Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises

by Marc Roark and Lorna Fox O’Mahony

Abstract
“Political and property crises open up vital new questions for property theorists, and analyses of state responses to these crises cast new light on how property systems, and property law, adapt and evolve to meet complex challenges—while remaining institutionally resilient themselves. The novel coronavirus pandemic was an extreme, exceptional, unexpected, significant ‘shock’ event, with financial, economic, social, cultural and political impacts on a scale not experienced since at least the 1930s. The threat the pandemic posed to human life demanded immediate action in response to an unexpected and unpredictable and urgent threat, delivered under intense public scrutiny. The challenges were ‘wicked’: governments were compelled to act, in conditions of uncertainty and in response to a complex set of high stakes problems, with imperfect information about the impacts of policy choices or the likely endpoint of the pandemic.
In acting swiftly to protect their populations, governments adopted radical strategies to shore up housing and home, to tackle street homelessness, and to protect tenants and mortgagors from the threat of eviction. Perhaps most notably, pandemic policies to protect housing intervened with ‘private property’ law in ways that were unimaginable before Spring 2020. In this article, we examine the range of ways that governments adapted their approaches to property, housing and homelessness during the pandemic. We analyze the adaptation of property rules in the pandemic using the new theoretical and methodological framework of ‘Resilient Property’. We consider the implications of the actions to adjust the laws and policies that govern property, housing, eviction and homelessness, and reflect on the legacies of these actions for property theories and property law.”
I. Property and the Pandemic
Our analysis draws examples from five jurisdictions: the U.S., the U.K., Ireland, Spain and South Africa. Seeking out a middle-ground—between abstract meta-theories or politically polarized binaries, and on-the-ground doctrinalism—Resilient Property is rooted in contextualized, historicized accounts of state action with respect to private property. It focuses on the systems that create property outcomes, seeking to build a realistic understanding of how these are adjusted: through tactics, strategies, advocacy, but also through events and externalities. Our approach aims to develop new insights to how property works, as well as what works, when states respond to property problems.
Eschewing the ab initio philosophical commitments that characterize much liberal property theory, it is focused on developing a new mode of thinking about property, and the methodological and analytical tools to enable this. To this end, our approach echoes neo-pragmatism, in seeking first to understand state responses to property problems in a complex, multi-scalar governance framework. Wood and Smith explained that:

“…one of the central features of pragmatism is that it is a way of thinking that is grounded in anti-foundationalism. Ideas are not transcendent, fixed truths, rather they are outcomes of embodied experiences and instrumental actions that are dynamic, contingent and continually evolving. Decades before the first post-structuralist utterances, the early pragmatists were turning away from metanarratives, objective truths, and unifying theories, preferring instead to develop modes of thinking, which they believed had greater utility for helping people to cope with the messiness of everyday life.”
Resilient Property offers techniques for engaging with—while not eliding or transcending—the ‘messiness’ of property problems, echoing this pragmatic concern for dynamic, contingent and continually evolving modes of thought. Finally, our analysis of state-level and city-level responses to squatting also resonates with the concept of ‘pragmatic localism’—the proposition that ‘high-scale’ ideology (given effect through national policy) can be mediated to deliver ‘what works’ to solve policy problems at the local level; indeed, “not just ‘what works, but what works here’.”
‘Resilient Property’ offers a fresh lens through which to understand the nature and effects of state action with respect to private property in periods of crisis and pressure. In what has become an ‘age of crises’, the coronavirus pandemic exemplifies a compound health/economic/property crisis. Each state’s response can be understood relative to other nation states, as well as in relation to its own background commitments—the pre-pandemic property nomos or ‘normative universe’ of legal texts, decisions, norms and narratives that frames state responses to property challenges in each jurisdiction. We review state responses to eviction, housing and homelessness during the pandemic, reflect on the extraordinary steps that states have taken to shore up occupation—enabling people to ‘shelter in place’—and evaluate the impact of the pandemic through a Resilient Property lens.”

Roark, Marc and Fox O’Mahony, Lorna (2021) ‘Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises.’ Louisiana Law Review, 82. ISSN 0024-6859 (In Press). Available at http://repository.essex.ac.uk/31747/.

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