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Post-communist Restitution and Corrections for ‘Historical Injustice’

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Book cover The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe

Part of the book series: Studies in the History of Law and Justice ((SHLJ,volume 8))

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Abstract

In the previous chapter I analysed the transitional justice literature on post-communist restitution and privatisation and I have shown that contrary to this literature’s assertions, restitution is ‘normatively’ superior to privatisation. A post-communist transformation of regimes of property based on restitution would have, therefore, experienced fewer justification problems and be more ‘just’ than a transformation of such regimes relying foremost on privatisation, as it was dominantly the case in Central Eastern Europe in the early 1990s. However, taken individually, restitution does not come without a string of normative problems, mainly addressed in the historical justice scholarship. I argue in this chapter that the normative problems of restitution, as well as the arguments against restitution in this literature, mainly concern restitution for the descendants of slaves or the descendants of colonial subjects, therefore, these arguments cannot be forcefully applied against having restitution in post-communist nations. Consequently, even when analysed individually, restitution remains the ‘better’ normative legal instrument for transforming state property into private property in post-communist transitional settings.

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Notes

  1. 1.

    In this chapter I will use ‘reflections on correction of historical injustices’, ‘historical injustices,’ and ‘historical justice’ as interchangeable.

  2. 2.

    Evidently that “one point in their history” does not mean any point, but figuratively, the ‘recent’ post-WWII point, or the contemporary ‘point’, made possible by the increased acknowledgement worldwide of the holocaust, apartheid, and of communist-era wrongs.

  3. 3.

    I consider this as a starting hypothesis, since the proposition that restitution receives a better theoretical treatment in the historical justice scholarship in comparison with the transitional justice scholarship is not necessarily true.

  4. 4.

    In spite of its relative novelty, there is already a voluminous (and growing literature) on historical justice. See e.g. David Lyons, ‘The New Indian Land Claims and Original Rights to Land,’ in Paul (1981, 355), Sher (1981), Waldron (1992), Simmons (1995), Cowen (1997), Barkan (2001), Thompson (2002), Vernon (2003), Posner and Vermeule (2003), Meyer (2004), Kutz (2004), Waldron (2004), Waldron (2002).

  5. 5.

    Teitel (2000).

  6. 6.

    I use Teitel as representative for the transitional justice scholarship, since her assumptions are widely shared in the respective field.

  7. 7.

    It is arguably irrelevant for my example if the action in recovery is initiated as a stand-alone action separate from the criminal action initiated by the state in such cases, or as a civil action ‘inside’ of the criminal action, and allowed as such by most criminal codes, since both actions are based on civil law.

  8. 8.

    I should emphasis that there are two conceptual plans in the discussions related to the correction of historical injustices, respectively to restitution seen as correction mechanism for wrongs related to property. With respect to restitution, one such plan is for example represented by the micro level, individual case, where restitution as a legal concept actually applies. In this respect, any singular case introduced before the courts is an application of the civil law rapports between particular individuals. The other such conceptual plan with respect to restitution is the macro level plan, consisting in a redress for large number of cases where state sanctioned infringements and abuses of property occur. This macro level plan could arguably be further conceptualised as ‘a case’ of ‘historical injustice,’ and restitution imagined as correction of such an ‘historical injustice.’ But the scholarly discussion in the ‘historical justice’ field, even if apparently refer to a single case of historical injustice, it would actually contain arguments whether or not the legal devices applicable to micro level, individual cases litigation could be extended to the macro level of multiple claims.

  9. 9.

    See e.g. Dagan (2004, 1141), for a sensitive argument that large scale, state sanctioned wrongs and the litigation to obtain redress for such wrongs force us to re-think our assumptions. But see Sebok (2004, 1431–1442), criticising Dagan’s arguments.

  10. 10.

    Defined by Black’s Law Dictionary as a “method of acquisition of title to real property by possession for a statutory period under certain conditions.” Black’s Law Dictionary, (Fifth Edition, West Publishing, St PaulMinn 1979) 49.

  11. 11.

    Wyman (2008, 137).

  12. 12.

    Wyman (2008, 136, 139). See also Schefczyk (2009, 5), defining ‘historical injustice’ as follows: “A historical injustice is a (complex of) natural crime(s), which is (i) legalized and (ii) being perpetrated by morally competent agents.” For a more circumscribed attempt to define ‘historical injustice’ in the US context, Wyman (2008, 134).

  13. 13.

