Julius Landesberger on Sieber’s Das Recht der Expropriation (1891)

Julius Landesberger’s 1891 review of J. Sieber’s Das Recht der Expropriation mit besonderer Berücksichtigung der schweizerischen Rechte assesses the monograph’s comparative exposition while criticizing its theory of compensation. His central contention is that compensation belongs throughout to public law: it equalizes burdens imposed for public purposes rather than merely restoring an individual’s patrimonial loss.

Landesberger places Sieber within a literature of general expropriation law whose principles emerge from shared social conditions and institutional development. Despite the book’s Swiss emphasis, its governing ambition is theoretical:

Zwar schreitet die Darstellung unter steter Bezugnahme auf die schweizerische Gesetzgebung und Rechtssprechung fort; allein diese Beziehung ist lediglich illustrativer Art, das positive Recht dient zur Ergänzung der Theorie, nicht umgekehrt.

English translation: The exposition does indeed proceed with constant reference to Swiss legislation and jurisprudence; but this reference is merely of an illustrative kind: the positive law serves to supplement the theory, not the reverse.

This relationship between theory and positive law supplies the review’s evaluative standard. Landesberger credits Sieber with an orderly account of established doctrine and controversies, but finds that the promised reconsideration of the subject produces insufficient conceptual revision. He follows the introduction, comparative legislative history, and principal discussions of the surrender or restriction of ownership and of compensation, noting the limited independent treatment of procedure. His praise is clearest where the work organizes dispersed legal materials:

Hervorzuheben ist die in dankenswerther Ausführlichkeit gegebene Uebersicht der vielfach zersplitterten schweizerischen Bundes- und Cantonalgesetzgebung.

English translation: Deserving of emphasis is the survey, given with commendable thoroughness, of the greatly fragmented Swiss federal and cantonal legislation.

The usefulness of this survey does not resolve the theoretical difficulty. Landesberger’s first substantive objection concerns the legal justification of expropriation:

Sieber's Begründung, welche in dem Gedanken sich zuspitzt, dass das particulare Interesse dem öffentlichen Wohle, dem allgemeinen Interesse weichen müsse, ist offenbar zu weit und verwischt den spezifischen Rechtscharakter der Enteignung.

English translation: Sieber's justification, which culminates in the thought that the particular interest must yield to the public welfare, to the general interest, is evidently too broad and blurs the specific legal character of expropriation.

The precedence of public welfare could justify state interference generally; it does not distinguish expropriation as a particular legal institution. It also overlooks the public importance of protecting private property. Following Lorenz von Stein, Landesberger instead understands expropriation through the state-mediated reconciliation of individual rights with the conditions necessary for the development of all individuals.

Compensation reveals the consequences of this distinction. Although its public-law foundation is broadly recognized, prevailing doctrine—including Sieber’s—continues to determine its extent through private-law categories. Sieber measures compensation by the difference between the owner’s wealth before and after expropriation, reproducing the private-law concept of Interesse. Yet his treatment of benefits generated by the undertaking exceeds this measure. Where neighboring owners also enjoy a general increase in value, he correctly refuses to deduct that benefit from the expropriated owner’s compensation. For Landesberger, this protects the owner’s relative economic position, not simply an isolated balance sheet.

Equality before the law cannot adequately explain that protection if the undertaking’s operator is understood merely as a private debtor. Such a debtor bears no general responsibility for distributing public burdens equally. Landesberger therefore treats the state as the primary subject of the compensation obligation and the operator as its representative. Compensation must prevent the expropriated owner from being indirectly charged for benefits enjoyed by the wider community. He likewise rejects an explanation of the exclusion of “Totalcompensation” based on an analogy with technical set-off: verbal similarity does not establish a legal foundation.

The resulting argument is both doctrinal and institutional. The compensation claim belongs entirely to public law, not only with respect to its legal ground; compensation proceedings should consequently fall in principle before administrative authorities and courts. The owner’s special contribution to public purposes requires a counter-performance that equalizes their position relative to others who are also liable, in principle, to contribute. The generality and equality of taxation thus illuminate the rationale and measure of compensation.

In closing, Landesberger connects expropriation to a broader transformation of legal relations. Rules concerning working hours, women’s and children’s labor, and compulsory sickness insurance illustrate public-law principles entering fields previously treated as private. Expropriation offers an instructive doctrinal model: the pecuniary character of a relationship does not make it private law; its classification must reflect the public obligations it expresses.