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Durham University

Durham Law School

Staff profile

Publication details for Professor Tom Allen

Allen, Tom (2014). The Right to Property. In Comparative Constitutional Law in Asia. Dixon, R. & Ginsburg, T. Cheltenham, UK Northampton, MA, USA: Edward Elgar. 250-276.

Author(s) from Durham

Abstract

Eminent domain - the power to take private property for public use - is an inherent aspect of sovereignty. However, the institution of private property would have little meaning if governments expropriated property without restraint. Hence, most constitutions impose restrictions on eminent domain. These constitutional restraints can take a variety of forms, but the most common is the right to property. This chapter provides a comparative overview of the right to property in Asia. The doctrine, history and broader context of the right to property in Asia share a number of common features. For example, the right to property is often prominent in transitions, whether from colonial systems, or from military or communist governments to democracy, or from capitalism to socialism and back again. Many Asian countries also face continuing social or economic issues that can affect, or be affected by, the development of constitutional law. The dislocation caused by "land grabs" is one example; gross inequities in the distribution of land and wealth is another. Accordingly, the chapter gives an overview of the key issues relating to the right to property, with the focus on those aspects of particular importance to Asian countries. Section I provides a framework for examining the issues, as it contrasts the liberal and social democrat perspectives on the right to property. Liberalism, with its emphasis on the individual, equality and autonomy, has had an obvious appeal for those seeking to challenge colonialism or traditional feudal or caste systems.