Abstract
What is a wall to a child? It may be an obstacle course, a balance beam, a “car,” a seat, a home for spiders and ladybugs, a place to play hide and seek, a support to lean on when learning to walk, a perch for cats, a musical instrument to be played with sticks and hands. Rather than just a barrier, the wall can also become an incitement to explore that which lies beyond it. So how does a wall become just a territorial marker—a designation of private property, an imposing boundary line that cuts through space, dividing mine and yours? And what can children's engagement with the boundary, and the legalized attempts to prevent and punish their boundary-crossing, tell us about the social work of private property? In addressing these questions, we aim to take seriously the iterative “why?” of small children when confronted with territorial rules and related violence.
Introduction
“A four-year old can understand the convention that one does not cross a marked boundary.” Robert Ellickson (1993: 1328–9) “Child trespassers have for a very long time presented to the courts an almost insoluble problem.” Lord Reid in Herrington v. British Railways Board (1971) 1 All E. R. CA., British Railways Board v. Herrington (1972) All E. R. HL., 756 (quoted in Rowbotham, 1978: 199).
Part of growing up is learning boundaries and rules, which are taught and reinforced by parents, peers, teachers, childminders, and strangers. But children often push back. The child refrain of “why?”, while at times exasperating for adults, is a useful one. Why is this wall a territorial marker? Why is this sidewalk available for use, but that garden is not? When I am tired, why can’t I lie down on this grass, but I can sit on the curb? Why is it okay to be on this side of the fence but not on that side? While the typical answer to these questions in an Anglo-American socio-legal tradition is “private property,” which requires “no trespassing,” the frequent follow-up question of a child is “but, why?” While a parent may then be tempted to invoke “efficiency and liberty,” she is more likely to respond with the default: “It's the way things are.” But children do more than ask questions of the property boundary. Knowingly or innocently, they also transgress them.
Children's deceptively simple iterative inquiry of territorial boundaries, both articulated and enacted, we argue, merits our attention because it calls into question the taken-for-granted nature of boundaries while creating openings for imaginative alternatives. We suggest that it reframes the property boundary as a kind of make-believe—pretending that reality is a certain way, while understanding that there is a fiction at work, and that alternatives are possible. However, this make-believe becomes making belief in the adult world through performativity, ritual violence, and ultimate ideological adherence—a seemingly magical process through which property's fictional origins and multiple forms are hidden. For children, however, property boundaries are still in the realm of open make-believe where they can become invitations, openings, and climbing frames. This make-believing-otherwise presents a challenge for law and society, especially when children encounter the underlying violence of the boundary—when their articulated “why” becomes an embodied why raised by their dead and injured bodies.
In this paper, we explore the forms of make-believe involved in property boundary formation and transgression. To do so, we take an interdisciplinary approach to reconsider the entanglements of law, society, and space in the making and unmaking of boundaries. Our immediate focus, then, is the property boundary, and the manner in which we respond to its messages. Despite growing work on the spatiality of property, the geography of property is often overlooked in legal scholarship, perhaps on the assumption that the introduction of space reifies the relationality inherent to property. Yet space is not an abstract thing, but socially produced, and productive of social relations. Rather than thinking of property's territory as obvious and given, or as a natural phenomenon, we insist that is both a social product, and a particular technology, that organizes legal relations in distinctive and consequential ways. Territory is not simply an outcome of the relations inherent to property, in other words, but a means by which such relations are enforced, naturalized, and contested. Most immediately, we meet the abstraction that is “property” in and through its territorial manifestations. These are both material (consider the fence), embodied (take the act of walking), and representational (such as the trope of property as “castle”). 1 As such, understanding and critiquing the work of property's territoriality is an important ethical and analytical task. Given the lack of extant scholarship, to do so requires us to travel across otherwise diverse fields—children's psychology and literature, property theory, law and magic, and case-law.
