PropertyProf Blog

CFP: Public Properties in Comparative Law

Special Issue of the Review of
Comparative Public Law

Scientific committee:

Miriam Allena, Associate Professor of Administrative Law at Bocconi University, Milan Patricia Jonason, Associate Professor in Public Law, Södertörn University, Stockholm (Sweden)

Yseult Marique, Senior Lecturer at University of Essex (UK); Research Fellow at FÖV Speyer (Germany)

John McEldowney, Emeritus Professor of Law, University of Warwick

Thomas Perroud, Professor of Public Law at Panthéon-Assas University (CERSA), Humboldt Research Fellow (Experienced Researcher)

Francisco Velasco, Catedrático de Derecho Administrativo, Universidad Autónoma de Madrid Coordinator: Estelle Chambas, PhD student in public law at Panthéon-Assas University

Presentation of the review:

Droit Public Comparé - Comparative Public Law (DPC-CPL) is a biannual peer-reviewed journal entirely dedicated to Comparative Public Law. Its aim is to develop and to promote the study and comparison of national and supranational public laws. The publication is exclusively digital and open access. DPC-CPL is supported by two committees, whose members are mostly academics: an editorial board, and a scientic committee of more than 40 experts from 15 dierent countries.

The journal’s editorial line embraces Comparative Public Law, understood in the broadest sense, namely: studies of foreign Public Law (Administrative Law, Constitutional Law); the comparison of national public laws; the comparison of supranational laws; the migration of legal models; the interactions between legal systems; the theory of Comparative Law. The approaches may be varied: theoretical, historical, sociological, philosophical, linguistic, and, of course, positive law. Interdisciplinary work with other humanities and social sciences is therefore welcome.

Procedure:

• -  Abstracts of no more than two pages should be sent to us by 31 May 2022 .

• -  Abstract can be sent in English or French.

• -  Abstracts should be sent to: Estelle Chambas : [email protected]

• -  All abstracts will be anonymised and submitted to the double blind review procedure for

  selection. The answer will be given by 30 June 2022.

• Papers will be due by 15 January 2023 and submitted again to a double blind peer review procedure. Articles cannot exceed 50,000 characters.

Presentation of the topic:

This special issue welcomes papers in the eld of comparative public property law. All forms of approaches (historical, positivist, comparative, sociological) are relevant to this neglected eld of comparative public law.

The topics are intended to cover the following issues, but are in no way limited to these:

• • -  Historical perspective: how public property and the relevant law historically developed?

  • -  Colonial and indigenous issues: in former colonies, how the law on public property was adapted and which issues or debates did it raise compared to the colonial power? Are there debates or reforms in your countries to atone for the spoliation of land by European States (for instance the move in New Zealand to give legal personality to a river is a way to restore

    the link Maoris had with the land that was taken from them)?

  • -  How are property rights dened? In what sense are they public or private?

  • -  The signicance of the establishment of any special regime that may apply for example the

    use of the public trust in the common law world, “Öentliche Sache” in German Law,

    “domaine public” in French administrative law, “asignación de recursos escasos” in Spain.

  • How are public property rights governed and held accountable ?

  • Do the debates on “the commons” have consequences for the governance of public properties?

  • There are increasing calls to enhance the protability of private assets in a context of budgetary constraints and nancial austerity. These properties are indeed used in an increasingly commercial way at the expense of other uses. Are there problems in your jurisdictions? For instance, these spaces being extremely protable (the beach or certain cultural heritage) could be the source of corruption if proper procedures are not carried out when deciding upon their uses. At the same time, selection procedures may conict with other interests, e.g. identity or cultural interests at national level, or it may need to be coordinated with other schemes, e.g. preemption rights to reward those who have prepared and submitted a project aimed at enhancing the value of the assets. Also, increasing the amount of money required to occupy the public domain means the commercial aspect could raise issues of inequality of access to the amenities of public spaces.

  • Budgetary pressures can sometimes lead to the sale of assets. Are there debates in your jurisdictions on the inalienability of some properties? The privatization or publicization of public properties remains very much a debate in many legal systems.

