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2016 | OriginalPaper | Buchkapitel

4. Post-communist Privatisation: An Incomprehensible Neo-liberal Project?

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

As one of the most salient goals of ‘transitions’ in post-communist Europe was the transformation of regimes of property, I analyse in this chapter the most important claim of the neoliberal policy prescriptions for Central and East European states in the early 1990s, that property should be privatised. My argument is that this policy prescription was based on a number of false assumption about what property was under socialism and about communist law. The reality of property arrangements during ‘Actually Existing Socialism’ in Central Eastern Europe was totally different from that assumed by neoliberal agents and policies. Contrary to their assumptions, the distinctiveness of the communist era property arrangements resided not in the absence of private property, which was tolerated under ‘Actually Existing Socialism’, but in the organisation of property as an administrative matter, based on unwritten ‘operational’ rules. This distinctiveness was even more manifest for socialist corporations, where communist formal law was more or less similar to western corporate law, yet unwritten operational rules determined how all the exchanges and transfers of property took place among these socialist corporations. Nevertheless, the neoliberal policies totally ignored the operational unwritten rules, which should have been changed if a ‘transformation’ was desired, and proposed instead a change of formal law, which was not necessarily needed. As a result, the post-communist process of privatisation was plagued by many unforeseen and negative effects. The consequence was the great enrichment of the former communist managers who were able to manipulate the formal law and operational rules to benefit from ‘privatisation’ at the expense of the public, in a process which was not ‘rights based’ or ‘democratic.’

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Vorheriges Kapitel Justice, Property and Law in Post-communist Transformations of Property

Nächstes Kapitel Post-communist Restitution Concept and Its Challenges

In reality the socialist enterprises only had what the socialist era scholars called a ‘right of direct administration’ of the property, which was state-owned.

Romania, Czechoslovakia or the former DDR are countries of the region were the communist elites rejected Gorbatchev style political reforms.

Pickel (1995, 362).

Ibid. Also, Harvey (2005).

Bönker et al. (2003, 3).

See e.g. Persky (2010), Becker (1992), Carter (1989).

See e.g. World Bank, World Bank Development Report 1996: From Plan to Market (New York: Oxford University Press, 1996); Åslund (2007, 1, 6).

Kikeri and Nellis (2004, 92).

Pickel (1995, 368).

Ibid.

Ibid, 369.

Rittich (2002, 131).

Ibid.

Rittich (2002, 131).

Ibid.

For example, all the economies of the post-communist CEE countries took a sharp downturn in the years immediately after 1989, and several of these economies stabilised only towards the end of the first decade of transformation. On this point, see e.g. Berend (2009, 6–8).

See e.g. David Lane, ‘Introduction: Two Outcomes of Transformation’ in Lane (2007, 9).

See e.g. Berend (2009, 76, 171); Tsuneaki Sato, ‘Convergence and Divergence in Transformation: Comparison of Experiences of CEECs and China’ in Ichimura et al. (2009, 12–13).

Karl Marx and Frederich Engels. The Communist Manifesto in Marx and McLellan (1992).

Hazard (1944, 467).

For a detailed account of the earlier Leninist policies towards private property and the attitudes of the Stalin’s regime with respect of individual property see Armstrong (1983). Also Inga Markovits (2007, 236), showing the degree of similarity of formal Soviet Law, even under Stalin, with the Western Law in matters related to property, contracts and corporations.

This Constitution was utilised by the CE countries during the Stalinist period as a major source of inspiration.

This kind of property it is no longer called in the Soviet Constitution of 1936 ‘private’, as it was under the 1922 RSFSR civil code of 1922, copied after a French model, nevertheless, its functionality remains the same. For a very good and informative description of the Soviet legal codification in the 1920s and 1930s see Armstrong (1983, 7–79). Within the large body of scholarship acknowledging the existence of private property in socialist countries see for example: Hazard (1953), 1-13; Kucherov (1962); Partlett (2008); Betts (2009).

See e.g. the 1952 Polish Constitution and the 1964 Polish civil code describing individual property over ‘means of production’ of the artisans, farmers, and personal property, assigned for personal usage (housing, cars, furniture etc.).