    As in the case of the class of the Holocaust survivors in comparison to the class of the descendants of the black slaves, or in comparison to the claims of the Indian nations.

  14. 14.

    See Wyman (2008), for an argument related to the introduction of the Holocaust claims shortly after the end of WWII.

  15. 15.

    In re African-Am. Slave Descendents Litig., 304 F. Supp. 2d 1027 (N.D. Ill. 2004); Alexander v. Oklahoma, 382 F.3d 1206, 1211 (10th Cir. 2004); Alexander v. Oklahoma, 391 F.3d 1155, 1159 (10th Cir. 2004) (denying en banc review), cert. denied, 125 S. Ct. 2257 (2005). For an argument against reparations on these grounds see e.g. Epstein (2004). See Malveaux (2005), for a critique and counterarguments to Epstein.

  16. 16.

    Wyman (2008, 137).

  17. 17.

    Ibid, 137–38.

  18. 18.

    See e.g. Wyman (2008, 140–47), discussing the two different justification for claims for redress introduced in the United States by the holocaust survivors and the descendants of the black slaves; Sepinwall (2006, 186–188),discussing the different justifications of the aboriginal claims in Australia and New Zeeland and the Indian claims in the US in comparison to slavery claims; Vernon (2003, 544); Wilkins (2004, 517–18).

  19. 19.

    See e.g. Kutz (2004, 287–289), discussing the difficulties encountered by those attempting to provide a unified assessment of restitution in the post-communist world.

  20. 20.

    See e.g. Posner and Vermeule (2003, 696–697), for synoptic lists of such differences in several major restitution programs advanced in the United States and elsewhere.

  21. 21.

    See e.g. Tettenborn (2002, 237–240).

  22. 22.

    See e.g. Planiol (1902), Terré et al. (1999, 615–627), Salleiles (1914), all for discussions of “fault” in the French civil code, on which the recovery in torts is based, and compare the French conception of recovery in torts with the German one, described by Markesinis and Unberath (2002, 79–92, 112 and subseq). For the different ideas of unjust enrichment in continental civil law systems and in common law see e.g. Dawson (1951), Gallo (1992), Zimmerman (1995), Johnston and Zimmermann (2002).

  23. 23.

    See e.g. Sebok (2004), Dagan (2004), Hylton (2004), Logue (2004), all discussing the appropriate base for redress for the claims for reparations for historical injustice advanced by the US black slavery reparations movement.

  24. 24.

    See e.g. Giglio (2007), for a comparative analysis of remedies for wrongful acts, including the Continental Law systems’ treatment of such remedies.

  25. 25.

    See e.g. Cane (2005). For a discussion of major theories and approaches in torts, see Dobbs and Hayden (1997, 797–801) and Goldberg (2002) (discussing the historical evolution of tort theories in the U.S. and Canada).

  26. 26.

    See e.g. Charles Rickett and Ross Grantham, ‘In Memoriam Professor Peter Birks Regius Professor of Civil Law, University of Oxford,’ in Rickett and Grantham (2008, 2, 5–14). But see Hatzis (2002).

  27. 27.

    Even when restitution was not confused heavily with privatisation and it was treated as a separate device. See e.g. Kuti (2009, 78–79).

  28. 28.

    See e.g. Posner and Vermeule (2003), discussing the application of theories inspired by ‘ethical individualism’ in such fields as for example torts or unjust enrichment and the contrast between these theories and those inspired by ethical collectivism. For ‘ethical individualism’, see Dworkin (1997a, 250–254) (discussing the ethical individualism in the context of Academic Freedom); Dworkin (1997b) and Brophy (2006, 829). Also, David Johnston, ‘Beyond Compensatory Justice?’ in Chapman (1991, 332–340), for a discussion and contrast of what Johnson calls the ‘classic liberal’ and ‘managerial’ visions of society, and for an application of these visions to the liberal, individualist ideas of compensation in Anglo-American thought.

  29. 29.

    See e.g. Parfit (1984), in particular Chap. 16 ‘The Non-Identity Problem’ and Chap. 17 ‘The Repugnant Conclusion.’ However, I do not discuss here Parfitt’s theory, to which I refer only incidentally, but only the problems of justifying restitution when there is a potential triple non-identity between the subjects of the compensation rapport.

  30. 30.

