AJ van der Walt, ‘The Modest Systemic Status of Property Rights’

Introduction:
… In this article, I propose to contribute to this debate by advancing the proposition that another way of countering the over-inflated perception of property as a simple message to keep off, in addition to the progressive arguments that highlight its normative features as a diverse and complex set of institutions, would be to argue that the legal protection of property rights in fact plays – and should play – a surprisingly modest systemic role in the law. If property could indeed be explained in a simple rule such as the message that non-owners must keep off, most property disputes could indeed have been adjudicated simply on the basis of enforcing compliance with that rule. Stated differently, if the core of property were a simple keep-off rule, the adjudication of property disputes would have pivoted on the protection of property rights. However, progressive property literature that highlights the complexities and diversity of property doctrines and institutions indicates that the protection of property rights is in fact subject to a wide range of exceptions and qualifications. My aim in this article is to argue that case law illustrates the surprisingly modest systemic purpose that protection of property rights in fact plays, judged against the systemic significance of the exceptions and qualifications. My point is not to argue that property rights are unimportant, but to show that in the larger picture, systemically, the exceptions and qualifications sometimes overshadow the protection of property rights … (more)

AJ van der Walt, ‘The Modest Systemic Status of Property Rights’. 1 Journal of Law, Property, and Society 15 (November 2014).

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