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articles
The degree of freedom or
coercion in society affects
the ability to build buildings
and to create architecture
of distinction. This paper
explores the ways in which
modern democratic
societies have reduced
classic property rights, and
thus reduced an owner or
developers ability to build
as he judges best for his
own needs or his
customers. A brief
description is given of free
market alternatives to
existing statist regulatory
approaches to property and
land-use regulation.

Architecture
and freedom
John Gillis
In August 1661, Nicolas Foucquet found himself in
the wrong building with the wrong king. Foucquet
was the Finance Minister during the reign of Louis
XIV and had created, with his architect Louis La
Vau, what is the design precursor to the famous
palace of Versailles. Foucquets country chateau,
Vaux-le-Vicomte, is a sumptuous palace full of the
dizzying excesses of decoration that came to typify
the time of Louis. Just as the chateau was nearing
completion, Foucquet apparently could not contain
any longer his glee in having created this
monumental estate and invited Louis XIV, Queen
Maria Theresa and their entourage to a massive
preview party. All reports are that it was a rousing
success, with gourmet food, drink and a newly
written Molire play.
Unfortunately, Louis XIV left the chateau unhappy,
and a couple of weeks later ordered his finance
minister arrested and jailed. Louis then seized all
Foucquets properties for himself.Whether Foucquet
rotted in jail for the commonly believed reason that
the Sun King was jealous of his ministers design
hubris, or for the official reason of embezzlement
(as accused by the Master of expropriators of the
people), is immaterial here. Foucquets downfall acts
as a parable illustrating the demon that all property
owners, architects and builders face: unchecked state
power. (Louis, after jailing Foucquet, took Foucquets
architect, decorator, sculptors, painters and craftsmen,
commandeering them to the task of expanding and
decorating his palace,Versailles.)
Loss of the right to property

The right to property has largely been lost today

in the USA doing material damage to millions
of property owners. One specific field this lack of
property rights damages is architecture and its
creation. City/state/federal governments in the
USA can, by fiat (that is, by majority rule or
executive order):

John Gillis is the principal of a

New York City architectural firm and
a writer on architectural, aesthetic
and political topics.

40

take away or diminish your right to build the

building of your choice (zoning);
prevent building to specifications that you
believe will satisfy your users (building codes);
refuse to allow any structure at all to be built
(growth controls);
refuse to allow you even to camp on your land
or reap the fruits of any resources on it
(environmental laws);
take your property with inadequate
compensation (eminent domain);

demand that your works of architecture must

satisfy the publics sense of aesthetics
(landmarks laws);
steal1 your property because you did not fulfil
some regulatory rule or perhaps committed some
unrelated infraction (US civil forfeiture laws);
require major construction expenditures to
remedy discrimination against disabled persons
(US ADA law);
require you to lease your property at belowmarket prices (rent control laws);
The right to property has, by these legislative and
regulatory means, been lost. Despite our system of
deeds and real-estate laws, property today is hardly
more protected than Mr Foucquets property in the
face of a presumably jealous king.
One might conclude from this partial list of denials
of property rights that owners would be strongly
discouraged from building.Yet they do build. People
need to live, they need to build for personal shelter,
for business, for manufacturing and accept the
uncertainties of current property ownership. Most
property is used for buildings, so property laws have a
massive impact on the degree of freedom and coercion
available to the owner and architect of a property.
Effects of coercion

What are the effects of coercion on architecture, and

how would architecture and building function in a
free, property-rights sacrosanct society? First, a
clarification of the concepts building and architecture
is valuable. All works of the architectural art are
buildings, but not all buildings are architecture.
Architecture, in its fullest sense, is both a creature of
function (satisfaction of physical needs) and of artistry
(satisfaction of spiritual needs). By contrast, many
buildings are built simply to satisfy the first need
(physical functions), and thus are not strictly
speaking, architecture. Used in this precise way,
architecture is an aesthetic concept, and building is an
engineering or functional concept. Some laws that
control property rights affect or limit buildings, while
others go farther and specifically attack aesthetics,
that is, buildings with aesthetic qualities: architecture.
All buildings are limited by zoning laws, building
codes, environmental laws and other regulation.
Some building types, such as residential buildings, are
further limited by housing laws and rent-control
laws. All these laws use the threat of state coercion
(fines or jail time) to force citizens to comply. Often
there are real underlying needs being met by these

