3. Conceptualizing Expropriation

A court in Louisiana, a state in the USA that follows a Civil Law (continental) legal s system, once declared that the term “expropriation” used in our statutes is practically synonymous with the term “eminent domain.” See (Tennessee Gas Transmission Co. v. Violet Trapping Co., 200 So. 2d 428 (1967); In Louisiana, taking land for public use by eminent domain is called by the name “expropriation.” See WEST’S LAS C.C. 2626; Both FAO and FIG study reports used the three of them interchangeably (FAO 2008. Compulsory Acquisition of Land and Compensation. FAO Land Tenure Studies 10. Rome: Food and Agriculture Organization of the United Nations.; Viitanen, K., Falkenbach, H. & Nuuja, K. 2010. Compulsory Purchase and Compensation Recommendations for Good Practice. FIG Policy Statement. Helsinki International Federation of Surveyors.

Black, H. C. 1991. Black's Law Dictionary. 6th ed. St. Paul, Minn.: West Group.

Bouvier, J. 1984. Bouvier's Law Dictionary. 4th ed.: William S Hein & Co.

Nichols, supra note 1, § 1.1.

Id. § 1.11. Example in Jones v. Walker, 13 F. Cas. 1059, 2 Paine 688 (Va. Cir. Ct. 1800), “eminent domain” is defined as: “The right of society, or of the sovereign, to dispose, in case of necessity, and for the public safety, of all the wealth contained in the state.” Looking into the State Constitutions of the early States in the USA, one can observe that in their eminent domain clauses, “most state constitutions omitted any specific mention of a right to compensation.” See Harrington, M. P. 2001. “Public Use” and the Original Understanding of the So-Called “Taking” Clause. Hastings Law Review, 53., p. 1276.; Kratovil, R. & Frank J. Harrison, J. 1954. Eminent Domain-Policy and Concept. Cal. L. Rev., 42, 596–652, p. 596; Grant, J. A. C. 1930. The “Higher Law” Background of the Law of Eminent Domain. Wis. L. Rev., 6, p. 70. According to Grant, only Vermont and Massachusetts required compensation during expropriation.

Article 1460 of the Civil Code.

Ibid.

FAO, supra note 7, p. 1.

2005b. West's Encyclopedia of American Law. In: Lehman, J. & et al. (eds.) Eminent Domain. Vol. 4, 2nd ed. San Francisco, London and Munich: Thomson Gale. (Hereinafter West Encyclopedia), p. 125.

FAO, supra note 7, p. 10.

See Ethiopian Civil Code, Articles 1460–1461.

See generally Kitay, supra note 14.

Harrington, cited supra note 6, pp. 1245–1301.

Nichols, cited supra note 1, at § 1.13.

Ibid.

Harrington, cited supra note 6, p. 1250.

The General Civil Code of Louisiana (West LSA-C.C. Article 2626) that adopts an expropriation clause similar to the French, reasoned the rationale behind expropriation in a manner similar to what Grotius said: “The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the law, any particular property, is tacitly subjected to the obligation of yielding it to the community, wherever it becomes necessary for the general use.” (Tennessee Gas Transmission Co. v. Violet Trapping Co., 200 So. 2d 428 (1967).

Id., p. 1251.

Some of the founding fathers actually argued for the elimination of any allusion to feudalism in their property arrangement. They demanded an explicit recognition of private property rights that could not be taken by the government. For instance, Thomas Jefferson contended that all remnants of feudalism in regard to property should be eliminated. He vigorously pushed for allodial ownership wherein land owners would hold absolute dominion over their property. In other words, he contended that land holders should not be treated as stewards, with property ultimately controlled by the prerogative of the state (see Paul, cited infra note 63, p. 9).

Nichols, cited supra note 1, at § 1.13.

Harrington, cited supra note 6, p. 1251.

Ibid.

C.J.S., cited supra note 11, at § 4.

FAO, supra note 7, p. 6.

Id., p. 6–7.

Stoebuck, supra note 25, p. 553.

Harrington, cited supra note 6, p. 1249.

Reynolds, supra note 33, p. 15.

Stoebuck, cited supra note 25, p. 553.

Jones, supra note 46, p. 521.

Ibid., p. 254.

Ibid.

Nichols, supra note 1, at § 1.2; Also see Jones, cited supra note 46, p. 524.

McNulty, supra note 41, p. 557.

Nichols, supra note 1, § 1.2.

Reynolds, supra note 33, p. 17.

For details see Ibid.

Id., p. 45.

Ibid., Blackstone, Book II, Chap. IV, p. 38.

Reynolds, supra note 33, p. 94.

