Justifications of Expropriation

There are different views among individuals, societies and communities regarding anything since
difference is natural. When we observe this types of difference we expect a lot justifications to
materialize our reason. Property has strong relation with human being and justification is
mandatory because reconciling the individual rights and public interest is responsibility of a
state. Reconciling expropriation with private property rights in a democratic nation poses a
significant challenge. In such countries, private property rights are safeguarded from external
interference, including government actions, and are further protected by international
conventions that countries ratify.1 Private property has exclusionary nature of others but
expropriation is an exception to this principle. In order to justify there are four different
philosophical theories namely natural right theory, social contract theory, utilitarianism, theory
of justice. In addition to these there is economic justification theory which is somehow far from
philosophy but not completely. We will see them one by one in the next section.

1. Natural right theories

Natural right theories assert that certain rights, such as life, liberty, and property, exist inherently
in humans, preceding the establishment of state laws. Philosophers like Hobbes and Locke argue
that these rights stem from the fundamental right to self-preservation. Locke, in particular,
emphasized that property rights are natural and exist independently of government or law.
According to Locke, every person owns their labor and, by extension, anything they mix their
labor with in the state of nature. For instance, the fruits one gathers or the animals one hunts
become private property through the application of personal labor. Locke argued 2 that the value
of land or other resources is significantly enhanced by human labor, attributing up to ninety-nine
percent of their value to it. However, he recognized that the state of nature failed to protect
property adequately, leading men to form governments to safeguard their possessions. Locke
maintained that the primary role of government is to protect life, liberty, and estate. He believed
that no government could rightfully claim a citizen’s property without their consent. This extends
to taxation, which Locke argued must have the consent of the governed, either directly or
through their representatives. According to the teaching developed primarily by Hobbes and
1
UN Declaration of Human Rights, African Charter, and European Convention safeguard private property rights
provisions
2
Locke, J. 1986 [original 1690]. The Second Treatise on Civil Government. New York, Prometheus Books, p. 19
Locke, there are many natural rights, but all of them are inferences from one original right, the
right that each man has to preserve his life. All other natural rights, like the right to liberty and
the right to property, are necessary inferences from the right of self-preservation, or are
conceived as implicit in the exercise of that primary right. But, even within the naturalist
philosophers, there is divergence on the inalienability of property rights3

This kind of view on private property rights left small chance with debating issue for government
interference, even for public purpose, a stance also supported by modern philosophers like
Robert Nozick and Ellen F. Paul. Nozick 4 advocated for a minimal state limited to protecting
citizens from violence, theft, and fraud, and enforcing contracts, without redistributing wealth or
resources. Paul, echoing Locke, argued that eminent domain without the owner's consent violates
fundamental property rights. Despite Locke’s strict stance, some critics argue that it is
impractical for governments to rely solely on owner consent for public development projects.
Richard Epstein suggests that Locke’s prohibition on arbitrary property taking should be revised
to allow government expropriation with just compensation, enabling it to fulfill its mission. This
perspective aligns with Blackstone, who, while upholding property rights, acknowledged the
legislature's authority to override individual property rights for the common good, provided fair
compensation is given. They all tried to solve absence of balance between private property rights
and the public interest.

2. Social contract theory

Social contract theories focuses on the issue that whatsoever the origin of property (natural law
as in Locke) or others, the right to property is restricted by a social contract made between the
people and the government, by which men are agreed to pass part of their liberties to the
government.5 It means social contract theories explore how property rights are shaped by
agreements between individuals and their government. They argue that while property may
originate from natural law, such as Locke's theory, its exercise is constrained by a social contract
where individuals surrender some freedoms for societal order. Thomas Hobbes, for instance,
depicts a pre-social contract state as chaotic, where self-preservation is paramount amid

3
Daniel Weldegebriel Ambaye ,LAND RIGHTS AND EXPROPRIATION IN ETHIOPIA (stokholm,2013)
4
Nozick, R. 1974. Anarchy, State, and Utopia, Oxford, Blackwell, p. 26
5
Daniel Weldegebriel Ambaye ,LAND RIGHTS AND EXPROPRIATION IN ETHIOPIA (stokholm,2013),p.152

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perpetual fear. In contrast to Locke, David Hume 6 contends that property rights emerge only
within civil society, not inherently. He posits that justice and property are products of human
convention rather than natural entitlements.

