The conception of property that a transitional state adopts is critically important because it affects the state’s ability to transform society. The classical conception of real property gives property rights a certain sanctity that allows owners to have near absolute control of their property. But, the sanctity given to property rights has made land reform difficult and thus can serve as a sanctuary for enduring inequality. This is particularly true in countries like South Africa and Namibia where—due to pervasive past property theft— land reform is essential because there are competing legitimate claims to land. Oddly, the classical conception is flourishing in these countries. The specific question this Article addresses is: for states where past property dispossession can cause backlash and potentially destabilize the current state, is the classical conception appropriate or do these states require an alternative conception of real property? I develop the transformative conception of real property to explore how the exigent need for societal transformation should inspire us to rethink property rights.
Property Rights & the Demands of Transformation,
Mich. J. Int'l L.
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