Most textbooks treat constitutional provisions with respect to property as though they conformed to a simple story: property rights arise outside the constitution; the state may seek to infringe those rights; constitutional protections limit the extent to which the state can do so.
That story is, however, too simple. To begin with, it assumes that all constitutional provisions with respect to property are designed to protect privately owned assets. A review of constitutions worldwide makes clear this is not the case.1 The protection of private property is certainly a principal aim of constitutions in the liberal tradition—although, as we will see, there are variations even in those constitutions: liberal constitutions frequently protect public as well as private property; and they sometimes state that private property is subject to limitations and conditions in the public interest, suggesting that the ‘private’ sphere might not be as separate from the ‘public’ as is often assumed. And beyond these variations on the liberal model, there are constitutions that reflect very different visions of property: communist constitutions, in which the great bulk of productive assets are kept within the public domain; and constitutional provisions that recognise indigenous and other forms of communal title.
But more generally, the simple story neglects the way in which constitutions work together with property law to define the fundamental political and economic order of societies. Relations between government and people, even the very structure of government, are in substantial measure a function of the property rights in that society, so that property rights are not merely protected by the constitution but seamlessly interwoven with it. It is not simply that property law is tied to the distribution of resources within society, so that political power is to some extent a product of who holds property (although that is true). Rather, there is an intimate and integral relationship between property and constitutionalism, where principal features of the political constitution are determined by what are, at first sight, proprietary mechanisms.
This was certainly true historically in the parts of Europe subject to feudalism. There, political and economic responsibilities (obligations to one’s lord including military service; the right to administer justice; compulsory labour for public works; entitlement to natural resources; the right to hold a market; the right to maintain a mill) were incidents of rights in land.
But it is also true in post-feudal countries, in which the structure of property-holding shapes the relationship between individuals and their governments, determining the degree of individuals’ independence both from each other and from the state; the control exercised by private actors over such productive assets as land, water and mineral resources; the terms applicable to the expropriation of private property; the very extent to which a public sphere is separate from a private sphere; and so on. Think, for example, of the ways in which gated communities, where property is held in condominium, restructure the relationship between their residents and municipal governments, replacing the latter’s responsibility for policing, service provision and even (through arbitration) the resolution of disputes. It also is no accident that the structure, distribution and incidents of property were crucial to the transition from communism in central and eastern Europe, or to South Africa’s rejection of apartheid, where many feared that apartheid might be recreated in the ‘private’ sphere. One is reminded of Morris Cohen’s claim (in 1927) that property rights should be conceived as devolved sovereignty, allocating spheres of autonomous power to property-holders.
We use the term ‘proprietary constitutionalism’ to capture the way in which constitutions and property law together determine the foundational structure of the political order. We conceive of proprietary constitutionalism as a compound of three elements, each evident in written constitutions: the nature and distribution of control over productive assets, the governance arrangements that interlock with that structure, and the ideational conceptions that bind everything together, providing rationales for the different components and suggesting how they interrelate.
We set out three models of proprietary constitutionalism extant in contemporary constitutions: 1) the liberal model; 2) the communist model; and 3) traditional models of communal property. In describing these models, we provide an overview of the constitutional structures that address property rights worldwide. We spend most time on the liberal model because it is hegemonic and because three principal variants are evident within it, suggesting that it may be in the process of transformation. In any case, the models are often combined, either as a society transitions between liberal and communist forms of proprietary constitutionalism, or where social and political changes result in the recognition of different proprietary orders within a single state.
We focus specifically on the role of written constitutions in affirming and supporting these models of proprietary constitutionalism. Although we cannot explore the role of property law in depth, it is important to keep the broader nature of proprietary constitutionalism in mind, for the written constitutions are never self-sufficient. They presuppose the existence of proprietary orders extending well beyond the terms of the constitution. Indeed, the respective roles assigned to the constitution and to property law often differ: usually, but not always, constitutions are vehicles for expressing general principles and property law provides the framework within which competing claims are managed, but different constitutions draw these lines in different places.
We will then describe three modalities in the constitutional treatment of property: 1) the question of what counts as property; 2) the extent to which conceptions of property are engrained in other constitutional provisions, so that, in effect, the latter protect property rights; and 3) the constitutional regulation of major changes in the proprietary order.
The vast majority of constitutions today are premised on an essentially liberal model of proprietary constitutionalism. They are based on a relatively clear distinction between a public sphere of government-determined action and a private sphere in which private actors’ decisions are the principal motive force. They anticipate that the private sphere will be extensive, with many productive assets held and deployed by private parties. They presume that the predominant role of law is not to determine every action in society but rather to establish general rules within which private parties should be free to pursue their own ends.
This division between public and private spheres is generally presumed rather than defined in constitutions, although some do define the spheres’ outer limits, declaring that the state owns those assets that are not held by private actors,2 or stipulating that natural resources, culturally significant assets, air space, water, watercourses, marine zones, ocean frontage or a wide variety of other objects are retained within state control or vested in the populace as communal property,3 and sometimes regulating the disposal of publicly owned property4 or forbidding government actors from corrupt dealing in public property.5 For the most part, however, the definition of the boundary between the spheres is left to other areas of law, especially the law of property.6
The predominant focus of provisions on property in liberal constitutions is the affirmation and protection of the sphere of private rights. Sometimes the right to own property, either generally or with its attributes listed, is protected.7 Some of the more extensive lists of attributes appear in post-communist constitutions, and may be designed to shift the proprietary norm from one of social ownership to private ownership.8 Sometimes, state actors are obligated to protect property.9 Some constitutions name property as a prohibited ground of discrimination10 or prohibit discrimination in the enjoyment of property, with non-discrimination occasionally extended to non-citizens.11 But most extensively and characteristically, liberal constitutions regulate state intrusions on property, either generally or by regulating expropriation and search and seizure.12
The expropriation provisions in particular can be very detailed.13 They often require that dispossession occur only by process of law, such as by the judgment of a court under statutory authority. They sometimes require that there be a right of appeal to the courts. They often stipulate permissible grounds for expropriation, usually some variation of ‘public interest’ or ‘public purpose’, thereby excluding, ostensibly, the use of the state’s expropriation power to transfer property between private parties. Some constitutions contain a codified list of public purposes or other exemptions from the general prohibition, allowing expropriations for the satisfaction of a debt, to protect public health and safety, and, importantly, to conserve natural resources or protect the environment.14 Cyprus, Greece and Ireland specifically protect property belonging to religious institutions.15 Confiscation of property for crimes is sometimes eliminated.16 They also typically require compensation, generally stipulating that it should be ‘just’ or ‘fair’ (or ‘equivalent’ or ‘full’—apparently more demanding formulations), or constitute market value. Some require that compensation be fixed by statute. Many require that compensation be paid in advance, immediately or within a reasonable period.