Likewise, Hugo Grotius7, credited with "eminent domain," justifies expropriation in extreme
cases for the common good, emphasizing that private property rights derive from social
recognition and can be overridden by societal needs. Jean-Jacques Rousseau critiques Locke’s
defense of private property, seeing it as a source of inequality and conflict. He argues that while
private property is inevitable due to land cultivation, its rights are subordinate to the
community’s welfare, echoing the prioritization of social interests over absolute property rights. 8
Rousseau's concept aligns with the notion that property rights should serve societal harmony and
governance stability, ensuring a balanced exercise of sovereignty within a community. The
claims that property rights are “sacred,” “absolute,” and “inviolate” in Locke or Blackstone’s
arguments were always such that they could be trumped by important social purposes. 9 Even if
there is natural or inherent rights of individuals over property rights they can agree with
institutions like state to transfer their rights.

3. Utilitarianism

The third category of justifications regarding expropriation is utilitarianism. According to this

theory justice is the greatest good for the greater number of individuals. Jeremy Bentham and
John Stuart Mill were central advocators of this moral philosophy. Bentham defines utility as the
principle that approves actions based on their ability to increase happiness and welfare,
emphasizing the collective benefit over individual rights. 10 Regarding property rights,
utilitarianism justifies limitations or expropriation if it serves the broader societal welfare more
effectively. This perspective challenges notions of absolute property rights, asserting that
property should benefit society optimally. 11 For instance, eminent domain, where private

6
Garnsey, P. 2007. Thinking about Property From Antiquity to the Age of Revolution, , p.155
7
Paul, E. F. 1987. Property Rights and Eminent Domain, New Brunswick and London, Transaction Publishers, p.
197.
8
Rousseau, J. J. 1762 [translated by Christopher Betts-1994). The Social Contract, Oxford University Press, p. 62.
9
Daniel Weldegebriel Ambaye ,LAND RIGHTS AND EXPROPRIATION IN ETHIOPIA (stokholm,2013) p.154

10
Bentham, J. 2000 (Original 1781). An Introduction to the Principles of Morals and Legislation, London, Batoche
Books, Kitchener, p. 14
11
Schultz, D. 2009. Evicted! Property Rights and Eminent Domain in America, Praeger, p. 18.

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property is acquired for public use, aligns with utilitarian principles if it enhances overall
welfare, despite individuals lose. Critics argue that utilitarianism neglects distributive fairness by
focusing solely on maximizing total welfare, potentially endorsing policies that benefit many at
the expense of few. Moreover, it's criticized for undervaluing individual rights, as it prioritizes
collective outcomes over protecting individual liberties. This ethical approach, according to John
Rawls, conflates what is morally right with what produces the best outcomes, potentially
justifying unethical means if they achieve desirable ends. In summary, utilitarianism's emphasis
on maximizing welfare challenges traditional property rights doctrines by prioritizing societal
benefit, but its disregard for distributive justice and individual rights raises ethical concerns
about its application in policy, particularly in cases like expropriation where individual property
rights are curtailed for public gain. It is all about majority’s satisfaction not few private
individuals’ grievance and right claim.

4. Theory of justice

This theory focuses on the principles governing the distribution of benefits and burdens in
society. It also consists distributive justice, justice as fairness and the like. According to Rawl’s
proposition there are two principles namely second and difference principle advocates justice
should ensure the maximum liberty for individuals that is compatible with similar liberties for
others, fair equality of opportunity and social and economic inequalities should only be permitted
if they benefit the least advantaged members of society respectively. 12 In this theory john Rawl
and Frank Michelman role is key and have great contribution. According to Rawlsian principles,
property rights, including land, are fundamental liberties under the first principle. However, the
extent of compensation for regulatory takings remains contentious. Frank Michelman explores
this, blending utilitarian and Rawlsian perspectives. 13 He argues that compensation for regulatory
takings should be considered based on whether the demoralization and settlement costs exceed
the efficiency gains from government actions. And compensation is necessary in cases of
significant loss of property value or physical occupation, aligning with principles of fairness and
minimizing arbitrariness in governmental actions affecting property rights. His approach
attempts to balance individual rights with societal benefits, ensuring that compensation is

12
Rawls, J. 1999. A Theory of Justice, Massachusetts, The Belknap Press of Harvard University Press, p. 53.
13
Michelman, F. I. 1966. Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just
Compensation” Law. Harv. L. Rev., 80.