    The non-identity problem has been widely discussed in the literature, and the debate is ongoing. See e.g. Derek Parfitt, Reasons and Persons (4th ed. Oxford University Press 1989), 351–80; Thomas Schwartz, ‘Obligations to Posterity,’ in Sikora and Barry (1978, 3–13); Kavka (1982); Tyler Cowen, ‘How Far Back Should We Go? Why Restitution Should Be Small,’ in Elster (2006, 17–33).

  31. 31.

    Cowen, How Far Back Should We Go, in Elster (2006, 25). I rely heavily on Cowen in what follows.

  32. 32.

    To respect of Y as a person, means also to respect her agency and free arbiter to do with her goods as she pleases. See e.g. Cowen, How Far Back Should We Go, 25. Waldron reformulates this dilemma as a counterfactual when he states that: ‘Part of our difficulty’ in answering what the people will do with their resources-my note—“is our uncertainty about what we are doing when we try to make guesses about the way in which free will would have been exercised.” Waldron, Superseding, op. cit, 10.

  33. 33.

    Cowen, How Far Back Should We Go, 25.

  34. 34.

    Ibid. See also Wyman (2008, 150), for an argument that for the ‘Aristotelian corrective justice’ duty to repair applies only if the wrongdoer and the victim still exist, and Cepl (1992), for a view that restitution of property could partially redress egregious harms, but cannot give back what was destroyed or right the many wrongs done during communist times.

  35. 35.

    Cowen, How Far Back Should We Go, 25.

  36. 36.

    Cowen, Ibid. Janna Thomson calls ‘Exclusionary Principle’ the tenet that individuals (or collectives) “are entitled to reparations only if they were the ones to whom the injustice was done.” Thompson (2001, 116).

  37. 37.

    Cowen, How Far Back Should We Go.

  38. 38.

    See e.g. Morris (1984), for an argument that corrective justice principles do not extend to a person born after the occurrence of the wrong.

  39. 39.

    See e.g. Sher (1981, 7–8), Morris (1984), Rahul Kumar and David Silver, ‘The Legacy of Injustice. Wronging the Future, Responsibility for the Past,’ in Meyer (2004, 145–58) for in depth discussions, and Cohen (2009). Nonetheless, it is doubtful that arguments of such kind, advanced for post-colonial situations, could be constructed in the case of communism.

  40. 40.

    See e.g. Lukas Meyer, ‘Intergenerational Justice,’ The Stanford Encyclopedia of Philosophy (Spring 2010 Edition), Edward N. Zalta (Ed.), online at: http://plato.stanford.edu/archives/spr2010/entries/justice-intergenerational/ (visited December 2015) Meyer (2004a); Bernard Boxill, ‘Black Reparations,’ The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Edward N. Zalta (ed.), online at: http://plato.stanford.edu/archives/spr2011/entries/black-reparations/ (visited December 2015).

  41. 41.

    Meyer, Intergenerational Justice.

  42. 42.

    Meyer, Ibid. For a discussion (of standard) of well-being, and of the potential problems possessed by its conceptualisation also Sher (1981, 3, 7–10).

  43. 43.

    Meyer, Ibid.

  44. 44.

    Meyer, Ibid; Sher (2005), Herstein (2008).

  45. 45.

    Boxil, Black Reparations (supra, note 40). For arguments focused on agents’ descendants see e.g. Butt (2007), arguing that agents’ descendants can acquire rectificatory obligations through involuntary benefiting from acts of injustice, and Butt (2006), arguing that “we can be guilty of wrongdoing stemming from past wrongdoing if we are members of nations that are responsible for an ongoing failure to fulfill rectificatory duties”.

  46. 46.

    See, e.g. Thompson (2002), Fletcher (2002), Kutz (2004), for an argument of collective responsibility grounded in the concrete benefits of group membership; Sepinwall (2006), Herstein (2009).

  47. 47.

    See e.g. Waldron (1992, 18–19), (2002, 251–262, 254), Pomian (2005), Kowalski (2005).

  48. 48.

    Thompson (2003, 254).

  49. 49.

    Meyer, Intergenerational Justice (supra note 40); Wellman (1995, 155–57), McEvoy and Conway (2004).

  50. 50.

    Meyer, Ibid.

  51. 51.

    Cepl (1992).

  52. 52.

