Domenico Francavilla

Land Law and Limits on the Right to Property: Historical, Comparative and International Analysis

The right to property is probably the oldest real right, much before concepts such as “right” or “real” (as opposed to “personal”) were outlined. It has often been regarded as a “natural” right, derived from nature. Therefore, controversies on property are certainly as old as humanity itself. However, in the revolutionary period, the right to property was deemed a fundamental right and included as such in the charters approved at that time. This has continued up to our times, including in modern constitutions and international and regional human rights treaties. Its rationale is mostly to protect the right to property against governmental action, even though there are opposite policy preferences as to regulation of property rights at the domestic level. This is why taking property in the public interest or in the public need is frequently mentioned in those texts. However, the restrictions deriving from the protection of the public interest in regard to environmental values and livelihoods, natural resources, coasts, forest villagers or indigenous people are recognized in an overwhelming majority of the legal orders at the constitutional or statutory level or in the case law. Those limits become visible especially in regard to land law in different scenarios. Developmental challenges, new technologies and emerging economic powers or models necessitate portraying and rethinking land law restrictions from the perspective of human rights since the claims as to the right to property as a fundamental right transform and develop rapidly in domestic or regional human rights litigation and in constitutional designs. The land law disputes, which had been traditionally viewed as a quintessential local matter, are increasingly affected by supranational legal norms and procedures. Accordingly, a number of recurring themes typify the various cases, especially in seeking to strike an appropriate balance between the right to property and the authority of governments to regulate or expropriate land to promote the public interest. This collaborative paper aims at focusing on land law and the limits on the right to property from historical, comparative and international perspectives to analyze continuity, divergences, differences and similarities in approaches in seemingly independent contexts. First, the paper deals with property in land and its limits in Jewish law, canon law, Islamic law and Hindu law, while it puts specific emphasis on Roman law conceptualizations affecting current domestic and international settings. In so doing, the paper seeks to demonstrate what might be considered a counterintuitive argument: while natural law or moral based law theories of property rights are conventionally associated with the right of an individual, the same sets of arguments also point to promoting the interests of the community as a whole, and to the need to strike an appropriate balance between individual and community in constructing land law. Second, it portrays modern constitutional structures based on different policy preferences of two emerging economies, India and Turkey. Third, the paper analyzes international human rights disputes, ranging from claims of protection of rights of indigenous people to conflicts arising from cross-border acquisition of land, in light of the growing case law on these matters. Cutting across many periods and jurisdictions, the paper addresses what is essentially a leitmotif in property law: identifying the tension between individual and community in delineating the boundaries of ownership, control, and use of scarce resources, and the particular resolution of such tension in the case of land.