Michael Guggenheim
Travelling Types and the Law: Minarets and Suicide Hospices
This article analyzes how the law influences the circulation of building types in Switzerland and builds on two case studies surrounding conflicts about travelling building types and zoning law.[1] The cases under consideration concern the erection of minarets on mosques, and the performance of assisted suicide in apartments and industrial buildings. Each of them highlights different aspects of how building types and zoning law interfere with each other.
Buildings do not travel. It is the very essence of buildings that they are stable. If we talk about building types as travelling, we refer to abstractions that travel with the help of media, such as pictures, drawings, or textual descriptions. Then how do we know that a new or a changed building represents a travelling building type? The notion of travelling building types depends on the fact that somebody has to observe these types as travelling. This is not a trivial fact, since buildings constantly change form, style, and materials and it is often difficult to know “where” a change comes from. The new is often new for a specific place, it is an import, and conversely, what is labeled an import is often the new.
The defining power is often reserved for academics who observe the circulation of architects, plans, pictures, and materials. The notion of a building type is taken as a given and then the circulation of the type can be observed. However, this methodology draws little attention to the often highly contested processes of constituting classes of buildings as types and subsequently as foreign types.
One way to observe such discussions is by analyzing debates about zoning law. Zoning laws are the legal instruments that define building types as foreign. That is because buildings, unlike humans, are not subject to border control or immigration laws and unlike objects of consumption, are not subject to customs. States do not have a legal means of explicitly preventing new building types from entering their confines. Zoning laws thus become immigration laws that prevent building types from travelling. Since zoning laws do not operate along a discourse of migration, the question is: How does zoning law relate to the circulation of building types? In this article, I explain, using the case studies mentioned above, how the law identifies building types as foreign and how conflicts about “foreign” building types work.
Before I move to the main argument, a note on Switzerland as empirical focus is in order. On a basic level, conflicts regarding zoning law follow very similar lines in different countries, because these conflicts depend on the ambiguous notion of zones. As regards the case studies presented here, conflicts surrounding mosques are also not specific to Switzerland, though the solutions to these conflicts obviously are. The case of assisted suicide however is highly specific to Switzerland, because this form of “death tourism” is unknown in other countries. However, the focus of the article is not to highlight the specificity of these conflicts to Switzerland but to show how the law mediates conflicts about travelling types.
The chapter is organized as follows: I start by elucidating the relationship between building types and the law in general. Secondly I give a very brief overview of Swiss building law. Then I present the two different case studies and finally I close with a comparison of the cases.
Building Types as Quasi-Technologies: How Travelling Types Pose a Problem for Zoning Law
Before I discuss the case studies, I have to theoretically explain the relationship between building types and zoning laws. Thus, I first elucidate the general problem of building types before showing why travelling building types become a problem for the law. A building type is a name that classifies a group of buildings according to their material configuration and their use. For example, the building type bank identifies the word “bank” with the material configuration comprised of tellers’ windows, reflecting glass facades, offices and the use, namely to lend and borrow money. The classification of a building as a bank performs the twin operations of identifying the building with its use and with its configuration at the same time. This is so, because our idea of buildings identifies the material configuration with the use. We assume that the material configuration, the tellers’ windows and the offices and the glass facades are needed to make lending and borrowing possible. If there were no glass facades, tellers’ windows and offices, there would be no lending and borrowing and we would not classify the building as a bank.According to Guido Francescato we can differentiate between form-type and use-type.[2] I use the term form-type to designate typified building forms and use-type to designate typified uses. As I have illustrated above, in most cases these two coincide, because forms are identified with uses. But there are also instances where they do not coincide. This happens most notably in building conversion. Thus there are buildings whose form-type we might classify as “bank” but that are used as courts. Depending on whether we call such a building bank or court, it either shows that a form-type bank does not enforce its use as a bank or that the use-type court does not depend on a typological material structure identified with a court.