The Social Contract theory advocated by Hugo Grotius, Thomas Hobbes and John Locke claimed that in the early days of mankind, which they called it “the State of Nature”, there was absence of state and laws enacted by the state. In this stage of human society, the earth and all its wealth were given to the common use of mankind. On the evolution of private property, though, the three of them have different opinions. While for Grotius occupation of land and social recognition is the means to change property from common to private holdings, the mixture of labour to the common holdings was the sole reason for Locke. But, for Hobbes, only the creation and establishment of the Civil Society (Government and laws) was the source of creations of private properties. (see Hobbes, T. 1996 (J. C. A. Gaskin (ed.), originally published 1651,). Leviathan, New York, Oxford University Press.; Locke, J. 1980 (C.M. Macpherson (ed.), originally published 1690,). Second Treatise of Civil Government Cambridge, Hackett Publishing Company Inc.).

Grotius, H. 1625 [orig.] On the Law of War and Peace A.C. Campbell translation, De Jure Belli ac Pacis. Book I, Chap. I, Sect. X.

Ibid.

Grotius, supra note 62, Book I, Chap. I, Sect. XIV.

Grotius cited supra note 62, Book I, Chap. I, Sect. VI.

Id., Book II, Chap. XIX, Sect. VII.

Id., Book III, Chap. XX, Sect. VII.

Paul, cited supra note 63, p. 75.

Reynolds cited supra note 33, p. 71.

Id., p. 54.

Ibid., p. 94.

Picard, E. 1990. Expropriation in France. In: Erasmus, G. M. (ed.) Compensation for Expropriation: A Comparative Study. Oxford: St. Edmund Hall University of Oxford, p. 33.

Boynton: 1962, supra note 43, p. 946.

Reynolds, supra note 33, pp. 34–45.

2005a. West’s Encyclopedia of American Law. In: Lehman, J. & Phelps, S. (eds.) Foundations of the U.S Law: Magna Charta. San Francisco: Thomson Gale. Chapter 39, p. 8.

Parliamentary supremacy triumphed in England after the defeat and execution of King Charles I in 1651. There was a protracted civil war (1642–1651) and struggle in England between supporters of the parliament and that of the Royalty to reduce the prerogatives of the king.

Blackstone, supra note 58, Book I, Chap. I, p. 139.

Harrington supra note 6, says “the first recorded exercise of the powers to expropriate property appears to have been a statute of 1402, in which parliament declared to be common highways, and authorized the inhabitants of the area to take gravel, trees, or loam for the repair of the structures along the way.” p. 1260.

Harrington supra notes 6, p. 1259.

Ibid.

Ibid.

Id., pp. 1259–1260.

Meidinger, Cited supra note 47, p. 9; Nichols, supra note 1, at § 1.21.

Boynton: 1962, cited supra note 43, p. 947.

For details see Nichols, cited supra note 1, at § 1.22.

Ibid.

Harrington, cited supra note 6, p. 1247.

Ibid., p. 1253.

Meidinger, supra note 47, p. 13–16. He traced the earliest eminent domain law to the 1639 Massachusetts’ statute which authorized county courts to condemn a private land for a highway.

The whole content of the Fifth Amendment of the U.S. Constitution goes as: “No person shall be held to answer for a capital, otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Harrington, supra note 6, p. 1248.

This is true with due regard to the existence of two previous capitals of the realm, namely Axum (100 BC–800 AD) and Gonder (17–18th Century).

Pankhurst: 1990, supra note 125 in Chap. 2, p. 275.

As detailed by Richard Pankhurst, modern road building began during the reign of Emperor Tewodros II (1855–1868) with the intent of creating easy and rapid movement for his military and cannons. Assisted by foreigners he was able to link his capital, Debre Tabor, with three main routes to Goneder, Gojam and Gafat. To break Tewodros, the British had also resorted to road construction by starting from the sea. But quality and modern roads started to emerge with the establishment of Addis Ababa by Emperor Menelik II. The early half of the twentieth century was thus a time in Ethiopia which can be portrayed as a time of public works development and extensive use of expropriation. (see Pankhurst, R. 1968. Economic History of Ethiopia 1800–1935, Addis Ababa, Haile Sellassie I University Press, pp. 284–289).

See details in supra footnote 30 of Chap. 2 of this dissertation.

Taddesse-Tamrat, supra note 33 in Chap. 2, p. 98.

Paul and Clapham, supra note 30 in Chap. 2, p. 290.

Id., p. 293; see also Fitha Negest, supra note 59 in Chap. 2, Article 1544.

For example see Crummey: 2000, supra note 35 in Chap. 2, p. 183.