To outline what follows: First, to understand processes of making belief in the property boundary—and the challenges children and trespassing present to this belief—we review conventional knowledge about children and the development of conceptions of property, considering the intersections of child development literature and legal theory on territorial boundaries, and the ways that everyday geographies of trespass disrupt normative legal narratives. Then, reflecting on how children's transgressive boundary crossing presents a challenge to this normative make-believe, we argue that centering the critical legal geographies of children's trespass foregrounds the property boundary as a violent fiction. Wayward children can become legal subjects, we note, particularly when harm comes to them as a result of trespasses. Specifically, we turn to examine attractive nuisance doctrine and Stand Your Ground (SYG) laws. Attractive nuisance doctrine grapples with the challenges of the child trespasser who, by virtue of their presumed lack of acculturation into dominant property norms, may be regarded differently than adult trespassers. As a result, the owner may be liable for harm experienced by a youthful trespasser unaware of the risks of boundary crossing. Yet when racialized kids cross the line in U.S. jurisdictions governed by Stand Your Ground laws an owner's “reasonable” presumption that they are an adult-like threat may justify the use of lethal self-defence to defend the boundaries of property and proprietary subject. Attempts to grapple with the differential ways that children negotiate shifting spatial-legal boundaries, we suggest, reveals the brutal and uneven fictions at the heart of making belief in property. Finally, we turn to the possibilities that children's trespass offers through make-believing otherwise, where a wall can become a plaything, not just a “keep-away” marker, and a boundary may become an invitation, rather than a prohibition. We argue that this perspective enjoins us to adopt a more open approach to property and its social possibilities.
Making Belief in Boundaries
The persistence of children playing conceptually and physically beyond the confines of territorial boundaries raises questions about the familiar reasoning “that children are inherently possessive,” and therefore “a regime of private property is natural and thus desirable” (Nedelsky, 1990: 172–173). The naturalization of exclusive possessiveness contributes to the ideas that children must be taught—and even forced—to share, and that children “require a certain amount of private space” in order to “develop normally” (Pipes, 1999: 75). As outlined in the popular parenting book, What to Expect: The Second Year, “hoarding helps [toddlers] define their autonomy, establish their identity (I have, therefore I am), and set boundaries between themselves and others” (Murkoff, 2011). Sharing, as a “social skill,” must be developed and practiced, since “it doesn’t come naturally” (Murkoff, 2011). 2 This can also be seen in the proliferation of books and media for children on learning how to share—and how to share in ways that do not threaten, and in fact reinforce, underlying ownership structures (as in the refrain in the popular Daniel Tiger's Neighborhood books and TV program, “you can take a turn and then I’ll get it back”). Fairytales are also full of warnings about the risks of crossing boundaries. Trespassing rabbits and children face pitchforks and hungry witches. They also contain lessons of the dangers posed by trespassers, who threaten the security of a settled home and its occupants.
The prevalence of “boundary metaphors,” as argued by Nedelsky (1990), reflects a shared “ideological framework” across some normative legal and child development discourses where exclusive possession is natural, critical to the establishment of an autonomous “self,” and a pre-requisite to sharing (173). No longer treated as the property of their parents, children can become proprietary subjects in their own right. While studies in child development and psychology test how children understand, justify, claim, and negotiate possession, much of this literature is confirmatory, testing existing justifications for ownership such as first arrival, labor, and use (Nancekivell et al., 2013; Kanngiesser and Hood, 2014). This research often emphasizes that while “[o]wnership rights are invisible and abstract,” recognizing them is “crucial for socially appropriate behavior” and, more generally, for “children's social cognitive development” (Neary and Friedman, 2013: 357). In this framing, setting proprietary boundaries for children—and ensuring their acceptance if not comprehension—is crucial for personal development and social reproduction.
And yet, despite the amount of research and books about children's sense of possession, as acknowledged by Rossano et al. (2011), “[i]t is still not clear how children's concept of property develops” (p. 226)—and even the degree to which this concept is culturally specific, where “almost nothing is known about similarities and differences in the development of ownership across cultures” (Nancekivell et al., 2013: 246). This work has also primarily focused on object ownership rather than territorial boundaries (Zebian and Rochat, 2012; Verkuyten et al., 2015). In part this is due to challenges in studying comprehension of the latter, given that “where territories begin and end is often ambiguous,” while “[o]bjects typically have clear boundaries” (Goulding and Friedman, 2018: 148). Thus, how children come to comprehend territorial boundaries is still uncertain.