laws (for example, structural safety, sanitation and

public health), which are cited by statists as
justification for government control. Although little
discussed today, such needs can be satisfied by
contract, without state control, as I illustrate later.
Works of architecture are affected by landmarks
laws (and aspects of zoning laws, building codes and
growth controls).These laws use the same threat of
state coercion to require owners and their architects
to design the appearance of a building other than
they freely would. But such laws do not have any
underlying health or safety reason-for-being.The
aesthetic pleasure of your neighbours should not be
legally mandated upon you and your pocketbook.
Of course, private contracts can also have aesthetic
controls, but in that case an owner can choose to
enter or not enter such a relationship.
Surveying the vast details of the history of
civilization is not likely, on its own, to provide any
clear image of how freedom and coercion affect the
creation of buildings and architecture.The history of
architecture, so intertwined with cultural, political
and economic issues of every era, is almost as vast a
subject, and as difficult to coalesce into a graspable
whole. Human history has been dominated by
tyrants, monarchs and lords, who have controlled
large areas of the world. Since tyranny is a mighty
de-motivator, one might expect that such major
undertakings as creating buildings would be severely
undercut.Yet, throughout the world, there are
fascinating examples of architecture, and there are
plenty of buildings.Whether one looks at repressive
monarchical regimes in ancient China or early
medieval England and Spain; or at relatively free
regimes in parts of Greece in the third or fourth
century BC and nineteenth-century England; or at
the controlling bureaucracies of eighteenth-century
France or Germany; or at the late medieval countries
of Europe (where Gothic architecture flowered); or
at the czar-controlled world of nineteenth-century
Russia; or at the fear-filled atmospheres of Nazi
Germany or Soviet Russia it is clear that despite
tyranny, builders and architects do actually build
and design, more or less. So there is not a simple,
mathematical relation between tyranny and building.
We can only speculate on what great flourishing
of the building arts would exist in a completely
free society, just as those who advocated a free
market last century, in the face of rising socialism,
would have never imagined concretely all the
wondrous technological goods such a market system
can create.

Since looking at bare, historical fact is not an easy

way to see clearly the relation of freedom and
architecture, it is better to start from observations of
certain basic facts of human psychology: that having
the freedom to live as one chooses is good; that
having property over which one has control is good.
Human action flourishes in a condition of freedom
and individual choice not inhibited by governmental
political or economic controls. Or, from a property
rights perspective, human society flourishes when
individuals can choose to use or dispose of their
property while expecting two conditions from the
government: it will protect that property from
predators and it will not attempt to seize or control
that property.These truths have been underscored by
twentieth-century first-hand experience of the
physical and psychological damage done by Soviet
and Nazi governments.Their hostility to freedom
resulted in great hardships for their citizens, who had
to live in the deteriorating built environment of
these regimes. For many in those rights-less
countries, bare shelter itself was a luxury, making
architectural beauty a dim and unattainable idea. In
contrast, when you have the right to use and dispose
of your real property, you have maximum freedom to
satisfy functional needs for housing or commerce or
industry or entertainment, and to satisfy spiritual
needs for structures that exemplify how you believe
the built environment should emotionally affect your
own life and the lives of others.

ECONOMIC
AFFAIRS
December 1998

Is property a privilege

By contrast, if property is a privilege revocable by a

monarch, a patriarch, a bureaucrat, a duly-electedrepresentative-assembly then to whatever degree
this threat of revocation is likely, will, in similar
degree, affect how many resources one puts into
building. Buildings have such inherent disadvantages
as being geographically immobile and financially
illiquid, and therefore making a building is a major
life decision for most people and institutions. Even in
repressive regimes, there will still be a few intrepid
owners, builders and financiers who will disregard
the threat of partial or full confiscation, and hire an
architect who creates a work of artistry in the image
of his own or his patrons view of the built
environment.The presence of these intrepid persons
partly explains why any architecture and building is
built in repressive regimes. But the more inclusive
explanation for why there is still building in a
repressive regime is that the repressors, the
expropriators of the peoples wealth are the ones

Institute of Economic Affairs 1998

Published by Blackwell Publishers,
108 Cowley Road, Oxford, OX4 1JF,
UK and 350 Main Street, Malden,
MA 02148, USA

41

Architecture
and freedom

commissioning the buildings, over the bodies of their

subjects.The monarchs, oligarchs and politically
powerful insiders want grand architecture as
testimonials to their ability to control their country
and their subjects.
While the act of building has been circumscribed
by so many legal devices, the attempt to create a
work of architectural artistry is even more remotely
difficult. After hurdling the environmental laws and
the building codes, the owner and architect
attempting to create a building of sublime visual
power faces zoning laws that contort and control the
shape of buildings, and landmarks laws that place the
taste of bureaucrats or government-chosen artists
over that of the owner and architect, and the
American ADA laws that dictate such minutiae as the
height and shape of stair railings, the location of light
fixtures and dozens of other architectural features.
These coercions of owners and architects tend to
enforce uniformity and dullness, while raising costs.
The myriad laws and regulations are similar to death
by a thousand cuts no one item is fatal, but
together they kill both economic vitality (building)
and aesthetic potential (architecture).
Only in a society which respects property rights
absolutely only in a society which realises that by
holding such rights inviolate that justice is equal for
all citizens will there be a great civilisation. Here is
a thumbnail picture of what would be different in
such a fully-free civilisation:
Differences in a free civilisation

