This chapter studies how property rights are protected and recognized in common law. In doctrine, substantive rights are not recognized expressly but indirectly. Rights are recognized via doctrines that prohibit wrongs to rights. Common law protects rights in this manner for practical reasons. Courts are better equipped to enforce duties between rights-holders and aggressors than they are to work out the full scope of rights, and when the law prohibits wrongs to rights, it leaves to people the freedom to do whatever does not violate the prohibitions. To secure rights, however, legal duties and prohibitions are structured as seems likely to secure rights. This chapter illustrates nuisance and tort suits over train sparks. Both doctrines secure to owners and occupants rights to use land. The harm, interference, and unreasonability elements of nuisance are structured to secure use rights, and sparks doctrine rules out contributory negligence to secure the same use rights. This way of thinking about rights and wrongs goes against contemporary law and economic scholarship, and this chapter contrasts law and economic studies of rights with the approach developed in this chapter.

A rights-based theory of property relies heavily on practical reason. “Practical reason” is the domain in which people apply fundamental principles of moral reasoning to practice. This chapter contrasts practical reason with theoretical reason. It introduces specification (reasoning from broad moral rights to specific entitlements between right- and duty-holders), determination (the implementation of moral directives in law and other social conventions), and reasoning with core cases. This chapter’s argument dispels the “copy view” of morality, in which theories of morality must recommend in practice rules and institutions that follow closely from what they recommend in principle. This chapter also shows how practical reason considers the consequences of different proposed rights and policies, without becoming consequentialist or prioritizing social welfare over individual rights. This chapter shows how practical reason applies with speed limits and customary rights in snow-covered parking spaces.

In law and scholarship, natural rights are associated more often with libertarian theories than theories of natural law. This chapter contrasts the two models of natural rights. Natural law-based natural rights rely on the interest theory of rights, not will theories. In natural law theories, autonomy is subordinate to rational flourishing and not a good on its own. Natural law theories make relevant the consequences on people of structuring rights in different ways. And in natural law theories political communities may accord broader rights to their members than to outsiders. The chapter illustrates the jus abutendi or right to destroy, the trespass case State v. Shack, doctrines about the acquisition of captured wild animals and whales, and the Native American property case Johnson v. M’Intosh.

This chapter shows how the police power is justified and limited when it is structured consistent with natural rights. The power to regulate is the power to “make rights regular,” that is, to establish positive law rules that give citizens in practice freedom corresponding fairly to the freedom to which they’re entitled by natural law. Regulations can rely on any of three basic models. Some regulations make rights determinate. Some regulations prevent harm; they institute in public law prohibitions against violating rights, and they supply remedies for violations of the prohibitions. Some regulations secure average reciprocities of advantage. Those regulations reorder positive law rights when doing so seems likely in practice to serve rights-holders’ interests in using their possessions better than existing rights would. Laws that satisfy none of these three models may still be just laws – but they do not constitute just regulations and they need to be justified consistent with some other model of government action. This chapter responds to skeptical critiques of the police power influential in modern US Supreme Court case law and scholarship.

This chapter explores the principal constitutional challenges to laws that regulate unhoused persons and public property. Municipal ordinances have been challenged on the grounds that they are unconstitutionally vague or overbroad, impose cruel and unusual punishments, violate the right to travel, or infringe the right to equality. This chapter discusses the successes and shortfalls of these challenges. Its concluding parts discuss how U.S. and Canadian courts have rejected a positive right to housing.

This chapter provides an overview of homelessness in the United States and Canada. It discusses the risk factors associated with homelessness. It explains how vagrancy laws historically regulated unhoused persons. These laws were struck down following the rise of the void for vagueness doctrine. This chapter discusses how local governments enacted narrowly tailored municipal ordinances that governed unhoused persons and public property, which withstood void for vagueness challenges.

This chapter explains why the State has greater power to regulate and police unhoused persons compared to people with access to housing. It shows how and why the State has more power to regulate need-alleviating conduct that occurs on public property than on private property. It demonstrates how laws that govern public property operate like legal rules that impose affirmative duties to act on unhoused persons. Yet others control whether unhoused persons can fulfil this affirmative duty, and unhoused persons must make non-egalitarian trade-offs to fulful their positive obligations.

This chapter explores the relationship between homelessness and two prominent conceptions of liberty: positive liberty as self-actualization and negative liberty as non-interference. It sets out how scholars have approached the relationship between homelessness, property, and both forms of liberty. It demonstrates how unhoused persons tend to lack positive and negative liberty.

This chapter provides an overview of this book’s core arguments and structure.

This final chapter demonstrates how the State can fulfil its three fiduciary duties to end homelessness, maintain public property’s shared value, and legitimize laws that govern public space. This chapter unpacks each of these duties and explains their substantive content. Drawing on existing research, this chapter provides concrete proposals for how the State can respect each of its three fiduciary obligations related to homelessness and public property.

This book advances a theory of the State’s fiduciary duties to end homelessness, maintain public property’s shared value, and legitimize laws that govern public space. It argues that republicanism provides new insight into homelessness and the regulation of public property – insights that existing constitutional theory and legal philosophy typically overlook. This book’s overarching argument, original contributions, and advantages can be described as follows.

This chapter discusses the State’s three fiduciary duties related to homelessness and public property. Its opening parts describe why the State and individuals are in a fiduciary relationship and why the State has an overarching fiduciary duty to counteract domination. It then discusses other fiduciary relationships that arise in public law contexts. It then explains how the State has three fiduciary duties, all of which seek to minimize domination. More specifically, the State has fiduciary duties to: (1) end homelessness and secure access to housing, (2) maintain public property’s shared value, and (3) legitimize laws that regulate public space. It elucidates the relationship between these three duties.