Property theory is at a crossroads. As we posted in our last post, the twenty-first century’s property problems are embedded in the effects of globalization, technological and environmental change. In addition, in an era of polarization and populism, conflicts over property inequality and access to resources have intersected with an exclusionary turn in the politics of belonging. This is illustrated in the shift that has occurred, in a number of jurisdictions, in state responses to squatting. Long viewed as a private conflict between owner and trespasser, since the turn of the century squatting has been politicized, securitized and criminalized. Our collaboration began with a shared interest in adverse possession and squatting, particularly in criminalization which marks an important turning point in states’ relationships with practices of unlawful occupation: changing its character from private law dispute to public law offense against the state. At the same time, increases in unmet housing demand have coincided with rising stock of empty properties, against a backdrop of housing fictionalization, global economic crises and environmental and land use emergencies.
As states developed new strategies to respond to squatting, new legal, political and public discourses of property were revealed. In Squatting and the State, we set out to analyze legal and political responses to practices of homeless squatting in empty land. As we thought and talked about it, particularly looking across different jurisdictions, we realized that the squatting case study provided a lens for understanding property law, and property problems, in this new landscape. In the book we trace legal responses to squatting, over time, paying particular attention to turning points in state responses to squatting, and to constitutional moments. This enabled us to observe how property law systems have changed in England and Wales, the United States of America, Ireland, Spain and South Africa, in the context of transnational trends.
The book draws insights from scale theory, wicked problem theory, vulnerability theory and equilibrium theory to develop and apply a new methodological framework for property law. Crucially, in a period in which the power of private property poses new threats to democratic governance, ‘Resilient Property Theory’ confronts the role of the state in producing, upholding and modifying property law systems: investigating and articulating the pressures and constraints that state actors and other stakeholders face in navigating the complex competing demands in play, and demonstrating how these shape private property law. As we grappled with the changing legal landscape of squatting, we realized we needed to reach beyond transactional property law and bilateral litigation to understanding the complex, intersecting issues at stake, and the webby network of stakeholders involved, in contemporary property problems. We recognized that the narrowing frames that simplify complex phenomena to enable linear problem solving reduce squatting to a homelessness problem or a law-and-order problem, a property rights problem or a social exclusion problem, a secularization problem or a neighborhood blight problem; or, perhaps, not a problem at all. While any of these lenses casts some light, we needed structuring methods to take account of the wider range of interests—beyond the litigating parties—that are at stake in legal problems involving or affecting land. These included individuals (owners, squatters), collective or group interests (neighborhoods, communities, local markets, social movements), and the institutional interests of private/market institutions, legal institutions and the public institutions of the state itself (local/city; regional; national; transnational).
In recognizing that narrowing frames limit how problems and solutions are perceived, as well as determining which approaches and solutions are considered viable, we sought to find methods and approaches capable of navigating the complex realities of the contemporary property landscape. We recognized that for viable alternatives to the status quo to be successfully adopted and sustained, they must be built on a legitimate hinterland, located within the ‘Overton window’ of political possibility. This ‘window of political possibility’ is not fixed but dynamic: it reflects perceptions about which policy options are understood to be acceptable to citizens/electorates in specific societies in specific moments.
A key insight from the five jurisdictions we studied was that, while it is often the simplest narratives that have the greatest rhetorical power, the property nomos in each of these jurisdictions was characterized by normative hybridity—either within a single horizontal scale (for example, within the national constitution as discussed above with reference to South Africa and Ireland) or across the vertical scale (transnational, national, regional, local). It is through the ongoing process of continuous critical reflection—balancing complex, competing ideas about property, housing and environmental protection—that states, governments, and the institutions of law subject existing hierarchies to challenge and development, flexing and changing over time in response to changing contexts, stresses and pressures.
Squatting and the State offers a new theoretical and methodological approach to understand state responses to squatting, and other contemporary property problems. Embedded in local, national, and transnational contexts, and reaching beyond conventional property theories, it sets out a fresh analytical paradigm for understanding the deep, interlocking problems facing not only homeless squatters and absentee owners, but a wide variety of other stakeholders in these conflicts, including the state itself. It reveals fundamental changes in states’ relationships with private property law, offering insights on the changing natures of property, investment, housing, exclusion, communities, and the multi-level state, and describing the implications of these changes for how we think and talk about property in law.
Where is the first picture from?
Posted by: Al Brophy | January 31, 2025 at 10:53 AM