Title

The Social Obligation of Property Ownership: A Comparison of German and U.S. Law

Authors

Rebecca Lubens

Abstract

Although both Germany and the United States have strong market-based economies characterized by rigorous protection of private property rights, the two countries have different conceptions of land ownership based on distinct notions of the individual’s place in society. Whereas property protection under the U.S. Constitution emphasizes individual freedom, German law explicitly considers the individual’s place in and relationship to the social order in defining ownership rights. The property clause in the German Grundgesetz (The Basic Law, the German constitution) contains an affirmative social obligation alongside its positive guarantee of ownership rights. The U.S. Constitution, on the other hand, does not explicitly recognize an affirmative social obligation of property use. At the same time, courts have not considered property a fundamental right and are reluctant to use a language of natural rights to describe ownership relations. Thus, in locating a limit on the social obligation of ownership, the U.S. Supreme Court has employed rhetoric emphasizing the purely economic impact of regulation rather than its effect on a property owner’s dignity or autonomy, as in Germany. Beginning with the assumption that both legal systems recognize a significant social obligation (in the language of German court decisions) or expansive regulatory power (in the language of U.S. courts), this note will compare how the scope of that regulatory authority is circumscribed in the respective jurisdictions by the different values protected by the respective property clauses. In depicting the German social obligation, I will pay particular attention to the positive guarantee of property rights codified in the German constitution, not only to illustrate this as a limit on the social obligation, but also to show that German courts are comfortable with highly individualized determinations into the personal meaning of property for property owners (invoking what are referred to in Anglo-American jurisprudence as personhood interests) and use such determinations to exclude purely economic interests from constitutional protection. In considering these differences between U.S. and German constitutional property regimes, I aim to address the question of what, if anything, the Fifth Amendment positively guarantees for property owners.

Disciplines

Comparative and Foreign Law | Environmental Law | International Law | Land Use Law

Date of this Version

August 2006