Unless one accepts determinist evolutionary theories about generalized territorial “intuition” (Goulding and Friedman, 2018) or a “property instinct” (Stake, 2004), property boundaries and our acceptance of them become more ambiguous. This ambiguity creates a great deal of social and legal anxiety—especially when the comprehension and acceptance of ownership norms are tied not only to “socially appropriate behavior,” but also “social cognitive development” (Neary and Friedman, 2013: 357). Children must learn and accept “how the world works”—must suspend disbelief—to become proprietary subjects. This anxiety is not only reflected in the multitude of children's books centered on moral tales highlighting the risks of trespassing and the veneration of the private, exclusive home, but also in law's reliance on “magic words” like “possession,” repeated by legal thinkers, psychologists, and legal subjects “as if the mere repetition of the terms” will bring them into being (Schlag, 1996: 144). Despite efforts to pinpoint stages of development in conceptions of ownership, there is still an uncertainty about the “magical mental leap” that toddlers must take to comprehend property rules (Wickelgren, 2011).
And yet, in legal studies—and society at large—conventionally the property boundary is very straightforward. An influential body of legal scholarship points to the manner in which property arrangements, notably the boundary, serve as useful resources in enhancing informational efficiency. “Property,” Smith (2003: 1147) notes, “presents a simple message to the outside world.” Rather than prompting conversations, real or implied, concerning the meanings, ethical dimensions, and behavioral impacts of boundaries, the supposed “beauty of the property system is that it shortcuts discussion. Simple signals tell owners that they are free to choose how to use their property and tell nonowners to keep out” (Baron, 2010: 952).
The property boundary, in this account, plays a central, yet also simple role. A spatial boundary carves a complex informational world up into “semiautonomous components” (Smith, 2012: 1703), or “chunks” (1702), so as to allow for easier communications. The boundary sends “a simple message to outsiders” (Smith, 2012: 1709), generating “simple on/off signals” (Smith, 2004: 973). The message “is a simple one—to ‘keep out’” (Smith, 2004: 978). The law of trespass may look somewhat arbitrary and even irrational, Smith (2012) notes, but “it permits owners of the space (literally, in the case of land) to pursue projects without having to answer to others, thus generally promoting efficiency and liberty” (p. 1718).
For adults, the socio-spatial effect of the “simple” message of boundaries is significant, collapsing other messages and changing engagements with space. Consider, for example, the following excerpt from Nick Hayes’ book, The Book of Trespass (2020), as he contemplates an encounter he and his mother had when walking through the fields around the idyllic village of Pangbourne, in Southern England, past spring flowers and rural beauty. While walking, they encounter a man on a quad bike. “You’ve no right to be here” he exclaims: “You’re trespassing.” As Hayes notes, he and his mother's movements could be framed in many ways: To a literalist, we were walking, putting one foot in front of the other; to a romantic, we were bonding, sharing the world as we met it; to a nutritionist we were digesting our meal in the recommended method of a stroll, and to a more metaphysical bent of mind we were offering ourselves to the magic of the world, to the possible glimpse of a kingfisher. But this man had managed to reframe all these subjective assessments into one objective assertion: we were trespassing. None of these other perspectives counted quite as much as his. (pp. 13–14)
The idea that the invocation of these words was like a magical spell is provocative. As noted, property boundaries seem resolutely earthly and everyday, yet, like magic, they “aim to achieve some kind of transformative effect through a combination of physical and verbal techniques that are distinct from ordinary technical interventions” (Allen, 2008: 776). If law, like magic, seeks to achieve a “transformative effect” through a variety of enactments that are distinct from ordinary technical interventions—a process of making belief—then what is the effect that is conjured up here? The effect is both corporeal and spatial. The words “you’re trespassing,” Hayes notes, “… cast a spell that … tied our feet and dragged us away” (2020: 13). Indeed, Hayes likens it to a spell in the Harry Potter universe called “mobilocorpus,” in which a person's spatial movements can be controlled by another “almost like a puppet.” Who is the puppet master who casts this spell? The owner, perhaps? Property law famously “draws a circle” around the private individual “within which he is master” (Reich, 1964: 771). Thus, it is, perhaps, that private property is spatially sustained by “a legal force-field, a man-made spell” (Hayes, 2020: 19). As Blackstone noted: every man's land is in the eye of the law enclosed and set apart from his neighbour's; and that either by a visible and material fence, as one field is divided from another by a hedge; or by an in ideal invisible boundary, existing only in the contemplation of the law, as when one man's Land adjoins to another's in the same field. (1768/1979: 209)
This is worth pausing on. There is something very strange about trespass. Nick Hayes and his mother have not damaged another's property, or compromised their privacy. They have not paused to pick a bluebell. All they have done is cross an invisible line. Yet that simple transgression becomes “trespass,” an unjustifiable intrusion by a person upon the land in possession of another. Trespass does not require proof that the trespasser used force to cross the line, or did so with a possessory intent. All that one has to do is to step across a property boundary.
