One of the themes we explore in Squatting and the State is the evolution of different paradigms in property scholarship over time. We were interested to understand how different ways of thinking and talking about property had evolved over time – and how these continue to evolve in changing social, political, economic, cultural and environmental contexts. In Chapter Three we traced the relationships between the liberal-neoliberal paradigm, the commitments and methods of property theories, and the changing nature of liberal-late liberal states. An important theme in this part of our work is the way that choices of method, legal or theoretical toolkits, or preferred policy responses establish the ‘frames’ through which property problems are seen, both by citizens and by states; and produce boundaries around the range of potential responses. These methodological and normative frames also shape legal frameworks: the selection and interpretation of ‘relevant’ facts; definitions of parties or stakeholders; the development of legal doctrine and the drafting and interpretation of legislation.
The political, economic, social, cultural and legal frames applied to shape discourses for articulating—and therefore understanding—the phenomenon of homeless squatting on empty land produce path dependencies that determine how the problem is understood and addressed, shaping normative discourses and influencing state responses. Interpretive frames determine the identities and assumed characteristics assigned to the cast of characters (homeless squatters, absentee owners, investors or neighbours), while normative frames filter the lens for evaluating the actions of parties and identifying immanent legal or policy solutions. For example, within the liberal legal frame, the role of the state as a stakeholder in the property system is ‘framed out’ from the public realm of political and legal debate—notwithstanding the centrality of the institution of private property for liberalism—with property law, and the theories that explain or justify it, located in the private realm of transactional or interpersonal relations. One of the reasons we were interested in a comparative case study of state responses to squatting is that, since 9/11, several jurisdictions have flipped their responses to squatting from the private realm of adverse possession/acquisitive prescription and actions for recovery of land to the public realm of criminalisation. This signals a paradigm shift in the relationships between citizens, private property and the state that merits our attention.
Our study looked at five jurisdictions: England, Ireland, Spain, South Africa and the US; across a long span of time, to examine the origins of property paradigms (often in constitutional moments), and moments of transition, when property-citizen-state relations changed. We were interested in what triggered these tipping points—when established dialectics of property were challenged or contested, and nation-state narratives and norms adapted to achieve and maintain normative equilibrium in changing contexts; or new paradigms emerged. In this respect, RPT emerged as a ‘change theory’ focused on understanding change in property law systems. (In adopting this terminology, we distinguish our focus on empirically and theoretically grounded accounts of how change happens from ‘theories of change’ that seek to promote or advance specific normative outcomes. Explanatory change theories can inform normative theories of change, while not being tied to a specific normative prescription.) Our approach responded to the framing effects that we observed—and the way this limited our capacity to manage complexity in contemporary property conflicts—by casting our net wide, resisting ab initio normative lenses and deliberately remaining epistemologically open through our exploration of legal and political responses to squatting in different jurisdictional contexts, over time.
While our analysis revealed the deep roots of property-citizen-state relations in the emergence of property in each nation state (the national ‘property nomos’), and the stories that have been told about this, we also observed transnational trends that tracked historically across the changing nature of the state and its role in property and housing systems; and changing paradigms of legal, and property, scholarship. In Chapter Four, we used scale theory to unpack how the changing roles of states and markets in housing provision over the longer run produced new paradigms of property-citizen-state relations: the scaling back of the state in property paradigms, the scaling up of housing to global finance markets, and the scaling down of material needs to individual and households and to (newly entrepreneurial) cities. This wider lens enabled us to look beyond liberal property theories, which often look to the state to make demands (for action, or restraint), and instead to embed the problem in the real dynamics of the contemporary, globalised, multi-level state actors and institutions, which not only align with competing stakeholder claims (owners, neighbours, markets, communities) but act to shore up their own resilience needs.
These changing paradigms are also reflected in changing modes and methodologies in property scholarship, from the classical or formalist approach of nineteenth-century doctrinalism to twentieth century utilitarianism, law-and-economics and responses to this through ‘progressive property’. In the 19th century—when many of our discipline’s founding textbooks were written—the political thrust of liberal legal thought was rooted in individualism, strong internal structural coherence, the distinction between public law and private law and legal interpretive formalism. This mode of thinking was well suited to simplifying problems to strengthen the legal protection of ownership with the active role of the state (through legislation) focused on promoting the institution of private property, with little or no direct responsibility for housing. This political landscape shifted—not only in the US but in the other jurisdictions we analysed—in the twentieth century, when the demands of urban growth for economic productivity and the experience of world wars gave rise to fresh challenges that upscaled demands for adequate housing for workforces. The new paradigm of state responsibility for housing, which coincided with the post-war consensus period and the legal realism movement, saw housing systems transformed by legislation to tackle inadequate housing provision. A third paradigm shift coincided with the collapse of post-war consensus: the deregulation of markets, the privatisation of formerly public services and retrenchment of public welfare and the legal project of neo-formalism. This third paradigm has been underpinned by the political philosophy of neo-Kantianism, the economic philosophy of utilitarianism and the legal methods of law-and-economics; and challenged by the emergence of the school of progressive property.
Across all of these paradigms, we identify some common features:
(1) The construction of binary frames, that simplify debates in terms that reflect underlying political commitments, often along a left-right spectrum;
(2) Reliance on moral philosophies, metaphysics and the imagined consensus of a single legal community as the source for ‘truth claims’ about the nature of property;
(3) The centrality of the institution of private property, located in the private realm, embodied in the market and concerned, primarily, with interpersonal transactional law;
(4) Unidirectional accounts of the nature and effect of state action or restraint on individuals and communities, over the interactional effects of property problems on a wide range of stakeholders: individuals and institutions (economic, social, political), including the state itself.
The most pressing property problems we are confronted with today require structuring methods capable of broadening binary frames and grappling with complexity. In future blogs, we will describe how Resilient Property Theory offers an approach and methodology for responding to this complexity.
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