Instead of zoning laws, there would be contractual

restrictive covenants.This system is used in various
countries and in certain localities in the USA. It
eliminates the political manipulation that is inherent
in zoning laws. By contrast, there would also be areas
without any controls on land use, such as exist now
in parts of Houston,Texas.This city is, by most
educated accounts, no worse a city functionally or
aesthetically than zoning-controlled cities yet
Houston does not have to pay for a zoning
bureaucracy, nor face the political and economic
bribery that goes on in zoning-controlled cities.
Instead of building codes, there would be insurance
companies and owners using private inspection companies.
Current examples of non-governmental solutions are
Underwriters Laboratories (the largest private testing
and certification company for construction systems
and machinery) and construction inspection
companies that certify the quality in building systems
for owners, insurance companies, banks and
42

municipalities. Instead of the dead weight of building

codes that stultify new construction techniques and
increase costs in construction, private systems of
standards and inspections would allow innovation
more easily, while placing responsibility more clearly
on the architects and manufacturers of products and
systems thus reducing dangers to owners and the
public. Before there were building codes, there was a
burgeoning industry of inspectors and certification
agencies to help insure that the public and individuals
were safe. Such a system does not always work
failures and loss of life do occur for both unavoidable
reasons and culpable reasons. But such a private
system is more self-correcting and more responsive
than a bureaucracy-controlled system, and the lines of
responsibility for damage and loss of life are clearer
among owners, architects, engineers and contractors.
Instead of growth controls, there would be nothing
inhibiting the development other than voluntarily
limiting contracts that preserve space and light and
other environmental qualities that people want and
will pay for. For example, if you own a house on an
acre of land, you would probably not build other
houses on the land unless you did not value the space
around your house.This is a form of restricting
development, and sometimes groups join together
jointly to limit their contiguous properties to
maintain certain environmental and conservation
goals (for instance around a golf course, or
neighbours on a mountain), and in so doing increase
the value of their properties. In other cases, economic
and other values overcome an owners bucolic desires
and he builds to fit as much as possible on his land.
But even when an owner wants to max out his
property, in a privately controlled society he would
have to work with privately-owned utilities and
privately-owned road companies to make sure he
would not overtax the systems around his property.
By contrast, growth controls are entirely a political
phenonenom and are usually decided by those
groups having the greatest political pull. Having some
central authority, whether it be City Hall or the State
Assembly, decide on what can be built in your local
neighbourhood is putting your life and environment
in the hands of people who literally have no vested
interest in protecting your property or surroundings
but who do have powerful interest groups plying
them with money and political glory to expand or
restrict development for the interest groups financial,
social or other agendas.The workings of markets and
private contracts are much cleaner, practically and
morally.

Instead of burgeoning new environmental laws,

there are more than ample injunctive relief and civil
penalties in existing common law for damaging other
peoples property or person.There have been proper
laws regarding despoiling neighbouring properties for
tens of decades long before the current rash of new
environmental laws that attack property rights.These
earlier laws need to be enforced, if found consistent
with all parties rights to person and property.
Instead of eminent domain, there would only be the
actions of private entrepreneurs using cash and
persuasion to obtain rights-of-way and other
consolidations of property for economic use.
Instead of landmarks laws, there would be nothing
exactly comparable in a free society.The control of
the appearance and aesthetics of properties is a
profound attack on freedom. Laws are objectively
defined limits on action to preserve rights.
Landmarks laws substitute a non-owners value
judgments for an owners value judgments.This is
not objective law.With landmarks law, the actions
of government employees are essentially unlimited
with respect to their visual preferences. Private
communities that have an architectural review
board are a different case. If someone wants to
live in a homogenous, non-individually styled
community, or a theme-park style uniform
community no one should try to stop him but
forcing some citizens to abide by other citizens
aesthetic criteria, by democratic majority rule, is
morally wrong.

Instead of civil forfeiture laws as currently practised as

a type of official thievery the answer is in the US
constitution due process before penalties or forfeiture.
Instead of the ADA (US Americans for Disabilities
Act), there would be freedom for owners and
architects.This law, the creation of an unprincipled
Republican president collaborating with an antiproperty rights Democratic congress, has caused
untold tens of billions of dollars of wasted monies
through the 1990s.To require an owner of a building
to install an elevator at great cost, or to make
bathrooms or kitchens much larger than normal so
they are usable by a wheelchair-bound person on the
usually rare chance that such a person must use your
facility is coercive hubris.
How architecture and building and real-estate
production would appear in a completely free society
is hard to imagine. In free-market economies, no one
can imagine all the infinite variations in how people
will interact voluntarily.Western societies are so
inured to the vast array of necessary to public health
and welfare laws, codes and regulations, that if there
is a long-term trend towards more laissez-faire
principles in our economies, there will have to be
much hard work to define properly the roles of
owners, architects, engineers, insurance companies
and others to ensure an entrepreneurial, yet riskaverse built environment.
1.

ECONOMIC
AFFAIRS
December 1998

For current examples of forfeiture abuses in the USA, see J. Brovard (1997).

Wall Street Journal, 29 December, p. A11.

Institute of Economic Affairs 1998

Published by Blackwell Publishers,
108 Cowley Road, Oxford, OX4 1JF,
UK and 350 Main Street, Malden,
MA 02148, USA

43