Precisely because the property boundary is omnipresent, its magical qualities are easily overlooked. But consider its many rites, such as the “Trespassers will be prosecuted” sign. Depending on the jurisdiction, this assertion can be technically incorrect, as trespass is often a matter of private law, not public prosecution. Yet as a hex, the sign has performative effect. To simply cross this “invisible boundary, existing only in the contemplation of the law” is to magically remake the person and their actions as “trespasser.” The spell of trespass, moreover, operates universally. As property is an in rem right, good against the world, so the spell of property casts its magic far and wide, ensnaring both owner and nonowner believers. Vast swathes of territory, even at considerable distances from obvious markers of occupation and private habitation, are encased in this force-field, over which law-abiding subjects dare not cross. The spell of the boundary controls us all, it seems, whether owner or nonowner, because we believe in its power—and the power of the state to enforce it.
But the magic qualities of property extend beyond its effects upon the movement of bodies. It is also magical in that it conceals it's working. It is a spell that operates without announcing itself: “it camouflages its importance to us, it naturalizes the unnatural” (Hayes, 2020: 377). And central to this camouflage is that which conceals the sorcerers who sustain the magic of the boundary and makes the violence needed to sustain it appear “reasonable.” It is not just the owner who casts the spell, of course, but the state. The “private powers,” including the magic of the boundary, are delegated from the state. At the core of the powers of the owner is the power to exclude. Exclusion necessarily entails violence, realized, or implied (Blomley, 2003). The violence monopolized by the state can be called upon, if needed, to sustain the private interests of the owner when the spell is broken. The boundary plays a crucial role in triggering such violences, which re-constitute it. When the homeless person refuses to leave the owner's land, or the Indigenous person picks berries in their traditional territory, now reimagined as a municipal park, such violences may become manifest. It is, perhaps, because of the possibility of such outcomes that Nick Hayes and his mother were “dragged […] away.” Yet such violences, as well as the possible violences and social predations that made the land “private,” are concealed, as if by magic. Rather than a deeply asymmetric social relation between owners and nonowners, made possible by the “reasonable” violences of state power and vigilante boundary enforcers, the magic of property is that it appears to be simply a straightforward matter of walls and fences.
The material “walls” of property, Hayes suggests, produces an internalized “mindwall,” naturalizing property boundaries and effacing the magic they do. As a result, the walls of private property: … possess a grandeur and authority that has somehow overridden the violence and theft, the malevolence they enacted to build them. The wall presents itself as a blank statement of authority, and we obey it because we see it without its context. The mindwall has become so entrenched in our heads that it remains unchallenged and unquestioned. (Hayes, 2020: 122)
The Playful Trespasser
“Get off my lawn!” This phrase has become a cultural referent in the United States, showing up in TV, movies, books, comics, and memes. It commonly refers to a retort shouted by an older person (often a white man) at children who trespass on their property, backed by an implicit or, at times, explicit threat of violence (see, e.g., Clint Eastwood's character in the film Gran Torino (2008), who wields a gun while shouting at kids to get off his lawn). As an expression of proprietary law and order—and one which is often raced and gendered—it has become a stand-in for generational and political divides. 3 The rejoinder is in part reflective of the prevalence of suburban property ideals, where boundary lines follow crisp edges of cut grass rather than fences or walls, and thus property owners become their own law enforcers, articulating invisible lines between my grass, your grass, our grass. The ubiquity of the phrase is also indicative of a more generalized acknowledgement of the inevitability of trespassing children, where proprietary lines, even when reinforced by walls or fences, may not be enough to effectively communicate exclusivity. A myriad of online forums and legal blogs give advice on how to physically deter children from trespassing on private property, including installing motion sensor sprinklers, planting thorny bushes, obtaining a guard dog, or appealing to authorities such as the police or housing associations to enforce exclusion.
