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2016 | OriginalPaper | Buchkapitel

3. Justice, Property and Law in Post-communist Transformations of Property

verfasst von : Liviu Damşa

Erschienen in: The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe

Verlag: Springer International Publishing

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Abstract

This chapter extends the discussion of the theoretical underpinnings of the dominant ‘transitional’ measures deployed in post-communist Central Eastern Europe, which aimed to transform property regime(s). As shown in the previous chapter measures transforming state property into private property in post-communist CEE were distributive in character and not easily justifiable accordingly to a transitional justice framework. However, as they could still be justifiable in accordance with the major theories of justice, an overview of the main justifications for private property offered by classical liberal theory is provided, since these justifications were imported directly into post-communist CEE political discourses to rationalise the transformation of state property. On examination of these justifications it results, nevertheless, that none of them offer compelling arguments and responses to the question why the regime of property should be changed. That means that there is no theory of justice which could support changes in property regimes of the scale and type done in Central Eastern Europe during the transitional period. Nevertheless, this is not the only problem plaguing the theorisation of the CEE post-communist transformation of property, since there are further difficulties with the Anglo-American concept of property as a ‘bundle of rights’ when this concept is applied to explain post-communist transformations of property. As this concept obscures more than it illuminates how the changes in property regimes occurred during the post-communist transitional period (and what these changes have achieved), this chapter shows why is not appropriate to use the ‘bundle of rights’ idea to describe communist and post-communist property. Similarly, as the neoliberal ideology inspiring the CEE post-communist measures transforming property presents a number of inconsistencies, this chapter provides an analysis of this ideology and of its impact on CEE transformation of property. Finally, the capacity of the transitional post-communist law and of judicial institutions to correct administrative abuses during the transitional period is critically examined, and it is shown that contrary to the neoliberal assumptions, the judicial institutions lacked any propensity to deliver a just distribution of property.

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Vorheriges Kapitel Post-communist Property Transformations and Transitional Justice. Some Historical, Legal and Philosophical Issues

Nächstes Kapitel Post-communist Privatisation: An Incomprehensible Neo-liberal Project?

For example, with respect to administrative justice (lustration) measures, the former GDR, which was absorbed into the unified Germany, or the former Czechoslovakia.

Such dominance could be appreciated, for example, by taking in consideration the volume of legislative activity related to ‘retribution,’ in comparison with the volume of legislative activity related to property transformation(s) (privatisation and restitution).

In reality, even the arbitrary regimes appear to bend to the rule of giving (at least some sort of) reasons for their enactments or intended societal changes.

On the relationship between reason, justification and authority in democratic politics generally, see Raz (1990, 115–64).

Such an argument that transitional measures are justified as they are ‘transitional justice’ measures would be circular, at it would use the conclusion it whishes to proved as a premise for proving it.

Thus eschewing any assessment of the justness of such measure on the basis of the known ideas and theories of justice.

The reference if here to major theories of justice elaborated before a theory of transitional justice.

Supra, text to n 11–13 in Chap. 1; Arthur (2009, 326).

Part of the problem is related to the fact that in moral and political philosophy concepts such as ‘good’, ‘right’, or ‘just’ are what W.B. Gallie called “essentially contested concepts,” (Gallie 1955) or concepts which even though they appear to have some shared common meaning, the criteria for their application are contested in ways that could not be resolved.

For a discussion about the varieties of ‘liberalisms,’ the unifying themes and points of departure between various theorists of liberal tradition see Alan Ryan, ‘Liberalism,’ in Goodin et al. (2009, 360–382), and Gray (1995, XIII). For a discussion of differences between liberal orientations, East and West, see Suda and Musil (2000).

See e.g. Jeremy Waldron, ‘Liberalism, Political and Comprehensive,’ in Gaus and Kukathas (2004, 89–100).

See e.g. Williamson (1990, 2002), Rodrik (2006), Kanbur (2009) and Åslund (2007, 31–57).

