This chapter provides historically informed analysis of the double protection of property rights and property as an institution in the Irish Constitution, and of the property ideology that generated that duality. It addresses the nature of the property rights guarantees, their drafting history, and their relationship as developed thorugh judicial interpretation. It analyses the fascinating origins of the progressive framing of constitutional property rights in the Irish constitutional context, and shows how the drafters sought to establish a division of labour whereby the courts would protect property rights with the interpretation and application of private ownership's 'social aspect' would primarily be a matter for the legislature. Subsequent chapters build on this insight by showing how that division of labour has largely been respected by judges in interpreting constitutional property rights adjudication, and how a complex dual committment to both private ownership and redistribution to secure social justice continues to animate Irish constitutional property law, both inside and beyond the courts.

This chapter examines the underexplored issue of when the constitutional protection for property rights is engaged, thereby highlighting a significant threshold issue in constitutional property law. This raises complex, contested questions concerning the meaning of ownership, including whether it should be understood in interpersonal terms or in terms of individual relationships with 'things', and whether it involves a 'bundle of rights' that can be packaged in various ways or entails core or essential powes for owners. It shows that the legal impact of these ideas is more complex and involves significantly moe overlap between competing perspectives than their dichotomous presentation at the level of theory suggests. FInally, it analyses the political effects of a wide-reaching interpretation of constitutional property rights guarantees, assessing the progressive property concern about the potential for constitutionalisation to entrench the status quo. The Irish experience shows that constitutional property rights can have political effects that are not always aligned to, or reflective of, their strict legal effects.

This chapter examines the judicial interpretation of a broadly stated constitutional test of fairness in the property rights context, the factors that influence outcomes, and the extent and effects of unpredictability. That analysis goes to the heart of the mediation of property rights and social justice thorugh constitutional property rights adjudication, by considering what is involved in an 'unjust attack' on property rights. The overall picture that emerges is of judicial deference to the decisions of the elected branches of government. Where judges have doubts about the fairness of interferences with property rights by the State, such doubts are often smuggled into decisions under the cover of 'non-property' principles like retrospectivity, fair procedures, and rationality, rather than through direct judicial engagement with the tension between property rights and social justice. The question of fair burdening emerges as the core area of contestation in constitutional property law, with the most uncertainty and unpredictability emerging from judicial decision-making on that issue.

This chapter establishes the benefits of considering progressive property 'in action' through a renewed doctrinal focus, including through paying greater attention to comparative examples, and shows why Irish constitutional property law is a particularly illuminating case-study of the mediation of property rights and social justice through constitutional law. It advocates an approach to constitutional property law that attends to the existence and causes of doctrinal incoherence and inconsistency and is problem-focussed and locally oriented. It further advocates attending closely to the immanent, partial influence of property theory in legal doctrine in order to better understand outcomes and patterns in constitutional property law. It identifies doctrinal analysis as a key means of enriching progressive property scholarship and better equipping it to respond to critiques focused on the destabilising effects of unpredictable contextual decision-making by judges. Laying the foundations for the Irish case-study that follows, it sets out the Irish Constitution's property rights clauses and explains some core principles of Irish constitutional law.

This chapter analyses progressive property theory in more detail, assessing the membership of that school of thought, the range of perspectives on the mediation of property rights and social justice that it captures, and its core themes and traits. It also addresses the property values that are captured in progressive property's pluralistic approach. These include efficiency, autonomy, and personhood. In doing so, the chapter signposts ideas about the relationship between property rights and social justice that influence Irish constitutional property law, in order to assist the reader in understanding the immanent, evolving, and often partial influence of property theory in the doctrine and outcomes of Irish constitutional property doctrine that are analysed in subsequent chapters. These values can help to explain the intuitive approach that is identifiable in much judicial reasoning in constitutional property law.

This chapter illustrates how the core progressive property tension between guarding against unfair exploitation and avoiding excessive constraint of legislative freedom translates into compensation doctrine. It considers the nature and degree of constitutional protection for security of value that has resulted from the Irish property rights guarantees, including a presumptive entitlement to full compensation for deprivations, and a presumptive lack of entitlement to compensation for regulatory interferences falling short of deprivation. That analysis demonstrates how constitutional property law can combine rule-based and contextual judicial decision-making to generate relatively predictable legal principle. It further illustrates the running theme of judicial deference to political decision-making concerning the mediation of property rights and social justice, since the courts have created space for legislative exceptions to presumptive compensation entitlements to secure social justice.

This chapter explores the question of a 'public purpose' requirement for the taking of property, and the nature of any 'right to keep' as an incident of ownership, through the prism of Irish constitutional property law. It illustrates how the progressively framed Irish constitutional property clauses have translated into a weak public purpose requirement that retains flexibility for the elected branches of government to determine that deprivation of property is warranted in a wide range of circumstances. It draws lessons from Irish constitutional property law for progressive property attempts to address the 'public purpose' question in ways that both preserve the State's ability to acquire or abrogate property rights in the public interest and protect owners' and their communities against unfair exploitation.