Even if it was often called ‘personal’ or ‘individual’ property (in line with the socialist era restrictions placed on private ownership) in the socialist era civil codes, and not ‘private property.’

For example, the so called ‘means of production’ could not constitute the object of ‘private property’ during the communist era.

Such regulations could be found in the ‘first generation’ communist decrees of the late 1940s, for example, which nationalised all the ‘means of production,’ or in the myriad of administrative acts which implemented such decrees during the same period, some of them in excess or contrary to the nationalisation orders given by the decrees (in theory legislative acts placed above administrative acts of implementation). Afterwards, they could be contained in the laws, decrees or administrative decisions issued by the communist authorities. See e.g. Romanian Laws no 4 and 5/1974.

See e.g. Markovits (1986), arguing that inheritance law served different purposes in the socialist countries in comparison with the Western ones. But see Quigley (1989, 801), for the continuity with civil law tradition on these matters in socialist times.

See Wagner (1962, 295).

For a discussion on the continuity of recognition of private property during socialist times, see e.g. Grzybowski (1957).

For such an argument related to the borrowing in the case of Hungary, whose 1959 ‘socialist’ civil code was strongly influenced by the pre-WWII civil code drafts, mainly by the 1928 draft, see Kisfaludi (2008, 131). For the earlier Hungarian and Polish ‘socialist’ civil codes see Grzybowski (1961), for an analysis of the legal traditions inspiring the Polish codification work in the pre-socialist and socialist times, see e.g. Mańko (2008, 115–120).

See e.g. Glos (1984). Poland adopted a civil code, a socialist Family Code and a Code of Civil Procedure in 1964 (I owe this point to Rafal Manko), but it is unclear whether this socialist legislation was so radically inspired by the communist legal doctrine of the time, as it was in Czechoslovakia.

See e.g. Markovits (1968) for an excellent history of the intellectual ideas of the German or Soviet civil codes, and Kiralfy (1979a, b), for a brief description of the main characteristics of the Eastern Germany civil code.

See e.g. Zlatescu and Moroianu-Zlatescu (1991).

See e.g. Kühn (2011).

See e.g. Ajani (1985), Quigley (1989, 802–808), for an ample review of the “socialist” legal scholars sustaining the continuity; Sacco (1988), and Mihaly (1959).

For a discussion of the commercial law in the former CEE and the USSR at is stood in 1989 see e.g. Izdebski (1989).

As again in the rather exceptional case of Romania. Hungary also did not repel its Commercial Code. See e.g. Sárközy (2005, 35).

Glos (1992).

Glos (1992). For the massive borrowing of western concepts and the total lack of ‘socialist imagination’ in the Czechoslovak Code of International Trade see Glos (1978, 143). For a very descriptive account of the ways in which the Czechoslovak socialist revamped the former, pre-communist era codes, by enacting new ‘socialist’ civil law in the form of a civil code, The Economic Code and the Code of International Trade see Bejcek (1997).

See e.g. Lasok (1966, 331).

Which were also a product of late communism, introduced first by Yugoslavia in 1967, followed by Romania in 1971, Hungary in 1972, Poland in 1976, 1979, and 1982, Bulgaria in 1980, and Czechoslovakia in 1988. The USSR also adopted a law on joint ventures in 1987.

For example the Romanian Law on Commercial Societies No 31 of 1991, which used as a major source of inspiration the drafts of civil and commercial codes drafted before the WWII, under the king Carol II reign, but never enacted as formal law. The drafters of the pre-war codes were heavily influenced by the German and Italian Commercial law doctrines, the most progressive at the time.

Decree of the Minister of Finance No 281,1972(X,3), amended in 1977, by Decree of the Minister of Finance No 7/1977 (V,6).

See e.g. Lorinczi (1982).

See e.g. Buzescu (1984), for a discussion of the ‘Joint Ventures’ in Central Eastern European socialist law. For the American origins of the Joint Ventures transplant, and for its applications in the Asian and socialist countries see Sornarajah (1992).

