by A.J. van der Walt. Portland, OR: Hart Publishing, 2009. 294pp. Paper. $70.00/£35.00. ISBN: 9781841139630.
Reviewed by Mihaela Serban Rosen, Institute for Law and Society, New York University. Email: mihaela.serban [at] nyu.edu.
PROPERTY IN THE MARGINS explores the dynamic between stability and change in property regimes during periods of transformation, aiming to understand how this dynamic opens up spaces for uprooting inequality and injustice. The book shares with current property theory literature its conceptualization of property as power and as social relationship, as well as its normative thrust. It stands apart because it attempts to theorize property from a marginality perspective, and because of its comparative approach. The book focuses on eviction from the perspective of those at the margins of society and property distribution patterns. The primary method is legal analysis of eviction laws and cases in South Africa, Germany and the United Kingdom. In all three countries, at stake is the centrality of property in the rights paradigm: "a set of doctrinal, rhetorical and logical assumptions and beliefs about the relative value and power of discrete property interests in the law and in society" (p.27).
The book’s structure is straightforward: seven chapters, the first three setting out the theoretical approach of the book, the next three the substantive case law discussion – eviction in landlord tenant law, eviction of unlawful occupiers, and limitations on eviction in other contexts – and the last the conclusions and implications for change. The book also includes complete tables of cases and legislation, bibliography, abbreviations list and a useful index. Although the bulk of the book focuses on the three countries mentioned above, cases discussed in various sections also come from Australia, Canada, the European Court of Human Rights, the European Committee of Social Rights, India, the Netherlands and the United States.
The preface situates the book within the context of recent, mostly North American property theory, the origin of the book in the specific post-apartheid South African transition, and the hypothesis that the success of protections against eviction indicates the strength of the rights paradigm. The first chapter discusses in depth the South African context, the history of apartheid and its impact on property, in particular the need for significant changes in wealth distribution through removing apartheid era policies on access to land, natural resources, and freedom of movement. The key issue in the South African context, van der Walt notes, similarly to other transitions, is the simultaneity of peaceful political change and meaningful social and economic transformation. The theoretical framework of the book is Karl Klare’s concept of transformative constitutionalism, the idea that existing rights are protected but also restricted within a constitutional framework that demands and enables significant reform, thus allowing a broad enough framework [*803] for both stability and change. The first chapter also reveals one of the weaknesses of the book, namely the assumption that the intertwining of law and politics through open-ended, policy-oriented, contextual interpretations of the law are to be expected in periods of transition, yet the positivist separation of law and politics predominates under “normal” circumstances.
Chapter 2 analyzes in detail the rights paradigm, the centrality of ownership and property interests, and distinguishes between the civil law and common law models of property. In both traditions there exists the idea of absolute ownership, the rights paradigm is abstract and hierarchical, and they have similar rhetoric and values underlining property. However, while civil law systems, which draw from Roman law and include South Africa’s private law, have an overarching, supreme, abstract and acontextual notion of ownership, common law systems rely upon conflicting claims on possession to solve property conflicts, rather than a single, absolute title that will always trump any conflicting interest or claim. The chapter ends with a brief introduction to paradigmatic landlord-tenant cases in the three countries studied: BRISLEY v. DROTSKY (South Africa), the 1993 German Landlord-Tenant case, and the QAZI case (UK). Comparative property law is a relatively under-populated area, so this type of cross-system comparison is particularly welcome.
The third chapter focuses on eviction in the rights paradigm, mainly in the civil law model of property. It presents similarities between civil law, common law and South African law regarding the right to evict, largely defined by landlord-tenant laws adopted in most countries after the Second World War to protect tenants from exploitation. Van der Walt notes that even dramatic restrictions imposed on landlords nonetheless fail to undermine the landowner’s property rights in two ways: usually, only lawful occupiers such as tenants are protected, and not unlawful ones such as squatters. Second, even this protection usually turns on factors that are within the landlord’s control, such as non-payment, rather than external factors, such as the personal circumstances of the tenant. Courts in both common and civil law systems do not have discretion to look into the occupier’s circumstances, hardship or to take into account the general context. The chapter becomes truly interesting with the author’s analysis of eviction as a political tool during apartheid in South Africa, such as the way it was used to relocate entire communities, the changes to eviction law during apartheid, and their post-apartheid impact. Van der Walt illustrates his points by discussing the post-apartheid case law on eviction and the distinctions between the lower courts’ approach of eviction as a decontextualized tool, versus the Constitutional Court’s and other high courts teleological approach.
