The Dynamics of Constitutional Property Clauses in the Developing World: China and South Africa

Abstract

This article examines the theoretical development of Chinese constitutional property law, compared with the experience in South Africa, which is another emerging jurisdiction of constitutional property law. Being cautious of the political, economic and social differences between two countries this endeavour is nevertheless important, because of its potential to spark renewed interest in the comparability of property law systems worldwide. It highlights that the third-generational constitutions of the developing world focus not only on participatory and political rights, but also on social rights and responsibilities of citizens, and in fact supports actionable socio-economic rights. Perceptions of property that may be regarded in the developing world as ‘Eurocentric’, i.e. that a system of ‘individual’ property interests is the predominant form of organization, are losing support. From the Chinese perspective, there seems to be an awareness of the increasing need to limit the vast regulatory reach of the state and to afford the individual better protection and opportunities to engage in personal wealth-enhancing activity. Yet, the promotion of individual property right should be comprehended in the view of the communitarian needs.