Ajani (1994, 1090).

The residual dispositions of the commercial codes surviving the initial communist waves of abrogation were never used openly or widely in “actually existing socialism,” but put to discrete use of the various corporate entities controlled by the political police involved in the foreign trade dealings of the communist states.

Glos (1992).

See e.g. Grzybowski (1958).

See e.g. Inglot (2008), documenting the subtle intellectual and institutional path-dependency of post-communist policy and legislative developments in the case of social security and general welfare covering Poland, Hungary and the former Czechoslovakia.

See e.g. Waelde and Gunderson (1994), arguing for the need for more than cosmetic changes of socialist codes in the post-communist period. For a review of the arguments in favor of new codification as a method of preventing unsystematic reception, see Legrand (1994).

See e.g. Ajani and Mattei (1995), for the initial perception of socialist codes as adequate for post-communist transformations and for a moderated argument related to the lowering of information costs which consolidated codes would provide see. Also Inglot (2008).

See e.g. Goldman (2003, 74–75), for a discussion on how Russia’s privatisation was shaped by regulations passed by during the Gorbachev era. Also, Wladimir Andreff, ‘Transition through Different Corporate Governance Structures in Postsocialist Economies Which Convergence?,’ in Overbeek et al. (2007, 158), arguing that the legal transformations of corporate structures and governance in the last years of communism led to a virtual take over by insiders, managers, or employees, or both, in nearly all the CEE countries.

See e.g. Ionasco (1969), Eminescu and Popescu (1980, 187–205), Armstrong Jr. (1983), Butler (1984). Obviously that notwithstanding the Soviet model which was copied by all CE countries during the Stalinist era, there was a variation between the legal arrangements related to property in the CEE countries at any given time. Moreover, these arrangements were not static in any single country of the region during the socialist era, as the Soviet model was adapted to changing political and national circumstances. Although a great deal of legal materials in any of the languages of the region describes such arrangements and their transformations, here I am not concerned to survey the national particularities and changes enacted during the 45 years of socialism in the region, but to describe the most general features of socialist CEE arrangements related to property.

Katherine Verdery, ‘The Elasticity of Land: Problems of Property Restitution in Transylvania,’ in Verdery (1996, 133–134).

Verdery (1996, 134–135).

For the ‘physical’ conception of ‘things’ in Blackstone, and earlier XIX century legal American thought and its development in the modern conception, which in my view characterizes the similar developments in common and civil law of the period, see for example Vandevelde (1980).

For example, the political and legal circumstances in Poland, where the Jaruzelski’s regime was forced in the early 1980s to grant constitutional standing to private landownership, or in Hungary, where similar changes occurred, were in many ways dissimilar to Romania, or to other CEE countries, where a stricter socialist regime was applied with respect to property.

Verdery (1996, 47).

See especially Humphrey and Verdery (2004), in particular Humphrey and Verdery, ‘Introduction, Raising Questions about Property,’ 1–29; Verdery, ‘The Obligations of Ownership: Restoring Rights to Land in Postsocialist Transylvania,’ 139–160; David Sneath, ‘Proprietary Regimes and Sociotechnical Systems: Rights over Land in Mongolia’s “Age of the Market,” 161–184; Catherine Alexander, ‘Value, Relations, and Changing Bodies: Privatization and Property Rights in Kazakhstan,’ 251–274.

See generally Verdery (2003). In this scheme, property is seen as simultaneously a cultural system, an organisation of power, and sets of social relations, all coming together in social processes. Verdery (2003, 48).

Verdery (2003, 48).

Ibid.

For an example of such operational rules aptly manipulated by the former socialist local elites in charge of ‘restitution,’ see Verdery (2002).

Verdery (2003, 49). We should note, however, that the attachment of property to (civil status of) persons, respectively the ‘de jure’ understanding of property, has roots in Roman Law, and serves as the basis of Hegelian argument for property (based on the role that property plays in the development of personality of an individual). See Carter (1989, 94–97).