The classic work on the myth of ‘self-regulating,’ ‘natural evolving’ market is Karl Polanyi’s, Great Transformation. (Polanyi 2001/1944). For more recent discussions of Polanyi’s central ideas, see Buğra and Ağartan (2007), Hann and Hart (2009). For the fallacious assumption that markets and their establishment are ‘cost free,’ see e.g. Van Brabant (1998, 109).

Here and in the next sentence, I use ‘utility’ as a shorthand word for economic growth, measurable in terms of the GDP, which arguably the politics pursued in the post-communist world were supposed to deliver. But see the critical assessment of such construction of ‘utility’ in Robinson (1962, 48).

See e.g. Blanchard (1997, iv), Berend (2009, 50–78), Widding (2001, 11–18).

Apparently, the prediction of increase in ‘welfare’ was based on ‘economic science’ in the neo-liberal dogma. However, for the point that the neoclassical economics had little to offer as scientific insight to the post-communist ‘transformation’ and for its inadequacy as a basis for systemic change by design, see Pickel (2001, 471–2). For the point that the post-communist transformations theories were political and not at all “scientific” see Pickel (2002, 105–114).

And as a consequence of ‘utility’.

The literature on this subject, and on the more general topic about the speed, depth and path of reform, is too wide to be even tentatively cited here, and in many ways resemble the earlier Ludwig von Misses exchanges with Karl Polyani. See with a title of example Havrylyshyn (2006), Mau: ‘Rossiiskie ekonomicheskie reformy glazami zapadnykh kritikov’ [Russian Economic Reforms in the Eyes of Western Critics], Voprosy ekonomiki 71 (11): 4–23 (1999), cited by Åslund (2007, 55). For one of the most outspoken and articulate critics see Stiglitz (2002). For an insightful analysis of the early debates, see Van Brabant (1998, 102–105).

Which cannot be easily defined in positive and specific terms. See e.g. Frank Knight, ‘On the Meaning of Justice,’ in Friedrich and Chapman (1963, 2–3); Peter Vallentyne, ‘Distributive Justice,’ in Goodin et al. (2009, 548).

See e.g. Campbell (2010), for a discussion of grounding justice ideas on concepts such as contract, right, entitlement, efficiency, desert or empowerment.

See e. g, Bernard Cullen, ‘Philosophical Theories of Justice,’ in Scherer (1992, 15–65).

When I refer to “Rawls,” I refer to the ideas developed by John Rawls in a series of essays starting with ‘Justice as Fairness’ in 1958 (Rawls 1958) and culminating with A Theory of Justice (Rawls 1999).

See Nozick (1974). For a discussion of libertarian themes, including those of Nozick, see e.g. Brighouse (2004, 84–105).

Assuming that the requirements of a given theory of justice are valid, and ignoring any substantial criticism to which any theory of justice could be submitted. For the major contemporary theories of justice see e.g. Habermas (1996), Rawls (1999), Nozick (1974), Barry (1989).

Respectively the discussion related to the challenges posed by post-communist property’s transformations to a theory of Transitional Justice.

John Bell, ‘Justice and the Law,’ in Scherer (1992, 140–141).

See for example Tebbit (2005, 6–9). Kuti (2009, 81) adds “Transitional Justice” to the major conceptions of justice in legal theory, without elaborating much about why it should be added.

See e.g. infra, text to n 4–11 in Chap. 5.

Weber defined this type of justice as the formalisation of just procedure. See Weber (1978, 809–15) See also Hart (1997, 157–67); Brad W. Hooker, ‘Justice,’ in Audi (1999, 456); Bell, ‘Justice and the Law’ in Scherer (1992, 119); Solum (2004).

Brad W. Hooker, Justice, in Audi (1999, 456).

Hooker in Audi (1999, 457). Another species of justice, related to distributive justice is commutative justice, which concerns the fairness of wages, prices, and exchanges. In modern philosophy, however, “the debate about commutative justice has been overshadowed by the larger question of what constitutes a just distribution of resources”. Hooker, Ibid.

