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What Is the Relationship Between Homelessness and the Law?


Christopher Essert is Associate Professor of Law at the University of Toronto and author of Property Law in the Society of Equals.

Next month, in City of Grants Pass v. Johnson, the Supreme Court will consider whether it is constitutional for cities to punish unsheltered people for camping on public property, even when the city fails to provide adequate shelter. As Sara Rankin discussed in her post last week, the Court’s decision will have important implications for those experiencing homelessness, as well as for how cities address the problem of homelessness. In this post, I want to step back from the specifics of the case to reflect on a pair of broader questions that it presupposes: What, exactly, is the problem of homelessness? And what is the relationship between this problem and the law?

Homelessness and Domination

In his famous discussion of homelessness, Jeremey Waldron identifies a connection between homelessness and freedom. As Waldron says, “everything that is done has to be done somewhere.” For the unsheltered homeless, who have nowhere to go but public spaces like streets and parks, a prohibition on doing something in public space is tantamount to a prohibition on doing that thing at all. And this means that when it comes to the sorts of basic bodily functions that we all need to do sometimes—sleeping, urinating, etc.: the things we literally cannot help doing—prohibitions like those at issue in Johnson come very close to prohibitions on simply being.

As I’ve argued before, however, upon further inspection, things are more complicated. Notice, first, that in many cases, a prohibition on performing an action in public will not really make it impossible to perform the action. It might be true, for any given homeless person, that they can successfully find a place to sleep on a given night, either because nobody notices them sleeping or because someone lets them sleep. Maybe they find some free space in an empty privately owned lot, maybe a spot in a shelter, maybe a friend or relative’s couch. The problem is that in any of these spaces, it will be up to someone else whether or not they are permitted to sleep. That is, there is always someone else who is legally entitled, on the basis of their property rights, to tell the homeless person that they can’t sleep there, or that their sleeping there is conditional upon something or other. And even when permission is granted, the very fact that it was necessary is something we should be concerned about.

This situation is especially troubling because the problem is much wider than Waldron’s own discussion suggests. Being homeless is not just about sleeping and other basic bodily functions. As Waldron said, everything that is done needs to be done somewhere: what’s true for sleeping is true for hosting a family gathering or a child’s birthday party, for practicing private religious rituals or engaging in intimate acts, for doing yoga or watching television. Engaging in activities like these and all the others that make our homes the places that they are requires having control over space, and someone who is homeless, without any space of their own, lacks such control. What it is to be homeless, in other words, is to lack a space where it’s up to you what happens, where you are the one whose legal rights determine what others can do. This is why many definitions of homelessness, like the Social Security Administration’s, include not just the unsheltered, but also those who stay in emergency shelters, and, crucially, the hidden homeless, who stay “doubled up” with friends or family. In all of those cases, someone is homeless because everything that they do must happen in a place where someone else decides what they may do and how they may do it.

This lets us see homelessness as an important instance of what philosophers call domination or subordination: to be homeless is to be under the power of others with respect to whether and under what conditions you can do any of the things that you might want to do in a home. Being subordinated to the power of another is bad in itself—indeed, some people think that avoiding it is one of the basic justifications for a liberal democratic political system. At the same time, it is bad because of the ways in which others might take advantage of their power. For instance, those who have experienced hidden homelessness consistently report that their hosts exploit this power, with an offer of shelter conditioned upon willingness to provide things like childcare, cleaning, or sexual services.

When you think about homelessness in this way, it is easy to see why advocacy organizations tell us that, as important as it is for the plaintiffs in Johnson to prevail, their victory would be a bare minimum first step: a right to sleep in the park is not remotely an adequate solution to the problem of homelessness, since even someone who cannot be ejected from the park remains homeless, and thus subject to the power of others in so many other important aspects of life in our society.

Homelessness and Property

What, then, does this conception of homelessness tell us about what is to be done? To answer that question, we need to look a little bit closer at the idea that homelessness is an instance of domination or subordination. Often, when philosophers think about those ideas, they imagine cases in which one specific person has determinate institutionally protected power over another specific person, like a master over a slave or a brahmin over a dalit. The situation with the homeless is somewhat different. There is a sense in which any particular homeless person is under the power of any particular person who owns property: it is up to that owner whether or not the homeless person will be able to stay the night. But that is not because of homelessness. It is just because of the rules of property. What any of us, homeless or not, can do on another owner’s property is up to that owner. But while one owner excluded by another can just return to their own home, the homeless are always under the power of others because they are always subject to the property rights of others.

Moreover, it is plausible to think here that no particular property owner is the one dominating the homeless, since each property owner can plausibly say that it is not just their rights that put the homeless into their subordinated position. And actually, I think that is the right way to look at things: it is not that the homeless are subordinated by the individual acts of individual owners. Rather, it is, as we might say, the system that generates the subordination: it is the accumulated effects of the actions of all of the owners in the system of property that give rise to the problem of homelessness.

In a way, this is the legal version of the increasingly well-accepted idea that homelessness is a housing problem: our system of property, as important as it is, is creating homelessness, and so our system of property is what needs to solve it. I don’t have the space here to defend this line of thinking in full: in fact I wrote a book doing that. But the basic argument arises pretty naturally out of the points I made so far. Whereas to be homeless is to lack control over a space of one’s own, to have property is to be in precisely the opposite condition: when you own (or lease) space, it is up to you (as a matter of law) how others may act in that space. Without property, we would have no rightful way to decide whose decisions about what happens where would prevail: we would live in a world of might, rather than right, when it came to all the things we do in our homes and other private spaces. We would not want to live in that world, because it would be a world rife with domination and subordination. (Nor would we want to live in a world constituted entirely by public space—as important as public space is to a liberal democracy, it is not sufficient to eliminate all the relevant instances of subordination, especially those involving many of the kinds of things we do at home.) A system of property solves this problem and allows us to relate to each other rightfully, as equals, on the basis of the rights it creates and protects through trespass, nuisance, and the like.

As the discussion so far has indicated, if left to its own devices, a system of property can generate structural problems like homelessness. There could be no homelessness without the system of property protecting the rights of owners. And homelessness is a form of subordination. So our system of property, which we need to solve a problem about subordination and domination, turns out to create a new problem of subordination and domination. But we can’t solve this new problem by eliminating property altogether, since that would bring the first problem back. Instead, we need to strive to make the system we have better, strive to ensure that it reaches toward its own ideals. The upshot of the argument is that the state’s creation and maintenance of the system of private property imposes upon the state an obligation to ensure that all of its subjects have homes of their own.

In other words, if you believe in private property, you also believe that homelessness is a problem that the state needs to solve.