'Introduction' - The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe. In Search of a Theory

The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe. In Search of a Theory (2017), ISBN 978-3-319-48530-0

16 Pages Posted: 25 Aug 2017

See all articles by Liviu Damsa

Liviu Damsa

University of Warwick - School of Law

Date Written: January 1, 2017

Abstract

The arguments I present in this book are six-fold. First, that in the post-communist CEE context, the political and legal undertakings of the democratic regimes that replaced totalitarian ones were not based necessarily on ideas of retributive justice. Thus, the main economic, social and political transformations goals of the post-communist transitions were related to the distribution, or the giving-away of the communist property, and not to retribution or compensation for past wrongs.

Second, that the normative arguments offered in the economic, political and philosophical scholarship for the transfer of communist property are weak or under-theorised. Moreover, many descriptions of the alienation of communist property, provided in legal scholarship misrepresent the post-communist transformations. Third, that the dominant literature on post-communist property transformation misunderstands or mischaracterises the particularities of the communist legal arrangements concerning property. As a result, this literature frequently offers normative prescriptions for the transformation of communist property which have a weak basis in reality, contributing to the undesirable consequences of this transformation in the post-communist period.

Fourth, that the dominant literature offers an incomplete theorisation of the property transformations in the post-communist period, by focusing on the lesser instrument utilised for transformations, restitution, and by ignoring the major one, privatisation. This incomplete theorisation is reflected, for example, in the unsatisfactory ways in which post-communist restitution is analysed in transitional justice theory. It is also reflected in the general indifference of transitional justice theory towards the theorisation of post-communist privatisation. Fifth, that the incomplete theorisation of post-communist property transformations is also reflected in the literature on ‘historical justice.’ However, the normative arguments advanced against restitution in this literature are not applicable in the post-communist contexts mainly because the time elapsed since the perpetration of the communist wrongs is relatively short. Sixth, that the use by the post-communist CEE governments and legislatures of two distinct legal institutions, privatisation and restitution, to accomplish the same goal of giving-away the communist state property, warrants a reconsideration of the ideas concerning post-communist restitution and privatisation. There is also an urgent need for an analysis of the role of the law in such transformations. Similarly, the limit of constitutional or legal changes in democratic transformations deserves reconsideration and further theoretical attention.

Keywords: Legal Theory, Philosophy Law, Transitional Justice, Privatization, Restitution, Post-Communist Europe

Suggested Citation

Damsa, Liviu, 'Introduction' - The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe. In Search of a Theory (January 1, 2017). The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe. In Search of a Theory (2017), ISBN 978-3-319-48530-0, Available at SSRN: https://ssrn.com/abstract=3024082

Liviu Damsa (Contact Author)

University of Warwick - School of Law ( email )

Coventry, West Midlands
United Kingdom

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
68
Abstract Views
590
Rank
603,475
PlumX Metrics