    See e.g.: Romanian Law 18/1990 (Land restitution), Law No 1/2001 and Law No 10/2001 (Restitution of immovable property taken abusively by the State), all including descendants among the subjects who could file a claim; Art 3 of the Czechoslovak Law on the Mitigation of the Consequences of Certain Property Losses (Small Restitution Law), Act No 403/1990Sb (October 2, 1990); Art 3 of the Czechoslovak Law on Extrajudicial Rehabilitation (Large Restitution Law) of 21 February 1991; Art 3 of the Bulgarian Law on Political and Civil Rehabilitation of Oppressed Persons (June 15,1991); § 2(2)-5 of the Hungarian Law No 25, June 26, 1991, (To settle ownership conditions, for the partial indemnification of damages caused by the State to the property of citizens); § 7(1) of the German First Act for Rectification of SED Injustice (29 October 1992, as amended on 23 June 1994), respectively § 9 (1) and § 10 of the ‘German Second Act on the Rectification of SED Injustice (23 June 1994), as reproduced in Kritz (1995, 673–722) and providing for a really broad class of claimants including relatives of the victims.

  53. 53.

    For which criminal, pseudo-criminal and administrative sanctions were imposed by the communist regimes.

  54. 54.

    After the grand post war distribution schemes enacted by the governments of the region.

  55. 55.

    Pogány (1997, 145–147, and 213–16).

  56. 56.

    See e.g Pogány (1997, 152–54, 155, 165–178, and 215–16), Neff (1991), Denburg (1998); István Pogány. ‘(Re) Building the Rule of Law in Hungary: Jewish and Gypsy Perspectives,’ in Přibáň and Young (1999, 141–59).

  57. 57.

    See e.g. Paper on the Holocaust-Era Confiscated Communal and Private Immovable Property: Central and East Europe, presented at the Holocaust Era Assets Conference, (Prague, June 2009), available online at http://www.claimscon.org/forms/prague/immovable-property.pdf (last visited June 2015), for a comprehensive overview of the successive post-communist Central Eastern European laws on restitution of Jewish communal property.

  58. 58.

    See e.g. Tyler Cowen, How Far Back Should We Go? In Elster (2006, 17–33), Hart and Honoré (1985), Strassfeld (1991), Spellman and Kincannon (2001) ***Editorial Board, ‘What Do Compensatory Damages Compensate?,’ 40 San Diego L. Rev. 1091 (2003), Buck and Miller (1994), Patrizia Catellani and Patrizia Milesi, ‘When the social context frames the case. Counterfactuals in the courtroom,’ in Mandel et al. (2005, 183–199).

  59. 59.

    See e.g. Cowen, How Far Back Should We Go? In Elster (2006, 17–33), observing that: “[R]estitutional approaches typically start by comparing one end state to another. In the context of past injustices, the obvious comparison is between what has happened and what would have happened had the injustice not taken place. The information portrayed by this comparison is then used, in combination with other moral arguments, to produce a restitutional sum. I refer to this as the counterfactual method” (Cowen, 19).

  60. 60.

    See the entry for ‘Counterfactual,’ in A Dictionary of Sociology by John Scott and Gordon Marshall, (Oxford University Press 2009), as provided by Oxford Reference Online, available at: http://www.oxfordreference.com/views/ENTRY.html?subview=Main&entry=t88.e430 (last visited October 2015).

  61. 61.

    Livingstone v The Rawyards Coal Company: (1879–80) L.R. 5 App. Cas. 25.

  62. 62.

    For an argument based on Derek Parfitt’s remarks that in the intergenerational cases, the problems with such counterfactual determination might be severe see Cowen, supra, 20–21. Although (1) making the situation of a victim (or her descendants) as good as it was before the harm occurred and (2) making the situation what it would be now, if the harm had not happened, are not identical situations, for my argument it is irrelevant which one is sought by the victim or her descendants.

  63. 63.

    See e.g. Sher (1991, 4), arguing the impossibility of such a task, especially in the case when the wrong is in the distant past.

  64. 64.

    Cowen, How Far Back Should We Go? in Elster (2006, 19).

  65. 65.

    Cowen, Ibid, The arguments could be focused on uncertain causal link between the wrong in the past and the present, the undesirable consequences of correction, or the impracticability and enormity of resources necessary to bringing the victims’ descendants in the situation as ‘nothing happened.’

  66. 66.

    Cowen, How Far Back Should We Go? in Elster (2006, 19).

  67. 67.

    Ibid.

  68. 68.

    Cowen, Ibid, 20; Woodward (1986, 809–810).

  69. 69.

    Cowen, Ibid, 22–23, Alexander (2003).

  70. 70.

