Vom Recht, nicht wieder gut zu machen

Abstract

On the right not to recompense

According to § 1 (4) Ausgleichsleistungsgesetz (Law on Recompenses for Soviet Expropriations), legal successors of persons, who substantially abetted National-Socialism, are not eligible for compensation for the losses they suffered due to Soviet expropriations after the Second World War. The reasons and justifications for this legislative exclusion have been much neglected even during the current debate in the wake of the claims of the Noble Preussen Family. This article traces putative models which have sought to explain the provision and it highlights their inadequacies. In fact, the rule of exclusion is best understood as part of the rather obscure field of foreign state liability law. Here, a state accepts its own liability for another state’s wrongful act without passing judgment on that very act as illegal. This kind of legislative agnosticism rules out the understanding of the exclusion as a sub-type of contributory negligence. Instead, § 1 (4) Ausgleichsleistungsgesetz rests on the premise that other states’ actions shall be presumed contingent and rational, even if oneself may never have acted this way. In this sense, § 1 (4) mirrors a world constituted of states.