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Public Property in Australia and Russia: The Concept and the Role of the Constitution

https://doi.org/10.17589/2309-8678-2019-7-2-5-52

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Abstract

The modern democratic state embodies the concept of the state as a service. For this reason, the administration of public property is one of the major issues related to the efficiency of public authority. Common law countries and post-Soviet countries have completely different legal explanations and bases for public property. This article takes a comparative approach, showing similarities and differences in the public property regimes in these two systems.

This article investigates why the two systems have different approaches to public property issues and how the differing experiences result in differing implementation. Australia and Russia have been chosen as examples of a common law system and the post-Soviet system, respectively. In addition to property regimes, this paper also discusses federalism issues.

An analysis of these countries’ historical development permits a significant enhancement of the philosophical and legal understanding of property, especially public property. Protection of private property in Russia was very strong by 19th century standards. However, the Russian Empire fell behind in questions of public property compared to its protection of private property, and also compared to other systems outside of Russia. Some aspects of dealing with the most critical natural resources expand public property regulation issues into the constitutional sphere. Public property issues need constitutional justification in both Australia and Russia. However, Russia has constitutional provisions that provide the categories of property rights existing in its domestic law, while a great deal of effort was required in Australia to create the constitutional basis for water resources administration.

About the Author

Vladimir Nizov
National Research University Higher School of Economics.
Russian Federation

PhD Student, Faculty of Law.

20 Myasnitskaya St., Moscow, 101000.



References

1. Ackerman B.A. Private Property and the Constitution (New Haven; London: Yale University Press, 1977).

2. Connell D. Water Politics in the Murray-Darling Basin (Annandale: Federation Press, 2007).

3. Crommelin M. Resources Law and Public Policy, 15 University of Western Australia Law Review 1 (1983).

4. Mattei U. Basic Principles of Property Law: A Comparative Legal and Economic Introduction (Westport: Praeger, 2000).

5. Pravilova E. A Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton: Princeton University Press, 2014). https://doi.org/10.1515/9781400850266

6. Reich C.A. Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale Law Journal 1245 (1965). https://doi.org/10.2307/794793


For citation:


Nizov V. Public Property in Australia and Russia: The Concept and the Role of the Constitution. Russian Law Journal. 2019;7(2):5-52. https://doi.org/10.17589/2309-8678-2019-7-2-5-52

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ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)