While territorial boundaries are often assumed to be universally understood, “get off my lawn!” articulates an anxiety that the youth may not have gotten the message—that they may not yet be spellbound. This anxiety is not a new one if the frequency that trespassing emerges as a theme in children's literature is anything to go by, where the boundary-crossing rabbit or wandering children are enticed to infringe on private property by candy-covered houses or radishes or comfortable beds, only to find themselves confronted with the threat of physical danger. Stories such as Goldilocks and the Three Bears, Hansel and Gretel, and Beatrix Potters’ tales of Peter Rabbit and friends, all vividly underline a tension between a recognized youthful desire to cross boundaries and the risks of trespass to health and moral character. Despite containing a certain amount of nostalgia for the freedoms of adventurous childhood, these tales ultimately instruct “children to obey the boundary,” and specifically a model of the boundary, where territorial lines are determinate and absolute “separators” of both individual property and the autonomous self from the rest of the world (Blomley, 2004: 93, 94).
Yet children still wander, either not learning the lessons of the boundary, or refusing them. The playful wanderings of children present everyday challenges to property law as they pierce the veiled power of boundaries, even momentarily breaking their spell—revealing that boundaries are not absolute nor absolutely legible. The spell broken, these trespasses can force a re-negotiation of the protection of private property and the preservation of free life, pitting “sacrosanct” landowner's rights against a “humanitarian conscience” (Thatcher, 1978: 49). The “problem” it poses to courts is then not only about potential property damage or the challenges of safeguarding children, but that a trespassing child's rights could be upheld against those of a property owner—such as through what is known as the doctrine of “attractive nuisance.”
Emerging in the late nineteenth century in U.S. courts as a means of addressing liability for injuries sustained by child trespassers on industrial machinery and railroads, the doctrine allows for compensation from property owners when it is found that owners did not adequately deter boundary crossing—or even “lured” children into dangerous trespassing. As put by Thatcher (1978: 52), “if a landholder maintained on his land a condition which was instinctively alluring or attractive to children, the landholder was in fact some sort of Pied Piper whose maintenance implied an invitation for the child to enter.” The child trespasser is thus transformed into an invitee. In her extensive review of attractive nuisance cases in the United States, Evelyn Atkinson finds that in early cases the courts, reflecting societal shifts in understandings of childhood, generally held a romantic view of children as dependent innocents, “who, like the bees and the butterflies, wander everywhere” (Dublin Cotton Oil Co. v. Jarrad 1897; 534–35 quoted in Atkinson, 2017: 1126). This framing of a childhood propensity for exploration meant that “trespass was inevitable,” and therefore it was landowners’ responsibility to safeguard their properties to ward off such likelihood (Atkinson, 2017: 1127). Children “could not be subject to the same legal standards of behavior as adults” (p. 1125).
However, as identified by Atkinson (2017), the image of the free “innocent” butterfly-child was challenged by property owners and industrial actors who sought to define “the child of ordinary and normal instincts,” who was capable of avoiding the risks of trespassing (McLendon v. Hampton Cotton Mills 1917: 244). Property boundaries, therefore, were assumed to send “simple messages to the outside world” (Smith, 2003: 1147). In this re-framing it is only children who are “abnormally mischievous and disobedient” that “seek to overcome every obstacle to the accomplishment of their willful purposes” (McLendon v. Hampton Cotton Mills Co. 1917: 243, 244). The discourse of the “reasonable child” effectively made cases of attractive nuisance dependent on “prov[ing] deviance from an established norm of cognizance” (Atkinson, 2017: 1147). However, the ongoing prevalence of trespassing children despite increasing signage and physical deterrents raises questions about the assumption of a reasonable proprietary child who intuitively understands and respects property laws. As put by William Prosser: The soundness of such arbitrary rules as to what children may always be expected to comprehend may be open to question. The impressive number of cases of dead children, attesting their failure in fact to appreciate these risks, is sufficient in itself to cast some doubt upon the validity of the assumption. (1958: 458) To a child of six years [the fence] was no notice at all; the child would not know what the fence was put there for, except perhaps a thing to play upon. To a child six years old it was no hindrance; it was rather an invitation to climb; it was made of woven wire. (McLendon v. Hampton Cotton Mills 1917: 244)
In other words, the fence or other boundary marker may not communicate the message of “stay out”—and more than that, it may convey contrary messages, such as “an invitation to climb.” Beyond a failure of communication, it can be re-made into “a plaything” through children's “youthful fancy, imagination and ingenuity” (Kahn v. Burton Co. 1955: 624). From this perspective, children are seen to not only have the capacity to break the spell of exclusive boundaries, but to make believe their own realities where a wall becomes a restful seat, and a fence a climbing frame.
