Commentary on Rafique v Amin

Abstract

Rafique v Amin is one of the few reported cases to address the use and management of property that is owned in common. While not an obviously gendered dispute, it nevertheless involves a number of issues fundamental to feminist theory, in particular, notions of identity and autonomy and the role of property rules in mediating between individual and collective interests. In Scots law, property owned by multiple individuals is often held as common property. This is similar to the English concept of the equitable tenancy in common, in that each owner is treated as having a distinct and separable share in an undivided whole. Debate in Rafique occurs within the context of an antipathy towards the very idea of common property that is embedded within Scots legal doctrine.