Michael Eriksson's Blog

A Swede in Germany

Posts Tagged ‘Law

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

How the U.S. Supreme Court is divided

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I have done a bit of reading on the U.S. Supreme Court, the U.S. constitution, and related issues during the last year, and would like to suggest a different perspective to the traditional Republicans vs. Democrats thinking: There is a line dividing the Supreme Court, but it is not inherently a matter of political leaning—it is a matter of approach to the job. Specifically, one faction* tries to actually do its job by pushing the standards set by law and precedent, above all the Constitution, while the other** sees the job, at least partially, as an opportunity to push personal preferences.

*Clarence Thomas is the possibly paramount example in my outsider’s/layman’s perspective. Others likely to be here in the current line-up (temporarily of eight) are Roberts, Gorsuch, and Alito. (Caveat: A too shallow study of the individual or a too poor memory can make this list imperfect.)

**Sotomayor, Breyer, Bader Ginsburg, Kagan? (Caveat: As above.)

It is true that this line is not that different from the was-appointed-by-a-Democrat resp. -Republican line; however, this is consistent with my impression of the typical mentality of the Left/“liberals”/Democrats and the “Right”/Conservatives/Libertarians/Republicans, respectively. Moreover, by ensuring that judges* are appointed based on their qualifications, intelligence, dedication to an Originalist and (possibly) Textualist interpretation (see excursion), the question of political affiliation becomes a very secondary issue, the maneuvering to get as many “Republican appointed” or “Democrat appointed” judges as possible would mostly be a waste of time, and the risk that the Supreme Court of ten or twenty years later over-turning precedent is reduced considerably**.

*I go with a more generic word to avoid loss of generality. In other contexts, “justice” or “associate” might be more common.

**Precedents would be over-turned for reasons like changes in interpretation by similar criteria, a better understanding of implications, and similar—but not because a certain judgment fits an ideological agenda better and not because radically different criteria are applied.

Excursion on “doing the job”:
Why do I say that the one faction does its job and the other does not? Well, the entire U.S. system is based on a division of powers; and the Constitution is by its nature intended to be a fix guide-line through time, which has been made deliberately hard to change. When a court, be it the Supreme Court or a lower court, takes it upon it self to re-interpret the Constitution (or other laws), the division of power is diminished through the court’s effectively enacting legislation, and the intention of a fixed Constitution is thrown out the window. I once stumbled upon a claim* of approximately “if I can make the constitution better [implied, by judicial activism], why should I not?”—to which the obvious answer is: If you want a better constitution, request a bloody amendment! There are established procedures to do so, including provisions for congressional votes and ratification by the states—it is not acceptable that five individual judges take it upon themselves to do in hours or days what usually takes years.**

*I have no idea of by whom. It was likely one of the current or recent members of the Supreme Court, but it could have been someone outside it merely debating principles.

**Other countries also often have strict criteria for constitutional changes, e.g. in terms of the needed majority or, as in Sweden, that the change must be approved by two separately elected parliaments (i.e. parliament approves it, a regularly scheduled parliamentary election takes place, parliament re-approves it).

Of course, some degree of interpretation is always necessary, especially in a common-law system; however, this should usually* be an “Originalist” interpretation, because other interpretations usually* imply exactly the type of change that should be done per amendment. The question of whether to use a “Textualist” or “Intentionalist” interpretation is tougher: The intentionalist might be truer to the original philosophy; however, it also opens the door to malicious misinterpretation**, especially in combination with changing times; and raises the question of whose intention. (The authors’? The voting members’ of Congress? The ratifying states’? What if these had different interpretations?) All-in-all, the Textualist interpretation is likely the better choice, but I am open to more flexibility than with the requirement of Originalism—a non-Originalist is not doing his job…

*Legitimate exceptions could conceivably occur when matters are involved that the original authors could not reasonably have foreseen, e.g. through technical developments (but not changes to mores and social values; this is similar to Churches in an older text). Even here, however, the interpretation should attempt to be compatible with the underlying intents in related areas.

