A Comparative Overview of European, US and South African Constitutional Property Law

Abstract

Traditionally, there is a distinction between private law property law and constitutional property law. Private-law property law concerns itself with the relations between two private parties in respect to an object or thing. This area of law has, depending on the type of legal tradition, been in development since Roman times (civil law) or since the battle of Hastings in 1066 (common law). Its principles and doctrine are aimed at facilitating trade between private individuals, the recognition of a limited set of rights with property (third party) effect, and rules on the creation, transfer and destruction of those rights. Constitutional law adds a dimension to property law that is mostly neglected by private-law property lawyers. Textbooks of property law, especially in European countries do not deal or only make mention of the existence of a constitutional dimension. Constitutional law and its influence on the law of property deserves a central place in any comparative study on the law of property. However, private-law property scholars, of course with the exception of some, often do not take knowledge of the constitutional dimension. This contribution is a descriptive contribution and seeks to show some of the basic aspects of constitutional property law.