Far Beyond ‘The Early Morning Crowing of a Farmyard Cock’: Revisiting the Place of Nuisance within Legal and Political Discourse

DOI10.1177/0964663902011001752
AuthorDavina Cooper
Date01 March 2002
Published date01 March 2002
Subject MatterArticles
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FAR BEYOND ‘THE EARLY
MORNING CROWING OF A
FARMYARD COCK’:1
REVISITING THE PLACE OF
NUISANCE WITHIN LEGAL AND
POLITICAL DISCOURSE
DAVINA COOPER
Keele University, UK
ABSTRACT
Private and public nuisance have been the subject of extensive legal scholarship;
however, far less has been said about nuisance as a sociolegal and political concept.
Bringing a normative perspective to the analysis of nuisance claims, this article seeks
to draw together discussions of nuisance in very different contexts – from the tortious
injuries caused by sounds, vibrations and odours crossing property boundaries to the
everyday claims that particular identities or statuses represent an impediment to the
pursuit of legitimate interests. In attempting to determine the common ground, if any,
that exists between these different nuisance usages, the article focuses on the ways in
which freedom, control, responsibility, attention, purpose and place have been articu-
lated. My aim in doing so is threefold: first, to analyse the norms and values under-
lying nuisance as a discourse and regulatory technique; second, to consider whether
engaging in nuisance conduct has anything to offer a progressive or radical politics;
and third, to consider the limits and potential in reconceptualizing nuisance to desig-
nate new, counterhegemonic common senses.
INTRODUCTION
INANERAof scholarly focus on the power and significance of discourse,
the neglect that nuisance has encountered is striking. Seen by many
lawyers as a dry, archaic property tort, written off by the wider polity as
a petty form of harm, the capacity of nuisance to articulate and promote the
SOCIAL & LEGAL STUDIES 0964 6639 (200203) 11:1 Copyright © 2002
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 11(1), 5–35; 021752

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SOCIAL & LEGAL STUDIES 11(1)
prevailing social imaginary has become hidden beneath a growing mound
of more fashionable concepts. This is not to say that the social impact of
nuisance as a legal structure has been entirely ignored. Alongside critical
analyses of nuisance tort’s emphasis on property interests (e.g. Conaghan and
Mansell, 1999) and historic articulation to economic power (Brenner, 1973;
McLaren, 1983), work has also explored, more positively, the capacity of
nuisance law to tackle environmental degradation and other public health
hazards (see Birtles, 1997; Conaghan and Mansell, 1999; Steele, 1995).
While tort writers have largely approached nuisance from the perspective
of ‘unwanted’ vapours, sounds, vibrations and objects travelling across
domain boundaries – interfering with property owners’ use and enjoyment
of their legal rights (Buckley, 1981), others have explored the capacity of
nuisance as a public regulatory regime to provide a means of social control.
Here, common nuisance law (Spencer, 1989) meshes with statute to form a
polycentric regulatory framework intent on circumscribing the movement
and practices of industrial protestors, travellers, beggars, rave-goers (Pap-
worth, 1995) and ‘difficult’ public housing tenants (Hughes, 2000). Similarly,
in the USA, public nuisance laws have been used against street gangs (Boga,
1994; Livingston, 1997; Werdegar, 1999), and as a weapon in the war against
‘immorality’ (Trachtman, 1983).
Deployment of public nuisance and antisocial behaviour (ASB) laws, has
not surprisingly, encountered criticism. In the US, public nuisance laws were
constitutionally challenged on the grounds that they restricted freedom of
movement and association (e.g. see Werdegar, 1999). In Britain, civil liber-
tarians and others expressed concern at the introduction of antisocial behav-
iour orders under s.1, Crime and Disorder Act 1998 aims at restraining the
movement and conduct of people perceived as troublesome.2 At the same
time, advocates of a left realist standpoint saw the regulation of ASB more
optimistically, as a way of recognizing the interest of working-class com-
munities in also enjoying safe and pleasing neighbourhoods.3 This was
evident in the government initiated Report on antisocial behaviour, which
argued that those most affected by harassment and nuisance, who would
therefore benefit most from the 1998 Act, were the poor, residents already
experiencing discrimination, and other vulnerable people.4 In this way, the
deployment of quasi-public nuisance statutes could be seen as undercutting
some of the biases of private nuisance law which bestowed upon affluent
communities amenity entitlements not granted to poor, inner-city neigh-
bourhoods; I discuss this further below.
While there has been considerable academic and policy interest, critical and
otherwise, in relation to both private and public nuisance, there is little work
bringing the two together. There is also an analytic gap in relation to nuisance
as a discourse: that is, as a term used in media and political debate as well as
in everyday conversation. As a practice, discourse, and terrain of legal regu-
lation, nuisance covers a lot of ground. But because interest in it has tended
to mirror its splintered application, we are left with a number of specific
and, in some cases, rather fragmented critiques rather than a more general

