Finding the Way Home

Ramshaw, Adam (2015) Finding the Way Home. In: SLSA Annual Conference 2015, 31st March - 2nd April 2015, Warwick, UK.

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Abstract

The law has excelled in the protection of discernible interests and assets which attach to our understanding of private ownership. Given the rhetoric of theory in the area of ownership it is perhaps unsurprising to see that the law has traditionally favoured interests that have an easily ascertainable monetary value, rather than the more intangible qualities attributable to a person’s ‘home’. Historically, classical theorists have therefore concerned themselves with first acquisition and the opportunity for capitalising on physical property rather than the sociological advantages flowing from a space which serves as a person’s home.

This paper seeks to demonstrate the shortcomings of that approach in the face of the human rights instruments of the 20th century, which expressly attach importance to the ‘home’, rather than the house. Most prominent of these provisions for this paper is art.8 of the European Convention on Human Rights which provides a right to respect for one’s home. Despite the influence of human rights law, when faced with disputes involving a person’s home the courts regularly fail to attach sufficient weight to the home against claims from those wielding interests based upon ownership. Ideas of privacy, identity, and community prove difficult for courts to quantify and include in the factual matrixes which serve as the basis for judicial decisions.

This paper will highlight the gaps left by a classical approach to private property at the expense of the advantages of the home to the individual, the family, and society, together with the philosophical hangover left in the minds of the judiciary by this approach. In doing so this paper will inform the legal conceptions of ‘the home’ through an in-depth exploration of its dichotomous relationship with ‘the house’.

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