Challenging property law's faceless "reason" through literature and language

Abstract

Property law has long relied on its lack of empathy to remain the most loyal servant of capitalism — a discipline shaped by the pursuit of stability, predictability, and the protection of capital. Seeking to present itself as a law of reason, it reflects the logic of a market that demands abstraction over humanity and order over justice. Under Classical Legal Thought, property law’s legal subject became faceless and contextless, a construct designed to serve economic rationality rather than human experience. Yet, in South Africa’s constitutional era, this detachment has been challenged through the emergence of literature as a tool of legal reasoning. This article explores how literature disrupts property law’s formalism by reintroducing empathy, history, and humanity into judicial decision-making. Through an analysis of Constitutional Court judgments, I examine three categories of property law decisions: those that engage with literature and recognise unequal power relations; those that do not rely on literature where parties stand on more equal footing; and those that, despite stark inequalities, remain devoid of literary or empathetic engagement. These case studies demonstrate literature’s ability to pierce through property law’s rational veneer, compelling judges to confront the lived experiences of those before them. By contrasting the formalist rigidity of Classical Legal Thought with the transformative potential of literature, I argue that literature’s narrative and justificatory functions allow for a more humane application of the law, one that allows property law to move beyond its illusion of neutrality — towards empathy, contextual sensitivity, and an engagement with the stories that constitute the human condition.