The Dynamics of Constitutional Property Clauses in the Developing World: China and South Africa
| DOI | 10.1177/1023263X1001700403 |
| Author | Chen Lei,Hanri Mostert |
| Date | 01 December 2010 |
| Published date | 01 December 2010 |
| Subject Matter | Article |
17 MJ 4 (2010) 377
THE DYNAMICS OF CONSTITUTIONAL
PROPERTY CLAUSES IN THE DEVELOPING
WORLD: CHINA AND SOUTH AFRICA
H M* and C L**1
No constitutional prov ision and no judicial method of
interpreting a cons titutional provision can pos sibly resolve,
once and for all, va lue conicts over property.
(G. Alexander, e Global Debate o ver Constitutional Proper ty
(University of Chicago Pre ss, Chicago 2006), p. 247)
ABSTRAC T
is article examines the theoretical d evelopment of Chinese cons titutional property law,
compared with the experience in South Africa, which is another e merging jurisdiction of
constitutional property law. Being cautious of the political, economic and social dierences
between t wo countries this endeavour i s nevertheless important, becau se of its potential
to spark renewed interest in the com parability of propert y law system s worldwi de. It
highlights that the third-generational constituti ons of the d eveloping world focus not
only on par ticipatory and political rights, but al so on social r ights and responsibilitie s of
citizens, and in fact supports actionable socio-economic rights. Perceptions of property that
may be regarded in the develo ping world as ‘Eurocentric’, i.e. that a system of ‘individual’
property inte rests is the predominant form of organization, are l osing support. From the
Chinese perspective, there seem s to be an awareness of the increasing need to limit the vast
regulatory reach of the state and to aord the individual better protection and opportunities
to engage in personal wealth-enhancing activity. Yet, the promotion of individual property
right should be comprehende d in the view of the communitarian needs.
Keywords: Chi na; constitutional property clauses; expropriation; public interest; South
Africa
* BA LLB LLM LLD (Stell). Professor of Private Law, University of Cape Town; Visiting Professor, Centre
for Law and Gover nance, Rijksu niversiteit Groningen. e nancial supp ort of the Nationa l Research
Foundation is acknowledged wit h gratitude. Opinions express ed here should not b e attributed to this
institution . e research assista nce of Nkanyiso Sib anda is gratefu lly acknowledged.
** LLB LLM (Aberdeen) LL D (Stell). Assistant Professor, Scho ol of Law, City University of Hong Kong.
Hanri Moster t and Chen Lei
378 17 MJ 4 (2010)
§1. INTRODUCTION AND BACKGROUND
Property is more tha n just something tangible: it is t he embodiment of a human being’s
relationship with t he outer world. Hegel pointed out that individua l will is an ‘objective
in property’, that it is a human right to own property a nd use it as a means of self-
development.1 In the Hegelian view, property is inti mately connected to persona l
freedom. From the Ch inese perspective, ancient phi losopher Meng zi (Mencius)
indicated that a pers on who owned property had a higher level of moral ity and behaved
in a more dis ciplined way than thos e who did not own property.2 From t his stance, the
communitaria n perception of the right to private proper ty promotes a harmonious and
ordered so ciety. e viewpoints of the likes of Hegel and Mengzi are not necessar ily
antithetica l. Property can represent both personal freedom and restraint simultaneously.
Nowhere is this dichotomous truth better illustrated than in studies about constitutional
property protection.
Our paper examines constitutional property protection in China and South Africa,
and focuses specically on ex propriation. It certainly is beyond doubt that the Chinese
constitutional amendments of March 2004 were far-reaching. ey elevated private
property rights to a level d eserving better protect ion than was previously envisaged.
ey introduced into Chinese law a notion of property that renders a fre e-market
economy more viable and economic de velopment more sustainable. Nevertheless, the
principles for constitutional property protection in China have yet to be translated
into more concrete implications. It is s till not generally appreciated that the Chinese
Constitution plays an i mportant part in property law, part icularly in matters relating to
expropriation. Two major dicult ies present themselves here: these are the deciencies
as regards en forcement of judgments and the lack of judic ial review in Ch ina.3 ough
these practical challenges must, importantly, be overcome if the constitutional provisions
are to have a sig nicant impact on Chinese property law, t hey are not the main focus
of our analysis. Our goa l is more mode st, because China’s constitutionalization of
private property rights has only just begun. is presents an appropriate oppor tunity to
examine the possible t heoretical development of Chinese constitutional property law, in
comparison w ith similar developments from elsewhere in the world. At this point, the
necessity a nd value of legal-compa rative study cannot be denied. We base our analysis
1 G.W.F. Hegel, E lements of the Phi losophy of Rig ht (Cam bridge University Press, Cambridge 1991),
chapter 78, p. 46 ; P. Drahos, A Philosophy of Intellectual Proper ty (D artmouth Publishi ng Group,
Aldershot 1996), p. 73–94.
2 English version: ‘e way of t he people is t his: if t hey have a cer tain liveli hood, they will have a xed
heart; if they have not a certain liveliho od, t hey have not a xed hea rt.’ Teng Wen Gong, Book I,
Mencius.
3 See He Xin, ‘e Judiciar y Pu shes Ba ck’, i n R. Peerenboom (ed.), Judicial Independence in China:
Lessons for Gl obal Rule of Law Promotion (Ca mbridge University Press , Cambridge 2010), p. 180–195.
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