6 - Adjudicating Fairness

Summary

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.