This leads to the question of what buildings can do, that is, whether they are technologies or mere objects. In line with Niklas Luhmann and Bruno Latour, I define technology as an assemblage of things and practices that produces the same output with the same input and thus makes processes predictable.[3] There is a commonsense belief, shared by many assumptions of architectural theory and architectural sociology, that the material configuration of a building in this sense is a technology that enables, structures, and enforces certain uses. This is specifically true of the notion of building types that are supposed to make their uses predictable, and architects sometimes actively seek to turn building types into technologies. But this belief is in many cases not empirically justified. Sometimes buildings are indeed technologies that structure, enable or even enforce practices, but sometimes they are not. Because of this feature I call buildings quasi-technologies, thereby indicating that buildings in some instances work as technologies and in others they do not.[4]
The fact that buildings are quasi-technologies is important in understanding legal conflicts regarding zoning. This is so, because the legal definition of a zone relates patches of land classified as a specific zone to a use taking place on this land and the buildings situated on it. Thus a zone reserved for industry, for example, means that buildings in that zone can only be used for industrial purposes, and not for housing. In theory, the definition of specific zones in zoning law only relates to uses and not to building forms. But those uses are often attributed to the form of the buildings, as we will see in the case studies.[5] For example, a zone reserved for industry results in conflicts about whether the buildings in those zones are industrial buildings, because it is assumed that the buildings define the uses. Thus in legal conflicts about zoning law we see the consequences of the peculiar properties of buildings as quasi-technologies. This problem of quasi-technology linked to zoning is central in understanding why and how travelling use-types and form-types pose such intricate problems for both society in general and the law in particular.
The following case studies demonstrate these intricacies with examples where forms and some where uses provide the starting point. They are all objects of my study because they became legal cases, thus demonstrating that zoning law does not strictly focus on either use or form. Also, neither society nor zoning law provides a method of identifying new or foreign use- or form-types.[6] Indeed, there is no method of identifying a type at all. The disputes discussed below show how the law in action produces foreign types by accepting them as subject of disputes.
In each case I will thus focus on how building types are contested because of their quasi-technological character of switching between use and form. We are faced with a contested object, that is either changed in its use or material configuration. These changes then become objects of lawsuits. In each case, the change of the practice or the building is defined as being foreign. The courts must decide whether the uses and changes conform to the existing classifications of zoning or not. By doing so, they must also make decisions about whether a specific imported use or material form can be accommodated by existing laws.
I will pose the following questions for each of the examples: – What is the travelling element? – Which law does the travelling element contravene? – What makes the element foreign? – How does the law categorize the travelling element (as being a use or a form)? – What are the legal claims of the opponents in showing that their practices or changes of buildings conform to the law? Or, if they do not, how do they argue that their case cannot fit the existing laws and how do they legitimate the need to change the law? – What results from the legal case? Are the laws, the objects or the practices changed?
The argument I wish to make here is not that (Swiss) zoning law is ill-suited to deal with travelling building types or that foreign building types pose a problem for the spatial order of society. Rather, I want to show that because travelling building types are quasi-technologies, they result in difficult legal conflicts where buildings and uses are sometimes identified with each other and sometimes kept apart. Furthermore I wish to show that those processes of identification or keeping apart are not stable across cases.
A Very Brief Introduction to Swiss Zoning Law
Before I introduce the four case studies, some basic information on the Swiss legal and political system is in order. Switzerland is organized on three different levels: the municipalities (called Gemeinde), the 26 cantons, and the federal state. Each of these levels has different courts. Switzerland is a very federalist country, which is clearly visible in its building and zoning laws. The federal planning law outlines only the most basic legal aspects of building. The planning law from 1979 requires the federal state, the cantons and the municipalities to coordinate their planning. The different levels of the state have different roles, whereby the federal level defines the broadest categories; the cantons create basic zoning plans based on these categories and can create further categories, if they so choose; the municipalities create a final detailed zoning plan. The federal level only differentiates between four different zones: building sites, agricultural land, protected land (neither building nor agriculture), and “other.” For building zones most cantons have established at least the following zones: business (usually divided into industry and offices), habitation and public buildings, usually comprised of government offices, courts, schools, and churches.Switzerland also has a strong tradition of direct democracy. Every decision by an executive body on any of the three levels can be overthrown by calling for a referendum. A referendum is initiated by collecting a certain amount of signatures in a predefined time. Furthermore a so-called initiative can be triggered on any subject with the same procedures but usually requiring twice the amount of signatures than a referendum. In case of conflict at the municipal level, local courts decide on the issue. After such a decision, the case can be taken to the cantonal courts and then, as a last step, to a federal court. On any level, an initiative can also be organized to address the issue.
