Sunday, 6 June 2021

Walsh, Rachael. 2021. Property Rights and Social Justice

This is a version of a note that I have placed on discussion groups.  It is not a review - it is simply a worried note, worried that I might easily have missed this important book...

Walsh, Rachael. 2021. Property Rights and Social Justice

Yes, it is a bit squalid to talk about an expensive academic book on social media.  I will find a sequence of important open access books and articles, to try to make amends...

My excuses...

I came across Rachael Walsh's new book as I move away from work in another part of my life - around the discourse of 'decolonisation' - which made me aware of the ways in which activists and theorists of decolonisation talk about 'land' and the redistribution of land.  But, often, 'land' in an abstract way, and with little connection with countries and communities where land redistribution has actually taken place.

If that work had not been in the background I might have missed Rachael Walsh's book.  For the book has been given a strange title by Cambridge University Press, a strangely prosaic title - I guess to slot into the series, Cambridge Studies in Constitutional Law - with no indication that this book is an important contribution to Irish constitutional history, and the history of twentieth century Ireland.  And - since the book is about 'land' - potentially an important contribution to Irish Diaspora Studies...

Walsh, Rachael. 2021. Property Rights and Social Justice: Progressive Property in Action. Cambridge Studies in Constitutional Law. Cambridge: Cambridge University Press.

https://www.cambridge.org/gb/academic/subjects/law/constitutional-and-administrative-law/property-rights-and-social-justice-progressive-property-action?format=HB

The starting point of the book is the fact that the 1937 Irish Constitution has 2 provisions that protect individual property rights.  Article 40 3 2 protects those rights and other rights against unjust attack.  Article 43 explicitly protects property rights, but adds that they can be regulated by the principles of social justice.  And can be limited by the exigencies of the common good.

This combination, the protection of property rights but with the requirement that they be regulated to secure social justice, is described as unique in the English-speaking, common law world.  The book is very good at placing itself within the debates on constitutions and their workings throughout the world - and of course those debates tend to be led by US constitutional theorists. 

In my reading of the book I concentrated, first, on its exploration of the ways in which theories of property entered the 1937 Constitution - obviously, through Catholic theology and other European developments.  But Ireland's history - the Penal Laws, the Famine, the Land Wars, the Land Acts - and the work of the Land Commission, these are there too.  Remembering that Dooley, The Land for the People, says that the impact of the Land Commission on Irish society was surpassed only by that of the Catholic Church...  But I am now reading the further chapters, on the ways in which Irish judges and politicians have negotiated these constitutional requirements.  'Land' is not an abstraction...

I do hope that this fine book gets the specialist attention that it deserves.  I look forward to the reviews...