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van der Walt, André; Walsh, Rachael --- "Comparative constitutional property law" [2017] ELECD 211; in Graziadei, Michele; Smith, Lionel (eds), "Comparative Property Law" (Edward Elgar Publishing, 2017) 193

Book Title: Comparative Property Law

Editor(s): Graziadei, Michele; Smith, Lionel

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447578

Section: Chapter 9

Section Title: Comparative constitutional property law

Author(s): van der Walt, André; Walsh, Rachael

Number of pages: 23

Abstract/Description:

Constitutional property law deals with the regulation of state actions that have a direct or indirect impact on private property rights, particularly in the form of regulatory limitations on the use and enjoyment of property and state dispossession or acquisition of private property. State action that limits private property rights can derive directly from a constitutional text, from legislation (including a civil code) or from uncodified common law, or it can adopt the form of administrative action or judidial order. Comparatively speaking, there are significant divergences internationally in how state powers over private property are controlled by Constitutions, especially because of textual differences in the framing of constitutional property guarantees, and the varied treatment of property rights in civilian and common law legal systems. In addition, social and economic priorities within a jurisdiction, as well as cultural understandings of property, can all influence constitutional property law. However, most jurisdictions that protect property rights at a constitutional level encounter similar challenges in the interpretation and application of such protection, and this chapter seeks to introduce those contentious legal questions. The chapter first considers alternative approaches to enshrining protections for property rights in constitutional texts. It then analyses comparative constitutional conceptions of property; the distinction between regulatory and expropriatory limitations of private property; and compensation entitlements for adversely affected owners. Overall, the chapter seeks to demonstrate that comparative constitutional property law research is complex and challenging, but fruitful, given the divergences in legal protections and the convergence in legal problems identifiable in this area.