Research Handbooks in Comparative Law series
Edited by Tom Ginsburg and Rosalind Dixon
Chapter 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 governments 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 property 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 property. 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 justice and the restitution of property (Posner and...
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