From Pain to Blame: Law, Emotion and Property Loss

For the last twenty years, law and emotion scholarship has challenged the claim that it is possible for legal actors to behave rationally and without passion. However, although academics have addressed the role of emotion in the criminal law and legal decision-making, there has been little explicit consideration as to how this may create, shape and define property relationships.1 Therefore, it is against this background that this paper will examine the emotions relating to the involuntary loss of property, using the law on residential evictions in England and Wales as a case study. Firstly, it will consider how a dispossessed individual may attempt to understand her position, both in relation to her conduct and that of others. She may feel a sense of loss as at no longer having access to her home, and in turn, that may affect her personal self-esteem and ontological security. Further, she may blame other individuals or organisations for her weakened position, be it a landlord, employer or local authority.

This paper will further contend that the concept of blame forms part of the law governing evictions in England and Wales, even where this is not apparent from the legislation. So, for example, a landlord may be unable to bring possession proceedings under the “no-fault” procedure if she fails to comply with certain requirements,2 while a tenant may lose her rights in her home if the property is abandoned and she has failed to pay rent.3 However, unfortunately, English law fails to address the structural reasons why a tenant may be evicted her home, such as the loss of a job or breakdown of a relationship. As such, there is a risk that it is operating to “blame the victim”,4 rather than to ensure that the tenant’s property rights are adequately protected.