Property Rights & the Demands of Transformation

Countries like those in Southern Africa will never emerge from the indomitable shadow of inequity and the serious threat of backlash unless real property is redistributed; but, the conception of property these countries explicitly or implicitly adopt can adversely affect their ability to redistribute. Under the classical conception of real property (the classical conception), redistribution is difficult because title deed holders are a privileged group who are given nearly absolute property protection. Strangely, the classical conception is ascendant in many transitional states where redistribution is essential. The specific question this Article addresses is: for states where past property dispossession has the serious potential to cause backlash and destabilize the current state, is the classical conception appropriate or do these states require an alternative conception of property?

This Article is an attempt to map out a transformative conception of real property (the transformative conception) that facilitates property redistribution, which bolsters fairness and stability.