In the socialist CEE the legal distinction was usually threefold, socialist law distinguishing between state, personal and individual property. For example, the 1952 Polish Constitution and the 1964 Polish civil code distinguished between socialised, personal and individual property. ‘Socialised’ property encompassed state and group property (including property of the cooperatives), individual property encompassed means of production of artisans, farmers, while personal property included property for personal usage (housing, cars, furniture etc.). The Polish legal categories, for which I am grateful to Rafal Manko, correspond more or less to the legal categories of other CEE socialist countries.

Verdery (2003, 49).

Ibid, 50.

See e.g. Venediktov (1948, 350). Also, Baev (1993, 159–160), for a brief description of Venedictov’s ideas on the indivisibility of the state fund; Feldbrugge (2008, 130), for the specific comparison of Soviet Law with feudal law made by Vendiktov when resolving the dilemmas created by the ideas of the indivisibility of state property and of the absolute ownership enjoyed by the state; Ioffe and Maggs (1983, 156), for a criticism of the ideology that state ownership was the legal embodiment of the ownership of the ‘people.’ We should note that the idea of the inalienability of state property resembles somehow the ideas related to state patrimony which could be found in Western civil law, for example. However, in the civil law systems there is an important distinction between the public and the private patrimony of the state. Accordingly to this distinction, only the public patrimony forms an indivisible and inalienable fund. The immovable or movables forming the private property of the state can be attached to public actors’ patrimonies, as for example in the case of public utilities, and afterwards be assigned, contracted out, sold, etc., because the state acts as any other private actor with respect to goods forming this private property. This later possibility was generally inexistent in socialist law, although in CEE socialist countries such as Romania, a distinction between the public and the private patrimonies of the state was somehow recognised in the legal doctrine. For a good description of the problems posed by the socialist law ideas’ on state’s property and of the weakness of socialist theory related to the property of the state, see e.g. Malfliet (1993, 126).

Verdery (2003, 50). Also Ionasco (1969, 504–505), for a description of the ‘operational right’ of direct administration of socialist property in socialist law; Malfliet (1993, 130), Baev (1993, 159).

See e.g. Malfliet (1993, 130) A late codification of such ‘right’ in the conditions of marketisation was included, for example in the Article 5 (3) of the 1991 Law of Russian Federation on Ownership (See e.g. Baev (1993, 157). However, looking at the explanations given by Baev one could realise what complex and difficult enterprise was for socialist jurists to define such ‘right’ for western audiences).

Verdery (2003, 51), Butler (1984).

Verdery, Ibid.

Ibid, 56, following Max Gluckmann’s insights. The application of Glucksman’s anthropological insights (derived from his observation of African societies) to communist realities was first utilised by Humphrey (1983), in her pioneering study on a Soviet collective farm. Hann (2007, 295).

Verdery (2003, 56).

Ibid, 57.

Verdery, Ibid, based on Dunn, stating that: “The heads of these lower units were to use the rights to generate products for the state to appropriate and redistribute; meanwhile, complex rules of accounting aimed to prevent them from obtaining the information they would need in order to become fully autonomous”. See also Elizabeth Dunn, ‘Accounting for Change,’ in Kelemen and Kostera (2002, 38–64).

Verdery (2003, 57).

See e.g. Olimpiad Ioffe, ‘The Experience of the Soviet Union’ in Schwind (1981, 18); Eörsi (1979, 311–12, 404); Murray Raff and Anna Taitslin, ‘Property Rights under Socialist Law: Looking Back to the Twentieth Century’ in Simons (2014, 298).

Kiralfy (1979b, 282).

Verdery (2003, 57). See also Bregman and Lawrence (1990, 191), for the point that “under operative management principles, the Soviet State assigns limited ownership rights to various state organisations that produce goods and performs services. These assigned rights include the possession, use and disposition of property.”

Armstrong (1983, 2).

Verdery (2003, 57).

