Attempts to register and control the populations of the east left a documentary record that was often extremely local. Provincial subjects proved astute readers and compilers of local documentation, which they rearranged in order to make claims of right. These claims can be mined for their underlying legal ideologies. Provincial subjects imagined law not as an abstract system, but as a running list of privileges and disabilities. Rights emerged from having the most correct or most persuasive hermeneutic for making sense of collections of documents in dialogue with officials, through the process of generating legal paperwork. Archives were not merely repositories of external facts about the world: they were collections of arguments that could be made. Law emerged from the collaborative process of claiming such rights.

This chapter examines the presence of women in the Roman census and its socio-economic and political implications during the Republic. In the professio, citizens sui iuris had to declare their name, age, offspring, place of residence, occupation and properties. Viduae (a term including not only widows but also women who were no longer married) and women sui iuris also submitted census declarations. Special lists existed, for instance, of viduae and female wards, who were subject to specific taxes, namely, the aes equestre et hordiarium. This study explores the nature of the information recorded about female citizens in the census and the ways in which they were categorized. In sum, it argues that Roman female citizens should be included into a history of the census and taxation during the Roman Republic, rather than being treated as a marginal or overlooked group.

During the Roman Republic, almost all women without living fathers required the authorization of a male tutor (‘guardian’) for certain important legal and property transactions. This chapter examines the legal rules and lived reality of tutela mulierum (‘guardianship of women’) during the Republic. First, it outlines Roman women’s property rights and the circumstances in which a woman required her tutor’s auctoritas (‘authorisation’). Next, it considers the different types of tutor, how they were appointed and how these factors affected women’s financial freedom. Finally, it explores the variability of women’s experience of tutela, depending on the type of tutor(s) a woman had, as well as their personality and the nature of the transaction the woman wanted to perform. The chapter concludes that, although tutela might be a mere formality for some women, for others it could be a real burden and an impediment to disposing of their property as they wished.

This chapter explores the relationships between regulations (laws, senatorial decrees) and female visibility in Republican Rome. The focus is on the earliest epigraphic and literary evidence for regulations mentioning women, citizen and non-citizen. Key examples include the senatus consultum de Bacchanalibus (186 BCE), one of the Clusium Fragments (late second to early first century BCE), the lex Osca Tabulae Bantinae (100–91 BCE), the Tabula Heracleensis (post-Social War), the lex Coloniae Genetivae (59 to 44 BCE), as well as Cicero’s references to a lex on female mourning from the XII Tabulae (Twelve Tables), the lex Voconia of 169 BCE and the pontifical responsum and senatus consultum on the Vestal Licinia in 123 BCE. These are compared with Republican regulations attested in later sources. This chapter argues that these regulations rendered some women visible, both physically and symbolically, and that they offer us valuable insight into women’s agency, authority and property in the Roman Republic.

Divine Truthmaker Simplicity (DTS) avoids collapsing God into a metaphysical property by arguing that, to identify God with God’s wisdom, goodness (etc.) is not to identify God with a property, but rather to claim that God is the truthmaker for the predication “God is wise” (etc.). DTS has been the target of a number of recent objections. This chapter explains how Aquinas’s often overlooked distinction between two ways in which a thing can have a perfection – essentially and by participation – enables a response to these objections.

After the installation of a liberal constitution, the socialist tilt in the aftermath of independence challenged some of the fundamental rights guaranteed by the Constitution, particularly the right to property, culminating in the removal of the right in the 1970s. Apart from noting the consequences of this, the chapter explores the effects of judicial hyperactivity manifest in public-interest litigation, as well as instances of overt judicial deference to the state. The other theme of the chapter follows the market orientation accompanying the 1991 economic liberalization, with the prominent challenge residing in the incapacity of the law and legal structures to govern long-term investment contracts. It is argued that the response – the creation of multiple regulatory bodies – resulted not only in fragmenting the law but also in raising generic social costs. The conclusion reinforces the narratives highlighted over the chapter by looking at arbitral awards imposed on India on account of international investment disputes.