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COOPER: NUISANCE WITHIN LEGAL AND POLITICAL DISCOURSE
7
engagement. One aim of this article, then, is to explore the common ground
that exists between the many settings in which nuisance, as conduct, dis-
course and regulation, occurs. In the process, I have chosen to focus on the
way nuisance refracts social norms and values rather than providing a more
materialist account. Although the latter is important, more work has been
done in this area (e.g. Brenner, 1973). Thus, I want to explore the less well
mapped terrain of the conceptualization of nuisance.
My second aim follows from this. It asks: what progressive strategies does
nuisance as a legal and discursive technique make possible? While other
engagements with this question have sought to extend the ambit of nuisance
as a mechanism of social control, for instance by strengthening its legal
capacity to protect the environment (e.g. Steele, 1995), or have sought to
recast tortious ‘standing’ in less exclusionary terms (e.g. Khorasandjian v
Bush [1993: 675]; see also Wightman, 1998), I want to explore two alternative
strategies. The first considers nuisance not as a discursive or legal framework,
but as a form of transgressive practice; in other words, it asks whether, and
in what circumstances, being a nuisance may hold the key to challenging
particular social inequalities. The second strategy seeks to apply the nuisance
label to other harms, not simply by extending application of its remit, but by
reconsidering nuisance more conceptually. Theoretically, of course, nuisance
can be redefined to mean anything we want. However, my interest is in
holding on to what seems core to the current definition of nuisance, and then
exploring what, if anything, this conceptualization might offer to the pursuit
of a progressive or radical politics.
The article begins by exploring the values that nuisance, as a regulatory
mechanism, within law and social policy, articulates, alongside its discursive
life as a term of both annoyance and dismissal within popular conversation
and public debate. My analysis explores the way in which nuisance speaks to
particular conceptions of freedom, choice, social purpose, responsibility and
(al)location. I then link this analysis to the way in which nuisance as a dis-
course and regulatory framework stigmatizes particular identities and social
statuses, while consolidating the asymmetry of social relationships. From this
critical stance, I go on to explore alternative approaches to nuisance, first, as
a form of resistant or rebellious conduct, and second, through the reconcep-
tualization of nuisance discourse.
THE MANY ARENAS OF NUISANCE
To facilitate my discussion, let me start by setting out briefly the four main
dimensions of nuisance considered in this article. First, the article deals with
nuisance as a way of framing conduct and identities within popular and
policy discourse. Nuisance is a term that is widely used within everyday
conversation. It is also widely deployed by politicians, government officials,
the media and others to denigrate and dismiss as annoying, irritating or
harmful, activities, peoples and natural occurrences. As I go on to discuss, the

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SOCIAL & LEGAL STUDIES 11(1)
kinds of conduct and people deemed to be a nuisance is far from uncontested;
at the same time, the most prevalent usages of nuisance within law and
popular discourse mirror wider social inequalities. In other words, while
minority constituencies identify their ‘own’ nuisances, these tend to have
little wider applicability. For someone begging, police presence may operate
as a nuisance, (temporarily) obstructing the ability to ask for cash; however,
the dominant view that it is begging that is a nuisance will tend to prevail, not
only in policy and media terms, but legally as well.
The second understanding of nuisance relates to its tort law application.
Here, nuisance describes both a wrong and form of action relating to inter-
ference with an occupier’s use and enjoyment of his/her land or with his/her
rights over or in connection with it (Spencer, 1989: 57). The character of the
tort of nuisance has taken shape over its long history (e.g. see Brenner, 1974;
Conaghan and Mansell,...

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