The Public Purpose for the Expropriation of Land: A Framework for Assessing Its Democratic Legitimacy

Abstract

In democratic political systems state action is only regarded as legitimate if it complies with democratic standards. This, of course, also applies to the expropriation of land and, in particular, to the determination that the expropriation of land serves a public purpose. In this paper it is analysed how it is ensured under English, German and South African law that the determination of the public purpose is democratically legitimate. On the basis of the relevant concepts of democratic legitimacy and its sources, all Acts of Parliament, administrative decisions and other legal acts that are relevant to the determination of the public purpose are considered. The following aspects of these acts are scrutinised as to their impact on the democratic legitimacy of the public purpose: the position in the state system of the entity that adopted the legal acts, in particular how that entity is accountable to the electorate; the extent to which the legal act defines the public purpose; the procedure that led to the legal act and its participatory elements, in particular as to who is provided with how much information, who has access to the procedure, and the form of participation.

Keywords: Democratic legitimacy, descriptive legitimacy, expropriation law, public purpose, comparative law, property law

JEL Classification: K11