**I lack the depth of legal knowledge to give strong examples (although e.g. “dignity” arguments in the context of “same-sex marriage” possibly could qualify), but I recall how a publisher defended censoring or re-formulating parts of an older book with the idiotic argument and exceedingly bold claim that it was certain that this was what the dead author would have wanted… (Sadly, there are simply too many cases of such changes, especially relating to censorship of “nigger”, for me to remember which book, etc. It might have been “To Kill a Mockingbird”, shortly after Harper Lee’s death.) What if, similarly, a judge is “certain” that the Constitution would have intended for “nigger” to not be covered by freedom of speech in the modern society? Or “certain” that due process was not intended to include those accused of rape in the modern society?

More generally, it is important to bear in mind that judges are not there to determine what is ethically right or wrong, what is fair, whatnot (except within the leeway given by the law and the circumstances at hand)—their job is to determine what is legally right. If a law says that it is illegal to wear a yellow tie, the judge is not at liberty to overrule the law based on the belief that the illegality is preposterous. (However, he might when other laws take precedent, e.g. by arguing a violation of some Constitutional right. A U.S. jury might, controversially, also have some degree of private leeway here.)

Written by michaeleriksson

August 14, 2018 at 2:07 am

Kachelmann acquitted

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As a follow-up to a previous entry, I note that Jörg Kachelmann has now been acquittede of the rape charges raised against him—as was widely expected considering the lack of evidence and the continually diminishing credibility of the witness statements. The language of the court has already been criticized by several bloggers as insufficient, e.g. by a juriste:

Als ob es nicht um die Begründung eines Freispruchs für den Angeklagten, sondern um das Freisprechen des Vorsitzenden von jeder erdenklichen „Schuld“ ginge, hält sich die Begründung von Richter Seidling viel zu lange mit der Verteidigung der Prozessleitung auf.

(As if not the justification of the acquittal of the accused, but the acquittal of the judge from any conceivable “culpability” [guilt?], was the target, the finding of Judge Seidling was occupied for far too long with the defense of the conducting of the case. [With reservations for errors in legal terminology.])

Written by michaeleriksson

June 1, 2011 at 10:06 pm

The trial of the year—Victory! (Follow up)

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As I wrote in March, a jury ruled in favour of Novell in the fight against SCO, whose widely-considered-faulty claims had caused great costs and uncertainty for a number of other parties (including, obviously, Novell).

There was still some remaining uncertainty in theory (considering the overall situation and previous judgements, a practical problem was unlikely), because there were further “findings of facts” and various motions to be decided by the judge. As Groklaw now reportse:

Judge Ted Stewart has ruled for Novell and against SCO. Novell’s claim for declaratory judgment is granted; SCO’s claims for specific performance and breach of the implied covenant of good fair and fair dealings are denied. Also SCO’s motion for judgment as a matter of law or for a new trial: denied. SCO is entitled to waive, at its sole discretion, claims against IBM, Sequent and other SVRX licensees.

CASE CLOSED!

Maybe I should say cases closed. The door has slammed shut on the SCO litigation machine.

Written by michaeleriksson

June 11, 2010 at 6:09 pm

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The trial of the year—Victory!

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I recently wrote about the SCO vs. Novell trial, the verdict of which is now, with some delay, in:

A unanimous jury rejected SCO’s copyright claims, which likely means the end to this threat once and for all. Virtual champagne all around!

Of course, looking at the preceding decade, SCO has been harder to get rid of than Jason Voorhees; however, unlike Jason, it is not actually supernatural.

Written by michaeleriksson

March 31, 2010 at 4:01 am

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The trial of the year

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Right now, a trial of great importance is underway: The battle between Novell (the good guys) and SCO (the bad guys) concerning the rights to Unix. Unfortunately, most people seem to be entirely unaware of it.

Why is this battle so important?

In order to understand this, a brief overview is needed, and will be given below. By necessity, it will be an over-simplification: The story is extremely convoluted, involves many parties, and is stretched over a very long time. For those interested in more details, I recommend Wikipediaw; for those truly interested, there are enormous amounts of material present at Groklawe or, in German, Heisee.

Some forty years ago, the operating system Unix takes its first steps at AT&T. This little toddler is to grow into one of the dominating server and workstation operating systems for several decades—and to be the progenitor of both Linux and Mac OS X.

In the early nineties, AT&T sells the rights to Novell (the first of the combatants). In 1995, some of these rights are sold to SCO (confusingly, not the second combatant). Here however, we encounter the point of contention: Which rights, exactly?

