Allen, Tom --- "The Right to Property" [2011] ELECD 387; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 27

Section Title: The Right to Property

Author(s): Allen, Tom

Number of pages: 15

Extract:

27. The right to property
Tom Allen



Eminent domain ­ the power to take private property for public use ­ is an inherent aspect of
sovereignty. However, the institution of private property would have little meaning if govern-
ments used their powers of eminent domain without restraint. Hence, most constitutions
impose restrictions on eminent domain. These constitutional restraints can take a variety of
forms, but the most common is the right to property.


1 THE FORM AND FUNCTION OF CONSTITUTIONAL PROPERTY
CLAUSES
Constitutional property clauses tend to follow a common structure (Van der Walt, 1999;
Mann, 1959; Daintith, 2004). Most provide that the government may only acquire property
by a process laid down by law, for a public use or purpose, and on terms that provide the
owner with compensation. These common elements provide the basis for the comparative
study of right to property. Hence, much of the literature centres on several key questions:
what is the meaning of `property', as used in the property clause? What is a `taking'? For
what purposes may the state take property? And what level of compensation does the prop-
erty clause require?
In addition to the scholarship based on these interpretive questions, there is a considerable
body of writing that takes a more functional approach to the constitutional protection of prop-
erty. It asks how a right to property affects the scope and impact of laws in specific areas,
such as, for example, environmental protection (Adler, 2008), or housing and resettlement
(Leckie, 2003), or transitional ...