    Cowen, Ibid, 20.

  71. 71.

    Cowen, Ibid, citing Pogány.

  72. 72.

    See e.g. Pogány (1997, 107), for a calculation showing that the ‘restitution’ or compensation for property taken by Hungarian Fascist regime as a result of ‘arryanization’ of Jewish property would exceed the total value produced by the Hungarian Economy at the onset of post-communist transition.

  73. 73.

    See e.g. Kelo v. City of New London, 545 U.S.469 (2005), (taking in consideration the “subjective preference” of the takees), and the controversy surrounding this case. Also Craswell (2003, 1149), arguing that in mundane takings there is no prima facie reasons to discount the subjective preference of the victims; Wyman (2007), discussing Kelo and arguing in favour of a more objective standard for compensation); Randy E. Barnett, ‘Compensation and Rights in the Liberal Conception of Justice,’ in Chapman (1991, 313), arguing that objective wrongs rather than subjective ‘injuries’ are fundamental to the liberal conception of justice); Cowen (1997).

  74. 74.

    See e.g. Waterhouse (2006), for a more complete discussion of the changes in the legal status of ‘negroes’ and slaves in the American colonies before and after the Independence, and the progressive degradation of this legal status after mid XVIII century.

  75. 75.

    United States v. Amy, 24 F. Cas. 792, 810 (C.C.D. Va. 1859) (No. 14,445). Justice Taney was one of the ‘progressive judges’ of the time. Evidently that at the time the US were not any longer British colonies, but the colonial thinking about the slave perpetuated in the post-colonial contexts.

  76. 76.

    In the civil law the legal capacity to acquire property is granted at birth.

  77. 77.

    Curran (2001, 118). In the case of communism, usually the citizen was stripped of the property as a result of her criminalisation as a property holder. Functionally, such striping was similar to the Nazi’s ‘civil death’s declaration of German citizens of Jewish ancestry.

  78. 78.

    Cowen recognized this when noting: “Restitutional claims have the greatest moral force when the value of the loss or stolen resource is well defined in material or dollar terms.” Cowen, How Far Back Should We Go, in Elster (2006, 24).

  79. 79.

    See e.g. Sebok (2004), for a good recapitulation of the ‘commodification’ problem posed by the framing of slavery reparation claims in the language of property. But see for rebuttals, Dagan (2004), Curran (2001, 132), (for a rebuttal in the context of Holocaust-era claims) and Goldberg (2002, 516–521), discussing the evolution of law of torts in the modern era.

  80. 80.

    Inasmuch as this literature builds a general theory, allegedly applicable to all legal and historical contexts, from post-colonial, slavery-erarestitution demands, where arguably the ‘torts’ model is more relevant.

  81. 81.

    See e.g. Posner and Vermeule (2003, 693).

  82. 82.

    Ibid.

  83. 83.

    Or the descendants of the direct victims of slavery.

  84. 84.

    A supplementary argument for such requirement of strong justification in case of affectation of present distributional patterns in liberal societies is provided by Tucker, when he speaks that the legitimacy of current patterns of ownership in liberal societies “depends wholly on an act of social forgetting,” a luxury not available in post-communist settings. See Tucker et al. (2004, 390).

  85. 85.

    Tucker et al, Ibid, 393.

  86. 86.

    Ibid, 399.

  87. 87.

    Waldron (1992). I use the adjective ‘brilliant’ to characterise Waldron’s paper, because he moved in Superseding Historic Injustice Nozick’s property’s insoluble justification problem of ‘just transfer’ of ‘just titles’ (cumulative condition otherwise impossible to satisfy) to a justification of original ‘just’ titles in the present. In other words, Waldron changed the eventual emphasis of justification of property from the wrongdoer’s descendants to the victims’ descendants, when restitution is claimed, and this could be characterised as a brilliant argumentative move. Evidently that his arguments assumes that the present distribution of property is justifiable, which of course, it is not necessary the case, but these additional considerations should not be of my concern here.

  88. 88.

    “He that leaves as much as another can make use of, does as good as take nothing at all.” See Waldron (1992, 21), citing Locke’s Two Treatises.

  89. 89.

    Waldron (1992, 16–23).

  90. 90.

    Ibid, 25.

  91. 91.

    Ibid.

  92. 92.

    In a subsequent paper, Waldron expresses the opinion that: “If the individuals whose entitlements were violated were still alive, then we could deal with the matter by way of direct restitution and compensation.” Waldron (2002, 143), reprinted in Lukas Meyer (2004b, 55–79).

