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A Swede in Germany

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Germany and its problematic constitution / expropriation

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Apparently, the German party FDP is suggesting a removal of an expropriation rule (Artikel 15) from the German constitution. (Thumbs up!)

Curiosity caused me to read Artikel 15 and the closely connected Artikel 14*.

*Whether this too is in the cross-hairs of FDP was unclear, but the answer has no impact on my text.

Here I found two formulations that illustrate why I am skeptical to the German constitution. (Even apart from skepticism towards expropriation, in general.)

14 (2):

Eigentum verpflichtet. Sein Gebrauch soll zugleich dem Wohle der Allgemeinheit dienen.

Translation: Property obliges*. Its use should also serve the common good.**

*I am a little at loss for a good translation, but “obliges”, in a “Noblesse oblige” sense, is at least close.

**To some approximation. Other translations are possible in detail, but the big picture should be correct. (For instance, my off-the-top-of-my-head translation was “Its use should simultaneously serve the good of the public.”, with the current version arising during revision.)

This is utterly unrealistic,* seeing that it is contrary to how most property is actually used by most people. Actually applying this idea would have absurd consequences and/or severely alter human behavior. To boot, it would not necessarily do society much good in most cases.

*Using an even remotely literal interpretation. There is no guarantee that courts would do so (and I have not looked into precedence). Further, the original intent might have been more to state a principle of how society should work than to introduce actual regulation. (I would oppose such a principle equally strongly.)

Consider e.g. the problems caused with items like private computers, ovens, pencils, … Should we be obliged to e.g. bake for the poor in order to be allowed an oven? It would even call the possession of e.g. a house into question—unless the owner hosts meetings of a city committee in the house, or otherwise provides a public benefit. (I suspect, in contrast, that e.g. a farm would be of little issue, because the produce from the farm serves to feed people and, therefore, the common good. Then again, subsistence farming might be an issue…)

Worse, the claim is not even that property should serve the common good—it is the use of property. (Leaving some ambiguity whether, less likely, any individual use is intended, or, more likely, the sum of all use.)

It is disputable whether claims like these belong in a constitution at all. The “property obliges” part is particularly odd, because it amounts to less of a law and more of an ethical or philosophical opinion.

All-in-all, the text reads as if it is either intended to serve as a pseudo-justification* for expropriation or to satisfy Communist ideas contrary to conventional interpretations of property, e.g. in that “you may own a tractor—but only if you allow your neighbor to use it”. (But I have not researched the background.)

*Which is not to rule out that expropriation might have legitimate justifications in some rare cases. This, however, is not such a justification.

A saner clause might have focused on forbidding use that is actively harmful to the community, but even that could prove to be too far-going.

14 (3) (applying equally to 15)

[…] Die Entschädigung ist unter gerechter Abwägung der Interessen der Allgemeinheit und der Beteiligten zu bestimmen. […]

Translation:* […] The compensation [for the expropriation] is to be determined through a fair weighing of the interests of the public and the concerned party [i.e. the victim of the expropriation]. […]

*Again, with reservation for details.

Here, a clause putting the right to expropriate (per se) under the restriction of a weighing of interests would have been sensible, but no such restriction takes place. On the contrary, expropriation remains possible almost* at the drop of a hat. As for the compensation, a literal interpretation (with reservations like above) amounts to how the public benefit from paying as little as possible compares to the victim’s benefit of receiving as much as possible. This including eventual decisions like “we are short on money—let’s just give him a trifle” and “the value of the property is a drop in the ocean compared to our budget—let’s give him ten times the value”.

*There are restrictions, but they are limited in practical scope. (The expropriation must be rooted in law, not e.g. an arbitrary civil-servant decision. Cases under 14 are possible on a vague “common good”/“Wohle der Allgemeinheit” basis; cases under 15 are limited to the purpose of “socialization”/“Vergesellschaftung”, which opens a wide range of possibilities (and it is arguably the worst kind of expropriation).

A saner clause might have implied that expropriation (!) is only possible after a fair weighing of interest, and that compensation must amount to a minimum of the objective value as determined by a qualified and neutral third party or fairly cover all direct and indirect damages caused by the loss of property, the loss of use of the property, and whatever else might apply. (Note that I deliberately do no restrict this to the pre-expropriation owner: Others might be hit too, e.g. through a previously allowed use now being banned. For instance, assume that a farmer allowed city folk to pick-nick on his grounds, but that the sovkhoz does not.) On the upside, the constitution guarantees the right to take the issue of compensation to court; however, not the issue of expropriation.

These formulations are the odder with an eye at the preceding Nazi phase and what was already known about events in the Soviet Union and its satellites. For instance, a “fair” weighing of the interests of a Jew resp. a capitalist in Nazi-Germany resp. Soviet Russia might have led to disproportionately little recompense being paid—possibly, none at all.

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Written by michaeleriksson

April 27, 2019 at 6:41 pm