8 - Security of Value in a Progressive Constitutional Context

Summary

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.