By contrast, protections against intrusion, search and seizure tend to state the right generally or simply require that search and seizure should occur by process of law.17 There is, however, a family of Caribbean and African constitutions (and a few other constitutions) that contain detailed conditions for search and seizure.18 Some provisions specifically protect the sanctity of the home, often within the framework of rights of privacy.19
The rights stated thus far could protect a right conceived purely in terms of an individual’s entitlement, allowing an essentially unlimited accumulation of property. Indeed, many liberal constitutions do appear to protect property rights regardless of the extent of accumulation (although accumulation might be dampened by, for example, redistributive taxation or generous welfare provision). This model might be called Liberal Model 1. However, many constitutions expressly qualify individual property rights by some notion of the common good, social function or social responsibility.20 The German Basic Law states, for example: ‘Property entails obligations. Its use shall also serve the public good.’21 Indeed, there appear to be two variants on the liberal model.
One, Liberal Model 2a, still favours private ownership as the dominant form of property, but prefers modestly sized holdings over large holdings. It is committed to some form of material equality, not simply to protecting private property. This approach may be heir to a notion of republican politics, now long eclipsed, in which the best guarantee of political liberty and democratic equality lies in a society of roughly equal land-holders (Pocock 2003, 386–91, 532–9). Indications of Liberal Model 2a are diverse—so diverse that they may be responses to discomfort with unlimited accumulation rather than a genuinely alternative model. Nevertheless, the examples are striking.
First, several constitutions contemplate land redistribution as a remedy for inequality in land ownership or past dispossessions, clearly preferring some measure of equality to security of accumulated wealth.22 Some directly limit the size of agricultural holdings or empower governments to limit them.23
Second, some extend special consideration to small-holders.24 This is true of the Brazilian Constitution, which states ‘the small rural property … provided that it is exploited by the family, shall not be subject to attachment for the payment of debts incurred by reason of its productive activities, and the law shall establish the means to finance its development’.25 Angola stipulates: ‘The State … shall give special support to small and medium-scale economic activity, in accordance with the law.’26
Third, there may be a distinctively Islamic version of the model, in which an essential commitment to private ownership is framed by religious and moral obligation. The Bahrain Constitution has special provisions to protect small farmers and states: ‘Property, capital and work, in accordance with the principles of Islamic justice, shall be fundamental constituents of the social structure of the State and the national wealth. They are all individual rights with a social function regulated by the law.’27 Iran states that ‘ownership … is protected by the laws of the Islamic Republic, in so far as this ownership … does not go beyond the bounds of Islamic law, contributes to the economic growth and progress of the country and does not harm society’.28
Fourth, some countries limit accumulation by prohibiting or limiting land ownership by either non-nationals or non-residents,29 or by excluding non-citizens from protections against expropriation.30 These constraints may simply be ways to favour the economic interests of nationals and resist overseas investment in the limited resource of real property, but they may also represent a desire to resist the full commercialisation of land and to reserve land rights for those with a long-term commitment to the society. Many of these restrictions have come under heavy pressure in trade and investment negotiations. As a result, some countries have expressly included protections for foreign ownership in their constitutions.31
The limited conception of property rights in Liberal Model 2a brings those rights into closer accord with the spirit underlying social and economic rights. No longer do social rights function as partial remedies for the inequitable distribution of property. A sense of social value, of social purpose, is written into the very protection of property.
Indeed, it has been argued that private property is now so limited by regulation, public access, duties and control, and is so routinely subject to exceptions and reservations (such as the exclusion of mineral rights from the private ownership of land, limitations on the sale of cultural or archaeological objects, or the imposition of environmental conditions on owners), that it is best to conceive of property rights, especially over immovables, as composite bundles of rights organised around two principles: 1) the private actor’s right to use and control access to the resource; and 2) the government’s (or public’s) interest in land use and control, which may themselves approximate property rights (Gray 2010). The composite conception of property might be considered yet another variant on the liberal model: Liberal Model 2b. Under this variant, the concept of property itself is redefined, so that private property is seen to be a complex product of public power and not (as in Liberal Model 1) an independent and original right, amounting in principle to full dominion over the thing. Instead, the bundles can include a spectrum of entitlements, marking gradations in the degree of exclusive control they afford and blurring the line between ‘public’ and ‘private’. Constitutional provisions stating that property rights are intrinsically limited by a public interest, or by obligations of ownership, might express such a notion.32 Certainly there is no bright line between the concept of a public interest in land and the state’s sovereign authority to make laws governing the use of ‘things’. This lack of a bright line has bedevilled constitutional provisions on expropriation, as we will discuss below. Some scholars argue that Liberal Model 2b is more appropriate to our interdependent world, where global environmental concerns are critical, as well as a more accurate description of contemporary systems of land-use regulation and the complex regimes governing new objects of property (such as electromagnetic spectra) (Gray 2010).
