Assembling a sustainable system: exploring the systemic constitutional approach to property in the context of sustainability

Résumé

Property is an institution which can lead to the concentration of resource and power in the hands of too few people. The regulation of property rights can respond to this by aiming to limit the potentially negative effects the exercise of property rights can have on people and the environment. The issue of the extent to which property should be subject to regulation has been, and will continue to be, a highly controversial issue in many jurisdictions. These debates are only likely to become more heated as there are increasing pressures on land and other resources caused by global trends, such as intensifying environmental degradation, population growth, rising inequality and accelerating industrialization.

This article explores the relationship between property and regulation within the context of the need to progress to a more sustainable way of life by comparing the approach to property in the two jurisdictions of Scotland and South Africa. This article investigates the potential of an approach to property and its regulation, developed in South Africa, to inform us about soft law instruments that have emerged in places other than the particular context of South Africa. The question is: What can the South African systemic constitutional approach tell us about other documents that are also responding to complex property problems? This article proposes that the systemic constitutional approach in South Africa offers a useful example of the methodological and theoretical shifts that are required in legal systems, which are in the process of change, and here the change we focus on is the transition to sustainability.

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