Property and Constitution
by AJ van der Walt
ISBN: 978-1-920538-12-5
Pages: vi 212
Print version: Available
Electronic version: Free PDF available

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About the publication

Property and Constitution embodies an effort to work out how to give practical effect to the constitutional obligation to interpret legislation and develop the common law so as ‘to promote the spirit, purport and objects of the Constitution’, particularly in the area of Property Law. The author distinguishes between situations where the constitutionally inspired interpretation of legislation should prevail and others where suitable development of the common law may be required, distinguishing both from cases where direct reliance on the constitutional provision is permissible. He also considers the importance of obligations inherent in diverse constitutional provisions relating to for example arbitrariness, restitution and homelessness for the further development of Property Law. The book should appeal to academics, practitioners, policy makers and postgraduate research students with an interest in the constitutionally inspired development of Property Law.

About the editor:

AJ van der Walt is Professor of Law and South African Research Chair in Property Law, Stellenbosch University.

Table of Contents

  1. Introduction
  2. Sources of law
    1 A single system of law
    2 A constitutional vision of sources
    3 Subsidiarity principles
    3.1 Introduction
    3.2 The notion of legislation enacted to give effect to a right
    3.3 Non-property legislation enacted to give effect to a right
    3.4 Partial property legislation enacted to give effect to a right
    3.5 Partial, technical legislation not enacted to give effect to a right
    3.5.1 Overview
    3.5.2 Partial and technical legislation that protects a right indirectly
    3.5.3 Pre-1994 partial or technical legislation
    3.5.4 Purely technical, partial legislation
    3.6 No applicable legislation
    3.7 Conclusion
    4 Criticism and response
    4.1 Introduction
    4.2 A more restricted view of the impact of the Constitution
    4.3 Criticism against the notion of subsidiarity
    5 Conclusions
  3. Visions of property
    1 Traditional notions of property
    2 Transforming property law
    3 A constitutional vision of property
    3.1 Introduction
    3.2 From objects to objectives
    3.3 From property to propriety
    3.4 From syllogistic to transformative logic
    4 Concluding remarks
  4. Conclusions: A transformation-oriented property system
    4.1 Premises
    4.2 Conclusions
    4.3 Property, Constitution and poverty

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