John Bell and Erik Schokkaert, ‘Interdisciplinary theory and research on justice,’ in Scherer (1992, 237).

See e.g. Sanders and Hamilton (2001, 31–65), Coleman (1992, 348–54).

Aristotle (2004, 81).

Fleischacker (2004). Accordingly to Fleischacker: “while Rawls’s secular understanding of justice and politics has ancient roots, what he includes in the content of justice does not. When Rawls tells us that retributive justice must be concerned with a person’s character but distributive justice should not be so concerned …, he almost reverses the view Aristotle had proposed of these two types of justice.He does not, however, seem aware of that.” Fleischacker (2004, 26).

Fleischacker (2004, 27).

See e.g. Brockner and Wisenfeld (1996), Van den Bos and Wilke (1997), Van den Bos et al. (1998), Fox (1999), Skitka (2009).

As for example, preferential treatment for one of the bidders or the selection of the winners by criteria which are not public, or change repeatedly, according to obscure reasons, etc.

For the CEE jurists the validity of the title is the first threshold question when discussing problems of ownership. In the case of state takings, which also apply to the communist era takings, the determination of the validity of state ownership consist in examining whether the taking was carried accordingly to the dispositions of a law valid and in vigor at the time of the taking. What is examined is not as much if the state had to power to enact the taking itself, but if the administrative act of taking was carried within the limits and with the powers specifically determined by the act of taking.

The property taken by the communist state in breach of its own decrees of nationalisation was held by the communist state with a ‘precarious’ title, and it was vulnerable to an action in recovery of the former owner of such property.

Arguably the main ‘game’ in post-communist property transformations.

See e.g. infra, text to n 78–79 in Chap. 4.

See for example ‘A Forum on Restitution,’ 2 E. Eur. Const. Rev. 30 (1993) 30–40, in particular Claus Offe and Frank Bönker’s contribution to the forum (Offe and Bönker 1993, 30–32).

For examples of arguments derived directly from the classical liberal theory in favor of private property developed by post-communist legislatures and constitutional courts, see Kuti (2009, 11, 29, 52).

LiCC, Ruling of 27 May 1994 ‘On the restoration of citizens’ ownership rights to land, quoted and commented by Kuti (2009, 52–54). Nevertheless, the Lithuanian Constitutional Court (as well the local post-communist governments) could not manage to remain until the end, on this “Lockean path,” as it noted that “restoration” meant partial reparation Kuti (2009, 52–53).

I owe this clarification to István Pogány.

Locke (1988).

Macpherson (1962, 199). Macpherson also observes that: “Locke’s astonishing achievement was to base property right on natural right and natural law, and then to remove all the natural law limits from the property right”. Macpherson Ibid. A second, legacy, more sinister, was related to the justification of European takings of Indian Lands. See e.g. Singer (1991, 18–19), Williams (1983, 3), Arneil (1996).

See e.g. Carter (1989, 13–26), for a critique of Locke’s attempt to derive property from labour.

It includes derivation from Desert, from Liberty, from Efficiency, from First Occupancy, from Personality, from Moral Development and from Human Nature. For the general discussion of all of them, see Carter (1989). Also, for a brief but comprehensive description of the philosophical problems posed by the methodological individualism for the liberal foundational themes, see Gray (1995, 45–55).

Carter (1989). One may wonder why choose Carter’s critique and ignore two other major contribution to the contemporary property theory, those of Waldron (1988) and Munzer (1990), that appeared almost in the same period with Carter’s work and are often critical of various justificatory arguments advanced in classical liberal theories of property. The foremost reason is that Carter critically evaluated all major arguments advanced for property in liberal thought. An indirect reason is that authors of pluralistic justificatory theories, such as Munzer, still have to show, “in a more rigorous manner that anyone so far has, that there are in fact multiple, independent and equally fundamental moral principles underlying the justification of private property.” Becker (1992, 199).

Carter (1989, 13).

Ibid, 15–24.

