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.

Contrary to stereotypes about enlightenment texts, the Treatise of Human Nature is thoroughly inegalitarian. This inegalitarianism is descriptive, not normative: Hume builds a tendency to create inequities into his theory of human nature, and he describes humans as continually and inevitably ranking one another and themselves as superior or inferior. I begin by showing the pervasiveness of inegalitarianism in Book 2’s theory of the passions—in the analysis of pride and the influence of property on pride, in the way that human commonality intensifies power imbalances, and in the influence of comparison on our sympathy with those judged superior or inferior. I then explain how Book 3’s analyses of natural abilities and justice reinforce the inegalitarianism of our passions. In other writings, Hume seems more aware of and concerned with questions of equality, but the Treatise offers few resources for criticizing the inequality that seems to result from our nature.

If drainage aimed to free land from the vagaries of floodwater, then enclosure was necessary exclude commoners and transfer management of land to improving landlords and tenants. The development of ‘absolute’ private property in early modern England has often been analysed via legal categories or socio-economic outcomes. Resituating property-making as an environmental act, this chapter argues that the contested exercise of land rights in Hatfield Level relied on the ability to determine how water moved, where cattle could graze, and what kind of plants grew. It traces the words and practices through which commoners and improvers defined their rights, often hinging on disputes about the just distribution of resources. This chapter explores a spectrum of local responses to improvement, including complaints of scarcity, socially fraught adaptation, and action to reinforce customary rights. As disputes over enclosure escalated, physical acts of cultivation and grazing became means by rival groups asserted ‘right’ as jurisdiction and legitimacy. In doing so, they created contrasting environments, generative of different social, economic, and political relations.

Chapter 5 considers the legal definition of ownership and possession and how they were acquired and protected. Possession was important in that someone who had physical control of something, for example, a farm, could use the land and enjoy its fruits even though the property was formally owned by another. Having possession of an object brought significant benefits since it was an important step to proving and acquiring ownership by usucapio (that is, having it in your possession for at least two years in the case of immovables, one year for movables). The acquisition and distribution of land was part of the history of the republic, and the management of land, the designation of boundaries, the establishment of jurisdiction, and the resolution of disputes through the legal process remained important. We then consider the role of law in arranging farm tenancy and negotiating leases, and the position of urban landlords and tenants.

In terms of social and legal history, Ptolemaic Egypt is the best known of the Hellenistic kingdoms, as the dry sand conserved an abundance of papyri for centuries. Its multi-ethnic population and the combination of ancient Egyptian, Persian, and Greek cultural elements make it an even more interesting case study. A direct equivalent to the modern concept of rights probably did not exist in Ptolemaic Egypt, even if there is discussion around the terms used. Aspects of the concept of rights can be traced at different levels of intensity. Rights and duties in the sense of obligation deriving either from contract or violations of other persons or their belongings are found in hundreds of contracts, petitions, claims, or court proceedings in Greek as well as in Egyptian contexts. Beyond this two-person relationship, more abstract rights over things and persons are found relative to property, paternal authority, or slavery, which are all sometimes categorized as absolute rights today. On the other hand, to assume rights in the sense of liberties of an individual against the state or of legal power within the state is probably anachronistic.

Volume I offers a broad perspective on urban culture in the ancient European world. It begins with chronological overviews which paint in broad brushstrokes a picture that serves as a frame for the thematic chapters in the rest of the volume. Positioning ancient Europe within its wider context, it touches on Asia and Africa as regions that informed and were later influenced by urban development in Europe, with particular emphasis on the Mediterranean basin. Topics range from formal characteristics (including public space), water provision, waste disposal, urban maintenance, spaces for the dead, and border spaces; to ways of thinking about, visualising, and remembering cities in antiquity; to conflict within and between cities, economics, mobility and globalisation, intersectional urban experiences, slavery, political participation, and religion.