In principle, economic development can be environmentally sustainable and compatible with the rights of the poor to the commons – forests, water and land. In practice, however, the economic transformation of India since independence – rapid increase in agricultural productivity, industrialization, urbanization and the building of much-needed infrastructure, has come at the expense of environmental degradation and the rights of the poor to common property resources. Indian economic policy has for the most part favoured ‘development’ over environmental concerns. But India is a democracy in which civil society and the people can protest and exert pressure to prevent environmental degradation and defend their rights to the commons. The Indian judiciary, the Supreme Court in particular, has also been proactive in intervening to protect the environment. As of now, the impetus toward natural-resource-intensive and polluting growth is winning the day, but the struggle to find a better balance continues. Climate change is making the task much harder.

The introduction outlines the historical problem central to this book. Namely, the question of what it meant to possess. The question loomed large in the eighteenth century because more people owned more things (particularly moveable property), the social function of movable property was shifting and in the commercial age, the law was often uncertain as to what could be owned and how. The introduction shows how the book seeks to explore the problem of what it meant to possess by examining how people responded to the loss of possessions.

This coda takes the form of a sample judgment that rewrites Baron and Others v Claytile (Pty) Limited and Another [2017] to tangibly illustrate the promise of Alter-Native Constitutionalism. Contrasted with the real-life judgment issued by the Constitutional Court, which relied on liberal approaches, the Alter-Native ‘judgment’ gives willing courts the necessary tools to enforce the ‘property’ rights of ‘non-owners’ and thus highlights the opportunities for equitable solutions the Court has missed, including in its real-life judgment. Emphasizing the importance of robustly applying Ubu-Ntu (rather than the insipid ‘ubuntu’ that scholars and the Court have substituted for it) and applying Ntu Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation developed earlier in the book, the opinion demonstrates existing possibilities for recognising shared rights and promoting housing as a relational, spatiotemporal ‘existence’. By reinterpreting constitutional and legislative provisions to respect indigenous onto-epistemological perspectives on land-as-housing, the Alter-Native opinion demonstrates a transformative approach to ‘property law’ that inherently critiques the Constitutional Court’s interpretation of the ‘property’ and ‘housing’ clauses largely to the exclusion of vernacular law. This Alter-Native opinion thus presents a literally embodied argument for the need for broadening restitution, addressing both enduring injustices and future possibilities over multiple generations.

Introducing the book’s third essential part on ‘property’, this chapter sets out Alter-Native Constitutionalism’s jurisprudential framework for constitutional and statutory interpretation informed by vernacular law and oriented towards the everyday, ordinary South African as the ‘reasonable’ person in law. It draws on ethnography and sociolinguistics, problematising the continuities in how democratic South African law treats ‘customary law’ consistently with colonial-apartheid. A SiSwati conversation with Make Ng’Gogo frames the chapter’s exploration of vernacular law’s indigenous ethical orientation, embodied in Ubu-Ntu, as it applies to guiding not only societal organisation but also land rights – emphasising human-centred values over individualistic property rights. By first examining indigenous normative relationships with land then translating their application into critique of Constitutional Court interpretive practices, the chapter advances an Alter-Native framework that represents a paradigm shift in constitutional interpretation, privileging Ubu-Ntu’s holistic world-sense. This framework advocates reinterpretation of dignity and rights under the Constitution, moving beyond Western legal principles toward a jurisprudence grounded in indigenous natural law and relational ethics. The chapter argues for South Africa’s Constitutional Court to adopt this indigenously transformative constitutional approach to interpretation, treating vernacular law as equally legitimate to European ‘common law’ and thereby making truly transformative socioeconomic outcomes more possible.

This chapter argues that the Afrobarometer survey findings indicating South Africans’ preference for housing over land are easily misunderstood. Supported by modern science, it emphasises human interconnectedness as evidenced and grounded in land-based relationships. The chapter therefore critiques the limited world-sense within which ‘property’ is conceived in Ramuhovhi and Malan and, instead, amalgamates vernacular, ‘(un)customary’, and ‘(un)common’ law to illustrate how relationships, ‘seen’ particularly through the spatiotemporal lens of Ubu-Ntu, might deepen our constitutional understanding of ‘property’. It thus shows how the concept of ‘house’ (beyond physical structure) – perceived in ‘vernacular time’, rather than Euromodernity’s ‘colonial time’ – equitably shapes ‘property’ rights, linking them to multigenerational ‘survivance’ and thereby integrating Ntu principles into contemporary legal interpretations. Hence, the chapter concludes the book by demonstrating how embracing the vernacular law conceptions of ‘human(e) existence’, ‘rights’ and ‘house’ would transform the sociolegal reality for South Africans by decolonising it and achieving sustainable socioeconomic change. Returning to encounters in Mbuzini, the chapter ends by highlighting young people’s understandings of Ubu-Ntu and ‘housing’ amidst colonial law’s afterlives and vernacular law’s continued erasure. It contends that true transformation demands respecting the country’s constitutional commitments by genuinely representing all South Africans’ diverse normative ideals.

