It has been a while since I have last posted on the M-EPLI blog. This is not due to a lack of interest, but more to the fact that I have taken time to further involve myself in constitutional property law. In the past months, I have been a visiting scholar at the institute for property law at the Catholic University of Leuven, where I have had the time to investigate differences and similarities between constitutional property law and private-law property law.

From the tradition (the Netherlands) I am from, this mainly concerns the effect of Article 1 of the First Protocol to the European Convention on Human Rights (ECHR). Although we pay considerable attention to the developments in this area, we rarely debate the effects this may have on the private-law property law domain. The only notably exception to this is the case of Pye v. United Kingdom that came before the European Court of Human Rights and finally at the Grand Chamber of that same court, dealing with the conformity of the old English rules of adverse possession with Article 1, first protocol, ECHR.

The Pye case is a serious wake-up call to European property law scholars that the separation we employ between constitutional property law and private-law property law is perhaps on its return. In fact, on closer inspection, it turns out that other European civil law legal systems do accept more influence of constitutional sphere into private law that I was previously used to. The best example of this is the case law of the German Bundersverfassungsgericht on Article 14 in the German Grundgesetz (Basic Law). Under this case law, the Constitutional Court ‘forces’ the development of private-law property to be in conformity with the constitutional notion of property law. The same applies to the Human Rights Act 1998 in the United Kingdom, where English judges has raised the question whether the common law should now be developed in the light of the ECHR. Also in the United States, where the Fifth Amendment to the US Constitution offers protection similar to Article 1, first protocol, of the ECHR, similar developments can be discovered.

Strict separation in a more traditional sense may – I soon discovered – not exist at all. A model where at least constitutional lawyers accept that there is some considerable influence of the constitutional level on private law – private-law property lawyers usually simply deny this – seems to be the most workable model.

Then I read André van der Walt’s new book called ‘Property and Constitution’ in which he presents a roadmap to develop property law in South Africa. The South African context, in which the Constitution in intended to give direction to the development of a post-Apartheid South Africa offers major challenges for property law. It concerns questions of equality and the redistribution of land.
Van der Walt uses the landmark decision of the Constitutional Court in Ex Parte President of the Republic of South Africa: In re Pharmaceutical Manufactures Association of South Africa 2000 2 SA 674 (CC) in which the Court held that

 ‘there is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.’

What follows is an incredible treatment of property law in a single system South Africa. Van der Walt deals with legislation, both before and after the entry into force of the Constitution, the common law and customary law. His primary argument is built on the single-system approach, in which the Constitution provides guidance and all legislation, common law and other sources must be interpreted and applied in the light of the Constitution (Article 39 of the SA Constitution states that this must be done in the spirit, purport and objects of the Bill of Rights in the Constitution). For this, he develops what he calls the algorithm of post-apartheid South African law, that is worth to be quoted in full:

(a) There is just one system of law. (b) It is shaped by the Constitution, which is the supreme law. (c) All law, including the common law and legislation, derives its force from the Constitution and is subject to constitutional control via the courts. (d) Rights or freedoms that are recognised or conferred by common law, customary law or legislation are protected to the extent that they are consistent with the Constitution and in so far as they promote the spirit, purport and objects of the Bill of Rights. (e) The function of the legislature is to enact laws that give effect to the provisions of the Constitution, especially the rights in the Bill of Rights. (f) The job of the executive and administration is to formulate policy and implement programmes to promote the constitutional goals. (g) The Task of the courts is to interpret legislation and, in the absence of legislation, to develop the common law and customary law, so as to promote the sprit, purport and objects of the Bill of Rights. (h) If possible, existing law should be brought into line with the spirit, purport and objects of the Bill of Rights through either interpretation of legislation or development of the common law and customary law. (i) In so far as existing law, whether legislation or common law or customary law, is in conflict with and cannot be interpreted or developed to bring it in line with the Constitution, it is invalid or can be invalidated. (j) In this context, the job of academic lawyers is to help figure out how legislation could be introduced, amended and interpreted and how the common law or customary law could be developed so as to promote the spirit, purport and objects of the Bill of Rights.

In doing so, as the algorithm summarises much of the book,  André van der Walt offers a direction to develop new property law for the new South Africa, that is worth the read for any property lawyer.

In 2002 I was an exchange student at the University of Stellenbosch in South Africa and I followed a course with Professor Laurens du Plessis called ‘Constitutional Interpretation’. It was a truly wonderful course that ended with an assigned title on which I had to write a paper. My topic was ‘lessons to be learned from South Africa’s experience with constitutionalism’. I wrote my paper then on how the treatment of the principle of equality, with its direct horizontal effect, provides a normative framework for the further development of law, in such a way it could be a roadmap for European systems.

‘Property and Constitution‘ does exactly the same. It shows the rest of the world how a constitution can offer a roadmap for the development of legal systems. I am certainly not suggesting that the problems Europeans face are similar to the South African problems, nor am I trying to diminish the daunting task of reforming the law in South Africa. What I mean is that experiences with constitutional property law in Germany and England, where we accept a strong influence of the constitutional level, seem to develop much more in the South African single-system direction, than the less fruitful attempts to maintain a separation between the constitutional- and the private-law level.

In the context of the European Union, especially in the light of the Charter of Fundamental Rights, which is now a binding part of the Treaties, combined with the direct effect and supremacy of EU law, this certainly offers food for thought.