New Perspectives on Property Law

Human Rights and the Family Home

Alastair Hudson

• Publisher: Routledge-Cavendish
• Year: 2012
• ISBN:
  9781135334192
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The essays in this collection consider the fundamental concepts of property and obligations in law. Ideas of property and of obligations are central, organising concepts within law but are nevertheless liable to fragmentation and esoteric development when applied in particular contexts.

Property and Obligations in Relation to the Family Home

Chapter 1

Equity, Individualisation and Social Justice: Towards a New Law of the Home

Alastair Hudson

Introduction

Towards a New Model of the Law of the Home

Socially Just Allocation of Rights in the Home in a Society of Individuals

This chapter presents a methodology for analysing the equitable allocation of rights in the home. This model is predicated on the notion that in the late modern world individual human beings have come to demand recognition of their rights as individuals.This process is referred to here as individualisation and is modelled on the work of Ulrich Beck and Elizabeth Beck-Gernsheim.¹ The theory of individualisation which emerges is positive about the effects of a renewed focus on the rights and the status of the individual for democratic politics in general and for the rights of women in particular. By contrast, as will emerge, there are competing theories of late modernism which consider individualisation to promote a social atomisation with a deleterious effect on our social life.²

The methodology which is proposed here, seeks to account for the social role of a legal system which purports to allocate rights in the home by measuring the various legal norms which concern themselves with such rights – whether culled from family law, property law, social security law, housing law, human rights or equity and trusts law – against David Miller’s concept of social justice.³ That is, a categorisation of the various means by which rights in the home are established as either protecting pre-existing rights, or recognising deserts, or seeking to meet needs. The process of measurement of these norms against this model of social justice throws into relief the radical differences between these various legal fields as currently constituted.

Acknowledging the Value Judgments Bound Up in Legal Differentiation

What is suggested then is that it would be preferable for judges to acknowledge the value judgments that are bound up in the norms behind those various legal fields. It is no accident that family law and social security law demonstrate a prioritisation of need, whereas property law is primarily concerned with protecting pre-existing rights to private property,⁴ and flexible equitable doctrines like estoppel⁵ or Canadian unjust enrichment⁶ tend to recognise entitlements in a deserving claimant.

The most complex problem for social theory today is the accommodation of the freedom of individuals within broader notions of social justice.⁷ The first zone of enquiry here is into the nature of equity as understood by common law systems. By turns equity seems to operate as a code of rigid legal principles which are applied objectively, and also as a means of engaging with the plight of the individual on a discretionary basis. With the increasing focus on human rights law in England, and thereby the development of a different register in which to discuss the rights of the individual,⁸ it has become possible to reconceptualise the place of the individual within private law. There is no area more critical for such re-examination than that of equity’s⁹ allocation of rights in the home.

The Fragility of Individual and the Social Role of Equity

This chapter is concerned with nothing less than the place of the human condition before the law. It is concerned to identify the way in which equity might offer a potential means for providing socially-just conclusions in disputes concerning the home. All this is set against the backdrop of a world in which increasing individualisation conceals ennui and uncertainty behind its promise of liberty and unfettered choice.¹⁰ A corpus of recent work in sociology has recognised the need, in the midst of this social development, to understand what it means to be an individual being who is quite literally embodied, with all of the frailties, the anxieties and the questions of perception of the outer world that that entails.¹¹ There is no more intensely personal context for the individual than the shelter and security of the home. No question more relevant for this discussion then, than the way in which equity treats the allocation of interests in the home. And yet, as soon as one asks a court to consider the application of such principles in general terms, or in relation to more than one individual, there is necessarily a question of the social impact of the decision reached.¹²

The essence of the equitable allocation of proprietary rights of ownership of the home requires us to inquire into the very nature of equity itself. That, in turn, requires some sensitivity to the way in which the individual and the legal system interact. To found such a discussion of the individual’s fragility when faced with systems of thought and power external to him or her, like the legal system, I will consider John Fowles’ novel The Magus.¹³ This novel contains a pivotal trial scene in which the anti-hero is held morally to account by a court peopled by grotesques: at one and the same time demonstrating the terror of being subjected to the effects of arbitrary power, whilst also throwing into relief the open texture with which we might otherwise identify equitable principles. By contrast, individualisation theory, as considered here, supposes that we are empowered individuals who benefit from being set free of support mechanisms; although, there is also much postmodern thought to be set against that which considers society to be made up of individuals who are so separated from one another that they have been rendered individually powerless.

