Constitutional Rights Private Property Notes

PRIVATE PROPERTY ART.43.1.1 • Man, in virtue of his rational being, has a natural right. Antecedent to positive law, to the private ownership of external goods • Particularly emphatic natural right language - antecedent - const. is saying that it is not creating this right 'double protection' - Despite the emphatic stance - 43.1.2 - the state guarantees specifically.. no law attempting to abolish the right of ownership or the general right to transfer, bequeath & inherit. - 40.3.2 - personal rights - provides that the state guarantees to protect from unjust attack… and to vindicate the property rights of every citizen. INTERACTION between these articles? - Are the 40.3.2 rights the same as 43 or do they have a different or wider scope? - SC has said: No, the rights are the exact same and 40.3.2 are just referring to them - Also said that they are independent - different degrees of emphasis. - 43.1.2 - laws attempting to abolish - 40.3.2 - unjust attack - In 43 - balance between the natural right and antecedence and also the importance of the regulation of those property rights. - 43.2.2 It mentions social justice, common good < emphasises the need for the state to regulate these rights So, the more you emphasise 43.2.2, the more you're emphasising these things where as if there's more attention on 40.3.2, looking at the unjust attack factor - allows the courts to downplay the social justice aspect! WHAT IS PRIVATE PROPERTY Obviously: • Land (Foley case) • Chattel • Money • • • • Extensions: Contract (cox case) - intervention of the state as a third party, depriving an employee or contractor is a violation of property rights Statutory rights (pension) Lovett case Built up an entitlement to benefits of a scheme < to take this away by statute, was an interference in his property rights. Business, livelihood (employment equality bill) Shares may Boundary? • Milk quota (attracting amount without a quota) (Maher v Min. For agriculture) < milk quota enhances the value of property but tis not itself, a property right • State contribution pension - C(P) not entitled to receive something after contributing to the state based on imprisonment. Distinguished from Lovett as they were a form of social taxation rather than contribution. They rejected equality argument by saying that when you're in prison, you're not spending anything. Its stacking up in your account and is much more beneficial for people who are spending because the state is looking after you If you treated this as a property right - it would have social policy problems. Lovett - he was contributing out of his own assets and claiming it back in a pension. Blake v AG First pivotal property rights case. Concerned rent restrictions. System - if u were a tenant, in certain properties, you could not be evicted and landlord could not increase your rent. Inheritance as well - allowed family members to inherit. This challenge was under 43 - P selected a number of widows (sympathetic) The court said that 43.1.1 - antecedent, natural right etc. describes - the attitude of the constitution 44.1.2 prohibits the abolition of - property as an institution Not about the concrete particulars of property but the institution as a whole. Instead > 40.3.2 > guarantee against unjust attack. Vindication more important with injustice. - You claim under 40.3.2 for direct property attack and should be used to claim against unjust attack. If a law is intervening, you use this instead of directly appealing to - 43.1.2 which prohibits the state from abolishing private property as an institution Double protection that property has under const. protects this. - Courts decide whether an attack is unjust Southern Industrial Trust This was before Blake. Blake changed the position Rent restrictions act - Interfered with rent - So this had to be analysed under 40.3.2 > personal rights What's an unjust attack then?Attack > interfered with in any way. Any restriction, limit, hindrance. Then you can appeal to 40. Low threshold Unjust is the hurdle you must get over WHAT'S UNJUST?

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