Types and Building Parts: Minarets and Mosques
The discussion of architectural types usually follows a trajectory where new types of practices are forced into material form. For example, the invention of the modern prison, as Michel Foucault has shown, is a function of the invention of new modes of punishment.[7] But in many ways, the circulation of artifacts follows widely established practices, as is the case with mosques in Western countries. The mosque provides a case for looking at the problem of identifying and defining use-types. The migration of Muslims to Western Europe has resulted in a scenario where Muslims find places to pray without having the built form to do so at hand. A mosque, in this sense, is less a building form than a place where Muslims gather to pray; literally, a house of prayer. Gradually, the building is converted into “a mosque.” The circulation of the building type “mosque” in most cases is not related to architects’ knowledge, but rather to a knowledge of the community that gradually converts a building step by step into a mosque, by indicating the direction of Mecca with carpets or by hanging notes of prayer times on the walls. For the law, the question arises: When is a building a mosque? When it looks like a mosque, or when it is used to pray?In Switzerland, the case of the community of Wangen created a nation-wide public controversy, since the local Muslim community wanted to add a minaret to a factory building that it used as a cultural center and prayer space. The local administration opposed the minaret. In a meeting of the local town council, Roland Kissling, the vice-president of the right-wing party SVP, argued, “a minaret is a mosque-tower. Thus with the minaret, the building […] is turned into a mosque. And a mosque is something different to what is there now, which is a cultural center with a prayer space in the basement.”[8] Kissling further explained that the minaret is a “dominant testimonial” that “constantly tells something that the neighbors do not want to hear.”[9] He went on to argue that the erection of the minaret would be the last straw that would turn Swiss inhabitants against Muslims and undermine all efforts at integration.
Fig. 1: Mosque of the Olten Turkish cultural association in Wangen bei Olten (photo taken by Nadf in 2009, public domain)
The building authorities subsequently refused a building permit for the minaret, arguing that the addition of a minaret constitutes a “relevant change of use.”[10] According to the authorities the minaret is a “constituent part of a mosque,” turning the building into a “sacred building.” They explained that the Christian churches in the town are in “zones for public buildings” and thus the mosque, which is in a zone for commercial buildings, could not be allowed. The Muslim community argued that the minaret is just a “symbolic minaret,” “like a small chimney” that they do not use for the call to prayer.[11] The community appealed to the canton, which allowed the minaret. It argued that the municipality had already allowed the conversion of the factory building into a prayer space and—echoing the Muslim community—called the minaret an “exterior symbol” of this transformation.[12] The canton saw a proof of these mere symbolic qualities in the fact that the minaret could not be used for the call to prayer either by human voice or loudspeaker.
After further courts confirmed this judgment, a committee composed of right-wing politicians started a nation-wide initiative. The initiative would add the sentence “building of minarets is prohibited” to Article 72 of the Swiss Constitution, which deals with religious freedom.[13] The logo of the initiative’s webpage shows a minaret cutting like a spear through a Swiss flag in the shape of Switzerland. It also shows a sequence of pictures, the first depicting the building in Wangen, the second a group of dark minarets against a glowing sky, and the third a group of veiled women seen from behind. The authors of the initiative write, “we have to stop the spread of Islam. A ban on minarets is necessary.” But they also write: “The minaret as a building has no religious character. It is not mentioned in the Koran or in other holy scripture of Islam.” Thus, the ban on minarets would not contravene freedom of religion in Switzerland. Rather, they argue, the minaret is a sign of a “politico-religious claim to power,” using religious freedom to fight human equality and thus contradicting the equality of humankind guaranteed by the law. On July 8, 2008 the initiative was handed to the Federal Council with 114,895 signatures. On November 29, 2009 the initiative was accepted with 57 percent of the vote.
This case shows the difficulty of defining and identifying a building type. Throughout the conflict a constant shift between use-type and form-type is at play and also a constant shift in identification of these types with different building parts. Kissling and the town authorities first assume that the use of the factory building as a prayer space does not constitute a change of use, since they explicitly allowed it when they allowed the factory building to be used as a cultural center. Only the addition of a minaret turns a factory used as a cultural center with a prayer space into a mosque, thus changing the building type.
For the Muslim community and also for the cantonal court, the building type is defined by its use. The factory is already a mosque even before a minaret is added. The minaret itself is only “symbolic,” because it cannot be used for the call to prayer. The minaret does not define the building type. The campaign to ban minarets then agrees that the minaret is only symbolic and does not define the building type, which is precisely the reason why the initiative does not violate religious freedom. For the committee, the minaret is a political symbol of the anti-democratic tendencies of Islam, and it is not necessary for the exercise of Islamic religion. The initiative would not stop the building of mosques defined as prayer spaces without minarets. But then the webpage also says that the spread of Islam should be stopped with the help of the initiative, which implicitly assumes that if mosques did not have minarets they would be less useful in spreading Islam.
