The limits of expropriation

In Introduction to Kirchheimer, Keith Tribe (U of Keele, Staffordshire, England) introduces an essay in which Otto Kirchheimer, writing under the Weimar Constitution, sought to analyze the role of property in the creation of the social inequalities that the constitution intended to eliminate. While the constitution provided for a right of the state to expropriate property without compensation, actual judicial practice interpreted this as creating a guarantee of compensation for any infringement of individual rights. In The Limits of Expropriation, Otto Kirchheimer examines the relationship between the principles of Article 153 of the Weimar Constitution & the actual legal practice of the courts & legislatures. The basic bourgeois concept of the state makes it primarily a means to the protection of property rights. This concept was established in European law, however, by the French Revolution, in the course of which the property of the nobility was expropriated; the problems & contradictions that surrounded this concept still continue, as is shown by review of the works of political theorists. The nineteenth-century law of expropriation in Germany, providing for compensation from the state to the owner, was applied whenever the state interfered lastingly with property. Compensation was made in many cases for the imposition of regulations that were never legally recognized as expropriation. The Weimar Constitution decisively abandons the classical liberal concept of private property & a right to compensation, following an approach in which the collectivity, not the individual, is consistently taken as primary. Its Article 153 explicitly provided for state interference with property as a general rule of law; expropriation becomes simply one permissible interference. The application of this principle by Reich court has not been consistent. In the legislatures, the bourgeois parties have consistently struggled against any elimination of existing property rights, including prebourgeois property rights, without payment of compensation. Thus, in actual practice, all established rights are safeguarded against the legislature, against the basic intent of the Weimar Constitution. W. H. Stoddard.