Chapter 1 examines how philosophical arguments and legal frameworks offered important means by which eighteenth-century Britons could understand ownership and possession. It begins by exploring the work of John Locke and the central role it played in shaping conceptions of property in the eighteenth century. The chapter then moves on to explore the changing legal frameworks which sought to define how people (including enslaved people, wives, servants and apprentices), dogs, watches and financial instruments might be understood as possessions and property in this period. It finds that through the course of these changes the law often remained ambiguous as to the nature of property and the protections the legal system might offer. Such ambiguity was significant in opening other spaces which shaped how property and possession were understood.

The foundational claim of Kant’s political philosophy is that we each have an innate right to external freedom. But what is external freedom? This chapter contrasts normative and descriptive characterizations of this concept. Arthur Ripstein uses a normative characterization of external freedom in his reconstruction of Kant’s argument for the state, while Kyla Ebels-Duggan uses a descriptive characterization of external freedom in her reconstruction of the same argument. The chapter sets aside the interpretative question of which of these readings is more faithful to Kant and instead focuses on showing how Kant’s argument for the state faces significant problems on either interpretation. But rather than taking these problems to show that Kantian political philosophy is doomed, it is argued that a normative characterization of external freedom can be the basis of a compelling argument for the state, one that draws on some of the key insights in Kant’s political philosophy while departing from his own argument in important respects.

The rights of the insane, it is usually assumed, were not a prominent concern in early modern Europe, and they have rarely attracted the attention of scholars. However, the social and legal significance of mental disease in various times and places is well known, so it should be no surprise to find that the persons of the insane, and their attendant capacities, obligations and rights, were matters of substance in early modern jurisprudence. This essay shows how in this era the European legal understanding of insanity developed, and how the insane were deprived of many of their rights; but also how some of these were preserved. In the first part, I outline the conceptions of insanity, derived from Roman civil law, that were applied by jurists. We shall see that there were broadly two ways of thinking about madness in legal contexts. The first, which had wide acceptance from antiquity to the sixteenth century, treated all kinds of insanity as legally equivalent forms of irrationality.

The Conclusion recaps the conceptual themes of the book, emphasising the need for scholars to renew their focus upon the intertwined nature of kinship, class, and capital not only in the empirical study of capitalism on the African continent, but in anthropology where the study of kinship has veered away from questions of inheritance and property since the 1980s, a subject to which it is only now returning. It recaptures the book’s emphasis on the erosion of moral economies under conditions of land’s commodification, and the way this shapes the pauperisation of junior kin.

This chapter aims to provide an introductory account of conceptions of natural rights in the sixteenth and seventeenth centuries. That is, of how human beings were considered to hold certain rights by virtue of their human nature or as conferred by natural law. It will show how conceptions of natural rights differed, as embedded in different theoretical frameworks, and were put to different political, social, and religious uses. At the same time, in several instances conceptions of natural right were used ‘in action’ in similar ways, despite the different theological or philosophical frameworks in which they were imbedded. Despite differences, then, early modern conceptions of natural rights shared some features, and were put to uses, that may seem counterintuitive to the modern reader.

It is a powerful question, that of the English writer Mary Astell in 1700: ‘If all Men are born free’, she asks, ‘how is it that all Women are born slaves’? What seems at first glance to be a striking statement of women's rights, however, Astell's words turn out to be a full-on attack on the liberal political theory of the rights-theorist, John Locke. Her presumption is that no person is ‘born free’; indeed, all are born under a condition of subjection to God. As Astell knew full well, in England, marriage stripped a woman of rights, those to property and those to her own person, to her sexuality and to control over her labor. Since this chapter is interested in the history of women's rights, it is best to consider what sorts of rights might be considered. Political rights, after all, are only one kind of right. And the category of women also presents challenges: a woman's marital position determined her rights.