Ibid, 15–24 for examples of ambiguous uses of ‘labour’ by Locke, leading to fallacious argumentation in favour of basing property on labour.

Ibid.

Carter (1989, 26–36), Munzer (1990, 266–291), proposes a revised version of the labour—dessert theory, partially based on idea of labour as social activity i, but again, his theory seems limited to a justification of labour property, and not of property in general, and is prone to same criticism as that developed below. Because of restrictions of space I chose to treat Munzer’s ideas as a variant of Becker’s theory.

Also relied on by Bentham.

Carter (1989, 27).

Ibid. See also Becker (1977), for a variant of this argument.

Carter (1989, 28).

Ibid.

In this line of argument, labour is defined as what is above what is morally required to do for others. In order to justify private property under this line of argument, labour has to produce a thing which would not exist without labour, and others would lose nothing by being excluded from the product of labour.

I observe in passing that the acquirement of property and the giving away which characterised the post-communist early phase do not satisfy Nozick’s “entitlement theory” which assumes that is “just” a distribution which has arisen by means of just procedures.

See e.g. Carter (1989, 43). Or, in the words of Onora O’Neil, Nozick’s argument “presupposes, so does not demonstrate, that is wrong to interfere to restore disturbed patterns or end-states, and that such restorations are always distributive and violate individual property rights. But it is just these property rights which have yet to be established.” Onora O’Neil, ‘Nozick’s Entitlements,’ in Paul (1981, 308–309).

The negative freedom is freedom from interference of others with what one owns. The exclusive focus on negative liberty also lead to the establishment of a low baseline for freedom, which raise in turn question related to the justifiability of the bases chosen.

Carter (1989, 51–65). Albeit John Stuart Mill is the most famous classical utilitarian, Jeremy Bentham presents “the first and most compelling attempt” to found property rights upon utility (Carter 1989, 51).

See generally Ryan (1984).

Limitations of space do not allow me to discuss in more depth the problems related to the proof of ‘utility,’ or the fallacy of ‘composition’ (all individuals desire their own happiness versus all individuals desire the happiness of everyone) on which the concept of happiness is based in utilitarian though. See for such a discussion Solomon and Martin (2004, 346–52).

Carter (1989, 53–54).

Marx and Engels reject the rhetoric of necessity of property for labour to take place as follows: “It has been objected that upon the abolition of private property all work will cease, and universal laziness will overtake us. Accordingly to this, bourgeois society ought long ago to have gone to the dogs through sheer idleness; for those of its members who work, acquire nothing, and those who acquire anything do not work” Marx and Engels (1970, 49).

See e.g. Macpherson (1977, 33–34), observing that “To say that security of property, while perpetuating inequality, maximizes productivity, is not to say that it maximizes aggregate pleasure or utility. Bentham has…shifted his ground…from aggregate utility to aggregate wealth. But these are different. The shift is illegitimate, by his own principles, of diminishing utility, a smaller national wealth, equally distributed, could yield a larger aggregate utility than a larger national wealth, unequal distributed.” Macpherson, Ibid.

Carter (1989, 52–55).

Ibid., at 57–59, for the Rawlsian reformulation based upon cooperation.

Carter, Ibid, Persky (2010, 81). Following Leslie (1900/1950), Persky observes that the Utilitarian emphasis on experience never produced the broad social science it would seem to require.

Persky (2010, 78), following Hont’s (2005) observation that: “The economic efficacy of inequality was a paradox because it drove a wedge between the traditional egalitarian intuitions of Western moral thought and the guiding assumptions of modern political economy’’.

Carter (1989, 60).

Ibid.

Demsetz (1967, 350–53).

Carter (1989, 64).

Ibid.

Ibid, 64–65.

Ibid, 66–69. Carter provides a similar alternative explanation in response to Richard Posner’s variant of ‘efficiency of private property’ argument (Posner 1973).

Ibid, 70–71.

