Between conceptualism and constitutionalism : private-law and constitutional perspectives on property
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Authors
Kroeze, Irma Johanna
Issue Date
1997-11
Type
Thesis
Language
en
Keywords
Property , Conceptualism , Constitutionalism , Feminism , Grotius , Kant , Contextualism , Constitutional hermeneutics , Post-modernist , Ownership
Alternative Title
Abstract
The conceptualist view of property is based on the conceptual system or
hierarchy of rights conceived by Grotius and developed by the pandectists. It
rests on the assumptions that ownership is neutral and timeless. As such it
has a number of abstract, timeless and universal characteristics, namely
absoluteness, uniformity and exclusivity. Combined with liberalism, this
concept of property becomes the guarantee of liberty and equality.
The first part of this study shows that not only are the assumptions historically
unfounded, but this conceptualist view of property made liberty and equality
for women, in particular, impossible. The liberal, conceptualist property
concept is a modernist construct that cannot guarantee either liberty or
equality. The question then becomes whether constitutionalism can do what
conceptualism cannot- can die constitutional protection of property guarantee
liberty and equality.
The second part of this study suggests that the answer to this is an "it
depends" kind of answer. It depends on the structure of a constitution,
underlying philosophical, political and, above all, hermeneutics theories
employed by courts. In the South African context courts need to reject the
private-law conceptualist view of ownership in favour of a constitutional
property concept. This last-mentioned concept should be based on the values
and normative context of the 1996 constitution. As such it involves value
choices and making a political stand. Courts need to abandon conceptualist
frameworks and decide on the proportionality of limitations on property.
The conclusion to this study suggests that a feminist understanding of human
beings as socially constructed and constrained, so that democracy alone
cannot provide an answer to the counter-majaritarian dilemma, is necessary
far an understanding of property. The creative tension provided by the
feminist conflict between a political agenda and a respect far contexts may
provide a framework far adjudicating an property issues.
Description
Citation
Kroeze, Irma Johanna (1997) Between conceptualism and constitutionalism : private-law and constitutional perspectives on property, University of South Africa, Pretoria, <http://hdl.handle.net/10500/17132>