The options available to states to respond to squatting, including through law, are wide-ranging, sometimes dynamic and always revealing of the complex relationships between land, housing and shelter, poverty and ownership, citizenship and exclusion in each jurisdiction, in particular moments. The legal tools adopted and applied in response to squatting vary by jurisdiction (and within jurisdictions, by level of state action, for example, local vs national), and over time. In this chapter we introduce key elements within legal responses to homeless squatting in each of five jurisdictions that we draw on to inform our analysis throughout the book: Ireland, England and Wales, South Africa, Spain and the United States of America. In drawing examples and illustrations from a range of diverse jurisdictions, we aim to follow the advice of Van der Walt and Walsh, to pay: “…close attention to jurisdictional differences, and to broader social, economic and cultural considerations not always apparent from the face of constitutional texts, legislative provisions or even judicial decisions.” Our aim in this chapter is to set out the “legal base-line” for the book, locating these laws in their historical, geographical and social context. In doing so, we introduce an array of potential legal responses to squatting: including regularization of unlawful occupation (enabling the squatter to acquire rights in land), and a range of civil actions and criminal sanctions targeted at unlawful occupiers or absent owners.

Our theory can explain why governments do not define and enforce property rights. The political history of Afghanistan illustrates the persistence of non-emergence of legal property rights. We also seek to explain why the Hobbesian account of the world in which there can be no sense of justice and no concept of property without a state is mistaken. According to our theory, self-governance would substitute for the state as a source of property rights when organizations have local monopolies, when they possess the capacity to resolve conflicts over land disputes, when their key decision makers face constraints, and when the institutions for local collective action are inclusive. Chapter 5 investigates this claim. Using original evidence from fieldwork, we show that self-governance of property works well in rural Afghanistan because customary governance satisfies the above criteria. Our theory can also explain why the formal property regime remains ineffective nearly two decades after state building commenced in 2001. Importantly, the property institutions in rural Afghanistan are typically private property rights, not unlike property rights in Western contexts. The difference is that customary private property rights in Afghanistan are effective despite not having any legal recognition.