Carter (1989, 72). Instead of internalising externalities, private property can often externalise what would otherwise be internalities. Carter exemplifies with the situation of the capitalist owner factory that place on social welfare the workers she makes redundant. The post-communist privatisation is full of such externalisations.

Carter (1989, 74–75).

Ibid, 78–88. It is worthy to note the influence Kant plays in modern approaches to property.

Kant (1965).

Ibid, 34.

Carter (1989, 82).

Kant (1965, 51–53). This follows from the postulate of Kant that every object might be yours or mine, a permissive law of practical reason.

See Carter (1989, 82), for a more detailed argument on these lines.

See Carter (1989, 83). This also implies that Kant is wrong when assuming that universality is not only a necessary condition for establishing what is just, but also a sufficient condition.

See e.g. Carter (1989, 89) and Davies (2007, 86–112), (the latter for a discussion on Hegel’s & Locke’s theories of property from the perspective of critical legal studies school. For more recent contributions on Hegel’s theory of property rights, see e.g. Penner (1997, 169–186), Radin (1982, 1013–15), Radin (1993), Schnably (1993).

Hegel (1967). The presentation of the will is similar to that introduced in Hegel’s Phenomenology of the Spirit.

Hegel (1967, 235).

Hegel (1967, 236). Accordingly to Hegel: “In property my will is the will of a person; but a person is a unit and so property becomes the personality of this unitary will. Since property is the means whereby I give my will an embodiment, property must also have the character of being “this” or “mine” This is the important doctrine of the necessity of the private property.”.

Hegel (1967, 45).

Carter (1989, 98), citing Z.A Pelczynski and noting the influence of Roman law in the elaboration of Hegel’s ‘Abstract Right’ theory, and the March through civil society to the state of “the actuality of the ethical Idea”.

Carter (1989, 90), citing the obvious example of graffiti artists who reveal their personality through messages marked on the walls which they not own.

100

Carter (1989, 91–93).

101

Ibid, 94.

102

Ibid, 94–95, citing the famous master/slave dialectic of Hegel.

103

Carter (1989, 97) and Patten (1995), for the idea that Hegel’s argument, even successful, would only demonstrate that private property is a sufficient condition for developing and sustaining one’s personality, but not that is superior to other kinds of property arrangements that might accomplish the same objective.

Carter (1989, 102).

Ibid, 103–105.

Ibid, 107.

Carter (1989, 107).

Ibid, 112.

Ibid, 113–114.

Ibid, 114.

Hume (1972, 220).

Carter (1989, 115; 119).

113

Ibid, 118, for a discussion of these selfish inclinations in propertied societies. In terms of argumentation, this reasoning suffers from what is called ‘Inductive fallacy.’

Ibid.

Ibid, 120.

Ibid, 126.

Hohfeld (1966, 72). For a general discussion of Hohfeld’s conception of rights, see e.g. Edmunson (2004, 87–102). For developments of Hohfeldian themes, see e.g. Rainbolt (2006).

118

Carter (1989, 128–129).

119

This is the basic coherence problem affecting liberal justifications of property, discussed by Becker (1992, 200).

120

And “the failure to pay attention of this later aspect by individualist undermine “justification” of private property.” Carter (1989, 130).

121

Ibid, 139.

122

For a cogent critique of these analogies and their limitations, see Van Brabant (1998, 102–108).

123

When speaking about disputed boundaries, I had in mind examples such as the famous Fuller/Hart debate. See Hart (1958) and Fuller (1958).

124

See e.g. Appel (2000) for an analysis of the discourses of Vaclav Klaus, one of the arguably most successful CEE politicians claiming moral superiority of the new arrangements, and for a comparison between the Czech successful strategies of attaching the transformations to a new, forged “Euro-Czech” identity and the Russian unsuccessful ones.

125

See e.g. Edmunson (2004, 119), for a discussion related to the distinction between conceptual questions and justificatory questions related to rights.

126

See Penner (1995, 712). Penner later went on to criticise this understanding and advanced his own idea of property as a right in rem, in which the use and exclusion rights are linked (See e.g. Penner 1997, 68–73), but a full description or analysis of his vision is beyond my task in this context.