Aside from the debates about the rationality of children, the rationality of the doctrine itself has been continually called into question, denounced in U.S. State courts, as “a barefaced fiction and piece of sentimental humanitarianism, founded on sympathy rather than law or logic, which imposed an undue burden upon landowners and industry” (Prosser, 1958: 432; see also Ryan v. Towar 1901). But what if it is “a barefaced fiction”? The uncertainty over children's comprehension of property boundaries in cases of attractive nuisance allowed for the re-consideration of a property boundary crossing child as an “invitee” rather than a trespasser—what Lon Fuller (1967: 66) refers to as “the boldest fiction to be found in modern law.” As “legal fiction,” attractive nuisance involves a consciously (or partially conscious) false statement that is “not intended to deceive,” but has “utility” in its falsity by “reconcil[ing] a specific legal result with some premise or postulate” (Fuller, 1967: 7, 8, 51). In other words, the transformation of a boundary crossing child into the “invitee” of an unsuspecting owner, allows for the court to find in favor of the injured child or their family without creating a broad exemption for trespassing children or reconsidering the notion of trespassing altogether.
Despite ultimately affirming existing legal doctrine (related to an invitee) rather than upending the exclusivity of property, the reliance on an acknowledged false statement, reveals “the mysterious influence exercised by names and symbols” (Fuller, 1967: 11). While for Fuller, this “mysterious influence” was limited to narrowly defined legal fictions, other legal scholars have raised whether within law more generally, “to work with words may mean to be caught continuously in the act of creating legal fictions” (Soifer, 1986: 915), and that these fictions, requiring one to “temporarily suspend belief,” have allowed “judges to introduce flexibility and movement into the common law” (Knauer, 2010: 7, 16). But taking it a step further, perhaps common law itself requires fiction masquerading as fact for its maintenance—that fiction is the rule rather than exception. As discussed in the previous section, the very idea of possession relies on making belief in the power of invisible boundaries. As Fuller argues, legal fictions can “take the form of pretenses as obvious and guileless as the ‘let's play’ of children” (Fuller, 1967; 1 citing Pound, 1923: 4). So, let's play exclusive property! You play Mr McGregor, I’ll be Peter Rabbit! The question then becomes what are the possibilities for playing a different game? What if “let's play private property” becomes “let's play the commons” (Cooper, 2007)? However, before we can think about make-believing boundaries otherwise, it is critical to examine the differential and often lethal stakes of the boundary crossing.
Lethal White Boundaries
The dangers of trespassing revealed in the attractive nuisance cases are not universal. We must not universalize the child trespasser. Indeed, the standard attractive nuisance case concerns working class kids in inner-city areas, without access to parks and safe play areas. The likelihood and consequences of boundary crossing clearly vary depending on social position. This is perhaps most evident in cases involving African American, Latinx, and Indigenous children and youth. Their engagement with property boundaries often underlines the uneven violence that upholds and reifies making belief in these boundaries.
The stakes for racialized youth become clearer when we come to the conversations parents have with their children regarding trespass we discussed at the outset of this paper. For white middle class families, the stakes are relatively minor, all things considered. You shouldn’t go on to Mr McInnes’ lawn, they tell their kids, for he will likely shout at you. For Black and Brown kids, however, the consequences can be more profound, particularly in U.S. jurisdictions that uphold “Stand Your Ground” (SYG) laws that reduce the “duty to retreat” and enable the use of lethal force to defend property and the propertied individual in the case of a perceived threat. As the killing of Trayvon Martin and other racialized young people reveal, (perceived) property transgression can be deadly. In a powerful article entitled, “How to Talk to Young Black Boys about Trayvon Martin,” Touré (2012) makes the potentially fatal condition of being Black in a world of weaponized white territoriality abundantly clear: It's unlikely but possible that you could get killed today. Or any day. I’m sorry, but that's the truth. Black maleness is a potentially fatal condition. I tell you that not to scare you but because knowing that could save your life. There are people who will look at you and see a villain or a criminal or something fearsome. It's possible they may act on their prejudice and insecurity. Being black could turn an ordinary situation into a life-or-death moment even if you’re doing nothing wrong.
