by John Lovett, De Van D. Daggett, Jr. Distinguished Professor of Law, Loyola University
Many private law scholars, and I am no exception, take pride, or at least comfort, in their adherence to the traditional boundaries of private law scholarship. We interpret traditional legal texts—judicial decisions, civil codes, statutes, uniform laws, reports of distinguished law reform commissions. We often work within our own jurisdictions though we sometimes stage careful comparative excursions that contrast different countries’ solutions to a distinct private law problem. We generally discount politics, though we sometimes acknowledge that deep philosophical commitments can shape legal doctrine.
Could this approach be too limiting? Lorna Fox O’Mahony and Marc L. Roark’s stunning new book, Squatting and the State: Resilient Property in an Age of Crisis (Cambridge University Press 2022) suggests that it may be. “When property law scholarship is bounded,” they write, “either by narrowing its window to the state-jurisdictional level; by focusing on a limited range of legal sources (primarily litigation); or by starting from prior political or philosophical commitments (for example, to “progressive” state action or state forbearance/restraint from action); the perspectives it generates will be similarly bounded.” (377)
O’Mahony and Roark attempt to break through these traditional private law boundaries and simultaneously offer a new theory for understanding change in property law systems. That theory, which they call Resilient Property Theory (RPT), is designed to tackle “wicked problems,” problems that consistently resist solution within a single normative framework. The wicked problem they confront is squatting on vacant land or in empty buildings by people who lack adequate housing.
O’Mahony and Fox’s theory begins with a claim shared made by many scholars who work in private law: all individuals are inherently vulnerable and need help from others to survive and flourish. Following Martha Fineman, in particular, O’Mahony and Roark contend that individuals only overcome their vulnerability when they can draw upon other resources—social, emotional, physical, and financial resources—to build resilience. These exogenous resources can be supplied by other individuals (friends and family), groups or networks, formal and informal communities and, of course, the state. The timing of this resource accumulation can vary, too. Some resources build up gradually over time, like alluvion deposited on the bank of a fast-moving river. Other resources appear suddenly, more like an avulsion, in response to a storm or a flood.
O’Mahony and Roark observe that an institution can experience vulnerability just like an individual. Where O’Mahony and Roark depart from other vulnerability theorists is in their claim that a state itself can experience vulnerability. O’Mahony and Roark thus demand that private law scholars must pay attention to how the state responds to its own vulnerability in moments of crisis when its own legitimacy is called into question and the legal order risks tipping into a dangerous condition of disequilibrium. O’Mahony and Roark contend that a state will typically respond to one of these existential threats by helping its citizens and its subsidiary institutions shore up their resilience (when it acts in an “other-regarding” way) or by taking measures to shore up its own resilience (when it acts in a “self-regarding” way).
Using this theoretical framework, O’Mahony and Roark examine how five legal systems—Ireland, England, the United States, Spain, and South Africa—have responded to property law tipping points occasioned by severe housing shortages or broader economic and financial dislocation. More broadly, they inquire how each of these systems has responded when the constitutional or epistemic framework of property law itself is up for grabs.
O’Mahony and Roark tell each country’s story in remarkably lucid accounts that draw on the work of traditional private law scholars as well as social scientists, historians, and socio-legal scholars. They constantly weave analysis of traditional private law subjects—adverse possession, acquisitive prescription, and title registration, to name a few—with insights from scholars working in these other fields.
In each national account, O’Mahony and Roark show how the property law “nomos” for that jurisdiction has evolved. By “nomos,” they refer, to Rover Cover’s idea that legal texts like statutes, regulations, and legal decisions exist in a particular social and normative context that embeds various ideological and interpretative commitments. These commitments build a “normative universe” that determines the outer boundaries and possibilities for understanding what the law means and how the law might change.
A question that naturally preoccupies O’Mahony and Roark is how our conception of the home has changed over time. In many of the systems they examine, a use-based conception of home, focused on land and buildings’ capacity to provide shelter and a locus for family and communal interaction, has given way to a dematerialized, financialized understanding. Today a home is no longer merely a place to live or even an inter-generational store of wealth, O’Mahony and Roark claim, but is now a disembodied asset that not only underwrites capital appreciation but also secures transnational investment flows, income stream capture, and risk-hedging.
Other key themes include how market and state actors respond to wicked problems by either “scaling up” or “scaling down” their allocation of resources and how legal systems frame the identity of individuals searching for space to live and housing. In Ireland and England, but also Spain and the U.S., states have shifted away from using private law doctrines like adverse possession and acquisitive prescription to sort out the competing claims of squatter/possessors and absentee owners and have increasingly criminalized squatting. This shift, O’Mahony and Roark argue, effectively “upscales” a squatting dispute, making it a matter of national significance, often revealing the state’s own vulnerability to complaints by absentee owners and other aggregated interests. At the same time, this move also repositions squatters and possessors as people with some legitimate claim within a social-legal order (as U.S. law did during the nineteenth century when the American “frontier” was being occupied by homesteading settlers) to threatening “outsiders.”
States can respond to surges in homeless squatting by “dialing up” resources and framing squatters in other ways. O’Mahony and Roark vividly recount how New York City responded to persistent squatter protests in the late 1980s and early 1990s by creating housing cooperatives in vacant buildings in New York’s Lower East Side. They also point to South Africa’s constitutionalized judicial process for balancing a right to property against other equally important constitutional values such as the right to a home and demands of social transformation.
In the end, O’Mahony and Roark do not offer a solution to the wicked problem of homeless squatting. After all, they explain, RPT is not a theory “for state action”. Instead, it is a theory “of state action.” Drawing on social and design theorists like John Law and Horst Rittel, O’Mahony and Roark resist linear, binary research methodologies that focus on gathering and analyzing data and formulating and implementing solutions.
They prefer to follow Rittel’s recommendation to search for “the total problem space,” to identify the “hinterland” of a social or legal problem, and to employ an iterative or “inference-based” model that constantly cycles between “analysis and synthesis.” Rather than articulate and defend one legal or policy solution to the problem of homeless squatting, O’Mahony and Roark, following Law and Rittel, strive to “remain in the mess” and “stay with the trouble.”
Of course, not everyone will agree that Squatting and the State provides a satisfactory method for responding to wicked property problems. But most of its likely readers will find it difficult to deny that O’Mahony and Roark have charted one of the most ambitious and original new paths forward in contemporary property law scholarship.