If we ask whether the law prohibits the immigration of building types, an irritating answer emerges: the initiative has been passed, but Switzerland will most likely not prevent the immigration of the mosque as a building type if it is defined as a use-type. Rather, a new form of mosque without minarets will emerge and become stabilized. The banning of minarets might well trigger new legal battles to determine which building forms count as minarets, since they are not defined in the initiative. Immediately after the initiative was accepted, several “minarets” were built, for example on balconies or in gardens, to provoke this question.[14] Some graphic designers even marketed a sheet of construction paper for “building your own minaret”—“without a building permit.”[15] If a church were to be turned into a mosque—which hasn’t happened so far in Switzerland—the question could arise whether the church tower is now a minaret and would have to be taken down. As the debate about the “symbolic” minaret in Wangen shows, a “chimney” can be a symbolic minaret, even if it is not used as minaret.
Types and Practices: Assisted Suicide as an Object of Building Codes
The last case is an extreme case, since it shows how zoning laws can be used to ban social practices without any reference to the forms of buildings. The case of assisted suicide shows that the legal definition of types is in fact as much related to social practices as to buildings themselves and that the circulation of persons, bodies, and social practices can create new “building types.”Switzerland is one of the few countries that allow assisted suicide. Current law only prohibits active assisted suicide (Article 114 of the criminal code), but it is silent on passive assisted suicide. If a helper is not acting out of self-interest, she is allowed to give deadly substances to people who are able to commit suicide by their own hands. Two organizations, Exit and Dignitas, use this law to provide their members with the barbiturate sodium-pentobarbital, which is only available on prescription. After repeatedly confirming the patient’s will to die, a doctor visits the person at home and prescribes the barbiturate. Only Dignitas performs assisted suicide with foreigners—mostly Germans—who come to Switzerland because assisted suicide is illegal in their home countries. The practice is known as “death tourism,” which became the “Swiss word of the year 2007.”[16]
Since foreigners cannot be visited at home, they have to go to a place in which to perform the suicide. Until September 2007, Dignitas assisted 670 suicides in a small apartment in Zurich.[17] After protests by neighbors the landlord terminated the lease. Dignitas then moved to an apartment in Stäfa, a small town on Lake Zurich, where neighbors immediately prevented suicidal candidates from entering the house. Finally, the police shut the apartment down after Dignitas refused to apply for a building permit to change the apartment into what the authorities called “a death apartment,” arguing that assisted suicide is a business and therefore not allowed in a zone for habitation.[18] The administrative court of the canton of Zurich later confirmed this decision.[19] Meanwhile, Ludwig A. Minelli, the head of Dignitas, wrote in an article that a person should be granted a place to die in an apartment, since this provides a “familiar atmosphere,” and not in an office building.[20]
Next, deprived of a building, Dignitas organized assisted suicides in a car in a parking lot, and in hotels[21] and reasoned that people from Germany should arrive in their own caravans in the future.[22] Both cases were legal, as it turned out. Legally, it is neither possible to control what is happening in a parked car, nor is it possible to ban an organization—only persons—from a hotel. A little later, Dignitas rented an industrial building in Schwerzenbach, where the authorities immediately prohibited further suicides, arguing that Dignitas would need a building permit for change of use.[23] The administrative court overturned this decision claiming that the practice of Dignitas only “marginally differs” from “the activities allowed in an industrial and commercial zone.”[24] The court observed sneeringly that the suicides would not produce “excessive emissions,” as the municipality claimed, if the same municipality allowed the biggest brothel of Switzerland only a hundred meters away.[25]
Fig. 2: Gewerbezentrum Ifang, building where Dignitas conducted assisted suicides (photo taken by the author 2009)
After this decision, at least in the canton of Zurich, the situation implies that assisted suicide is legal in zones reserved for business and industry, but not in residential zones. The cantonal government has repeatedly asked the Swiss Federal Council to regulate the issue at federal level, but so far, the Council has refused to deal with it. The issue has become such a confusing topic that a law firm issued a leaflet with the title “Where Is It Possible to Die Without a Permit?”[26]
Compared to the other cases where resistance to the immigration of building types and legal discussion was tied to different mixtures of building forms and practices, in the case of assisted suicide, building forms are absent. In fact, the problem, as a problem for zoning law, emerges because of the lack of a legal category and a form. For the assisted suicide of people living in Switzerland, residential buildings provide adequate places and since each case happens in a different place, they do not stir up resistance from neighbors. Assisted suicides are thus not linked to a specific building type; they are simply an extension of habitation. Only the migration of foreigners without a building in which to die produces the problem, by creating the question of a zone for assisted suicide.
