Unlike most other books on the home, this book is not written from a historical, sociological or cultural perspective, but rather focuses on the institutional and legal frameworks surrounding it. The author, a law scholar, has previously published extensively on property laws and informal norms that guide everyday behaviours. He is thus well-placed to unravel the intricacies of legal arrangements that enable and condition the setting up of a home. He claims that this is an area that is understudied by law scholars and undervalued by specialists in other disciplines, because most household affairs tend to be settled outside of court rooms. Most of us therefore do not appreciate the many benefits we experience because the laws in a liberal society guarantee our freedom of choice as to where we want to live and with whom we want to share that living space. In capitalist, liberal societies the legal system guarantees and protects people’s private property of land, capital and labour, and these rights are essential for this freedom. Ellickson argues that this system has proven historically to be much more effective and benevolent in accommodating the domestic desires of (most of) its members and that it is therefore superior to other (read communist or socialist) legal frameworks.
The book focuses on the household – being the group of people that share a home, be they kin or not. A household thus differs from a family, and household arrangements are not necessarily backed up by family laws. Ellickson focuses on three different types of relations that pertain to the home: (co-)owners; (co-)occupants and landlord–tenant relationships. All of them can coincide with kinship relations, but this is not necessarily so. Usually, he finds, people tend to share their homes with intimates – spouses, children, family members or friends. There is moreover a definite tendency to increasingly smaller households when economic prospects allow it. Ellickson explains this through the concept of ‘transaction costs’: according to him, people rationally decide in favour of those household forms that demand least time and effort in deciding upon domestic arrangements (allocation of space, scheduling of meal times, invitation of guests; distribution of chores; economic benefits, services delivered from one occupant to the other; etc). The tendency towards smaller households is therefore quite natural, because people want to minimize transaction costs.
The same reasoning explains why utopian collective communities, such as those conceived by Fourrier, generally failed to survive for more than a couple of years – with exception made for those communities that are based upon strong religious ties, such as Hutterite or Benedictine settlements. Most such experiments however did not give rise to long-lasting and prosperous entities, since they were not capable of providing high levels of home comforts while keeping transaction costs at a minimum. From Israeli kibbutzim to Danish co-housing, Ellickson argues, such collective enterprises have had to adapt to the general tendency towards smaller households – for example by accepting individual kitchen facilities for its members and by reducing the communal provision of meals to once a week or less. One of the interesting aspects of this book is that it provides empirical data to corroborate these statements.
The idea of minimizing transaction costs is also brought to the fore when the author considers why relations within the household tend to be informal and why disagreements related to the home are most often settled outside the court rooms (for example by members leaving the household). Whereas family laws are very important when minors are involved, household quarrels that do not pertain to minors are most often decided, amicably or less amicably, without any interference of lawyers. The workings of the household indeed tend to be dealt with in non-official ways, as other scholars have argued before. The home – states, for example, Mary Douglas – can be seen as a virtual community dedicated to the protection of a collective good (the provision of future services) through organising solidarity on the basis of synchronizing activities (mainly meals) and policing the behaviour of its members (departure and arrival times, sharing in the home’s resources, etc). It is based on a gift economy, in which transactions never look like exchanges because the gesture of reciprocity is delayed and disguised.Reference Douglas1 It is thus not feasible to completely grasp the home into a legal system that would impose official rules on it. The law, according to Ellickson, intervenes only in as far as it is necessary to guarantee the rights of individuals to participate or not in a given household, or to protect minors.
This liberal outlook on society is of course based on the premise that all adults are capable of acting rationally and of their own accord, and that all social arrangements are set up by individuals who can be seen as equals. To a certain extent, Ellickson acknowledges – but barely accepts – the feminist criticism that the housing market and its legal framework have not always guaranteed the rights of women. This feminist criticism is based upon a more subtle understanding of cultural patterns of male hegemony that add up to serious disadvantages for single mothers and some other women in looking for adequate housing. Neither is the discrimination of gay and lesbian people taken seriously by the author, nor the generally weaker position of non-whites on the housing market in Europe or North-America. Such inequalities are not readily explained in Ellickson’s liberal model, since these discriminations are based upon complex cultural and social phenomena that falsify the assumption that all adult individuals stand as equals when engaging in relationships.
Ellickson’s book thus contains a lot of interesting ideas and empirical materials that document how institutional and legal aspects condition the workings of the household. It is nevertheless not completely convincing, since it fails to dig into major inequalities that are, if not sanctioned by, at least made possible within the legal framework as it stands in most liberal countries.