Will either of these alternative liberal models become dominant? It is unclear. Doubtless, there is considerable strength left in the ideological underpinnings of Liberal Model 1. But the ostensibly absolute concept of private property, often asserted under Liberal Model 1, appears to have been significantly eroded, an erosion evident in constitutional provisions with respect to property. The question now is whether the ideational element too will shift, so that Liberal Models 2a or 2b come to reflect the dominant understanding of the nature of property, and constitutional provisions be interpreted accordingly.
Finally, we should not give the impression that all liberal orders have imposed constitutional protections of private property rights. Until recently, the British tradition clearly favoured parliamentary sovereignty over the constitutional protection of rights, including property rights. Indeed, in the aftermath of World War II in the United Kingdom, the newly elected Labour government consciously sought to break up landed wealth in order to dismantle the remnants of the country’s aristocratic system. However, the UK Human Rights Act 1998, Schedule 1, Part II, art 1 now protects some property rights, based on the European Convention on Human Rights. For its part, the Australian Constitution requires that expropriations occur on ‘just terms’, but this limitation applies to the federal and territorial governments, not to the states.33 And when the Canadian Charter of Rights and Freedoms was framed during the early 1980s, the protection of property rights was rejected because it was feared that a guarantee of property rights might be used to strike down social legislation (as in the United States during the Lochner era) (Alvaro 1991, 317–26; Tribe 2000, 1332–57).34 There is a substantial commitment to an essentially liberal proprietary order in these countries, but this has generally been combined with a commitment to preserving the capacity of the government to act in ways that might limit property rights.
As the notes to the previous section reveal, the liberal model of proprietary constitutionalism is hegemonic in the world today. With the collapse of the Soviet Union, it has been embraced by many former communist countries and even, to some extent, by countries that are still nominally communist, such as China and Vietnam. The liberal model has not completely occupied the field, however. There remain at least one clear example of the communist model in the world today; countries like China, whose constitutions combine elements of the liberal and communist models; and countries that expressly rejected the communist model but nevertheless have framed their constitutions to manage the transition.
The communist model treats all or substantially all productive assets as the common property of the society. It rejects the idea that productive resources should be vested in private parties. Rather, it insists that assets be held by the government or by state-supervised cooperatives and administered ostensibly in the interests of society as a whole.35 The communist model tends to structure the entire relationship between state and society very differently from the liberal model: much of social activity is managed directly by the state as part of its exercise of property rights—by its managerial authority rather than by its enactment of general rules. Indeed, the very concept and role of law has long been contested in communist societies. Contemporary communist states retain or have reinstituted at least some notion of law, but in a manner that often combines state control, managerial direction and legal determination.
Perhaps the regime with the purest communist constitutional order is North Korea. It has an expansive definition of state property—stipulating, for example, that ‘there is no limit to the property that the State can own’—and it declares that state property belongs to all the people. It stipulates that the state ‘plays the leading role in the economic development of the country’ and that state property should be developed on a preferential basis. Natural resources and the principal industrial facilities are vested exclusively in the state, although smaller facilities, land, farm machinery and ships can be vested in cooperatives. Nevertheless, the state ‘[leads] the cooperative property so as to combine the two forms of property in an organic way, and consolidates and develops the socialist cooperative economic system by improving the guidance and management of the cooperative economy and gradually transforms the property of cooperative organizations into the property of the people as a whole based on the voluntary will of all their members’. Provisions protect the inviolability of state and cooperative property.36 Private property is not entirely absent—indeed, the state is said to ‘protect’ it—but it is limited to consumption goods: assets ‘derived from socialist distribution according to work done and from supplementary benefits granted by the State and society’ and ‘the products of individual sideline activities including those from kitchen gardens …’ Nominally, ‘Citizens are guaranteed inviolability of the person and the home …’37
Countries such as China and Vietnam have moved away from a purely communist model but, as yet, without embracing a thoroughly liberal one. They tend to recognise both public and private property, stating that the latter is inviolable, but allowing substantial latitude to legislation to determine precisely what can be owned privately. Ostensibly, there are protections against expropriation of private assets, although in practice there has been deep dissatisfaction with confiscations for development.38 In China, the constitution states that urban land is owned by the state and rural land by collectives, and in Vietnam land is owned by the state, although in both, substantial private rights are permitted by leasehold. This means that the communist character of these and other constitutional orders is now a matter of degree, determined by the extent to which property is retained, empirically, within the state sphere, and state enterprises and state planning play a directive role in the economy.39 Certainly in China and Vietnam, the activity of private and parastatal enterprises has been actively encouraged, foreign investment particularly so. The Vietnamese Constitution formally exempts foreign investments from nationalisation.40 Indeed, some once-or still-Communist countries declare their commitment to mixed economies.41
The communist model has, since 1989, suffered a precipitous decline, both through outright rejection (as in the post-Communist states of central Europe) and through incremental abandonment (as in China). That decline has occurred through a dramatic shift in the proportion of productive assets held publicly. This in turn has reduced the extent to which those countries rely on managerial authority to organise social life. Several of them remain less than democratic, constitutions continue to recognise the leading role of the Communist Party, and the constitutions are generally not independently enforced, but nonetheless these countries rely increasingly on law as an instrument of social organisation.
A third type of proprietary constitutionalism is evident in some constitutions, which recognise forms of property that either predate the infrastructure of the state (for example, indigenous tenures) or are otherwise adapted to communal forms of life. Generally, the relationship between property and social ordering in these traditional forms differs materially from that in the state as a whole (although communal tenures are dominant in some Pacific Island states42). This communal property is not strictly public or private. Indeed, the ‘property’ interest often serves as a means of recognising a domain in which landholding is governed by indigenous law, so that, within that domain, the community determines the specific rights that are to be held by individual members or kinship groups.