127

Penner (1995). This standard view is more pronounced in the U.S., where even the Restatement of Property begins with a Hohfeldian outline of rights and duties, although it is dominant also in Britain (Penner 1995, 714).

128

Similar to what Harris (1996, 29–32) calls ‘full-blooded ownership’.

129

Blacks Law Dictionary defines Propriété as: The French law term corresponding to our “property”: or the right of enjoying and of disposing of things in most absolute manner, subject only to the laws. See Black’s Law Dictionary (Fifth Ed., West Publishing Co, St.Paul Minn, 1979) 1088. For a description of the classic French property view of the Révolutionnaires, see e.g. Carbonnier (2001, 345–352), Gordley (1994) and Merryman (1973).

130

Penner (1995, 714). But see Ross (1957), for the most radical criticism of ownership idea as an intermediate legal concept (the latter being for Ross semantically just an insignificant conceptual ‘dummy.’).

131

See e.g. Thomas C. Grey, ‘The Disintegration of Property,’ in Pennock and Chapman (1980, 69–82).

132

See e.g. Underkuffler (2003, 11–14), discussing and reviewing several such approaches and ideas about property in legal theory.

133

Philbrick (1938). For the most condensed expression of the legal realists’ view of property as a contingent bundle of rights inextricably bound up with politics see Cohen (1935, 816). For the American constitutional developments in relation to property, see generally Ely (2007). Also. Hargreaves (1956, 17) and Vandevelde (1980).

134

I will have more to say about this nature, and about the differences between restitution and privatisation in the fourth chapter of this book. (see e.g. text to n 73–93 in Chap. 4).

135

See e.g. Campeanu (1986, 50–51), for the idea of property vacuum in communism, and for the idea of Stalinist replacement of an historical efficacious form of property with a form lacking any real definition and Frydman and Raoaczynski (1994).

136

See infra, text to n 65–101 in Chap. 3.

137

A. M. Honoré, ‘Ownership,’ in Guest (1961, 107–147).

138

Katherine Verdery, ‘The Obligations of Ownership: Restoring Rights to Land in Postsocialist Transylvania,’ in Verdery and Humphrey (2004, 139).

139

See e.g. Catherine Alexander, ‘Value, Relations, and Changing Bodies: Privatization and Property Rights in Kazakhstan,’ in Verdery and Humphrey (2004, 251); David Sneath, ‘Proprietary Regimes and Sociotechnical Systems: Rights over Land in Mongolia’s “Age of the Market,” in Verdery and Humphrey (2004, 161–184).

140

The multiple and significant problems posed by systemic transformations in more stable legal systems are discussed for example by Alexander (2003), Wonnell (2003), Kaplow (2003), Schauer (2003).

141

Verdery and Humphrey (2004, 139). This avoidance to control the process of fixing value partially explains, in addition to the priority given in the civil law to in kind restitution in comparison to compensation, the insistence for in kind restitution of the majority of laws of restitution in the post-communist CEE, with the notable exception of Hungary. Evidently these principles were not necessarily respected when property was ‘restituted’ to former owners. On this point, see e.g. Heller and Dagan (1999, 1407). Also, Richard (2005) for the development of ideas on fair value.

142

Offe and Bönker (1993, 32). But see Holmes (1993).

143

For the definition of ‘cultural trauma’ as a sociological concept, see Jeffrey C. Alexander, ‘Towards a Theory of Cultural Trauma,’ in Alexander et al. (2004) and Sztompka (2000a).

144

See e.g. Burawoy (1997); P. Abbott, M. Beck, ‘The post-Soviet health crisis: a sociological explanation,’ in Haerpfer et al. (2003).

145

See e.g. Piotr Sztompka, ‘The Trauma of Social Change: A Case of Post-Communist Societies,’ In Alexander et al. (2004).

