Abstract
This is a reply to “What Makes a Home” by Kimberley Brownlee and David Jenkins. In it, I defend my own account of homelessness, which I call the ‘legal conception’ against their criticism and try to illustrate the differences between my view and theirs, which I call the ‘social conception.’
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Notes
Kimberley Brownlee & David Jenkins, ‘What a Home Does’ Law & Philosophy (this issue).
In Christopher Essert, ‘Property and Homelessness’ 44 Philosophy & Public Affairs 266 (2016).
It seems that something like 500,000 people in the US and 35,000 people in Canada are sleeping either on the street or in an emergency shelter on any given night, and something like 3 million in the US and 235,000 in Canada experienced at least one night like that in 2017 (the last year for which these numbers are available). Those experiencing hidden homelessness are, unsurprisingly, harder to count, but a conservative estimate seems to be that about three people experience hidden homelessness for every person experience its more visible forms.
For the language of ‘say-so’ see Avihay Dorfman, ‘Private Ownership and the Standing to Say So’ 64 University of Toronto Law Journal 402 (2014). Let me flag here also that my claim is that homelessness is a matter of property rights in the space, so that someone with a lease counts as not homeless. But to save words and avoid awkward constructions below, I’ll use ‘owner’ as a rough stand-in for ‘holder of a property right.’ On the precise question about owning vs renting in the context of homelessness, see Essert, ‘Property and Homelessness’ at 285-88.
For a longer defense of the claims in this paragraph see Essert, ‘Property and Homelessness’ at 271-76.
Jeremy Waldron’s important treatment of homelessness (in Jeremy Waldron, ‘Homelessness and the Issue of Freedom’ 38 UCLA Law Review 295 (1991)) makes a broader claim: that, since “everything that is to be done needs to be done somewhere,” the homeless have nowhere that they are entitled to do, well, anything. There is a sense in which Waldron is right and a sense in which he is wrong, and going into the details and the interaction between private and public space would take us too far off track for present purposes. So we can stick with the narrower claim about activities that take place in private space, or, as I’ll come to say, in homes.
Brownlee & Jenkins, ‘What a Home Does.’
Brownlee & Jenkins, ‘What a Home Does.’
Again, it is important to emphasize that the formality of the category of house-into-home things means that we could run the same argument using any other particular instance of the general category instead of the dinner party. There is nothing (philosophically) special about a dinner party.
I’m assuming that genuine property rights must be legal rights, which is why the legal conception is called ‘the legal conception.’ I don’t have the space to defend that assumption here, but given what I say about property rights and what they do for us below, it should be simple enough to see how such a defense would go.
I guess I am not totally sure of the grammar of the word ‘constituted’: on some views constitution or grounding is somehow parallel to cause, and we often say that X is caused by Y even when it is also caused by Z, and we don’t often say that X is ‘partly caused’ by Y. So on that parallel I should maybe have said earlier that house-to-home activities are constituted (rather than ‘partly constituted’) by property rights.
Brownlee & Jenkins, ‘What a Home Does.’
The actual text reads “engages in these activities”: I made the substitution to clarify that I am talking about one particular activity, but the general idea is the same.
Brownlee & Jenkins, ‘What a Home Does.’
Sometimes English speakers use the Spanish expression mi casa es su casa to convey a similar sentiment. And the same point applies: the meaning of mi casa es su casa is precisely not that my house is actually your house.
It might help to notice that we would not normally say that I hosted a dinner party for my friends if I invited them out to a restaurant where I had made the reservation, even if I paid for the whole thing.
I think in the remainder of this section I am engaging in a bit of what Plunkett and Burgess dub ‘conceptual ethics’: see Alexis Burgess and David Plunkett, ‘Conceptual Ethics (II)’ 8 Philosophy Compass 1102 (2013).
Obviously these kinds of examples can be multiplied. A parallel phenomenon that is close to our present topic is the difference between activities that take place on private space and activities that take place on public space. For the same reason—the role of the legal situation and the question of who gets to decide what is a permissible use of the space in question—a picnic (for example) that happens in public space is, from one point of view (the legal point of view), a fundamentally different thing than a picnic that happens in private space, although there is a familiar sense in which they are both just picnics. A failure to see the importance of the legal point of view, I think, explains a certain instrumentalism about public space and (therefore) its privatization, in that if one misses the legal difference between these two activities, then the question of whether or not they happen in private or public space seems like simply a matter of efficiency. For an illustration of this dynamic see, e.g., Richard Epstein, ‘On the Optimal Mix of Private and Common Property’ 11 Social Philosophy and Policy 17 (1994). I’m grateful to David Plunkett and Matthew Noah Smith for a helpful discussion of these issues.