Sometimes, constitutional provisions of this kind are directly analogous to federal structures or local government, acknowledging the existence of tribal or ethnic jurisdictions within the state and allocating to those communities the authority to manage communal property regimes.43 In other cases, the provisions are expressed in purely proprietary terms, without any formal allocation of jurisdiction.44 It is clear, however, that communal property must, of necessity, carry some elements of governance with it. The community must have rules to regulate the rights of individuals and groups inter se (including rules governing land use, stewardship, succession and transfer) and decide how the general interest of the community should be advanced through the shared use of resources. Communal or traditional forms of property therefore have significance extending far beyond the accommodation of minority interests in land and resources. They reveal the continued vitality of forms of social organisation that do not depend on the delineations typical of the liberal model of proprietary constitutionalism.
Communal property regimes are multiple and variegated even within a particular state. Some are continuations of precolonial orders while others are communal forms of land tenure granted by the state as in-kind reparation for past injustices (the dispossession of indigenous peoples, or the historic enslavement of persons now forming distinct ethnic communities). Grants of this kind may reflect traditional usages, but continuity with those forms is less obvious than in the recognition of ancient property rights.45 Constitutional mechanisms recognising communal titles may serve both reparative and distributive functions; some constitutions expressly enable the distribution of public lands to communities in order to further the economic development of certain minority groups.46 Significantly, provisions recognising communal title do not determine the content of indigenous property rights; rather, they serve as markers of the continuing importance of traditional systems of proprietary constitutionalism, usually affirming a general recognition of indigenous property or territory, sometimes alongside protections for indigenous culture and traditions.47
Some constitutions specify that indigenous rights are inalienable, a move that excludes indigenous peoples from the market and prevents them from selling, leasing or mortgaging their land.48 It also places indigenous property in a category of its own and cements the identity boundary between indigenous and non-indigenous communities: the property rights of individuals are defined by the laws of that group, and cannot be alienated outside of it. Inalienability has the effect of protecting indigenous lands from exploitation, but it also insists on equating ‘traditional’ with ‘non-commercial’ uses of land. It may also assert, indirectly, the importance of those lands to the populace as a whole, treating them in effect as the patrimony of the people, and so subject to state oversight and protection. Sometimes traditional property regimes, especially if expressly inalienable, can coincide with (or function as a proxy for) environmental protection.49 In all these ways, public lands, and the protection of indigenous interests on those lands, have become hallmarks of settler-state identity and legitimacy.
Other ethnic minorities and peasant communities sometimes receive constitutional recognition of their property rights and jurisdiction.50 The separate regulation of the property of churches and religious institutions, in some constitutions, may similarly amount to the recognition of a non-commercial sphere within the general proprietary order.51 One might be tempted to think that the ownership of land by rural communes in China approximates this model, but the role of the party/state in establishing, directing and removing that tenure makes clear that they are thoroughly incorporated within the state’s regime.
Within the principal models of proprietary constitutionalism, especially the liberal model, certain themes recur.
To this point, we have treated the objects of property rights—the assets, the resources—as though they were unambiguously defined. But this is not the case. Objects are also created and defined by law, with great variety of approaches among countries. Consider, for example, the complex structures of condominium or the licensing schemes governing ownership of electromagnetic spectra.
The bulk of that definition occurs within property law, but some definitional elements find their way into constitutions. Many exclude certain natural resources or natural features (e.g. watercourses, foreshores) from the domain of private property. Communist constitutions commonly exclude land. Some things are excluded from the scope of property altogether, often for supervening moral reasons. The clearest example would be prohibitions on slavery,52 but restrictions on the ownership of cultural heritage, monuments and artefacts may also be premised on moral, as opposed to commercial, conceptions of value.
More recently, a growing number of states, especially in Latin America, have either eliminated or restricted private property in water.53 These reflect the importance of water as a cultural and economic resource, but also the risks that attend the commodification of water. This is a concrete, not abstract, concern. Many developing countries that created a market in water (sometimes under international pressure) have suffered from attendant scarcity and over-pricing, the resulting civil unrest in some cases, notably Bolivia, creating conditions of crisis that promoted wholesale constitutional reform. Constitutional protections of scarce public resources are sometimes a response to the overreach and failures of neoliberal markets.
Indeed, one can observe a spectrum in the classification of different types of property across constitutions: a) things subject to private ownership; b) things that can be owned but that are subject to significant restrictions, lifting them beyond a purely private realm (church property; indigenous lands; in some cases water); c) things subject only to public ownership; d) things that cannot be owned.
There is also a question of the range of property interests that are covered by constitutional protections. Do they apply to rights in rem alone, or are all rights with economic value included (including contractual rights and rights to sue)? Most constitutions focus on rights in rem (generally land), but the ‘contracts clause’ of the US Constitution is a famous example of the latter.54 Even with respect to rights in rem, is all value protected, or does protection only apply to a stripped-down right of ownership? This has been the great question in expropriation, namely whether regulations that limit what one can do with one’s property, especially the right to ‘rents and profits’, amount to a partial expropriation, giving rise to compensation. Constitutional courts have generally distinguished between regulation and expropriation, but the line has been difficult to draw (see Tribe 1988, 590–604).55 Indeed, the very fact that regulation does not give rise to compensation suggests that something like Liberal Model 2b may be operative, with the courts implicitly recognising a continuing public interest in the use made of private property.
In addition to constitutional provisions that specifically address property, there are also implied or disguised protections of property, accomplished through the interpretation of other provisions.
These implied protections may be extensive. It is often argued that, in liberal constitutions, rights are founded on a proprietary model (Ingram 1994, 25–89). All rights protect a sphere of private autonomy that is presumed to include not just the holder’s person but also their property. When a person benefits from freedom of religion, they can deploy not just their bodies but also their property to religious ends. The same might be said of virtually any other human right.
This proprietary dimension can sometimes predominate, perhaps displacing other values distinctive to the right. A classic example would be the US Supreme Court’s decision in Citizens United v Federal Election Commission, 558 US 50 (2010), ostensibly based on freedom of speech. The right to use one’s wealth to purchase election advertising trumped any sense that expenditures might be constrained in order to foster rough equality in political discourse.
