n Stellenbosch Law Review = Stellenbosch Regstydskrif - The desirability of a property clause : Michelman's defence of constitutional liberalism

Volume 24, Issue 2
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



I address Frank Michelman's very recent attempts to dispel the notion that there are deep tensions between a liberal approach to constitution making and a resolute commitment to fighting poverty, ie, to holding what he calls "social liberalism". He focuses on the tension between antipoverty struggle on the part of government and the existence of a property clause in a constitution, a tension that several commentators in South Africa have contended requires removing that clause from the Constitution of the Republic of South Africa, 1996 ("the Constitution"). In reply, Michelman argues that in the final analysis there need be no principled conflict between the two, which implies that amending the South African Constitution is unnecessary and perhaps even unwise. I provide some reason to think that Michelman's attempted resolution is incomplete, but use the most space to suggest plausible ways to understand the legal function of a property clause in a liberal constitutional order beyond those Michelman addresses that can also help to resolve the apparent tension between it and a concerted effort to reduce poverty.

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