The fourth chapter presents in detail eviction in the landlord-tenant law of the three countries, as well as the key doctrinal debates. The statutory intervention in landlord-tenant relationships post-Second World War set out a tension between private law, favoring ownership and landlords, and statutory law, favoring tenants. The question for van der Walt is whether statutory protections against unfair, arbitrary or unlawful evictions change [*804] the rights paradigm. In all three countries, he concludes, landlord-tenant law qualifies the rights paradigm to various extents, mainly through imposing extensive due process controls over the termination of the lease and the eviction procedure. Substantive restrictions postponing or sometimes preventing eviction also exist, the most extensive of which is when tenants’ circumstances are taken into account. In all three countries, there is significant doctrinal resistance, rather than political conservatism, against major shifts in the rights paradigm. Without going into more detail here, I will only note that the case law analysis is informative and would be very useful for class discussions on comparative law and politics. However, the South African and UK sections of this chapter were very ambitious in scope, and as a result details were plentiful, but the overall picture was not always entirely clear.
Chapter 5 discusses eviction of unlawful occupiers, specifically three categories of active unlawful occupation: politically inspired urban squatters, anti-eviction protection in South African land reform law, and the situation of gypsies and travelers. Van der Walt takes a brief tour through the Dutch, German, English and American political squatting, and points out that although the rights paradigm has not been changed, housing laws in Western Europe were amended because of the political squatting movement. Similarly, post-apartheid land reform laws in South Africa introduced some very promising regulation and a major shift in anti-eviction area, yet the rights paradigm remains strong. In general, unlawful occupiers are more vulnerable than lawful ones, yet they do enjoy protection from eviction, at a minimum due process protection. It is only substantive protections such as the impact of eviction on occupiers that pose a serious challenge to the rights paradigm.
Chapter 6 deals with limitations on eviction in other contexts: acquisitive prescription and adverse possession, public access to private property, significant building encroachments, and the differential protection afforded to weak owners. They are discussed as examples of restrictions on the right to exclude and evict, thus questioning the rights paradigm. In the case of acquisitive prescription and adverse possession, bad faith possession leading to ownership is an indication that the security and exclusivity of ownership is sometimes sacrificed for other policy goals, such as legal certainty or economic efficiency. Public access to private property, such as equal access to public accommodations in the U.S., diminishes exclusivity as a core characteristic of property ownership. In cases of significant building encroachments in most countries compensation, rather than demolition, is the usual result. However, these cases still fit within the rights paradigm, according to van der Walt, since owners could have been spared had they looked after their property diligently, which fits with the autonomy language that underlies the rights paradigm. The real challenge to the rights paradigm is the differential protection of weak owners, in other words the weaker protection of rights held by some persons, such as black property owners in apartheid South Africa, or in forms unknown to Western law. [*805]
The concluding chapter reviews the findings of the book and opens up some interesting points for further analysis. Van der Walt’s broad conclusions regarding the strength of the rights paradigm is that ownership and similar property interests are not nearly as strong as the rhetoric of the rights paradigm might suggest – in some areas, eviction seems to have become a discretionary right that could be denied. Furthermore, this perspective from the margins needs to complement the traditional view of property if progressive change has a chance of happening. The author himself draws the line of when fundamental change happens when the “absolutist assumptions” and personal autonomy logic of the rights paradigm are undermined. Ultimately, his proposal for achieving progressive social change in property regimes depends upon de-centering property and further exploding the identified gap between the ideology and practice of property, a promising future area of research.
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 audience for this book is primarily legal academics, and to a lesser extent law and politics specialists, primarily those with an interest in the law and politics of transition and comparative study of courts. This is not, however, a socio-political or social scientific study, although it poses some of the same questions as studies of impact of law. Although van der Walt understands property as a fundamentally social and political institution with specific historical and cultural roots, this book is mostly a doctrinal analysis, with the political, historical and sociological forces serving as background. It is worth noting two of the inherent legal biases in the book: the reification of property and the silence of those at the margins of property, whose presence is felt only through the cases. Finally, even though the stated purpose of the book is property in times of transformation, the comparison is not with other transitional societies, but with “stable” ones, moreover covering fairly well known countries and cases. These are not essential problems, however. 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.
Klare, Karl. 1998. “Legal Culture & Transformative Constitutionalism.” 14 SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS 146-88.
BRISLEY v. DROTSKY 2002 (4) SA 1 (SCA) (South Africa).
BverfGE 89, 1 (Besitzrecht des Mieters)  [Landlord-Tenant Decision of the German Federal Constitutional Court].
HARROW LONDON BOROUGH COUNCIL v. QAZI (2004) 1 AC 93 (United Kingdom).
© Copyright 2009 by the author, Mihaela Serban Rosen.