Other provisions too might be given a proprietary gloss. The Australian provision that ‘trade … among the States shall be absolutely free’ was used to strike down laws that had the effect of reducing interstate commerce, including the nationalization of banks—until, in 1988, the High Court ruled that the provision was meant simply to prohibit custom duties between the states.56
These proprietary protections are often subtle and tacit, built into judges’ presumptions about the meaning of liberty and the importance of a private domain. They are the expression of proprietary constitutionalism in judicial interpretation.
Finally, some constitutions attempt to manage large-scale social and economic reform, transforming the nature of property in the state.
We have already mentioned the changes wrought in communist and post-communist constitutions. Sometimes, those constitutions address the cost of transformation. Bosnia-Herzegovina provides for the restoration of property, or compensation for losses, resulting from the hostilities following the break-up of Yugoslavia.57 The constitutions of Colombia, Portugal and Serbia regulate privatisation, something that most countries leave to ordinary legislation.58
In recent years, several constitutions have responded to the dispossession of indigenous peoples or other marginalised groups, recognising their title, requiring the state to restore property and/or requiring the distribution of public land to impoverished communities. Bolivia’s 2009 Constitution is the most far-reaching. It accomplished a revolutionary indigenisation of Bolivian political life, shifting public power and property to the country’s indigenous majority. The proprietary provisions confirm the rights of ‘nations and native peasants’ to exercise self-determination and organise themselves in accordance with their ‘political, economic and legal systems’ as well as protecting their ‘collective title to lands and territories’.59
Finally, South Africa’s 1996 Constitution contains complex provisions designed to reverse the effects of apartheid, affirming property rights, providing for restitution of property taken during apartheid and authorising redistribution.60
It is sometimes said that the true constitution of France is the Code civil des français. The dictum points to a more general truth. A state’s fundamental political and economic order is a function not simply of its formal constitution but of the way in which the constitution interacts with the country’s proprietary order to form a consolidated whole. That is proprietary constitutionalism. Its recognition is essential to understanding the variety and the interplay of constitutional provisions with respect to property.
* Our thanks to Ardith Bailey, Rafael Plaza, Emma Poole, Jared Wehrle and the Melbourne Law School Research Service for able research assistance, and to Ardith Bailey, Thomas Fleiner, Nguyen Van Cuong, Qu Xiangfei, Ren Danli, Cheryl Saunders, Mark Tushnet, Lael Weis and Zhang Qianfan for their comments on previous versions of this chapter.
1 This chapter is based on an examination of 130 constitutions worldwide, which we cite only by country.
2 Mongolia, art 6(2).
3 Afghanistan, art 9; Algeria, art 17; Angola, art 12(1); Azerbaijan, art 14; Bahrain, art 11; Bolivia, arts 339(II), 349, 359(I), 369(I), 372(I), 374; Chad, art 57; Chile, art 19(24); Hong Kong, art 7; Taiwan, arts 108(1)3 and 12, 109(1)2, 110(1)5, 143(1), 143(2); Colombia, arts 63, 102, 334; Costa Rica, art 121-14; Cambodia, arts 58, 69; Croatia, art 2(1); Cyprus, art 1; East Timor, section 139(1); Ecuador, arts 1, 261(7) and (11), 379, 400, 408; El Salvador, art 103; Equatorial Guinea, art 28; Greece, art 24(6); Guatemala, art 121, 122; Guinea-Bissau, art 9; Hungary, art P, art 38(1); India, art 297; Indonesia, art 33(3); Iran, art 45; Iraq, art 111; Ireland, art 10(1) and (4); Japan, art 88 (‘all property of the Imperial Household’); Kazakhstan, art 6(3); Kuwait, art 21; Kyrgyzstan, art 12(5); Liberia, art 22(b); Lithuania, art 47(1), (2), and (4); Macedonia, art 56(1); Mexico, art 27; Mongolia, arts 5(5) (‘livestock of the country’), 6(1); Nicaragua, art 102; Paraguay, art 112(1); Peru, arts 21, 66; Philippines, arts XII(2), XIV(16); Portugal, arts 80(d), 84(1); Romania, art 135(4); Serbia, art 87(1); Slovakia, art 4; Spain, art 132(2); Syria, art 14(1); Tonga, arts 104, 109; Turkey, arts 168, 169; Ukraine, art 13; Uruguay, art 34; Vanuatu, art 80; Venezuela, arts 11, 12; Yemen, art 8. Botswana, art 8(3), regularizes the taking of possession of minerals ‘if that law makes provision for the payment at reasonable intervals of adequate royalties.’
4 Bolivia, art 349(I); British Virgin Islands, section 41; Cayman Islands, section 38; Taiwan, arts 102(1)6, 110(1)2; Colombia, art 150; Costa Rica, arts 121–14, 174; Croatia, art 52; El Salvador, art 104; Hungary, art 38(3) and (4); India, art 298; Iran, art 83; Ireland, art 10(3) and (4); Kuwait, art 121, 138; Lithuania, art 128(2); Mexico, art 27; Philippines, art XIII(1); USA, art IV(3).
5 Albania, art 70(3); Bahrain, arts 81, 86(b); Benin, art 37; Iraq, art 127; Japan, art 8; Korea (South), art 46(3); Kuwait, arts 121, 131; Peru, art 41; Norway, art 75(e); Philippines, arts XI(15), XVIII(21); Yemen, arts 118, 136.