146

See e.g. Benda-Beckmann and Eckert (2009), Thelen (2006), Peleikis (2006), Magoska (1993).

147

See e.g. Watson (1974), Watson (2001 193–218), Mattei (1994), Markovits (2004).

148

Although post-communist privatisation was by excellence a ‘distribution’ matter, as I have argued, the adversaries of ‘distributive’ policies supported it nonetheless with great enthusiasm.

149

Hart (1997, 89). Also Scott Shapiro: ‘What is the Internal Point of View?,’ on line at Social Science Research Network: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=937337 (last visited November 2014), and Patterson (1999).

150

For the point that neoclassical economics has little to offer for the scientific understanding of systemic transformations, as its preoccupations are abstract and far remote from ‘society’ see Pickel (2001, 471–72), and Bunge (1999). For the fallacious and empirical untested or contradicted conventional wisdom of economist and development scholars that strong formal property rights are necessary for economic growth, see Trebilcock and Veel (2008).

151

See e.g. Kornhauser (2001).

152

For the possible links between positive and normative theories of law, see Vermeule (2007).

153

Supra, Introduction, text to n 1–2.

154

Ibid.

155

See e.g. Davis and Trebilcock (2008), Trubek and Santos (2006).

156

See e.g. Davis and Trebilcock (2008), Trubek and Santos (2006), Gordon and Sylvester (2004), Antons (2003).

157

Ziauddin Sardar, ‘Development and the Locations of Eurocentrism,’ in Munck and O’Hearn (1999, 53). See also Pieterse (2010, 6), for an argument that the theorisation of economic growth came first at the core of development thinking while modernisation came afterwards and produced a theory of political modernisation in development thinking.

158

Preston (1996, 166–174), Gordon and Sylvester (2004).

159

Gordon and Sylvester (2004, 10–14), Preston (1996).

160

David Kennedy, ‘Political Choices and Development Common Sense,’ in Trubek and Santos (2006, 103–4).

161

Ibid, 115–17.

162

David M. Trubek, ‘The “Rule of Law” in Development Assistance: Past, Present, and Future,’ in Trubek and Santos (2006, 74–94, 76–78).

163

See e.g. Harvey (2005, 1, 20–30, 47–55); Kennedy, in Trubek and Santos (2006, 129–150). Although neoliberalism was increasingly dominant during the period, it was not the only thinking about development elaborated during the 1980s. Amartya Sen’s understanding of development as “capacitation” elaborated during the period was also influential, and this influence reflected for example in the Human Development Reports of UNDP, or in the post-development thinking. Pieterse (2010, 7).

164

See e.g. Harvey (2005, 1, 20–30, 47–55).

165

See e.g. Centeno and Cohen (2012), Broad (2006), Harvey (2005, 13–30).

166

Trubek, The Rule of Law in Trubek and Santos (2006, 81). The best known definition of neo-liberalism is that developed by David Harvey. Accordingly to Harvey, neo liberalism is: “A theory of political economic practices that proposes that human wellbeing can best be advanced by liberating individual entrepreneurial freedoms and skills within an institutional framework characterised by strong private property rights, free market, and free trade. The role of the state is to create and preserve an institutional framework appropriate to such practices.” Harvey (2005, 2).

167

Kennedy, Political Choices in Trubek and Santos (2006, 138).

168

See generally Turner (2008).

169

Kennedy, Political Choices in Trubek and Santos (2006, 138, 146–7).

170

See e.g. Lovett (2002) (noting the vagueness and imprecision of the descriptive accounts of the Rule of Law); Fallon Jr. (1997) (noting the imprecision of the meaning of Rule of Law), Radin (1989), (noting that the contestation of the Rule of Law ideal and the lack of a canonical formulation of its meaning).

171

Duncan Kennedy, ‘Three Globalizations of Law and Legal Thought: 1850–2000,’ in Trubek and Santos (2006, 19–73, 66–7).

172

Ibid.

