Journal of Law and Social Policy

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English Abstract

Homeless encampments have become increasingly common in US and Canadian cities. Their prevalence raises a fundamental question: are encampments justifiable when individuals lack access to housing? This article argues that encampments are only partially justifiable as a response to homelessness. A complete justification implies that individuals can lawfully establish permanent encampments when they lack access to housing. A partial justification, on the other hand, forbids the establishment of permanent encampments, but permits individuals to establish temporary ones in certain circumstances. Encampments are partially justified for four principal reasons. First, they are a response to public and private law’s failure to alleviate homelessness. Second, encampments informally accommodate people experiencing homelessness within systems of mutual coercion. Third, they informally redistribute the property system’s benefits and burdens. Fourth, encampments bear some hallmarks of justificatory defences in the criminal law. The concluding parts of this article explain the implications of tent encampments’ partial justifiability. First, the concept of partial justification explains why courts have allowed unhoused persons to establish temporary encampments in limited contexts. Partial justifications thus limit State power. Second, the partial justifications for encampments illustrate the importance of housing in ways we may overlook. Furthermore, these partial justifications support a State duty to provide housing or the means to acquire it. By exploring the partial justifications for encampments, this article shows why the right to housing can also be understood as a right to be protected against the legal condition of homelessness.

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