See Verdery, Ibid. Following (again) Gluckmann, Verdery describes the difference between the two kinds of estates as follows: “Superiors hold estates of administration, allocating rights downward, whereas those at the base hold estates of production, using the rights granted them to fructify collective assets” (Verdery, 57). Verdery also appears to see these ‘estate of production’ as being dynamic, and “generating a constant vertical conflict between the centre and the higher echelons and the periphery and the lower echelons to which the estates were granted. It seems that because of the tension between these two kinds of estates, there was a steady erosion of the center's capacity to grant rights to the administrative estates. Verdery (2003, 57).

Verdery (2003, 58).

Ibid.

Ibid, 58–59.

See e.g. Ludwikowski (1987, 342).

Verdery (2003, 58–59).

Ibid.

Ganev (2007). We should also note the political backlashes in Poland and Hungary which accompanied the communist states ‘liberalisation’ of corporate regimes, followed immediately by nomenklatura privatisations before 1989.

Verdery (2003, 60–61), Ganev (2000).

Verdery (2003, 62). In respect to networks functioning and gifts, Verdery makes the following observation: “Socialist firms were not units at the end of a chain of command but were linked in extended webs of managers and politicians, all striking bargains to optimize their situations. If we stop with the allocation of administrative rights, we miss this crucial aspect of socialist property, so dependent on a corresponding system of obligations”.

Verdery (2003, 62).

Ibid, 62–68.

Ibid, 41.

Verdery (2003, 73).

Ibid, 74.

Ibid, 75.

Ibid, 76.

I refer to the distinction introduced by Pound (1910). For the excruciating problems posed by such differences to the students of ‘socialist’ law, see e.g. Schwarzschild (1986).

106

Verdery (2003).

107

For a description of how the initial relative acceptance of the Balcerowicz plan in Poland turned in widespread dissatisfaction quickly, see e.g. Ost (2006, 61–62).

108

As the communist lawmakers preserved in the ‘socialist’ legislation the pre socialist codes legal categories and distinctions related to juridical persons, even if the ‘socialist enterprise’ had a different social role to accomplish than the western corporation.

109

Who were largely left in their places after communism imploded in 1989.

110

The reunified Germany seems to be the only ‘country’ which acknowledged early on the need to monitor these specific problems caused by ‘transitions.’ For a description of the measures taken by German authorities see e.g. Borneman (1997).

111

See e.g. Brietzke (1994), discussing the fallacious assumptions of the neo-liberal ideology with respect to what was to be done to transform the command economies of socialist CEE states in market economies, and Carol M. Rose, ‘Economic Claims and the Challenges of New Property,’ in Humphrey and Verdery (2004, 275–95).

112

See e.g. Hendley (1999), and Hendley et al. (2000), for the impact of the incomplete commercial legal infrastructure and the lack of trust on the strategies adopted by the post-communist Russian enterprises to conclude and execute contracts.

113

Based on the simplistic assumption that once the property rights would be distributed, the market would magically follow and take care of the rest, and the new private owners drive for profits and efficiency would also magically solve the communist countries stagnation. See e.g. Seidman et al. (1995, 451).

114

See e.g. Rubin (1994, 2), for a point that much of the economic literature on the first years of post-communist transitions focused on property while ignoring the problems posed by the society based on the market, and Brietzke (1994). The problems of agency and corporate governance were also ignored, albeit after the failed voucher privatisation in Russia or in the Czech Republic, they become more salient in the legal scholarship under the heading of corporate governance. See e.g. Jordan (2002), Coffee (1999), Black et al. (2000).

115

See e.g. Freedland and Auby (2006), Milhaupt and Pistor (2008, 4–10).

116

See supra, Sect. 3.2, text to n 132–148 in Chap. 2, for a more extensive discussion of the ideas on property, understood as relations of persons to things, or as person-person relations mediated through things, or as a bundle of abstract rights, and also for the discussion related to the similarities between common law and civil law tradition’s core understanding of property.

