Property in the Margins

(Paperback)

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Description

Having its origins in the process of transformation and land reform that began to take shape in South Africa at the end of the last century, this strikingly original analysis of property starts from deep inside the property regime and not from a distant or abstract perspective on property rules and practices. Focusing on issues of stability and change in a transformative setting and on the role of tradition and legal culture in that context, the book argues that a property regime, including the system of property holdings and the rules and practices that entrench and protect them, tends to insulate itself against change through the security- and stability-seeking tendency of tradition and legal culture, including the deep assumptions about security and stability embedded in the rights paradigm, rhetoric and logic that dominate current legal culture. The rights paradigm tends to stabilise the current distribution of property holdings by securing extant property holdings on the assumption that they are lawfully acquired, socially important and politically and morally legitimate. This function of the rights paradigm tends to resist or minimise change, including change brought about by morally, politically and legally legitimate and authorised reform or transformation efforts. The author's goal is to gauge the lasting power of the rights paradigm by investigating its effects in the margins of property law and of society, by establishing the actual efficacy and power of reformist or transformative anti-eviction policies and legislation aimed at the protection of marginalised and weak land users and occupiers in areas such as landlord-tenant law, eviction of unlawful occupiers of land and other restrictions on the landowner's power to enforce a stronger right to exclusive possession. Ultimately the book's aim is to explore the possibility of opening up theoretical space where justice-inspired changes to (or transformation of) the extant property regime can be imagined and discussed more or less fruitfully from an unusual perspective, a perspective from the margins which is valuable for any theoretical consideration or discussion of property.

Reviews

The book is outstanding on a number of levels: clarity, organization, questions raised, extensiveness and depth of comparative analysis of property law and doctrine, copious footnotes, and wide-ranging sources...The book is a useful addition to the literature on property theory through its marginality perspective and comparative breadth, and to the broad genre of literature on transitions. Mihaela Serban Rosen Law and Politics Book Review Vol 19, No 10, November 2009 ...each chapter brings its own twists and turns so, for the property scholar, material revealed as the work progresses, comes as a continuous, fresh angle on the core argument. The work is extensively cross-referenced, which greatly aids clarity. Van der Walt has worked closely with experts in the field across different jurisdictions and also draws on his own extensive knowledge of South African land rights. Maureen O'Sullivan Web Journal of Current Legal Issues November 2009 The notable achievement of this most interesting book is the integrity and depth of its analysis of issues which arise in contexts involving "tensions in the margins" in the sense of a competition between title holder and a possessor or user with an interest supported by policy. David Carey Miller The Edinburgh Law Review Volume 14, Issue 2, May 2010 Property in the Margins...offers a refreshing new perspective on the question of how to grapple with the social effects of private property rights, which compliments but is distinct from social-obligation theories of property. Van der Walt's book takes property theory in a strong and distinctive new direction. His theoretical perspective is drawn out in an informative and engaging manner through diverse comparative analysis that is clearly the product of careful research and consultation with national experts in jurisdictions other than the author's own. The vast area covered by the comparative analysis, in terms of both the issues addressed and the jurisdictions analysed, is useful for the reader, as it ensures that the book has a broad-ranging practical context in which its theoretical outlook may be applied. Property in the Margins should be warmly welcomed by property theorists and comparative property lawyers, who will benefit from his thoughtful and creative reimagining of the structure of property law. Property in the Margins is a book that genuinely deserves to be called thought-provoking, and to be widely read on that basis. Rachael Walsh King's Law Journal 21.3, 2010 This book opens up a new focus for property discourse...Property in the Margins succeeds in paradoxically establishing the centrality of the margins and demonstrates that property law is "not exclusively or even primarily about the owners and holders of rights", but rather about "those who do not own property and whose lives are shaped and affected by the property holdings of others" (p. 238). Emma Waring The Cambridge Law Journal Volume 70, Part 1

Author Bio

AJ van der Walt is the South African Research Chair in Property Law, at Stellenbosch University, South Africa. His previous publications include Constitutional Property Law (2005).