In 1748, Charles-Louis de Secondat, Baron de La Br?e et de Montesquieu wrote that "it is an almost general rule that everywhere there are gentle mores, there is commerce and that everywhere there is commerce, there are gentle mores." More succinctly, Montesquieu claimed, "The natural effect of commerce is to lead to peace." The truth of this 18th century dictum has, ironically, been on display in the Occupy Wall Street movement.
Since mid-September, activists have occupied lower Manhattan's Zuccotti Park in a round-the-clock protest against Wall Street and capitalist greed and injustice. While protesting in a park seems like the quintessential use of a civic space, Zuccotti Park is actually privately owned, and it is this fact that has allowed the protesters to peacefully occupy it for so long.
Had Occupy Wall Street taken over a park operated by the City of New York the protest likely would have ended on the first day. All municipal parks in the city have curfews banning over-night stays. They are also subject to a host of regulations that make organizing mass protests onerous. While Mayor Michael Bloomberg has pointed to the occupiers as an example of flourishing free speech, during the 2004 Republican National Convention held in the city, he was far less tolerant, mobilizing the NYPD to harass and arrest protesters who failed to comply with the city's Byzantine regulations for public spaces.
Zuccotti Park, however, is different. It was originally created by U.S. Steel — the corporate behemoth founded by Andrew Carnegie, one of the original capitalist robber barons — as part of a development deal with the city. Unlike muncipal parks, it is open to the public 24 hours a day and subject only to the until-recently-all-but-nonexistent rules promulgated by the corporation that owns it.
This doesn't mean that the park's current owner, Brookfield Office Properties, is thrilled about the free-wheeling political circus encamped on its property. After the park was seriously damaged in the 9/11 attacks, the company invested considerable money in renovating the space, and executives fear the protesters will damage it. In mid-October, Brookfield announced it would be re-occupying portions of the park for cleaning. The NYPD arrived on the scene ready to clear the activists, but ultimately Brookfield struck a deal with its new de facto tenants under which the protesters clean the park each day and remove the trash.
The experience in Zuccotti Park can be contrasted with the other Occupy movements that have sprung up around the country. Last week, for example, the Denver Police Department fired pepper spray and arrested 20 people when protesters attempted to march on the state capitol grounds. Even in New York City, the Occupy Wall Street movement clashed with police when they left the safety of Zuccotti Park for the public thoroughfare of Brooklyn Bridge.
According to Montesquieu, princes are moved by ambition, honor and the desire for glory. It is a set of characteristics that often motivates agents of the state to heroic action. Think of the firemen charging up the staircases of the twin towers as the buildings burned and collapsed around them. It can also lead, however, to the kind of hotheaded confrontation between police and activists seen in more than one protest.
Commerce is less heroic. The trader doesn't want to rescue or dominate. He wants to make a deal. In Montesquieu's time, aristocrats showered their contempt on this commercial ethos. Trade, however, is not without its own virtues. The trader is more likely to be tolerant of differences, accommodating to others and willing to make concessions in return for concessions on the other side. It's a dynamic Montesquieu called doux commerce, sweet commerce. For all their rage against the excesses of capitalism, the denizens of Zuccotti Park are one of its most recent beneficiaries.
Nathan B. Oman is an associate professor of law at The College of William & Mary in Virginia.
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