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Expropriatory Compensation, Distributive Justice, and the Rule of Law

H. Mostert & LCA Verstappen, Rethinking Public Interest in Expropriation Law, 2014 Forthcoming

21 Pages Posted: 25 Oct 2013  

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Date Written: October 25, 2013

Abstract

This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the specific circumstances of the case. This Essay criticizes both justifications, arguing that the former is normatively impoverished while the latter affronts the rule of law. The notion of partial and differential compensation, however, can serve as a powerful tool for developing a nuanced expropriation doctrine that serves important property values, and also targets the potentially regressive effects of a uniform rule of full market value. The proposed doctrine draws careful, rule-based distinctions between types of injured property (fungible vs. constitutive) and types of benefited groups (local communities vs. the broader society).

Suggested Citation

Dagan, Hanoch, Expropriatory Compensation, Distributive Justice, and the Rule of Law (October 25, 2013). H. Mostert & LCA Verstappen, Rethinking Public Interest in Expropriation Law, 2014 Forthcoming. Available at SSRN: https://ssrn.com/abstract=2345115 or http://dx.doi.org/10.2139/ssrn.2345115

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel
+972 3 640 7302 (Phone)

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