Property in the Margins

Having its origins in the process of transformation and land reform that began to take shape in South Africa at the end of the last century, this strikingly original analysis of property starts from deep inside the property regime. Focusing on issues of stability and change in a transformative setting, and on the role of tradition and legal culture in that context, the book argues that a property regime, including the system of property holdings and the rules and practices that entrench and protect them, tends to insulate itself against change through the security- and stability-seeking tendency of tradition and legal culture, including the deep assumptions about security and stability embedded in the rights paradigm, rhetoric, and logic that dominate current legal culture. The rights paradigm tends to stabilize the current distribution of property holdings by securing extant property holdings on the assumption that they are lawfully acquired, socially important, and politically and morally legitimate. This function of the rights paradigm tends to resist or minimize change, including change brought about by morally, politically, and legally legitimate reform efforts. The book gauges the lasting power of the rights paradigm in South Africa by investigating its effects in the margins of property law, and of society, by establishing the actual efficacy and power of reformist or transformative anti-eviction policies and legislation aimed at the protection of marginalized and weak land users and occupiers. It explores the possibility of opening up theoretical space where justice-inspired changes to the extant property regime can be imagined and discussed from an unusual perspective, a perspective from the margins which is valuable for any theoretical consideration or discussion of property. This book will be of interest to scholars and practitioners of native land issues.