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warranted under circumstances that substantially affect property owners. Then we can conclude
property rights are composed of basic liberties but the regulations, proclamations and the
associated compensatory laws reflect broader societal principles of justice and fairness.

5. Economic justifications

Holdout Problems and the Concept of Public Goods: Efficient land use and the resolution of
holdout problems are key economic reasons justifying the state's expropriation power. This
power stems from the concept of market failure, where free markets fail to allocate goods and
services efficiently, leading to suboptimal social welfare. When markets fail, state intervention
becomes necessary to ensure the proper allocation of resources, including property. Market
failures often arise from issues with property rights according to some economists like Gravelle
and Rees.14 Based on this flow the solution to market failure is the intervention of the state in
allocation and supply of the goods. In this intervention not only goods, rights will be part of
interference. Because according aforementioned economists “A market is an institution in which
individuals or firms exchange not just commodities, but the rights to use them in particular ways
for particular amounts of time. [...] Markets are institutions which organize the exchange of
control of commodities, where the nature of the control is defined by the property rights attached
15
to the commodities.” In cases where landowners refuse to sell or demand excessively high
prices, transaction costs rise, and large-scale projects may become unfeasible. Therefore,
economists suggest state intervention through expropriation to overcome these issues and ensure
public welfare. In Ethiopia, where land sales are restricted, expropriation remains the primary
method for acquiring land for public or private projects.

Efficiency Concepts and Value: The other justification under economic justification is
efficiency and value. Which means ensuring efficient land use by utilizing resources in the most
productive way to meet competing needs. Efficiency means the most productive use of resources
to satisfy competing material wants and value can be taken to mean how much someone is
prepared to pay for something. Efficiency is achieved when resources are allocated such that no
one can be made better off without making someone else worse off a concept known as Pareto

14
Gravelle, H. & Rees, R. 2004. Microeconomics, Essex, Prentice Hall, p. 314.
15
Ibid

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efficiency16. However, since voluntary transactions often affect others, economists prefer the
Kaldor-Hicks efficiency model17, where a transaction is efficient if the gainers' benefits outweigh
the losers' losses. This model does not require actual compensation to the losers, only that the
potential exists. Critics argue that expropriation undermines the inalienable property rights of
owners and may not always be more efficient than market mechanisms. Studies, such as Munch's
analysis of Chicago's urban renewal, have shown that expropriation can result in delays and
unfair compensation. There is also concern that justifying expropriation on efficiency grounds
could lead to government overreach, threatening private property rights.

Ethiopia’s expropriation justification seems derive from majorities’ satisfaction that means
utilitarianism because Article 40(8) of the FDRE Constitution which provides: Without prejudice
to the right to private property, the government may expropriate private property for public
purposes subject to payment in advance of compensation commensurate to the value of the
property. and article 4 of proclamation no 1161/2019 under sub-article one declares that
Expropriation of land for public purposes shall be made only on the basis of approved land use
plan; urban structural plan; or development master plan. Under article 2 sub-1 defines “Public
Purpose” means decision that is made by the cabinet of a Regional State, Addis Ababa, Dire
Dawa or the appropriate Federal Authority on basis of approved land use plan or; development
plan or; structural plan under the belief that the land use will directly or indirectly bring better
economic and social development to the public. Despite private individual rights tends to the
majority’s interest.

16
Mathis, Klaus. Efficiency Instead of Justice? Searching for the Philosophical Foundations of the Economic
Analysis of Law. University of Lucerne, Switzerland. Springer, 2009. P 33.
17
Ibid

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