Pankhurst: 1990, supra note 125 in Chap. 2, p. 33.

Blanc, H. 2007 (Original 1868). A Narrative of Captivity in Abyssinia: With Some Account of the Late Emperor Theodore, His Country and People, Harvard, Harvard University.p, 150; See also Pankhurst: 1968, supra note 101, p. 143. All Church land was confiscated and the number of priests was limited to five to seven. The Emperor disliked monks and above all dabtaras, complaining that they “wore turbans on their heads and neither fought nor paid taxes”, preferring to “live in cities with prostitutes and other people’s wives.” (Ibid.).

Pankhurst: 1966, supra note 29 in Chap. 2, p. 95; Crummey, D. 1969. Tewodros as Reformer and Modernizer The Journal of African History, 10, 457–469. Crummey argued (at p. 468) that Church lands were making no real contribution to the national economy since the larger part of them were uncultivated, partly through the indolence of the clergy, partly through the disincentive which they gave to any peasants who might want to till them by means of high taxes.

With a clash that he had with Great Britain, the Emperor shot himself before the English put hand on him. And the opposition from the priesthood contributed significantly to his fall for they were prime movers and instigators of various regional rebellion rose against him. The rebellions debilitated his power which created an opportunity for the British to win him easily. After the death of Tewodros, leaders of different regions and by and large the succeeding Emperor, Yohannes IV, declared at once the restoration of Church lands to their former owners. (Pankhurst: 1968, supra note 101, p. 143).

Pankhurst: 1968, supra note 101, p. 140; See also Pankhurst: 1966, supra note 26 in Chap. 2, p. 81.

Id., p. 168.

See the whole 1893 and 1908 railroad construction concessions as reproduced in Mahteme-Sellassie: 1970, supra note 55 in Chap. 2, p. 440–449. The original agreement dictates that the first phase was to be built from Djibouti to Harer, and the second from Harar to Enteto.

Pankhurst: 1966, cited supra note 26 in Chap. 2, p. 169; Pankhurst: 1968, supra note 101, p. 289.

Id., pp. 334–336.

Bahru-Zewde 2008b. Economic Origins of the Absolutist State in Ethiopia (1916–1935). In: Zewde, B. (ed.) Society, State and History: Selected Essays. Addis Ababa: Addis Ababa University Press, p. 105.

The 1908 Minelik’s Addis Ababa Charter, as reproduced in Mahteme-Sellassie: 1970, supra note 55 in Chap. 2, p. 170; with slight difference in translation, see also Pankhurst: 1966, supra note 29 in Chap. 2, p. 158.

Bahru-Zewde: 2008b, supra note 124, p. 106.

The 1931 Ethiopian Constitution as reproduced in Paul and Clapham, cited supra note 30 in Chap. 2, pp. 326–336; see also Mahteme-Sellassie: 1970, cited supra note 55 in Chap. 2, p. 771, 789; also it is found on some web pages, such as http://​www.​worldstatesmen.​org/​Ethiopia_​1931.​txt.

Pankhurst: 1966, supra note 26 in Chap. 2, p. 208.

Larebo, H. M. 1994. The Building of an Empire: Italian Land Policy in Ethiopia 1935–1941, Oxford, Clarendon Press, p. 245.

Ibid.

Ibid.

The Revised 1955 Constitution of Empire of Ethiopia: http://​www.​angelfire.​com/​ny/​ethiocrown/​Constitution.​html.

Ethiopian Civil Code.

Of the Civil Code, Book III, Titles VI–X are allocated for property. In particular, under Title IX, Articles 1460–1488 are dedicated to expropriation.

Article 544 of French Civil Code reads: “Ownership is the right to enjoy and dispose of things in the most absolute manner provided that they are not used in a way prohibited by statute or regulations.” The Code is available at http://​195.​83.​177.​9/​upl/​pdf/​code_​22.​pdf.

Article 1204(1), (2) of Ethiopian Civil Code.

In the Roman law tradition ownership right is conceived as absolute. Although difficult to define, it connotes, among others, that ownership is the greatest right that a person can have in property, that it is inherently unrestricted and that it is the only right of its kind, that there is no lesser form of ownership. For details see Simpson, S. R. 1961. Towards a Definition of “Absolute Ownership”: II. Journal of African Law, 5, 145–151, Birks, P. 1985. The Roman Law Concept of Dominium and the Idea of Absolute Ownership. Acta Juridica, 28, 1–37; Pierre, B. 1997. Classification of Property and Conceptions of Ownership in Civil and Common Law. Revue Generale De Droit, 28, 235–274.