117

Almost everywhere in post-communist CEE, most of the state property over the ‘means of production’ and various assets were ‘transferred’ to huge state funds (called ‘investment’ funds), organised as huge ‘corporations’ of the state, which were supposed to administer state property on behalf of the state until all the state enterprises were fully ‘privatised’ (sold to the public, etc.). In Romania, for example, these funds were organised by Law no 58 of 1991, regarding the ‘privatisation’ of commercial companies (the former state socialist enterprises). These huge corporations of the state held the majority of shares issued by the former socialist enterprises (or the ‘social capital’ of various such entities) so their representatives dominated the shareholders boards of these former socialist enterprises. Thus, while the former socialist enterprise could freely engage state’s property in all sorts of commercial transactions, this property still belonged in theory to the state, at least until the company was fully sold, given to the employees or management, etc. In practice the representatives of the state (which were supposed to represent the interests of the state in the boards of shareholders) did not exercise much supervision over the activity of the former communist managers and directors of enterprises who continued to run these enterprises post 1989.

118

For a good example of such communist institutions and of the speed with which these institutions were dismantled by the communist technocratic surviving the Bulgarian post-communist transition, see Ganev (2007). One should note that such monitoring institutions as those described by Ganev existed in all CEE countries and in the USSR.

119

See e.g. Verdery (2003), Ganev (2007), Łoś and Zybertowicz (2000). For an example of the conceptual difficulties presented by post-communist transfers of property see “Nazym Khikmet” case, [1996] 2 Lloyd’s L Rep, 362 (Sir Thomas Bingham, Evans LJ, and Thorpe LJ) and the commentary of the case by Haslam (1997, 18).

120

See e.g. Baev (1995), describing the conceptual difficulties encountered by civil and socialist lawyers in designing an optimal post-communist corporate governance structure, in the context of Russian privatisations and Coffee (2001), discussing what was missing in the Czech and Russian voucher privatisations.

121

See e.g. Milhaupt and Pistor (2008), Greenfield (2006), and Black (1989), for analyses of the failures of the ‘model’.

122

See e.g. Wladimir Andreff, ‘Transition through different corporate governance structures in postsocialist economies’ in Overbeek et al. (2007, 156).

123

Catherine Alexander, ‘Value, Relations, and Changing Bodies: Privatization and Property Rights in Kazakhstan,’ in Humphrey and Verdery (2004, 251–273).

124

Alexander, Value, Relations, and Changing Bodies, in Humphrey and Verdery (2004, 252).

125

Ibid.

126

The civil law concept of patrimony (patrimoine, Vermögen), albeit kept in the communist (and post-communist) legal vocabulary, covers eventually only the mass of property objects of which a physical or juridical person could dispose. It covers only imperfectly the ‘administration rights’ enjoyed by the socialist enterprise, especially since the state property administered by socialist enterprises was in principle inalienable and could not be disposed of by contract, as it could be the private property forming the patrimony of a private enterprise. In addition, while the civil law distinctions between natural and legal persons were kept in the communist legal vocabulary, there was not equal standing among these persons, vis a vis of property or social ordering. As has been shown, from a property’s perspective there is a radical departure in communist law from the civil law concept of equality of persons, the communists organising complex hierarchies of persons with respect to property holdings. Moreover, the communist generic ‘right of direct administration’, while accomplishing in the ordering of communist property functions similar to those accomplished in the civil law of property by the dismemberments of property, usus, fructus and abusus (the rights to use, to collect the fruits of the thing, and to dispose of the thing, which form the substance of ownership), it was nevertheless conceptually different from the civil law dismemberments of property. Overall the communist generic ‘right of administration’ fell short of the qualities of ownership in civil law.

127

I used the term Soviet satellite to suggest the legal operational overhaul of the civil codes in force after WWII in these countries, by a series of various decrees of Soviet inspiration, which were introduced almost simultaneously during the communist coups of the late 1940s, all over Central and Eastern Europe. Although legal differences persisted in all the CEE communist countries, ‘Soviet law’ is a useful conceptual shorthand for referring to communist law in these countries.

128

Respectively 30 % of the GDP for Poland (EBRD report 1999, at p. 252), and approximately 25 % in 1990 for Hungary (EBRD report 1999, 228), following two decades of experimentation with the so called New Economic Mechanism (NEP).

