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 examines the origins of the police power in the American constitutional system. In the beginning, the framers of the early state constitutions were engaged in two struggles: how to create effective frameworks of government, and how to define the relationship between national and state government. The police power was one the key reserved powers the states possessed viz. the Tenth Amendment. This chapter illuminates how the state police power emerged and developed in the nineteenth century and, in particular, how it evolved from a notion of sic utere (righting specific wrongs) to salus populi (promoting the public good). It ends at the end of Reconstruction, with key cases illuminating the scope of state regulatory discretion under the police power.

Chapter 2 analyses some foundational ideas relied upon in the book. This conceptual base comprises an analysis of nature, the environment, development, and sustainable development. These concepts are discussed as a progressive movement of a complex ideation: where nature is conceptualised as the starting point, later becomes the environment, then advances to become development, and is finally transformed into sustainable development. I employ Third World Approaches to International Law (TWAIL) in my analysis of neo-imperial ideologies and allied Eurocentric philosophies and how these are embedded in the contemporary language of sustainable development. At each stage of the analysis, I highlight the significance of human agency as the defining character of the transformations that occur within this conceptual fluidity. It accounts for the persistence of the subtext of Eurocentrism and demonstrates how the interplay of law, politics, ethics, and history as sustainable development is established upon different elements of both law and non-law theories. The analysis in this chapter is refracted through ’Afrosensitivity’, which I describe as a reaction to Africa as a conceptual tool in sustainable development discourse, and as a conscious, alternative route for imprinting African legal cosmologies on this global phenomenon called sustainable development.

Chapter 2 focuses on the main source of revenue and wealth for Qajar rulers: land. It begins by explaining how the conquest of the Safavid Empire’s former territories was central to Aqa Muhammad Khan’s career, before explaining the continuities in land administration between the Qajars and earlier polities, with particular attention to the Qajar system of assigning land (tuyūl) and collecting taxes (māliyāt). The chapter then provides specific examples of how Qajar rulers handled disputes over land, and the political uses of land assignment.

Chapter 1 introduces the five moral principles that compose the social anarchist position. Specifically, it defines social anarchism as the conjunction of five theses: (1) the consent theory of legitimacy, which holds that persons are obligated to obey the laws of the state only if they have consented to do so; (2) the Lockean proviso, which holds that persons can acquire property rights over some natural resource iff they leave “enough and as good” for others; (3) the self-ownership thesis, which asserts that each person has the same rights over her body that she would have over a fully owned thing; (4) the contention that persons do not have private property rights over any external natural resources; and (5) an endorsement of luck egalitarianism as the moral principle regulating the permissible use of unowned external objects. It also adjusts these principles in various ways to render them more plausible.

A central feature of human societies is the continued reliance on individual leaders as decision-makers, particularly at the national level. In the vast majority of cases throughout human history, in major societies these leaders have been male. Even in the age of the electronics revolution, when decision-making could potentially be through mass participation, the United States has moved closer to an imperial presidency and the leaders in China and India, the most populous countries in the world, are male and have become more dictatorial. The evolution of centralized individual male leadership is discussed in this chapter as arising from the development of a surplus and the emergence of private property. These developments led to wealth concentration and group-based inequalities, with the leader being a member of the power and wealth elite. Some animal groups practice collective decision-making, but for the most part decision-making in human societies continues to rely on individual (often older) male leaders.

In the introduction we describe the “wicked” global property problem of homeless squatting on empty land or in empty properties and outline some key themes explored in the book. We reflect on the nature of squatting as a property problem; and introduce the concept of “scale,” which we deploy throughout the book to describe the dynamic nature of state responses to squatting. We outline the importance of seeing “the state” in the analyses of squatting and other property problems, through its interactions with individuals, interactions with other state-bodies, and interactions with its territory, and interactions with its own institutions. Finally, we set out the structure and approach followed in the book, including reference to five primary jurisdictions: the USA, Ireland, Spain, South Africa and England and Wales.

The resource management complications posed by “Temporal Commons”– the common pool of time shared by present and future generations when making resource management decisions – are understudied in the literature. This chapter attempts to briefly describe their nature, before detailing how the typical solutions to the tragedy of the commons – private property, government regulation, and Elinor Ostrom’s successful collective action model – fail to adequately account for temporal commons. Next, the chapter explores some factors that distinguish temporal commons from traditionally studied commons, making them subject to a potentially more inevitable form of tragedy. The chapter concludes with initial thoughts on avenues for better addressing the dilemmas created by temporal commons.

This chapter addresses the history of chinampas, agriculture, and the rise of rural estates known as haciendas. It examines the construction, cultivation, and distribution of chinampas as well as the dispersed pattern of landholdings and the complexities of land tenure. The chapter observes the conspicuous absence of Spaniards and other non-Native peoples as the owners of chinampas. The chinampas became a source of contestation within the indigenous community, though, since claims of the communal, usufruct rights to chinampas rubbed up against efforts by the nobility to shore up their holdings through private ownership. In the sixteenth century, demographic decline and the competing demands of the colonial government, anxious about provisioning Mexico City during periods of food insecurity, forced a restructuring of land tenure classifications. At the same time, Spaniards received grants to establish ranches away in the nearby hills where they and Nahuas introduced livestock. As a consequence of all this, a distinctive historical geography came into being, with chinampas and intensive, small-scale horticulture in the lakes, and extensive pastoralism in the upland areas.