6 This is explicit in Czech Republic, art 11(1); Slovakia, art 20(2); Turkmenistan, art 9; Ukraine, art 92(7).
7 Albania, art 41; Algeria, art 52; Argentina, section 14; Armenia, arts 8, 28; Azerbaijan, art 29; Bahrain, art 9(c); Belarus, art 44; Bolivia, art 56(I), (II) and (III); Brazil, art 5(XXII and XXX); Bulgaria, art 17(1); Cambodia, art 44; Chile, arts 23, 24; Cook Islands, section 64(1)(c); Croatia, art 48(1); Cyprus, art 23(1); Czech Republic, Charter art 11(1); Dominican Republic, art 8(13); East Timor, section 54(1); Ecuador, arts 66(26), 69(2), 321; Egypt (2011) art 5; El Salvador, arts 2, 22, 23, 103; Equatorial Guinea, art 29; Estonia, art 32; Finland, section 15; Georgia, art 21(1); Germany, art 14(1); Guatemala, art 39; Hungary, art XIII(1); Indonesia, art 28G(1); Iraq, art 23; Ireland, art 43; Japan, art 29; Kazakhstan, arts 6, 26; Korea (South), art 23(1); Kyrgyzstan, art 42; Latvia, art 105; Liberia, arts 11, 22(a); Liechtenstein, art 28(1); Macedonia, arts 8, 30; Mongolia, arts 5(2), 16(3); Nicaragua, art 44; Peru, art 2(16); Poland, arts 21(1), 64; Portugal, art 62(1); Romania, arts 41(1), 42; Russia, art 35; Rwanda, art 29; Serbia, arts 58, 59; Slovakia, art 20(1); Slovenia, art 33; Spain, section 33(1); Sudan, art 43(1); Switzerland, art 26(1); Taiwan, art 15; Thailand, section 41; Turkey, art 35; Turkmenistan, art 9; Ukraine, art 41; Uruguay, art 7; Venezuela, art 115. Eritrea, art 23(1), Ethiopia, art 40(1), Hong Kong, art 7, and Tonga, arts 1, 104 protect private ownership, but with the important exclusion of land.
There are specific provisions for the enjoyment of intellectual property in Argentina, section 17; Azerbaijan, art 30; Bolivia, arts 100(II), 101, 102; Chile, art 25; Czech Republic, Charter, art 34(1); Dominican Republic, art 14; East Timor, section 60; Ecuador, arts 22, 322; El Salvador, art 103; Georgia, art 23(1); Guatemala, art 42; Guinea-Bissau, art 42; Kyrgyzstan, art 49(3); Mongolia, art 7(2); Paraguay, art 110; Philippines, art III(13); Russia, art 44(1); Slovakia, art 43(1); Slovenia, art 60; Sweden, ch 2, art 16; Syria, art 24(2); Thailand, section 86(2); Turkmenistan, art 9; Ukraine, arts 41, 54; Uruguay, art 33; Venezuela, art 98.
8 See, e.g., Albania, art 41(2); Armenia, arts 8, 28; Azerbaijan, art 29; Belarus, art 44; Georgia, art 21; Kazakhstan, arts 26; Kyrgyzstan, art 42; Lithuania, art 46; Macedonia, art 55; Nicaragua, art 44; Poland, arts 21(1), 64; Russia, arts 34–36; Turkmenistan, art 9.
9 See, e.g., Colombia, art 2; Greece, art 17(1); Hong Kong, art 6; Ireland, art 40(3); Kazakhstan, art 6(1); Kyrgyzstan, art 12(4); Macedonia, art 8(1); Peru, art 166; Romania, arts 41(2), 135(1); Russia, art 8(2); Rwanda, art 171; South Africa, art 205(3); Taiwan, art 143(1); Ukraine, art 13; Venezuela, art 55; Turkmenistan, art 9; Zambia, art 104(a).
10 British Virgin Islands, sections 9, 26(1)(a); Bulgaria, art 6(2); Cayman Islands, section 16(2), Croatia, art 14(1); Czech Republic, Charter of Fundamental Rights and Freedoms, art 3(1); Estonia, art 12(1); Georgia, art 14; Iceland, art 65; Kazakhstan, art 14(2); Macedonia, arts 9(1), 54(3); Mongolia, art 14(2); Poland, art 233(2); Romania, art 4(2); Serbia, art 21(3); Slovakia, art 12(2); Turkmenistan, art 17; Ukraine, art 24.
11 See, e.g., Chad, art 15; Djibouti, art 18; Peru, art 71. Some constitutions require the property rights be enjoyed equally between men and women: Bolivia, art 402(2); Ecuador, arts 69(2) and (3), 324; Ethiopia, art 35(6); Japan, art 24; Liberia, art 23; Zimbabwe, art 23(3a).
12 Afghanistan, art 40; Andorra, art 27(1); Angola, art 12(4); Antigua and Barbuda, art 3(a); Armenia, art 28; Azerbaijan, arts 29(IV), 31(II); Bahrain, art 9(c)-(d); Barbados, art 11(b); Belarus, art 44(3); Belize, art 3(d); Benin, art 22; Bermuda, section 1(c); Bosnia and Herzegovina, art 2(1)(k); Botswana, art 3(c); Brazil, art 5(XXII); Bulgaria, art 17(5); Cambodia, art 44; Chad, art 4(1); Chile, art 24; Colombia, art 58, 59; Cook Islands, section 40; Croatia, arts 34, 50; Cyprus, art 23; Czech Republic, Charter art 11(4); Denmark, sections 72, 73; Djibouti, art 12; Dominica, section 6; Dominican Republic, art 8(13); East Timor, section 54(3); Ecuador, art 323; Egypt (2011), art 5; El Salvador, arts 20, 106; Equatorial Guinea, art 29; Estonia, arts 32, 33; Eritrea, art 23(1); Estonia, art 32; Ethiopia, art 40(8); Georgia, art 21; Germany, arts 13, 14(3); Greece, art 17; Guatemala, art 40; Hungary, art XIII(2); Iceland, arts 71, 72; India, art 31A; Iraq, art 23; Italy, art 42; Japan, art 29; Kazakhstan, art 26(3); Korea (South), art 23(3); Kuwait, art 18; Kyrgyzstan, arts 12(2), 12(3), 30; Latvia, art 105; Lebanon, art 15; Liberia, arts 20, 21, 24(a); Liechtenstein, arts 34, 35; Lithuania, art 23; Macedonia, art 30; Mexico, arts 16, 27; Mongolia, art 16(3); Netherlands, art 14; Nicaragua, art 44; Norway, arts 104, 105; Paraguay, art 109; Peru, art 70; Philippines, art III(1), (2) and (9); Poland, art 21(2); Portugal, art 62(2); Romania, arts 41(3)-(5); Russia, art 35(3); Rwanda, art 29; Serbia, art 58; Slovakia, art 20(4); Slovenia, art 69; South Africa, art 25(1)-(4); Spain, section 33(3); Sudan, art 43(2); Sweden, art 15; Switzerland, art 26(2); Thailand, section 42; Tonga, art 18; Turkey, art 46; Ukraine, art 41; US, Fifth Amendment; Uruguay, art 32; Venezuela, art 115; Yemen, art 7(c); Zambia, art 16; Zimbabwe, section 16.