129

See e.g. Kiril Stanilov, ‘Housing trends in Central and Eastern European cities during and after the period of transition,’ in Stanilov (2007, 177), Hegedüs et al. (1996, 103), and for Poland and Czechoslovakia R. Struyk, ‘Housing privatization in the former Soviet block to 1995,’ in: Andruzs et al. (1996, 192–213).

130

In Hungary under the ‘Goulash communism’ of Kadar in the late 1980s or in Poland in the late years of military regime nomenklatura privatisations flourished. These countries are showcases of the unintended consequences of such experiments with privatisation. Polish and Hungarian departures from the Soviet model of agriculture also explain why ‘restitution’ of agricultural land was important in some CEE countries, but not in all.

131

See e.g. Gluck (1991), noting that the ‘window of opportunity’ for such privatisations was foreclosed as a result of the nomenklatura privatisation scandals in March 1990, by the Act VII of 1990 on the State property agency and on the management and development of related property, and by Act VIII of 1990 on the protection of state property entrusted to enterprises. As far as I know there are no empirical studies documenting how the agency was capable to monitor the managers’ activity, although a particularity of the Hungarian scheme was to attract foreign investment.

132

Even if curtailed more by some of these communist states than by the frontrunners, Hungary, Poland USSR or Yugoslavia.

133

See Frydman and Rapaczynski (1994), cited by Verdery (2003, 41): “[T]he socialist economies of Eastern Europe did not have any property system…governing their productive activities.”

134

Ibid.

135

Verdery (2003) The post-socialist ‘elastic qualities’ of land and the post-communist tendency to hide land described by Verdery, present striking similarities with the post tsarist Russia period, even if in Russia the peasants, and not the administrators of the land, utilised such tactics. For a detailed account of the struggles between the early Soviet power and the peasants after the October Revolution see generally Scott (1998), especially Chap. 6, ‘The Soviet Collectivization on the Capitalist Dreams.’

136

With the former GDR as notable exception as a result of its unification with Western Germany.

137

See Stark (1996).

138

Stark, Ibid. In the light of later corporate scandals such as Enron, it is however questionable if such phenomenon was particular to pathologies of capitalism as developed in the early stages of transformation of the transitional countries, or has more to do with the way in which law and corporations are conceptualised and work.

139

Stark (1996, 993).

140

See Ganev (2007).

141

See Staniszkis (1990).

142

See Łoś and Zybertowicz (2000).

143

Wedel (2004).

144

And led to the so-called nomenklatura ‘privatisation’ taking place in the countries which ‘liberalised the (socialist) corporate regimes.

145

Transformed in various corporative forms.

146

With the exception of the former GDR, and Czechoslovakia. The Czechoslovak law however, did not target for removal former administrators of ‘socialist’ estates or enterprises.

147

For an exemplification of the power of the networks, social capital of the former ‘socialist estates’ administrators, in the post-communist transformations of Romania, see Verdery (2003) There are numerous other individual case studies in other post-communist CEE countries, whose enumeration will be beyond the scope of our study.

148

The sociological discussion on the nomenklatura privatisation in post-communism is too wide to be cited here otherwise than selectively and just with the title of example. Moreover, there is no agreement among diverse authors with respect to the social implications of market transformations, and there is justified criticism for the abandonment by the sociologists of the analysis of social inequalities (generated by communism and perpetuated or amplified by the new regimes), in favor of rather vague categories such as markets and social networking. With the title of example, see: Nee (1989, 1991), Hankiss (1990), Walder (1992), Staniszkis (1990), Eyal et al. (1998), Hanley (1999), Róna-Tas (1994), Walder (2003), Stark and Bruszt (1998), Burawoy (2001), Raab, Stark and Bruszt (2000), Hann (1993). Also, for reviews of the literature on the market transition debate see for example Szélényi and Kostello (1996), and Cao and Nee (2000).

149

Although discussed in the anthropological literature. See Verdery and Alexander, supra, in Humphrey and Verdery (2004).

150

Alexander, in Humphrey and Verdery (2004), supra.

151

Alexander, in Humphrey and Verdery (2004, 260).

152

Ibid.

