Remodeling Just Compensation: Applying Restorative Justice to Takings Law Doctrine

Posted: 3 Aug 2017

See all articles by Shai Stern

Shai Stern

Bar-Ilan University - Faculty of Law

Date Written: August 2, 2017

Abstract

Compensation for expropriation in most western jurisdictions aims to provide justice. Yet, while this quest for justice is inherent in expropriation laws, they nevertheless say little, if any, about the underlying conception of justice or how justice should be pursued. A closer examination of courts’ judgments, as well as scholarly discourse on the quest for justice in expropriations reveals a muddled dialogue in which divergent justifications pull one towards different normative and positive conclusions. Currently, expropriation doctrine purports to incorporate a sense of fair dealings with those who become victim to legal devices such as eminent domain. However, based on current case law, the reality of expropriation laws fails to reflect any true practice of justice.

This Article suggests a conceptual change in expropriation laws’ remedial scheme by embracing restorative justice as the underlying concept of what constitutes justice in expropriation law. By establishing expropriation law on a restorative conception of justice, a coherent framework will emerge that is circumstances attentive and will provide practical instruments to overcome some of current law’s most significant challenges. This opens a new venue for both expropriation law and restorative justice. Equally important, the Article provides a novel opportunity to consider restorative justice beyond the borders of criminal law.

Keywords: Expropriation, Restorative justice, Eminent domain, Just compensation, property law, corrective justice, remedies

Suggested Citation

Stern, Shai, Remodeling Just Compensation: Applying Restorative Justice to Takings Law Doctrine (August 2, 2017). Canadian Journal of Law and Jurisprudence, Vol. 30, No. 2, 2017, Bar Ilan University Faculty of Law Research Paper No. 18-08, Available at SSRN: https://ssrn.com/abstract=3012425

Shai Stern (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan, 52900
Israel

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
205
PlumX Metrics