agenda or titles the conference, or puts certain things on the table as intractable. Sometimes it means that legitimate claims on communal and political resources are disparaged. Intractability sometimes is really only a difference in legitimacy because of historically different or contingent differences in access and vocabulary. What I see frequently is a tendency of some people to be disturbed that some group will not let go of a grievance or a claim. For example, with the conflict over nuclear power, some believe that nuclear power is necessary because the only alternative is to burn more coal. So they feel that those opposed to nuclear power should just let go of their grievances.
In such cases, often grievants are called names to belittle their right to express their version or vision of a different future, a different set of social relations, a different power, or a different economic reality. This name calling can sometimes be a convenient device for economic dominance.
Secondly, I want to talk about an inherent tension in our country between economic freedom and political liberty. Some people call this a tension between communitarian and individual rights. This tension is built into the Constitution and into our entire political culture. The Constitution says that you have the right to do certain things with your property, your own backyard or what you own, but at the same time you have a specific responsibility for the character of the overall unit in which you live.
In my research into the use of lawsuits to silence political speech I have found that the people who have filed such lawsuits call upon their economic rights (as a justification). Often the people who initiate such lawsuits perceive those that they are suing as having "only" civic values at stake or "only" the political issues, as if such issues or values are less important than economic rights. There is an elevation in their minds of capitalist or economic interests, rather than a tension between economic freedom and political liberty. The right to speak out in a public forum and the right to be involved, in their mind, only comes along with having something economic at stake. We face this disparity in citizen rights in all LULUs, NIMBYs and NOPEs--not giving equal citizenship to all citizens in the public policy process.
Finally, there is a need to establish the sociologically whole actor or agent as the person-in-community rather than as an individual pursuing rights. It seems to me that economic theory and most public policy is based on the premise that total public good will be an accumulation of individuals pursuing their individual rights. This assumes that human beings exist individually, that they are not persons in community, that they are not sociologically intact. There is no sociologically or philosophically viable theory that can posit the individual as naked and alone without all of the trappings of their relationships to other people.
Our laws and culture are undergoing a change to reappreciate that every human being is indeed connected to other people in a communal or civic sense. The notion of rights and claims and benefits accruing individually and not aggregating to a common good is just not defensible. What we are going to have to build into our system is a notion of the civic claimant, not just the individualistic claimant.
2 See Allan Wallis's CRC Working Paper 93-37.
3 See CRC Working Paper 93-15 by Spense Havlick.
4 Editors note: This was one of the reasons the title of the project was changed from just Intractable Conflicts to include Constructive Confrontation.