173

See e.g. Frank Bönker, Klaus Müller, Andreas Pickel, ‘Cross-Disciplinary Approaches to Postcommunist Transformation: Context and Agenda’ in Bönker et al. (2002, 15–16).

174

The New Institutional Economics (“NIE”) is rooted in the work of Ronald Coase and identified most closely with that of Douglass North. See e.g. Richter (2005, 161), Knieper (2010, 115–18).

175

See e.g. Krever (2011); Julio Faundez, ‘Rule of Law or Washington Consensus: The Evolution of the World Bank’s Approach to Legal and Judicial Reform,’ in Kessaris (2009, 180–202); Alvaro Santos, ‘The World Bank’s Uses of the “Rule of Law” Promise in Economic Development,’ in Trubek and Santos (2006, 253–300).

176

See e.g. Krever (2011), arguing that the emergence of a new rule of law orthodoxy within World Bank’s development model is just a rhetorical shift and a continuation of neoliberalism’s core tenets, and Fine (2009).

177

Rodrik (2006, 978), suggesting the original Washington Consensus has been ‘augmented’ by additional reforms that are “heavily institutional in nature”.

178

Europenisation, another contested concept, is understood here in the first of its five meanings, respectively as the “extension of the policies, rules, institutional requirements and values in the new member states which acceded in 2004” and in 2007. See Simon Butler, ‘Theorizing Europenization,’ in Graziano and Vink (2008, 47).

179

Jan Drahokoupil, Bastiaan van Apeldoorn and Laura Horn, ‘Introduction: Towards a Critical Political Economy of European Governance’ in Apeldoorn et al. (2009, 4), Bohle (2006), Cafruny and Ryner (2003).

180

See e.g. Schwartz (2000), Procházka (2002).

181

See e.g. Scheppele (2001, 1–3). For an example of creative developments of western law ideas by the Hungarian Constitutional Court in the post-communist constitutional context the Hungarian constitutional court see e.g. Dupré (2003).

182

Wojciech Sadurski, ‘Post-communist Constitutional Courts in Search of Political Legitimacy,’ EUI Working Paper (2001).

183

Ibid, also for a list of early scholarship praising the role of constitutional courts.

184

Ibid.

185

Sweet (2000), Burley and Mattli (1993), Slaughter (2003), Ferejohn (2002).

186

Sadurski, Post communist Constitutional Courts; Bugaric (2001).

187

See e.g. Ramseyer (1994), showing that the ‘judicial activism’ in a country depends on the internal political conditions of that country, Ginsburg (2002), Smithey and Ishiyama (2002), Scheppele (1999), for the study of different variables influences on the ‘judicial activism’ of a court.

188

Hirschl (2004), Hirschl (2000), Ginsburg (2003).

189

Ganev (2007, 96–151).

190

András Sajó, ‘Social Rights as Middle Class Entitlements in Hungary,’ in Gargarella et al. (2006, 83–106), questioning the Hungarian court’s capacity to render progressive social change; Rosenberg (1993).

191

Sajó, Ibid.

192

Allen (2006). For the first fifteen post-communist years see also Karadjova (2004), stating that: “The bodies of the ECHR have managed to avoid problems related to restitution and reparations for past injustices by arguing that the right of restitution is not guaranteed by art 1 of Protocol 1 to the ECHR”, and it is debatable if the situation changed at all since then.

193

Pogány (2010).

194

Ganev (2009, 271).

195

The communist property, which has to be transformed, and the private property, which would be obtained by transformations.

196

The main legal devices used for transformation of property in post-communism.

197

Which we will adopt when discussing the court’s dealings with post-communist “restitution” in Poland and Romania in the seventh chapter of the study.

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Titel: Justice, Property and Law in Post-communist Transformations of Property
verfasst von: Liviu Damşa
Verlag: Springer International Publishing
Buch: The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe
Print ISBN: 978-3-319-48528-7

Electronic ISBN: 978-3-319-48530-0

Copyright-Jahr: 2016
DOI: https://doi.org/10.1007/978-3-319-48530-0_3

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