If you wanted to blow this claim up into a much more elaborate and fancy sounding story, you could invoke Robert Cover and say that dinner parties take place “in a field of pain and death” since (as I am arguing) they are ultimately legally regulated and so the decision of the property owner can, if required, be backed up by the coercive force of the state. The parallel to Cover’s thought is that the force of the state in the dinner party case is (very, very) far in the background, but the possibility of its being applied in an extreme case must be understood to shape everything that happens on someone’s private property. Robert Cover, ‘Violence and the Word’ 95 Yale Law Journal 1601 (1986).
One point of the argument of ‘Property and Homelessness,’ as I understood it, was that property is constitutive of an enormous range of unsubordinated activities and relations and that seeing that is the key to its justification.
Brownlee & Jenkins, ‘What a Home Does.’
At one point, Brownlee and Jenkins argue against the legal conception by suggesting that it doesn’t fully vindicate the fact that house-into-home activities and relations are “paradigmatically social.” Id. I think that, in fact, they underestimate the force of their point and that, properly understood, it counts against their view and in favour of mine. Everything that happens in a home depends on rights against others, and so everything that happens in a home is social in that sense. Sleeping is a social relation, since the kind of sleeping that we care about as a matter of legal and political philosophy is unsubordinated sleeping. See Ellen Barry, ‘Desperate for Slumber in Delhi, Homeless Encounter a “Sleep Mafia”’ New York Times, 19 January 2016, page A6.
Another part of the picture here is the way that one aspect of the value of a home is the solitude or protection from the gaze of others that we can secure with our property rights in the space. Adam cannot access this, as everything he does at his friends’ home will be in an important sense under their gaze. For a discussion of the law of nuisance and the home as a protection from the gaze of others that fits in well with the arguments here see Emma Lees, ‘Fearn v Tate Galleries: Privacy and the Law of Nuisance’ 23 Environmental Law Review 49 (2021).
Another version of the same point applies to some recent work on ‘Indigenous Homelessness,’ which is an idea according to which Indigenous people should be considered homeless because of the way in which colonial practices dispossessed entire groups of their land and their special connections to it. On this view, a huge number of the Indigenous peoples of Canada could be considered homeless, including those who live in and own homes. So we can say the same thing: there is one sense in which this is a case of homelessness and one sense in which it is not. When it comes to policy discussions about homelessness (involving things like state provision of housing, say), it seems like the relevant sense of homelessness is the legal conception’s sense. But in other contexts, including other policy contexts (perhaps those involving reconciliation for the wrongs of colonialism), the Indigenous sense might be more apt.
For discussion of some of the issues in the friendship case see Kimberly Brownlee, ‘The Lonely Heart Breaks: On the Right to be a Social Contributor’ 90 Proceedings of the Aristotelian Society Supplementary Volume 27 (2016) and Laura Valentini, ‘What’s Wrong with Being Lonely? Justice, Beneficence, and Meaningful Relationships’ 90 Proceedings of the Aristotelian Society Supplementary Volume 46 (2016).
Jane B. Baron, ‘Homelessness as a Property Problem’ 36 Urban Lawyer 273 (2004).
On a related note: some readers have pressed me to acknowledge what seems to be one insight of the social conception, that there is some sense in which Adam is, on the whole, not as badly off as someone who is homeless on the street or who sleeps in a homeless shelter. And surely this is true, these more extreme forms of homelessness are associated with a wide variety of deplorable forms of deprivation (relating to addiction, mental health, hunger, exposure to communicable disease, and so on). But those people are not more homeless than Adam, and the ways in which their lives are worse can be understood entirely in non-homelessness terms.
So I have in mind Kantian views, certain kinds of relational egalitarian views, some kinds of Republican views, and the view defended by Niko Kolodny in his forthcoming book. There are of course lots of important differences among these views but they share, I take it, the basic thought that relationship can be of political-moral concern where one party to it is in some sense under or inferior to or subordinated or dominated by or dependent on the other.
John Gardner, From Personal Life to Private Law 49 (OUP 2018).
John Gardner, ‘Tort Law and Its Theory’ in John Tasioulas ed, The Cambridge Companion to the Philosophy of Law (2020) 352 at 364.
I try to defend such a view in ‘The Value of the Neighbour Relation’ in Sandy Steel and Haris Psarras, eds, Private Law and Practical Reason: Essays on John Gardner’s Private Law Theory (OUP 2022).
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This study was supported by Social Sciences and Humanities Research Council of Canada.
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*For comments on an earlier version I’m grateful to Hanoch Dagan and Avihay Dorfman, as well as the participants in the Private Law Theory Workshop at Tel Aviv University.
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Essert, C. What Makes a Home: A Reply. Law and Philos 41, 469–489 (2022). https://doi.org/10.1007/s10982-021-09438-2
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DOI: https://doi.org/10.1007/s10982-021-09438-2