Homelessness as a Property Problem
Urban Lawyer, Vol. 36, pp. 273-88, Spring 2004
16 Pages Posted: 28 Jul 2004
This essay introduces the idea of "no property" and develops this concept in the context of homelessness. Homelessness has to this point in time largely been treated as a problem of poverty. Having formulated the issue in this way, legal and social analysts have asked a limited, almost formulaic set of questions concerning the depth, scope, and the cause of the problem (e.g., is homelessness a product of individual weakness or of structural forces beyond any individual's control?) These questions, it turns out, are both extremely difficult to answer and, more disturbingly, not terribly helpful. Even the strongest case that homelessness is "caused" by institutional forces and not personal failure seems unlikely to lead either local or national government to commit the resources necessary to "solve" the underlying problem if that problem is, say, a failure of the housing market to produce affordable rental units or a failure of the job market to produce entry level jobs that pay decently.
This essay argues that homelessness can be understood another way, as a problem not of poverty but of property - or, more accurately, a problem of "no property." "No property" is, I suggest, a distinct and insufficiently understood legal category. Just as property is not one right or attribute but many - a complex "bundle of sticks," to use some old terminology - "no property" is also a complicated accretion of legal relations (or the lack thereof). As non-owners in a world of owners, the homeless have a multitude of duties to respect the rights of others, and liabilities to the powers of others, without themselves having property that would give rise to duties and liabilities on the part of others toward them. The homeless are thus seriously vulnerable to the effects of owners' actions (and inactions).
It is with these iterative no rights, disabilities, and vulnerabilities that effective public policy must deal. In a world of "no property," to take just one example, an anti-camping ordinance will be flat out ineffective to stop public sleeping if homeless people have no rights to be in private spaces. Effective interventions, either to regulate unwanted behaviors or to improve the conditions under which the homeless live, must take account of the legal disabilities affecting the options open to those who are homeless. For this reason, this essay argues, we should try harder to understand "no property" as a legal category.
Keywords: Homelessness, property
JEL Classification: I31, I38, K11
Suggested Citation: Suggested Citation