  93. 93.

    If we think at it as a compensatory justice mechanism for ‘historical injustices.’

  94. 94.

    See e.g. Seton-Watson (1950, 1–22), Rothschild and Wingfield (1989, 3–24).

  95. 95.

    Kutz (2004, 287). For the point that such distributional regimes could be hardly justified under any of the liberal theories of property rights see also Kutz (2004, 286–87).

  96. 96.

    See e.g. Moody (1948), for a good overview of the inter-war problems and the war and post war discussions related to agricultural property; Seton-Watson (1950), Rothschild and Wingfield (1989).

  97. 97.

    Not necessarily dominated by the communists. See e.g. Judt, Postwar (2007, 77–79), describing post-war agricultural reforms in Eastern and Western Europe; Pogány (1997, 40–61), describing the social structure of the countries and the various CEE reform policies before the communist complete take over.

  98. 98.

    See e.g. Judt (2007, 67–77), discussing the rise of planning, administrative state, and of a need of a more equitable social distribution East and West in the immediate aftermath of the war; Bruss (1986, 573–599) (cited by Pogány).

  99. 99.

    In this context, we should observe also that the post-communist governments did not establish by hazard the baseline of ‘restitution’ before the second wave, communist era takings.

  100. 100.

    Tilted, as we have seen that it was, in favour of socialist estates.

  101. 101.

    Even if the baseline of equality was lowered down in comparison with that delivered by the west European societies, and the ‘equality’ was more a formal one, and one in ‘misery’ rather than one in opulence.

  102. 102.

    See e.g. Waldron (1992,18–19), noting that such an argument on the Kantian and Hegelian lines-property as a basis for personality development could be made by those disposed, albeit it is vulnerable to the passage of time.

  103. 103.

    See e.g. Waldron, Ibid, 18–19, noting that “The original entitlement [on Kantian lines] is based on the idea that I have organized my life around the use of this object, not that I have organized my life around the specific project of hanging on to it or getting it back.”

  104. 104.

    Such changes in social circumstances induced or dramatically accelerated by communism between the late 1940s and the 1990s are for example the increase in population, the dramatic urbanisation, or the industrial development and modernisation.

  105. 105.

    See Waldron (2002).

  106. 106.

    An excellent overview of the problems and dilemmas faced by the Hungarian lawmakers in respect of restitution of agricultural land after the fall of communism, and the political deal brokered in early nineties is provided by Comisso (1995). Hungary restitution policies provided for smallholders and their descendants to acquire agricultural property, and as a consequence, the agricultural cooperatives were dissolved. The Smallholders party, led by Josef Torgyan, then in coalition with the Antal Government could make a big political issue of land restitution and the recreation of a ‘moral’ Hungary. (I owe this point to István Pogány). An overview of the insignificance of the problem in the eyes of the wider Hungarian public and an in deep critical analysis of the Hungarian Constitutional Court decisions on the matter are also provided by Pogány (1997).

  107. 107.

    On this point see for example the discussion related to the level of private property in communist states at the end of 1989, provided supra, text to note 52, in Chap. 4.

  108. 108.

    This would leave outside the argument the problems posed by Holocaust’s ‘thefticide’ (for example), although a restitution scheme which would treat equally all the victims of totalitarian regimes interferences with property would have to restore property appropriated by Fascist regimes or compensate for such a theft.

  109. 109.

    This unhistorical character make sense, however, for purposes of theory building, and if we think that the objective of the scholars writing such literature is to elaborate a ‘fit all’ theory, but in the measure it grossly ignores the post-communist realities, or it use them selectively it is unusable for description or reflection on such realities.

  110. 110.

    Because the main portion of such wealth was earmarked for privatisation.

  111. 111.

    At least in the early years of enacting ‘restitution’ laws, but in many cases definitive as they produced effects which could not be reversed afterwards without breaking the ‘rule of law.’

  112. 112.

    As in the case of Romanian Law 18/1990 for partial ‘restitution’ of land, forcibly brought to the state cooperatives. See Verdery (2003) on this.

  113. 113.

    Which was done or operated under the courts control.

  114. 114.

    As again in the case of Romania.

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    Liviu Damşa

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Damşa, L. (2016). Post-communist Restitution and Corrections for ‘Historical Injustice’. In: The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe . Studies in the History of Law and Justice, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-48530-0_6

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