Over the last century, many philosophers have argued in favour of a liberal-egalitarian accommodation of capitalism, in which the liberty of the market is to be combined with an egalitarian distribution of property. Theorists of positive freedom, amongst others, have been prominent in arguing for the liberal-egalitarian accommodation. They have argued that an egalitarian distribution of private property is necessary to give every citizen equal positive freedom. To lead an autonomous life, every citizen needs control over some private property. The liberal-egalitarian accommodation to capitalism has come under threat in the last decades, as documented by a renewed widening of inequalities in wealth and income.In this essay, I will argue that this predicament requires us to look at one important precondition of the positive freedom argument. This precondition I call the de-politization of private property. Private property is conceived of as a purely private phenomenon, which has no effects on the exercise of political power. However, whether this precondition is met is a contingent matter; and so defenders of the positive freedom argument therefore need to turn their attention to the problem posed by the relation between private property and political power.

This chapter deals again with the influence of law on philosophy, now with regard to a substantive issue. Under the influence of the Roman jurists, for whom private property was an important topic, the ‘Roman’ Stoics followed suit, and awarded private property a novel, central place in thinking about justice, a place which would have a decisive influence on modern, Western political thought.

This Chapter introduces the focus of the work. It explains that international adjudication has come under increasing criticism and backlash in recent years, and links this to long-lasting debates about the proper reach of international law and adjudication. The Chapter explains that adjudicative deference to States has been frequently identified as a possible option to respond to these concerns. The Chapter thereafter connects deference to debates about State sovereignty and autonomous decision-making authority. It introduces the structure of the book and identifies the key audiences and benefits to which it is directed, as well as how it differs from existing scholarship on deference in international adjudication.

This chapter draws together the preceding conceptual and empirical analysis of deference in international adjudication to explore how the principles discussed in the preceding pages might be used to inform approaches to deference in practice. This chapter does not develop a prescriptive approach to deference in international adjudication. It instead offers a framework to inform the analysis of deference in international adjudication. Section 10.1 addresses debates as to whether international adjudicative deference to domestic decision makers is desirable at all. Section 10.2 examines whether approaches to deference should be ‘fixed’ in favour of some doctrinal approaches over others. Section 10.3 explores how a framework for analysing deference might be created, which allows evolution and malleability in approaches to deference while securing some level of predictability and transparency in practice. Section 10.4 concludes.

This Chapter concludes the book. It notes that the book has identified the structures of deference in international adjudication and the implications of deference for adjudication under public international law. It has developed a conceptual framework for understanding deference, to demonstrate that different modes of deference disclose differing approaches to dividing authority between domestic and international decision makers. The study has also linked deference to several fundamental debates about the relationship between public international law and domestic law, and between private property rights and State interests. Pursuing these lines of analysis, the book used deference to tell a story of international law, with international private property claims providing a useful setting for this story. By analysing approaches to deference in the private property cases of adjudicators in four such regimes, the study revealed the relationship between deference, State sovereignty, and power in international adjudication. It further identified how international adjudicators use deference to manage continuity and change, and to settle conflicting claims to authority.

This book investigates how deference is structured in individual cases, and whether the treatment of deference differs by regime or over time. Adjudicative decisions thus form the focus of this study. This focus, however, necessarily entails treating adjudicative decisions as a meaningful source of data. Legal (doctrinal) and social sciences (empirical) research methods provide two competing methodologies through which such a study might be conducted. Chapter 3 introduces the theory and methodology underpinning the empirical study reported in Part II. It presents a theory of international adjudication and explains how an empirical study of adjudicative reasoning can remain ‘internal’ to the discipline of law despite borrowing methodological techniques and theories from ‘external’ disciplines. It explores the relative strengths and weaknesses of empirical and doctrinal approaches, and examines how adjudicative decisions can remain a meaningful source of legal data when analysed using an empirical methodology drawn from non-legal disciplines. It further outlines the methods used to identify deference in the private property decisions of the selected courts and tribunals.

Chapter 2 introduces the focus and approach of the study. Existing studies of deference have focussed upon specific approaches to deference adopted by particular international courts or tribunals. This book instead studies deference comparatively, to explore its systemic implications in international adjudication. The study is based upon a relatively homogenous group of cases from four international courts and tribunals. The empirical study of deference in this setting is designed to capture approaches to deference present in a subset of international cases. Property disputes were selected as the focus of this study because property has been a subject of long-term protection under international law, and property disputes are litigated in a range of international regimes. This opens up the possibility for temporal and cross institutional study. This Chapter introduces the setting for the study. It introduces private property obligations under international law, and the adjudicative regimes selected for detailed study, identifying the elements of unity and plurality that make these courts and tribunals a particularly fruitful focus for the comparative study.