Only in 2000 does the second combatant, then called Caldera, enter the arena by buying the Unix business of the original SCO. Not long thereafter, Caldera changes its name to SCO Group, in an effort to capitalize on the strong brand-name of the original SCO, which it has also bought. Meanwhile the original SCO departs from our tale.

Having had a few less than successful years, SCO looks for a solution to its money problems, and in 2002 it begins the dangerous gamble of claiming more extensive rights to Unix than it was acknowledged to have—and that Linux would contain significant portions of unlicensed Unix code. Calls for proof are raised; none is given.

In 2003, all hell breaks lose. A slew of law suits are started: SCO v. IBM, Red Hat v. SCO, SCO v. Novell, SCO v. AutoZone, SCO v. DaimlerChrysler. Claims and counter-claims are made, and litigation that lasts until at least 2010 ensues. SCO’s most noteworthy claim: IBM owns it one billion dollar (yes, billion) relating to its alleged and allegedly illicit use of intellectual property allegedly belonging to SCO. This amount was later increased to five billion… To make matters worse, this has the appearances of pilot case, with more to follow upon success.


Side-note:

The above paragraph has been revised for two errors since the original publishing:

  1. When checking the numbers, I overlooked the increase to five billion dollars.

  2. I claimed that even one billion was far more than SCO was every worth. While I still hold this statement to be true, it is technically wrong, seeing that Caldera had a market capitalization of more than that shortly after its IPO. That number, however and IMO, was severely hyped, did not reflect actual sales and prospects, and dwindled soon afterwards. (See also CNET on the IPOe or historical share-price informatione of SCO.)

Generally, I gathered most facts from a few timelines on the given links, without revisiting the case to a greater depth. (I followed the case with great interest in the early years, but with the passage of time…) Correspondingly, there may be other errors in detail—not, however, in the big picture.


In parallel, SCO tries to leverage its claims in other ways, e.g. by trying to bluff companies merely using Linux into purchasing “anti-dote” licenses as protection against potential law suits for larger amounts.

As time goes by, SCO becomes more and more focused on these lawsuits, seeing the rest of its business disappear. It is now in a do-or-die situation—win the jackpot in court or end up in bankruptcy. It has become a company effectively geared at just one thing—litigation.

Because SCO is never able to produce evidence, it has little success, often see its claims struck down by summary judgments, and only manages to stay above the water-line through injections of additional capital, including from Linux’, Unix’, and Apple’s archenemy—Microsoft. Those claims that are not struck down are often stayed awaiting one of the other cases, either SCO v. IBM or SCO v. Novell.

In the autumn of 2007, the issue seems to be concluded: A summary judgment falls, stating that Novell is the rightful owner of the relevant Unix rights, which pulls out the carpet from all other cases; and SCO is effectively bankrupt.

However, hanging by a thread and protected by Chapter 11, SCO manages to remain to in the fight—and in August 2009, an appeals court finds that parts of the summary judgment were premature and must be treated in a full trial. This trial is now underway, expected to be concluded in the coming week (knock on wood).

As should be clear even from this greatly simplified overview, the situation has been highly chaotic, and great stakes are involved. Those who dig into the sources given above will find more chaos yet, including many other examples of highly disputable behaviour on the part of SCO—and many cases of infighting and internal intrigues.

Now, why is it important that SCO lose this trial? Mainly, were SCO to win, it would set a dangerous precedent with regard to making legal claims bordering on the frivolous, extorting money by means of legal threats, and making grossly misleading accusations against other organisations: The justice system is abused often enough as it is—with a SCO victory, we could see a flood of lawsuits where failing companies try to ensure their survival by suing wealthier companies, possibly causing immense damage to third parties along the way. In addition, it is still conceivable that a SCO victory could do great damage to the companies and communities involved in developing Linux, and similar lawsuits against other members of the extended Unix family would not be inconceivable—and consider if Linux takes a severe hit at the same time as Apple is locked up in ten years of costly litigation: All of Gaul could well be conquered by the Redmonds this time.

Notably, while the probability that SCO will win sufficiently many battles is small, the stakes are sufficiently high that there is still reason to be nervous. In football terms: We may be a few minutes away from the end of the fourth quarter and have a two-touchdown lead—but the game is the Superbowl.

The issue of ObamaCare may be more important, but neither the OJ trial(s) nor the actual Superbowl holds a candle.

Written by michaeleriksson

March 21, 2010 at 4:20 pm

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