By requesting building permits in any zone, the opposing authorities show that they are generally opposed to the practice, rather than to the practice in specific zones. Their resistance amounts to a societal taboo, leading to assisted suicide in cars and to preventing suicide in buildings. Furthermore, dying is a practice that fits squarely into zoning categories that differentiate between habitation, business and industry. When the administrative court of the canton of Zurich defines assisted suicide as appropriate to industrial zones and associates it with brothels, it moves it further into the twilight.
Assisted suicide has become a practice without buildings, because society cannot imagine an appropriate building or zone for a practice that it does not want to see. At the height of the controversy, one architecture critic of the Neue Zürcher Zeitung, the most respected newspaper in the country, wrote a review of the newly-built St. Martin hospice in the German city of Stuttgart, designed by the architects Aldinger & Aldinger. Roman Hollenstein put the review in direct context of the controversy when he wrote: “In the contemporary discussion about assisted suicide, we tend to forget that there are houses in which the terminally ill are cared for until their death.”[27] He noted that historically, hospices were usually converted residential buildings or villas, and that the architects defined a “new architectural typology” with their building. Hollenstein also observed the “almost transcendental hilariousness” of the architecture and that the architecture is at pains to avoid any resemblance with a hospital. For him, a new typology emerged, but this typology did not develop with the migrating candidates for assisted suicide, but it emerged where they came from, as an answer to their problematic travels. However, the hospice may, for the architectural critic, provide the adequate architectural means to die, but it is built for a slow death, exactly the death from which those who create the problem tried to flee.
Conclusion: A Comparison
The two cases present a complex picture of how the law relates to travelling building types. As a summary, I would like to compare the cases with respect to the results of the different controversies.In the case of minarets, the initiating element is a form, the minaret, but the controversy then relates the form in very complex ways to practices. The first result, the court decision to allow the minaret, is that minarets are fitted to already existing zones. The decision says that minarets are considered to be mere towers that do not change the use of the building. The second result, the initiative, is ultimately a ban on minarets—and not the use of buildings as mosques—seen as symbols of a Muslim attempt to gain power in Switzerland. However, the result of the initiative, if it were accepted, would be the legal stabilization of a new form of mosque, namely mosques without minarets.
In the case of assisted suicides, practices only cause the conflict. However, the result is more similar to that of the minarets case. The first result, the court decision that assisted suicide is appropriate to business zones, consists in a new fit between assisted suicides and already existing zones. The second result is the emergence and celebration of a new building type, namely hospices.
The different results are all related to the fact that buildings are quasi-technologies. The immigrating elements can be either practices or building forms: where they meet local resistance, they become discussed in the light of building codes, where they inevitably start to move from being a practice to being a technology and back, ad infinitum. Practices instantiate forms and forms instantiate practices. In this process the travelling element itself starts to blur. It is no longer clear whether the Muslims or the mosques, the death tourists or the death flats are the problem. Both proponents and opponents of the immigrating elements can resort to both stances: that it is practices that matter because buildings are only objects but not technologies and that buildings matter, because they are indeed technical.
Proponents of minarets argue that they need minarets and that the minaret they want is not really a minaret, but merely symbolic. Opponents of minarets argue that minarets are symbols of Islam’s quest to conquer Europe and that they are not against Muslims, but care only about the height, size, and color of the proposed minaret. Proponents of assisted suicide argue that they need fitting places for their clients to die and demonstrate by performing assisted suicides in the most unusual places that they do not depend on them. Their opponents decry suicide in cars as inhuman and produce these situations by not letting Dignitas use other buildings.
Acknowledgement
This article originally appeared in full length in Michael Guggenheim, Ola Söderström (eds.): Re-shaping Cities: How Global Mobility Transforms Architecture and Urban Form. London 2009, pp. 45–62. Many Taylor & Francis and Routledge books are now available as eBooks: www.tandf.co.uk, www.eBookstore.tandf.co.uk.See also Matilde Cassani’s work, Spiritual Devices and Sacred Interiors in Profane Buildings.