The Development Trap of Property Rights: South African Land Reform and The Limits of Transformative Constitutionalism

Abstract

Can developing countries rely on liberal constitutionalism to break free of material inequality? Although South Africa’s post-apartheid 1996 Constitution established the redistribution of land as a formal priority, three decades of stalled progress reflect not only failures of domestic governance but structural constraints of international economic law. The conventional developmental wisdom that strict property protection is good for growth—evaluated through the eyes of international investors and enforced through international economic law—operated as a "development trap": an external discipline that locked South Africa into its colonial distributional order while presenting itself as a neutral prerequisite of growth. Because the constraint operates transnationally and without formal preemption, even constitutional orders with transformative language risk devolving into symbolic contests over inequalities they promise to undo. Decades of energetic constitutional politics absorbed the nation's reformist energy while the distributive question was materially settled elsewhere, at the level of the supranational “economic constitution.” Herein lie the limits of "transformative constitutionalism," South Africa's ambitious constitutional strategy: escaping the development trap requires intervening where the constraint operates with pecuniary effect—through a materially oriented development strategy rather than constitutional language. Reflecting on what South Africa's experience suggests for the possibilities and limits of liberal constitutionalism in post-colonial developing countries, the Article names the dynamic at work as 'foreclosure': the closing off of material possibility at one level of law by another, and the investment or politicization of reformist energy in a legal space whose outcomes have already been constrained.