  • Civic management of urban facilities and public spaces by associations and NGO are also an increasing trend in public property governance.

  • How is the use of the property monitored over time? In fact, a procedure to award access to some public assets may have been followed, but then over the years changes in the use (or the users) may happen. How is this monitored?

  • Cultural heritage: Public or private ownership (of castles for instance) : what is the best solution for the preservation (and better sharing) of the cultural heritage? Are there also debates about the restitution of works of art to their original community?

  • Royal families and their use of public properties : questions of legitimacy, regulation, accountability.

  • Right to roam: in the United Kingdom and in Nordic countries, laws were passed to give a right of access to private properties in the countryside. The “publicisation” of private property could be an interesting topic as well.

 

Book Review: Property in Housing by Gustav Muller & Sue-Marie Viljoen (Guest Blog)

Today we're delighted to welcome friend of the blog Mark Roark (Southern) who recently wrote a book review about Gustav Muller and Sue-Marie Viljoen's new title, Property in Housing (Juta 2021):

Can a House Divided Stand? A Thought Experiment in Housing and Property Rights

Book Review of Gustav Muller and Sue-Marie Viljoen, Property in Housing (Juta 2021) 

Reviewer: Marc L. Roark

The proverb is Gospel: “A house divided against itself cannot stand.” Jesus, Abraham Lincoln, even George Costanza has uttered these words to reflect the reality that things so tightly intertwined cannot exist at odds with one another. 

And thus, the South African Constitution (along with many other Constitutions around the world) present us with a conundrum.  If housing is a subset of property does a right to housing strengthen the law of property or challenge is normative force? Gustav Muller (University of Pretoria) and Sue-Mari Viljoen (University of the Western Cape) take on this central question in their comprehensive treatment of South African housing law, Property in Housing (JUTA Press 2021).  To wit, Muller and Viljoen’s book focuses on a central problem that housing faces around the world in western democracies: how can a right to housing co-exist where rights in property preempt their force?  In legal systems where property remains the default position for allocating rights to place (including rights to housing), Muller and Viljoen explore what room remains for housing norms absent direct legislative intervention.  The short answer by Muller and Viljoen – some.

What makes this problem so important is that South African courts have attempted to square these two rights by locating a right to housing within the right to property. What has emerged is a complicated framework where rights to housing are treated on their “property-ness” or their “non-propertyness” for determining how courts allocate claims by potential housing occupiers.  In answering that question, Muller and Viljoen have delivered what I believe is the most thorough treatment of housing through the lens of property rights available today.  Aligning housing rights objectives within the South African Constitution, they analyze whether courts pin accessibility, habitability, service provision, habitability, affordability, geographic location, or cultural adequacy as constitutional claims that can stand up to the challenges of private property law or as co-rivalrous claims that require a sorting of interests.  In particular, the theme of fragmentation emerges as a dominant concept in the constitutional application of these attributes of a housing right.  In many cases, Muller and Viljoen’s analysis of the right to housing is that its existence can often be found in the liminal spaces between where property law and housing law do not quite meet up, forcing jurists to account for human rights in housing as they sort out property claims by home occupiers, owners, and neighbors. 

Within this context, the South African background of Dutch/ British Imperialism and its lingering effects through apartheid remain present as background context for the way property law continues to reaffirm past harms.  The visible remnant of these policies remain on the landscape of South Africa as the country remains a place where informal settlements become the de facto resort when affordable housing isn’t available for people of color, and where established property holders can assert claims to space behind privatized communities.  These glimpses of property law on the ground through eviction actions and a body of South African property law lays open the landscape of what human rights to housing in conflict with property law faces up to. Muller and Viljoen provide the legal context needed to understand how property law can continue to memorialize unjust regimes many years after its formal end.

In short, I highly recommend this treatment of Housing and Property rights for anyone interested in understanding the role of property rights and housing in context.  The book’s thought experiment successfully finds some room for housing in the property context, while pointing to inadequacies of property to deliver some of the basic features we expect a constitutional right in housing to carry out.