SYG laws extend Castle Doctrine, which allows for an exemption of the “duty of retreat” when preserving one's home. As argued by Caroline Light, under SYG laws, the “boundaries of the private home expand in the interest of protecting white property,” whereby “the protective boundaries of a man's ‘castle’ follow some individuals into what was once public space,” such as the sidewalk as in the case of Trayvon Martin (Light, 2015: 293). The “magic” of (white) property thus becomes an ability to subjectively extend boundaries, such that they are not just geographically bounded, but are also embodied by certain propertied individuals that may “stand their ground anywhere they have a lawful right to be” (Russell-Brown, 2015: 122). Under SYG law, deadly force is justified against those who are perceived as not having a right to be, or “those whose mere presence in spaces of white domination conjures a ‘reasonable’ suspicion of threat” (Light, 2015: 293). Thus, “threatening” racialized children must not only stay on the “right” side of walls, lawns and fences, but also avoid the invisible, mobile boundaries of white property, or face potentially lethal violence. Black children may find themselves trespassing simply by being “out of place” in “the white space” (Onwuachi-Willig, 2017; Anderson, 2015), where an entire neighborhood may become proprietary space protected by vigilante border agents.
Given this expansion of invisible and subjective borders, SYG offers another challenge to the “simple message” of the boundary, where magically “the white castle might potentially be anywhere, including a public street” (Light, 2015: 296). Racialized children may be at risk by simply “negotiating the white space as part of their daily lives,” unaware that they may be perceived as trespassers (Anderson, 2015: 15). The mobile boundaries of this space become discernable through violence enacted by those who have a “right to be” against those perceived as not having a right to be in particular spaces. As framed in Florida's SYG legislation: A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. (Fla. Stat. § 776.031) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another […]. (Fla. Stat. § 776.013)
A “self-defender's” fear is thus assumed to be reasonable, and the burden rests on a prosecutor to disprove this assumption. As pointed out by Russell-Brown (2015), this “presumption of reasonableness” represents a departure from Castle Doctrine, where a defendant's actions were compared with those of an objective “reasonable person” (p. 122). Instead, SYG law uses a “subjective standard,” whereby it “does not require that the defendant's actions were the actions of a reasonable person [… but] requires that the defendant's actions were reasonable to him” (p. 122, original emphasis). This subjective “reasonable” standard fails to account for the ways that perceptions of threat might be influenced by conscious or unconscious racial bias and dehumanization (Russell-Brown, 2015; Goff et al., 2014). In cases of attractive nuisance, the objective standard of the “reasonable” child shifts the responsibility for the risks of boundary crossing from the property owner onto children. Under SYG, the “legal fiction of ‘reasonableness’ allows for the very denial of racist domination,” justifying boundary violence against Black and Brown children perceived to be a risk to white property (Light, 2015: 296). In both cases, the magic of property boundaries is obscured and rationalized through “reasonableness”—where not only an objective understanding of the boundary is deemed reasonable, but also the subjective violence of boundary enforcement is regarded reasonable. This proprietary reasonableness, however, avoids the obvious question—is harm to and death of children reasonable?
The magic of white property boundaries, and the presumptive reasonableness that upholds them, have been clearly challenged by those who point to their role in systemic racism. The Black Lives Matter movement has targeted SYG laws, characterizing them as instruments of racial injustice. 4 But such principled opposition has also highlighted the youthfulness of those whose killings have been legally justified by SYG, not fully aware of the risks of (inadvertently) crossing the shifting and expanding boundaries of white space. “In his last moments,” Trayvon Martin was said to be “meandering through his father's girlfriend's neighborhood, chatting on the phone with his friend Rachel, unconcerned, as all young people should have the freedom to be, with the monster lurking in the bushes” (Cooper, 2022). It is no accident, surely, that the state prosecutor, rebutting the defence's closing arguments at the trial of his killer, George Zimmerman, said of Trayvon Martin: “Was that child not in fear when he was running from that defendant? Isn’t that every child's worst nightmare, to be followed on the way home in the dark by a stranger? That was Trayvon Martin's last emotion.” It is also no accident that Zimmerman's lawyer referred to Martin as the “person who decided … it was going to be a violent event” and “the guy who decided not to go home when he had a chance to” (Cooper, 2022, our emphasis). Here then Trayvon's fault was in recognizing an explicit threat (a stranger in the dark), rather than the implicit one of boundary crossing. Instead of the meandering child, Trayvon is reframed as the one who made the unreasonable decisions. But here the magic of boundaries is exposed: the boundary depends upon ritualized explicit violence and this violence is always deemed reasonable against the threat of those who are (un)intentional boundary crossers.