Ever since Dickens’s Bleak House we have been well accustomed to the suggestion that individuals are powerless before an indifferent legal system. In disputes centring on rights to the home, this conflict between the plight of the individual and of legal norms has become particularly acute. That the law does not have any one, single approach to the acquisition of rights in the home makes the application of such legal rules to the individual appear to be all the more arbitrary. The connection between individualisation and social justice for present purposes is the observation made by Beck and Beck-Gernsheim that, for all the separateness which individualisation might seem to require, there is nevertheless a need for a sense of security among the populace before they could develop a desire for individual freedom; and in consequence a need for a level of equality between those individuals before such a sense of security could be possible.¹⁴ Hence, the theory of individualisation, to be internally coherent, must correlate social justice with liberty.

The Magus and the Individual

The Individual’s Embodied Perception of the Legal Process

The plight of the individual rests in his or her embodiment: inhabiting a fragile, corporeal shell and perceiving the world from behind two eyes and through the filtering process of one brain.¹⁵ To be human is to be embodied;to be human is also to inhabit a mind;to be human is also to live among other stimuli, other minds and other bodies. In the sociological literature, the question of the body and society has acquired great recent significance, coming as it does in the wake of the postmodern philosophical turn which declared itself to come after the self-reflecting subject. The question ‘who am I?’, or its common sociological comparator ‘who are we?’, is itself a site of conflict between those who would base perception squarely within each individual, those who see societies as made up of autonomous selves, those who see society as being made up of the interactions between selves which are themselves socially conditioned, and those who see selves as being the products of language and so forth and therefore of no independent significance philosophically.¹⁶

The interaction between law – as something external to the self – and the self may operate at any one of these levels. What is important for our purposes is the fragility of the self in the process of shaping law and imposing law on an individual. This is particularly so if the law itself applies one of those philosophical systems which have decided that they have reached beyond the self and are concerned only with systemic communications and linguistic products. For each individual who comes into contact with the law, this creates a Kafka-esque moment of being lost in anonymous corridors and excluded from technical conversations which clearly concern you, but which do not communicate anything comprehensible to you. From the perception of the individual, in Heidigger’s terms, the purpose of communication is not simply to speak, but also to understand the person to whom one is speaking; without understanding there can be no communication.¹⁷ For the individual before the law, where the language is technical and too abstract for the litigant to understand, the litigant is excluded from that discussion. And so systemic closure may operate to exclude those people who ought properly to expect that they would be included within those communications. For the purposes of this chapter, it will be important to understand whether or not equity is able to include the individual’s aspirations, both to speak and to understand what is said to him or her in return.

The Magus; an Exemplar of the Place of the Individual Before the Process of Law

To illustrate the nature of the individual’s plight before the law, I will retreat into fiction for a suitable example. John Fowles’ novel The Magus is a spell-binding example. Nicholas Urfe is the novel’s propositus. He leads an ordinary and fairly unfulfilling life in London. A university graduate, he is replete with masculine foibles, insensitivities and insufficiencies. He has a relationship with an Australian woman which stutters and fails messily, and not without regrets, before Urfe accepts a job teaching English at a boarding school on a remote Greek island. Urfe is an outsider at the school both among his colleagues and the pupils. He has been given a cryptic warning before reaching the island by a previous holder of his post that he should avoid ‘the waiting room’. On exploring the island he encounters a sign on a piece of land which reads ‘sale d’attente’; the land is marked as being private property and guarded by barbed wire. This land contains the idyllic home of the mysterious Conchis who becomes Urfe’s tormentor, teacher and talisman over the months of his stay.

The strength of the novel is the way in which it heaps surprise on surprise, lie on lie and so forth, with the result that the reader cannot know (and one suspects the writer does not know, or care) who is telling the truth and even quite what is going on. Urfe meets a young woman at the house who tells him she is in danger; he witnesses her taking part in remarkable, sexual dumb shows choreographed for his confusion on the beach in front of the house. He falls in love with her, then finds she is one of two twins with whom he falls in league, by whom he is betrayed, with whom he falls in league again, and so on. At each turn in the plot as he confronts the charismatic Conchis, after each theatrical device or after each new revelation, the reader is left panting, wondering whatever can happen next.

Urfe becomes addicted to this experience, to the manipulations which Conchis (at one stage apparently a psychoanalyst of some sort himself) imposes on him, before the experience is suddenly terminated. He tracks down his tormentors, only to be kidnapped and subjected to a surreal trial by them – a truly existential trial which probes hi...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Preface
• List of contributors
• Contents
• Introduction
• Property and obligations in Relation to the Family Home
• Communities, Human Rights and the Built Environment
• Historical and Contextual Perspectives on Private Property Rights
• Index