Jurisprudence of the SA constitutional court – a comparative study

The project will analyse three factors in play: a national project of post-colonial recovery from distributive injustice, prominently including land reform; express constitutional protection for property rights; and a constitution whose other main features bring it recognisably within the broad historical tradition of liberal constitutionalism. To what extent does or must that constitution’s overall liberal affiliation or its inclusion of a property clause impede the social transformation project?

It will be argued that the attractions of liberal constitutionalism do not come necessarily laden with a counter-reformative property clause. In what is believed to be a proper liberal view, the office of a constitutional property clause is to signal recognition of the connection between a decent respect for property and a decent respect for human dignity and freedom; it is not, however, to provide defences for property rights beyond what constitutional protections for freedom, security, dignity, equality, and legality would anyway provide.

It may, even so, be true that the conditions of distributive justice within a national society will not always be achievable by means of meeting the demands of an up-and-running liberal constitutional order. A broader claim is that the fault in such cases does not, however, lie in a liberal conception of justice.

Project leader(s):
  • Frank Michelman (Harvard Law School)
Publication(s):

Frank Michelman. Liberal Constitutionalism, Property Rights, and the Assault on Poverty. Stellenbosch Law Review (2011) 22(3),706-23.

Leave a Reply