1. Introduction

See generally Pogány (1997), Rothschild (1974), Herman (1951).

The nationalisation of private property after WWII was not necessarily operated by communist governments or by governments dominated by communists. The case of Czechoslovakia, where property already nationalised or confiscated by Nazis was transferred to the state by the non-communist Beneš’ government, in the aftermath of WWII, is paradigmatic for the region. See e.g. Judt (2007).

Kuti (2009, 2).

See e.g. Rittich (2002), Black et al. (2000), Coffee (1999), Stephan (1996), Klaudt (1994). The only economic monograph in English, aiming at theorising more comprehensively the post-communist privatisation is Hella Engerer’s Privatization and its Limits in Central and Eastern Europe (2001).

Teitel (2002).

See e.g. infra, text to n 9–20, in Chap. 4.

See e.g. Arthur (2009, 326) insisting that only the claims for retributive justice measures and not the claims for distributive justice measures were recognised as legitimate justice initiatives during times of political change, in the 1990s.

Infra, Chap. 4. I treat in this chapter the communist property as a distinct socio-legal category, which cannot be equated with the pre-communist or western ideas of property centered on individual property. Continental civil law concepts such as ‘patrimony,’ juridical persons or corporate patrimonies, common to all the CEE countries’ pre-communist legal heritage, are contrasted for example in this chapter with the specific communist ideas related to property, respectively with the organisation of ‘corporate’ property in communism, in an attempt to show how difficult is for the western comparative lawyer to grasp the distinctiveness of the communist legal system or the problems posed by the dynamics of post-communist property transformations.

Given the volume of the literature on post-communist transformations, it is impossible to cite here even tentatively, some of the important authors. Therefore, just with the title of example, see Stark (1990); A Forum on Restitution. Essays on the efficiency and justice of returning property to its former owners, E. Eur. Const. Rev. 2:3 (1993), 30–40; Jon Elster, The Necessity and Impossibility of Simultaneous Economic and Political Reform, in: Greenberg et al. (1993, 267–275), Murrell (1995), Stiglitz (1999), Gryzmala-Busse and Luong (2002), Easter (2002), Ekiert and Hanson (2003), Bohle and Greskovits (2007), Elliot (1995), all examining the promises and dilemmas of capitalist transition and economic transformation in the context of post-communist society.

See e.g. Trubek and Galanter (1974).

See e.g. Nellis (2002).

See e.g. Clarke et al. (2005), Bonin et al. (2005), Hawkins and Mihaljek (2001).

See e.g. Earle et al. (1994), Radosevic and Rozeik (2005).

Turnock (1998), Csaki and Lerman (1997).

See e.g. Lux (2001), Pichler-Milanovich (2001), Kingsley and Struyk (1992).

See e.g. Kuti (2009).

Claus Offe and Frank Bönker, ‘A Forum on Restitution. Essays on the Efficiency and Justice of Returning Property to its Former Owners,’ 2 E. Eur. Const. Rev. 30 (1993); Claus Offe and Frank Bönker, ‘The Morality of Restitution: Reflections on Some Normative Questions Raised by the Transition to Private Economy,’ in Offe (1996, 105–131).

See e.g. Ajani (1995), Osakwe (1985).

See e.g. Sadurski (2008), Procházka (2002).

See e.g. Dupré (2003).

For example, a strong constitutional court in the early post-communist period. See Scheppele (1999).

Piana (2007).

See e.g. Kühn (2004), Łetowska (1997).

See e.g. Ágh (2010), discussing the frequent changes in the post-communist CEE governments and the difficulty of strategic planning of the transition; Bohle and Greskovits (2009, 51), showing that the CEE governments turned to ad hoc and temporary measures to ease the pain of adjustment and lay the basis for new investment; Orenstein (2008, 86), stressing the lack of strategic thinking during the transformation of the communist welfare state, and the adoption of emergency measures to respond to the social problems posed by the economic transformation.

Pridham (2005, 194).

Peter Gowan, ‘Neo-Liberal Theory and Practice for Eastern Europe,’ New Left Review (1995).

Such an agenda, if it existed in any coherent way, it was adopted at a later date.

See e.g. Steves (2001, 347), discussing the OSCE Bonn summit of April 1990, when all member states accepted the principles of the free market. This summit preceded the OSCE Paris summit in November 1990, where the norms of behaviour for democratic states were formulated in the so called Paris Charter.

See e.g. Mike McConville and Wing Hong Chui, ‘Introduction and Overview,’ in McConville and Chui (2007, 3–6), Cotterrell (1992), Van Hoecke (2011).

I utilised, for example, insights provided by anthropology, political theory, comparative law, socio-legal studies, and legal theory, when analysing post-communist property transformation(s) and post-communist ‘restitution’ in this study whose scope, accordingly to the taxonomy introduced by Van Hoecke (2011, v–vi) is logical and systematic. In terms of assumptions informing the study, although I do not reject a priori ‘methodological individualism,’ I am well aware of the limitations of the attempts to justify individual property on the basis of such assumptions (for a good description of these limitations, see e.g. Becker (1992) and I criticize politicians’ arguments for transforming state property based on such assumptions.

McConville and Chui (2007, 16). Consequent to this approach, I considered that law itself may become “problematic both in the sense that it may be a contributor to or the cause of the social problem.” McConville and Chui, Ibid.

For transitional justice studies, Romania–accordingly to one of the leading transitional justice scholars–is also a “purportedly marginal country that remains understudied, although it exemplifies the region’s middle road of adopting a moderate transitional justice program.” Stan (2013, 3).

For the possibilities and pitfalls offered in historical research by the CEE concept itself, see for example: Janowski (1999), arguing for a possible history of the region distinct of the states making the region that it allows for a holistic evocation.

For the contestations of the term ‘Central’ or ‘Mitteleuropa’ in the historical literature, see for example: Kontler (1999), Péter (1999), Miller (1999), Schultz and Natter (2003).

Comisso (1990). For a similar opinion, Judt (2010).

See e.g. Sajó (1990).

Rapaczinski, cited by Verdery (2003).

Offe and Bönker (1993).

Since restitution does not have to justify private property, as it has privatisation.

Which are explored in more detail in the literature on correction of historical wrongs. A compilation of the voluminous and growing literature on correction of historical wrongs is provided infra, n 4 in Chap. 5.

Even if caution is needed when assessing the degree of ‘progressiveness’ manifested by the courts.

As a secondary, strategic instrument, ‘restitution’ could be, and it was used to satisfy various constituencies’ demands for restitution (churches, associations of former owners, etc.), or to appease external pressures for restitution, such as those made by the Jewish Organisations for restitution of communal property or of property of Holocaust Victims.