The lethal consequences of trespassing on (white) property remind us of what is at stake in denaturalizing and dispelling the magic of the reasonable boundary. Property's exclusionary powers sustain dominant social power relations, and the infrastructures of colonialism and capitalism. Violent at its core (Blomley, 2003), property can be enforced in brutal and discriminatory ways. Property law more generally is defined in relation to racial subjectivity in a way that constitutes personhood as an expression of whiteness. A racial property regime “is thus instantiated through a process of racial sorting that creates a racial hierarchy while at the same time marking some as unworthy of life” (Dorries, 2022: 5). The violence against Black and Brown children trespassing on white space can thus be seen as reflecting an anxiety related to the preservation of “racial regimes of ownership” (Bhandar, 2018), reliant on maintaining “whiteness as property” (Harris, 1993). As discussed throughout this paper, given that children—of any race—often question and contest the magic of boundaries, offers an implicit (if not explicit) challenge to assumptions of the inalienability and reasonableness of the boundaries of white property. As offered by Kenneth Nunn: [B]ecause children do not think like adults, behave like adults, nor value the same things as adults, children are also feared as potential agents of change. The possibility always exists that the next generation will not uphold and reproduce the institutions that adults have established. Thus, children are feared and controlled until they have been properly socialized and no longer represent a threat to adult institutions. (2002: 702)
Make-Believing Otherwise
Property simply comes to us as if it were real, rather than made-up, in part due to its reinforcement through continual enactment and enactment and practice (Blomley, 2013). “Make-believe” is, of course, childish. Let's believe the rock is a castle, and the cloud is a dragon. Trespass also depends on a system-wide game of adult make-believe—but one in which this make-believe comes to be believed through repetition. Let's pretend that an invisible line on the ground marks a limit over which we cannot cross. Now, let's pretend that we are not pretending and shore up these lines with violence and practiced discipline. If we collectively believe, these boundaries begin to take on almost magical qualities, directing our feet, and shaping our beliefs through enchanted mindwalls. Children, however, often seem unwilling or incapable of playing this game inside a game. They play their own games that evoke alternative realities, where invisible lines are drawn, hopped, erased, and reimagined. In so doing, they can dispel property's territorial magic.
Children's apparent immunity to property proves a serious challenge to our belief in it, and is evident at several registers, both cultural and legal. The anxieties generated by child trespass are instructive, we suggest, as they reveal the persistent nonconformity of children to the property boundary and, thus, the degree to which the boundary, far from being obvious in its effects, is sustained by social magic, legal fictions, and ritualized violence. Children's geographies show us that boundary-crossing, far from being reducible to “trespass,” can be fun, creative, and free us to enact different ways of organizing ourselves in relation to land and each other. Perhaps, therefore, if our goal is to open trespass up to political and ethical scrutiny, we should learn from the child trespasser, regularly questioning boundaries and recognizing that they are in many ways fictional. “[L]ook[ing] out from”—rather than only “looking in at”—children's legal geographies “to see what they might illuminate” about the broader world (Philo, 2016: 624, original emphasis) might help to shift our perspectives on property—perhaps even initiating an unlearning or “dis-spelling” of property. First, taking the child's “why” seriously when it comes to property boundaries reveals their “magical” and fictional qualities, reliant on the stories we tell and retell ourselves. We can see how adults make-believe property on a daily basis. Second, it leads us to the question of “why not?” Why can’t a fence be a climbing frame? Why can’t we organize land and our relations to each other in less exclusive ways? In other words, it opens the possibilities of “seeing” beyond the boundary and reorganizing socio-spatial relations. This speculative inquiry raises the possibility of “exercis[ing] some deliberate choice about the frame of reference through which we see the world” (Nedelsky, 1990: 184). Rather than reproducing our children as proprietary subjects that see the world as divided between mine and yours, can we tell alternative stories? As put by Nedelsky: Suppose… that the basic task were to communicate to a child that much of her environment is such that several people (and other creatures) have need of it and claims on it - that is, it is ‘shared.’ Here her selfhood would not be hammered out in possession, but developed in the context of the rules of reciprocal connections. We would end up with a different picture of sharing and of the self that shares. (1990; 172)
Footnotes
Acknowledgements
We would like to thank Jessie Allen, Naomi Keenan O'Shea, Terri Evans, Bruna de Oliveira Maciel, Prem Sylvester, and Irwin Oostindie for their thoughtful feedback on earlier versions of this paper. And thanks to Jules, Caja, Elina, and Imogen for serving as inspirations.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