13 See ibid.
14 See, e.g., Bermuda, section 13(1)(a); Bolivia, art 57; Botswana, art 8(1); British Virgin Islands, section 25(3); Cayman Islands, section 15(2); Chile, art 24; Cook Islands, section 40(2); Cyprus, art 23; Dominica, s 6; Ecuador, art 323; India, art 31A(1)(e); Liberia, art 24(a); Thailand, section 42; Tonga, art 18; Zambia, art 16(2); Zimbabwe, art 16(1).
15 Cyprus, art 23(10); Greece, arts 18(8), 105(2); Ireland, art 44(2)(6°).
16 See, e.g., Argentina, section 17; Belgium, art 17; Columbia, art 34; Cyprus, art 12; El Salvador, art 106; Guatemala, art 41; Greece, art 7(3); Paraguay, art 20(2); Uruguay, art 14.
17 See, e.g., Afghanistan, art 40; Belgium, art 15; Cambodia, art 40; Chad, art 42; Czech Republic, art 12; Djibouti, art 12; Eritrea, art 18(2); Estonia, art 33; Fiji, section 26(2); Iceland, art 71; Kazakhstan, art 25(1); Rwanda, art 22; Syria, art 31.
18 Antigua and Barbuda, art 10; Barbados, arts 17.1, 17.2; Belize, art 9; Bermuda, section 7; Botswana, art 9; British Virgin Islands, section 19; Cayman Islands section 9; Dominica, section 7; Zambia, art 17; Zimbabwe, section 17. See also Croatia, art 34; Germany, art 13; Mexico, art 16; Romania, art 27; Serbia, art 40(2) and (3).
19 Antigua and Barbuda, art 3(c); Azerbaijan, art 31(II); Barbados, art 11(b); Belarus, art 29; Belgium, art 15; Belize, art 3(c); Bermuda, sections 1(c), 7; Botswana, arts 3(c), 9; British Virgin Islands section 19(1); Cayman Islands, section 9(1); Chad, art 42; Costa Rica, art 23; Croatia, art 34; Cambodia, art 40; Czech Republic, art 12; Denmark, section 72; Djibouti, art 12; Dominica, section 1; El Salvador, art 20; Eritrea, art 18(2); Estonia, art 33; Ethiopia, art 26(1); Germany, art 13(1); Guinea-Bissau, art 48; Iceland, art 71; Italy, art 14; Kazakhstan, art 25(1); Korea (South), art 16; Kyrgyzstan, art 30(1); Lebanon, art 14; Lithuania, art 24(1); Mexico, art 16; Netherlands, art 12(1); Norway, art 102; Paraguay, art 34; Peru, art 2(9); Poland, art 50; Portugal, art 34(1); Romania, art 27(1); Rwanda, art 22; Serbia, art 40(1); Slovakia, art 21(1); Slovenia, art 36; South Africa, art 14; Spain, section 18(2); Sudan, art 37; Turkey, art 21; Turkmenistan, art 24; Ukraine, art 30; Uruguay, art 11; Vanuatu, art 5(j); Zambia, arts 11(d), 17(1).
20 Azerbaijan, art 13(3); Bolivia, arts 393, 397; Brazil, art 5(XXIII); Colombia, art 58; Croatia, art 48(2); East Timor, section 54(2); Ecuador, art 66(26); El Salvador, art 103; Estonia, art 32(2); Germany, art 14(2); Greece, art 17(1); Hungary, art XIII(1); India, art 39(b); Ireland, art 43(2); Italy, art 42; Japan, art 29; Kazakhstan, art 6(2); Korea (South), art 23(2); Kuwait, art 16; Latvia, art 105; Liberia, art 7; Macedonia, art 30(2); Mongolia, art 6(4); Nicaragua, art 5; Philippines, art XII(6); Romania, art 41(6); Slovakia, arts 20(3), 67; Spain, sections 33(2), 128; Turkey, art 35; Yemen, art 8.
21 Germany, art 14(2).
22 Colombia, arts 60, 64; Cyprus, art 23(6); Dominican Republic, art 8(13)(a); Ecuador, arts 281(4), 282; El Salvador, arts 104, 105; Ethiopia, art 44(2); Italy, art 44; Mexico, art 27(XVII); Nicaragua, arts 106ff; Paraguay, arts 114ff; Philippines, art XIII(4); Portugal, arts 81(h), 94–96; South Africa, art 25(4)–(8); Taiwan, art 142; Thailand, section 85(2); Turkey, art 44; Zimbabwe, arts 16A, 16B. See the general commitment to equitable distribution in India, art 39; Iran, art 31 (for housing); Ireland, art 45(2). But see Greece, art 18(4) and Portugal, art 95, which contemplate the combining of small parcels.
