n Stellenbosch Law Review - Liberal constitutionalism, property rights, and the assault on poverty

Volume 22, Issue 3
  • ISSN : 1016-4359


Suppose we have 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 recognizably 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? The narrower claim of this essay is that the attractions of liberal constitutionalism do not come necessarily laden with a counter-reformative property clause. In what I would call 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 defenses 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 meeting the demands of an up-and-running liberal constitutional order. The essay's broader claim is that the fault in such cases does not, however, lie in a liberal conception of justice.

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