One Fine Day in Stellenbosch: A Review of Bram Akkermans, Ernst Marais and Eveline Ramaekers (eds) Property Law Perspectives II (Intersentia 2014)

Abstract

This essay reviews a recently published collection of articles that originated from a conference of the Young Property Law Forum (YPLF) and a closely linked master class, both of which took place in November 2012 at Stellenbosch University's Institute for Advanced Study. The authors are a diverse group in terms of nationality and experience.The largest group of articles in the collection, authored by emerging property law scholars from Continental Europe, explores concepts in traditional civil law property law doctrine, with a particular focus on the difference between objective and subjective methods of classifying things and real rights. In addition to demonstrating the resiliency of some of these traditional doctrinal concepts, the authors of these articles (Sofie Bouly, Shaun Charlton, Dorothy Gruyaert, Ann Apers, Mitzi Wiese, Valerie Twehuysen, and Ellen Dewitte) reveal a preference for objective measures of classification but struggle at times to reconcile this preference with the tendency of courts in the legal systems they study to engage in more subjective classification determinations. In contrast, two other authors of articles in the collection (Eveline Ramaekers and Sabrina Praduroux), who are primarily concerned with constitutional property law decisions of the European Court of Human Rights, are more comfortable with that court's embrace of open-textured decision-making in its "fair balance" interpretation of Article 1 to the First Protocol of the European Convention of Human Rights. The authors of two more articles in the collection have a very different focus. One (Brendan Edgeworth) explores historical adaptations in the law of commercial leaseholds, while the others (Susan Bright and Lisa Whitehouse) recount an empirical study of the role of non-financial considerations in cases in which tenants and mortgagors lose possession of their residences. Two authors in the collection (Bram Akkermans and Joseph Singer) address broad questions of property theory and property law decision making norms-the operation of the numerus clausus principle and "rules of reason" respectively. These authors show that it is possible to think systemically about how a property law system sets limits on the number or recognized property types and that flexible standards and judicial discretion can be valuable supplements to clear, mechanistic property law rules. Finally, three articles address issues at the forefront of South African property law. The authors of these articles (Jeannie van Wyk, Bjorn Hoops, and Gerrit Pienarr) reveal the challenges posed by the need to develop South Africa's natural resources in an environmentally sustainable manner and the need to reconcile traditional customs regarding land tenure in South Africa with contemporary constitutional norms. Pienarr shows how innovations in other areas of property, for example condominium law, can serve as a repository for solutions to contemporary problems. In the end, this reviewer suggests that this volume will become a valuable resource for scholars interested in comparative property law because its contributions illustrate so well the sometimes divergent assumptions that property law scholars from different national backgrounds can bring to their scholarship.