Comparative Constitutional Law of Property (2024)

Global Canons in an Age of Contestation: Debating Foundational Texts of Constitutional Democracy and Human Rights

Sujit Choudhry (ed.) et al.

Published:

2024

Online ISBN:

9780191956942

Print ISBN:

9780192866158

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Global Canons in an Age of Contestation: Debating Foundational Texts of Constitutional Democracy and Human Rights

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David Schneiderman

David Schneiderman

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Oxford Academic

Pages

338–361

  • Published:

    May 2024

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Schneiderman, David, 'Comparative Constitutional Law of Property', in Sujit Choudhry, Michaela Hailbronner, and Mattias Kumm (eds), Global Canons in an Age of Contestation: Debating Foundational Texts of Constitutional Democracy and Human Rights (Oxford, 2024; online edn, Oxford Academic, 15 May 2024), https://doi.org/10.1093/9780191956942.003.0018, accessed 29 May 2024.

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Abstract

This chapter contributes to a discussion of what properly belongs to the canon of comparative constitutional law of property. Two dominant paradigms within the liberal legal tradition are identified. The first is a classical legal version of property, under the influence of the private law tradition, that emphasizes exclusivity of ownership, exchanged between willing buyers and sellers via transactions occurring within self-regulated markets. From this angle, property is primordial in the Lockean sense—it precedes state formation and shields individual rights from societal encroachments. A second view treats constitutionally protected property not as a body of stand-alone rights but as internally limited from the outset. Rather than being portrayed as opposites, property and regulation go hand in hand, crowded in by other constitutional rights, limits, and projects. The chapter then discusses three cases drawn from familiar jurisdictions (the United States, Europe, and South Africa) that concern one of the most private of property rights—the home. Each candidate for the canon offers compelling interpretive accounts of constitutional property clauses where the rhetorically superior interests of property owners either prevail or yield to vulnerable owners of property or those with no property at all. The cases illustrate how constitutional property, even within the liberal rights tradition, is capable of being transformed in ways that resemble Polanyi’s double movement: converted from rights that shield markets from regulation into solidaristic rights that aim to serve societal needs.

Keywords: comparative constitutional law, property rights, housing, Constitution of the United States, European Convention on Human Rights, Constitution of the Republic of South Africa

Subject

Constitutional and Administrative Law Human Rights Comparative Law

Collection: Oxford Scholarship Online

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