Ethiopian Civil Code, Article 1450(1).

Id. Article 1450(2).

Id. Article 1460.

Id. Article 1461(1).

Id. Article 1461(2).

See Articles 1463–1465.

Id. Article 1464(2).

Id. Article 1464(1).

For example the United Nations Universal Declaration of Human Right (Article 17), African Charter on Human and Peoples’ Rights (Article 14), and Protocol No. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms are some of the conventions which provide protection to private property.

Transaction costs are costs associated with the transfer of the land such as costs paid to brokers, formation and enforcement of contracts, negotiation, notary, registration and so on.

Benson, B. L. & Brown, M. 2010. Eminent Domain for Private Use: Is it Justified by Market Failure or an example of Government Failure? In: Benson, B. L. (ed.) Property Rights: Eminent Domain and Regulatory Takings Re-Examined. New York: The Independent Institute, p. 150. (As quoted by the writers, the eminent law and economist, Richard Posner elaborates the problem: “An economic reason for eminent domain, although one applicable to its use by railroads and other right-of-way companies rather than by government, is that it is necessary to prevent monopoly. Once the railroad or pipeline has begun to build its line, the cost of abandoning it for an alternative route becomes very high. Knowing this, people owning land in the path of the advancing line will be tempted to hold out for a very high price—a price in excess of the actual opportunity cost of the land. The high cost of acquiring land will, by increasing the costs of right-of-way companies, induce them to raise the prices of their services; the higher prices will induce some consumers to shift to substitute services; the companies will therefore have a smaller output; and as a result the companies will need, and will purchase, less land than they would have purchased at prices equal to (or slightly above) the opportunity costs of the land. Furthermore, higher land prices will give the companies an incentive to substitute other inputs for some of the land that they would ordinarily purchase. As a result of these factors land that would have been more valuable to the right-of-way company than to its present owners remain in its existing, less valuable uses, and this is efficient.”.

Clarke and Kohler, supra note 13 in Chap. 2, p. 49.

Ibid.

See generally Paul, supra note 63, especially pp. 254, 255.

Id., p. 257.

See generally Benson, B. L. (ed.) 2010. Property Rights: Eminent Domain and Regulatory Takings Re-Examined, New York: Palgrave Macmillan.

Id., § 26, p. 20.

Ibid.

Id., § 27 and § 40, pp. 20 and 26 respectively.

Id., § 138, p. 77.

Paul, supra note 63, p. 198.

Garnsey, supra note 66, p. 143.

Locke, supra note 150, pp. 77, 78.

Id., p. 79.

Paul, supra note 63, p. 255.

Ibid.

Id., p. 151.

See Blackstone, as discussed in Sect. 3.3.2.

Garnsey, supra note 66, p. 155.

Paul, supra note 63, p. 197.

For details on Grotius see supra Sect. 3.3.2, where history of expropriation in the Civil Law tradition is discussed.

Garnsey, supra note 66, p. 146, 147.

Id., p. 165.

Munzer, supra note 148, p. 191.

Munzer, supra note 148, p. 195.

Schultz, supra note 181, p. 23.

Id., p. 108.

Simmonds, supra note 174, p. 29.

Id., p. 30.

Mathis, supra note 157, p. 111.

Buchanan, A. & Mathieu, D. 1986. Philosophy and Justice. In: Cohen, R. L. (ed.) Justice. New York and London: Plenum Press, p. 11.

Rawls, supra note 195, p. 53.

In his recent article, the Economics Nobel Laureate, Joseph E. Stiglitz, argues that currently in the US defenders of America’s inequality argue that the poor and those in the middle shouldn’t complain. While they may be getting a smaller share of the pie than they did in the past, the pie is growing so much, thanks to the contributions of the rich and superrich, that the size of their slice is actually larger. Indeed, America grew far faster in the decades after World War II, when it was growing together, than it has since 1980, when it began growing apart (see http://​www.​thereporterethio​pia.​com/​Business-and-Economy/​the-price-of-inequality.​html).

Rawls, supra note 195, p. 54.

Alterman, R. 2011. Regulatory Takings and the Role of Comparative Research. In: Alterman, R. (ed.) Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights. Chicago: American Bar Association, p. 3.

Paul, supra note 63, p. 142.

Michelman, supra note 205, p. 1175.

Id., p. 1176.

Id., p. 1181.

Id., p. 1221.

Id., p. 1223.

In Ethiopia the hierarchy of laws is put as follows: Constitution (passed by people), Proclamation (passed by parliament), Regulation (passed by council of ministers), Directive (passed by specific minister), Manuals (passed by specific department).