The following is a summary of Marc L. Roark's upcoming article in the Missouri Law Review, entitled Homelessness at the Cathedral. This article discusses the implications of legal restraints pertaining to the use of both public and private property and how our social norms contribute to those legal restraints. The article argues that these legal restraints are based on both property-based legalities mixed with different communities social-identity information. Different communities tend to accept different social norms and identities for what is an acceptable use of property and what are acceptable uses of property rights. This article discusses how the acceptable uses of property within a community based on the norms effect both social order and the broadly conceived notions of liberty: constitutional rights or due process rights.
As outlined by the article, creating
collective norms serves mainly three functions.
First, in society the norm represents sectional interests as universal
interests. Second, creating these norms
transmute contradictions. And thirdly,
the creation of property norms naturalizes existing social structures. This article examines how these three
functions are the reoccurring themes in homelessness cases when dealing with
the control of space.
The first section of this article
discusses how a norms within these communities can create a collective identity. That norm can then define what power and
entitlement are and also in some instances how property ownership can be
interpreted synonymously with moral superiority. The article argues that the collective
identity within a community effects how those individuals react to legal
actions. More specifically, this article
details how the adoption of subjective understandings of identity tends to
exclude the underrepresented communities’ expectation of identity. The first section illustrates how homeless persons
are often these underrepresented communities and are victim of the dominant
collective identity.
The second section of this article
examines different approaches courts take to cases of homeless persons in
relation to physical space. The article
inspects three main types of homeless person cases. One type of case is homelessness in relation
to public space, concerning issues such as sleeping in public areas and leaving
personal goods within this public space. Another type of case scrutinized is that
relating to homeless person activities such as public drunkenness or
panhandling. Lastly this section reviews
cases dealing with how property that attracts homeless persons effects
surrounding property.
Finally, this article illuminates
how property norms and the identity of a community emerge from the decisions of
the homelessness cases. It shows how
property interests and emerging norms can support specific rules even if those
rules are property specific and against individual human interest. Unsurprisingly, the homeless community is
rarely considered in legal decisions relating to property. While the homeless community lacks a source
of legal relief, property owners can assert their expectations for the entire
collective identity and control space.
Overall, the article does a fine job
of addressing the homeless community and how they are often underrepresented in
property related legal proceedings.
Instead of seeking to resolve the social problems that lead to
homelessness the legal identities leave the homeless misunderstood and
mistreated. In order for there to be a
solution to homelessness, there must be a consideration of individual’s
personal identity outside of a collective norm in the city decisions and court
discussions. In order for this to
happen it would be beneficial to require states to be cognizant of the impact
of different projects, regulations, and rulings on the homeless. The government must be reminded somehow of
the humanity that is lost within the property rights decisions and find a way
to bring human toll back into the balance.
- Kristen Wagner
