Intangible constitutional property : a comparative analysis
CITATION: Swanepoel, J-H & Boggenpoel, Z-Z. 2017. Intangible constitutional property : a comparative analysis. Stellenbosch Law Review = Stellenbosch Regstydskrif 28(3):624-637.
The original publication is available at https://journals.co.za/content/journal/jlc_slr
This article investigates how the question of recognising intangible interests as constitutional property is approached in the constitutional property law regimes of Moldova, Germany, the European Court of Human Rights (“ECHR”), the United States of America (“US”) and South Africa. It is also investigated whether Moldova and South Africa, being examples of relatively young constitutional democracies, follow an approach to the recognition of intangible interests as constitutional property that is perhaps similar to that of the established constitutional democracies of Germany and the US. This article concludes that each of the jurisdictions investigated do allow for the recognition of intangible interests as constitutional property, despite their diverging approaches to this question. The Constitutional Court of Moldova follows the approach of the ECHR regarding the recognition of intangible interests as constitutional property. The Constitutional Court of South Africa uses an approach that is doctrinally similar to that of German constitutional property law, though German law is not specifically followed.