Theory of Business Law (BLS-621): Assessment Essay on
Submitted to: Ato Elias Nour
Prepared By: Id no.:
Elashadai Mammo GSR/6806/03
AAU, Faculty of Law November, 2011
TABLE OF CONTENT
INTRODUCTION SECTION ONE: Overview on public interest and expropriation 1.1 Introductory notes on expropriation 1.2 Definition of public interest as aground of Expropriation SECTION TWO: Fundamental theories of property and the public interest limitation. 2.1 Hobbesean Theory Of Property 2.2 Lockean Theory Of Property 2.3 Marxian Theory Of Property. 2.4 Ethiopian Theory Of Property 2.5 Concluding Remarks CONCLUSION BIBLIOGRAPHY
Page 1 2 2 4 6 6 7 8 9 10 12 14
In various human right instruments, both international and domestic, property rights constitute tenets of human right. Their essence and relation to human beings have been explained in a number of theories. These theories, in similar manner, indicate that property rights are subjected to limitation. No property right is absolute. In fact, this point is a feature of all limitation. In most, of all cases, individual rights are subjected to collective interests, which also hold true to property rights. One among others is expropriation, the theme of this study. Here in, public interest limitation will be examined from the perspective of various theories of property. Theoretical investigation of the matter would be done. Hence, laws and policies will be examined. In Section One an overview on expropriation and public interest is given. After setting this background on the two concepts, Section Two discusses about the different theories of property and how they support or neglect the concept of expropriation. Finally, an analysis on the Ethiopian law from these perspectives follows.
OVERVIEW ON PUBLIC INTEREST AND EXPROPRIATION 1.1 Introductory notes on expropriation
Ownership has been recognized as the widest right on property of any kind. But, similar to all rights it is limited as well. One of such limitation is expropriation, also designated compulsory purchase, eminent domain, resumption, compulsory acquisition in various jurisdictions.1 The concept of expropriation relates to taking of property. Black’s Law dictionary defines expropriation as “a governmental taking or modification of an individual’s property rights… [Or] a voluntary surrender of rights or claims; or divesting oneself of something previously claimed as one’s own.”2 Elsewhere, it is defined as act of a government taking private property.3 Pursuant to the former, consensual relinquishment of one’s own property is considered as expropriation. But, another aspect of the concept, as depicted in the latter definition, is a compulsory giving up of property rights. This dimension is the prevalent theme transcended by the concept. In the 17th century, Grotius has recognized this dimension when he stated: “the property of subjects belongs to the state under the right of eminent domain; in consequence the state, or he who represents the state, can use the property of subjects, and even destroy it or alienate it, not only in case of direct need, which grants even to private citizens a measure of right over others' property, but also for the sake of the public advantage; and to the public advantage those very persons who formed the body politic should be considered as
T. E. and Jack L. Knetsch (2011): Expropriation of Private Property and the Basis for Compensation: The University of Toronto Law Journal, Vol. 29, No. 3 (Summer, 1979), pp. 237-252 Published by (Vol. 29, pp. 237-252), p.237 2 Garner, B. A. (1999). Black's Law Dictionary (pp. 1-1793). St. Paul, Minn., p.602 3 http://legal-dictionary.thefreedictionary.com/expropriation 2
desiring that private advantage should yield. But, we must add, when this happens, the state is bound to make food at public expense the damage to those who lose their...