23 See, e.g., Angola, art 90(j); Bolivia, art 398; Ecuador, art 282; El Salvador, art 105; Italy, art 44; Mexico, art 27(XVII); Syria, art 16.
24 Bolivia, art 394(1I); Ethiopia, art 40(4); Italy, art 44; Mexico, art 27(XV).
25 Brazil, art 5(XXIII) and (XXVI).
26 Angola, arts 11(3).
27 Bahrain, art 9(a) and 9(g).
28 Iran, art 44(5). See also Yemen, art 7.
29 Afghanistan, art 41; Armenia, art 28; Bolivia, art 396(II); Cambodia, art 44; East Timor, section 54(4); Iceland, art 72; Iraq, art 23(3)(a); Liberia, art 22(a); Mexico, art 27(I); Mongolia, art 6(3); Romania, art 41(2). These constitutions expressly contemplate or impose limitations on foreign ownership. Other constitutions permit such limitations without expressly mentioning foreign ownership. See the West Indian constitutions that stipulate restrictions on land acquisition should not be held to violate mobility rights (e.g., Barbados, section 22.3(d)). In addition, some constitutions prohibit foreign ownership close to the country’s borders for security reasons (Bolivia, arts 262; Guatemala, art 123; Mexico, art 27(I); Peru, art 71) or generally permit restrictions on foreign ownership (Estonia, art 32; Slovakia, art 20(2)).
30 Belize, art 17(4)(b).
31 Angola, art 11(4); Argentina, section 20; Brazil, art 5; Bulgaria, art 22; Hong Kong, art 105(3); Macedonia, art 31; Serbia, art 85; Slovenia, art 70. See also Botswana, art 8(2) (re foreign remittance of compensation for expropriation).
32 Supra, note 20.
33 Australia, section 51 (xxxi).
34 There is, however, an interpretive presumption that compensation must be provided when property is expropriated unless the relevant statute clearly states otherwise (A-G v DeKeyser’s Royal Hotel [1920] AC 508, 542 (HL)), and it is often suggested that some property rights have been protected under other provisions of the Charter, notably mobility rights.
35 Cuba, arts 15, 19, 20, 24, however, permits small farmers to own, sell and inherit land and extends special protections to them, also encouraging them to form cooperatives.
36 North Korea, arts 21–23, 35, 84, 125(10), 147, 156, 162.
37 North Korea, arts 24, 79. See also Cuba, arts 56–57.
38 China, art 13 (as amended in 2004); Vietnam, art 23. See also Cuba, arts 19, 25; Syria, art 15. Compensation tends not to be specified as clearly or as generously as in liberal constitutions (Zhang 2012).
39 China, art 10; Vietnam, arts 17–18. See also Zhang (2012); Sidel (2009: 90–92). Many Communist or post-Communist constitutions contain a substantial list of assets held within state control or confer an open-ended power on legislatures to determine property to be reserved to the state: Algeria, art 17; Angola, art 11(1); Belarus, art 13; Cuba, art 15. Some retain land in state ownership: Eritrea, art 23; Ethiopia, art 40(3). Iran, art 44, also specifies an extensive state sector.
40 Vietnam, art 25.
41 Equatorial Guinea, art 27 and 29; Guinea-Bissau, art 11 and 12; Kyrgystan, art 12; Mongolia, art 5; Nicaragua, art 103; Peru, art 60; Portugal, arts 80(b), 82; Syria, art 14; Vietnam, art 15.
42 See especially Tonga, art 104; Vanuatu, arts 73–79.
43 Bolivia, art 403, Colombia, art 329, 330; Ecuador, art 57, Guatemala, arts 67, 68; Nicaragua, arts 5, 89, 107, 180ff; Peru, art 89; Vanuatu, sections 73-79; Venezuela, arts 119-24. See also the abrogated constitution of Fiji, arts 6, 186.
44 Brazil, art 231; Canada, Charter of Rights and Freedoms, section 35; Cook Islands, section 64(1) (c); Mexico, art 27(VII–XIV); Paraguay, art 64; Philippines, art XII, section 5; Tonga, art 104.
45 See, e.g., Bolivia, art 32; Brazil, art 68; Colombia, provisional art 55; Guatemala, art 68.
46 See, e.g., Argentina, art 68; Paraguay, art 115(4); Guatemala, art 68.
47 This is clearest in Bolivia, arts 2, 30.
48 Bolivia, art 394; Brazil, art 231; Colombia, art 329; Ecuador, art 57(4); Paraguay, art 64; Tonga, art 104; Venezuela, art 119.
49 See, e.g., Colombia, arts 310, 330.
50 Bolivia, arts 32; 394 (III), 395 (intercultural communities, Afro-Bolivians, peasant communities); Brazil, art 68 (ancient runaway slave communities); Colombia, provisional art 55 (Black communities); Ecuador, art 60 (Afro-Ecuadorians, coastal back-country (Montubios) peoples); Nicaragua, arts 89, 180, 181 (ethnic communities of the Atlantic Coast).
51 Cyprus, art 23-9, 23-10, 110; Germany, art 138(2); Greece, art 105(2); Guatemala, art 37; Liechtenstein, art 38; Norway, art 106; Uruguay, art 5.
52 These are very common. See, e.g., Liberia, art 12; USA, Amendment XIII.
53 Bolivia, arts 373–74; Ecuador, arts 12, 318; Guatemala, art 127; Venezuela, art 304.
54 USA, art 1, section 10.
55 Some constitutions attempt to guide the consideration; see, e.g., Poland, art 64(3); Serbia, art 58(3); Sweden, art 15 (prescribing compensation for substantial impairment by regulation).
56 Australia, section 92; Cole v Whitfield (1988) 165 CLR 360.
57 Bosnia and Herzegovina, art 4.
58 Colombia, art 60; Portugal, art 293; Serbia, art 86. Compare Ukraine, art 85.
59 Bolivia, art 32.
60 South Africa, arts 25(6) and (7).
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