153

See e.g. Klaudt (1994), for such a general discussion for the case of Hungary.

154

See e.g. Elster et al. (1998), arguing that the weak elites which emerged from communism implosion in the region could not have the necessarily legitimacy to impose a clearly dominant plan or project of transformation and be selective and sequential in the agenda setting, but have to satisfy multiple constituencies, eventually by social protective measures; Vanhuysse (2006), discussing the policies of early retirement and division of labour practiced by the post-communist government in the CEE as buffers for economic distress and Domański (2000), for a more comprehensive discussion of the earlier social stratification data from the region. For Russia see e.g. Kagarlitsky (2002, 134). For a discussion on the hidden economies of post-communist countries see Lackó (2000).

155

Vanhuysse (2006), Cerami and Vanhuysse (2009).

156

See e.g. Offe and Bönker (1993, 31).

157

See Arikan (2008) 706. For a rebuttal of simplistic neoliberal conceptualisation of post-communist corruption, see also Sajó (2003).

158

See e.g. Stuckler et al. (2009, 2012), for a review of the literature on the subject, and Wucherpfennig and Deutsch (2009), for an argument that that socio-economic development of the kind impeded by large privatisation policies tends to bring about stable democracy; Lawrence King and David Stuckler, ‘Mass Privatization and the Post-communist Mortality Crisis’, in Lane (2007, 197).

159

For a contestation of the neoliberal idea of a link between ‘democratisation’ and major economic changes in post-communist societies, particularly for the inimical relation between the two ideas in the political theory literature, see e.g. Comisso (1991, 162). For a call for reconsideration of such neoliberal claims in legal scholarship, see e.g. Chua (2000).

160

Reich (1964).

161

For a discussion of these distinct phases impact in the real estate development of post-socialist cities, see generally, Stanilov (2007). For a discussion and examples of the impact of these phases on the industrial development Berend (2009, 134–138).

162

Igor Baranovsky, cited by Black et al. (2000, 1744).

163

Bönker et al. (2003, 17); The European Bank of Reconstruction and Development Transition Report 1999 32.

164

Tucker et al. (2004).

165

See e.g. Elster (2004, 216–247), for the theorisation of emotions decay with the passing of time in the context of transitional justice. But see also Elster (2004, 247 and 30–44), for a description of cases when emotions do not decay. Also see Riha (1996), arguing that the way properties have been acquired and the injustice of the process would impact on economic developments and on the moral health and socio-political stability of the post-communist societies for generations to come.

166

Berend (2009, 135).

167

The backwardness and underdevelopment thesis. See for example Chirot (1991), and Berend (2009).

168

See e.g. Berend (2009), arguing that the countries of the region, despite some progresses, failed to develop an intensive R & I business model which would allow them to catch with the western model of intensive development.

169

See e.g. Ryabchuk, linking the Ukrainian Euromaidan to the 2013 Bulgarian protesters’ portrayal of the political and economic elites as ‘communists’, as most of them ‘belonged to the old Communist party nomenklatura that took advantage of the transition for their own private gain’, Ibid. 3.

170

But see e.g. Rupnik (2007), Greskovits (2007), Krastev (2007), discussing democratisation woes of CEE l countries just before the advent of the great economic crisis. But see e.g. Levitz and Pop Eletches (2009, 457) for the opposite argument. For more recent studies, see e.g. Blokker (2013), Mikulova (2013), Ágh (2013), Dalibor Rohac, ‘Hungary’s Goulash Authoritarianism’, The Wall Street Journal, 27 February 2014.

171

See e.g. Ágh (2012).

172

As for example in the case of Romania, Bulgaria or the Balkan countries.

173

Joseph C. Brada, ‘Privatization is Transition-Or Is It?’ Journal of Economic Perspectives 10:2 (1996) 67–86.

174

Unfortunately such ambiguity is entertained in the ethical theory, with some authors considering restitution as having a distributional impact, while other authors considering it as having compensatory/retributive character.

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Titel: Post-communist Privatisation: An Incomprehensible Neo-liberal Project?
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_4

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