The Loss of Property Rights and the Construction of Legal Consciousness in Early Socialist Romania (1950–1965)

Date01 December 2014
Published date01 December 2014
The Loss of Property Rights and the Construction
of Legal Consciousness in Early Socialist Romania
Mihaela S¸erban
What happens to legal and rights consciousness when rights previously pro-
tected are taken away? In this article, I investigate the process of contesting
urban housing nationalization in Romania in the early 1950s in order to
understand how the loss of property rights led to new hybrid types of legal
consciousness. I find that the construction of socialist legal consciousness was
grounded in the interaction between the legally constituted selves of former
owners and state bureaucrats who drew from distinct legal and property rights
ideologies. This process underscores continuities in legal consciousness even
under drastic regime changes, which in turn has implications for the construc-
tion of new hegemonic legalities and power regimes. The article is based on
extensive document and archival research.
In the 1950s, the Romanian communist regime nationalized
approximately a quarter of the residential units in the country,
primarily under its flagship Decree 92 from 1950. Despite the
repressiveness of the regime and the lack of a formal mechanism
for challenging nationalization, nationalized owners contested
the takings relentlessly for more than 10 years. The petitions were
partially successful, nonviolent acts of micro-resistance through
law that mobilized petitioners’ ideas about law and property and
directly challenged socialist legal instrumentalism (Serban Rosen
2010). Yet the petitions were not only acts of resistance, but also
of cooptation, sites of active construction of socialist legality. They
raised questions about how the newly marginalized “enemies of the
people” who were explicitly excluded from the protection of social-
ist law related to this rapidly changing legal system. The responses
from within the socialist apparatus further raised questions about
The field research for this project was supported by a National Science Foundation
Doctoral Dissertation (grant #0752404). I am grateful to Sally Merry, Christine Scott-
Hayward, and Francesca Laguardia for their comments and suggestions. I received helpful
comments and advice from participants at the conference Complaints: Cultures of Grievance
in Eastern Europe and Eurasia (Princeton University, 2013), as well as LSR’s editors and
anonymous reviewers.
Please direct all correspondence to Mihaela Serban, Ramapo College of New Jersey, 505
Ramapo Valley Road, Mahwah, NJ 07430; e-mail:
Law & Society Review, Volume 48, Number 4 (2014)
© 2014 Law and Society Association. All rights reserved.
the varying degrees of internalization of new laws and policies
regarding property.
The petitions against housing nationalization and the responses
to them offer fruitful avenues of inquiry for a question largely not
tackled in sociolegal studies: What happens to legal and rights
consciousness when rights previously protected are suddenly taken
away? I understand legal consciousness as a dynamic, constitutive
process, a type of social practice encompassing individuals’ recur-
sive engagement with the law in all its manifestations—institutions,
norms, processes, meanings, categories, boundaries, etc. (Comaroff
and Comaroff 1991; Merry 1990; Silbey 2005).
In this article, I investigate the process of contesting the nation-
alization of houses in early socialist Romania and what this process
reveals about the construction of legal consciousness under repres-
sive conditions in a transitional context (from capitalism to com-
munism). The focus of the analysis is on the process of constructing
legal consciousness, on continuities and changes, in particular how
and to what extent changes in legal consciousness occur for both
nationalized homeowners and socialist bureaucrats in charge of
the nationalization during periods of radical transformation. I find
that the marginalization of former owners and their loss of property
rights had two distinct outcomes.
First, former owners actively and strategically mobilized the law
to reclaim their lost property rights, while the bureaucrats—the
agents of state power—were mostly on the defensive, exhibiting
a combination of weary cynicism and instrumentalism vis-à-vis
the law. These are unexpected findings, particularly in light of
sociolegal studies that discovered correlations between social, eco-
nomic, or political marginalization and distrust of the law (e.g.,
Bumiller 1988; Engel and Munger 2003; Ewick and Silbey 1998;
Merry 1990). I examine this unexpected positionality by analyzing
the interaction between the legally constituted selves of former
owners and state bureaucrats who draw from distinct legal and
property rights ideologies. Former owners and state bureaucrats’
understandings of law shaped their ideas of themselves and their
relationships to others in a normative sense (commitment to law
and rights), as well as the extent to which and the manner in which
they mobilized law (skills, prior knowledge, and prior orientation to
the law). Moreover, these two groups drew from different ideolo-
gies about law and its role in society. Former owners’ concepts of
law and rights were distinctly pre-communist, positivist rule of law
and rights based. By contrast, socialist bureaucrats drew from both
pre-communist legal ideology and from the socialist ideology that
emphasized substantive justice as class justice. Socialist law had an
explicit class character—representing the interests of the working
class, promoting social and economic rights—and rejected the
774 Loss of Rights and Legal Consciousness
formalism and proceduralism of pre-communist “bourgeois”
law (e.g., Auslander 1951; Feller 1955; Lavrov and Ta˘taru 1959;
Nedelschi 1949). Socialist law’s substantive thrust was mitigated by
its “relative autonomy” from the economic base and to some extent
from the state itself (e.g., Bratus 1949; Chkhikvadze 1969), a type of
“legal positivism lite.”
Second, both former owners and socialist bureaucrats clearly
distinguished between legal consciousness and property rights con-
sciousness, and variations in legal consciousness between the two
groups did not translate in similar variation in terms of property
rights consciousness. There was a significant overlap between
owners and bureaucrats, reminiscent of pre-communist property
The importance of these findings goes beyond legal conscious-
ness as they contribute to a better understanding of the role of law
in authoritarian and other highly repressive regimes. The multi-
plicity of legal and ideological discourses regarding a key issue for
the communist regime indicates the limits of revolutionary legality
and of instrumentalizing law. This diversity also suggests avenues
of legal mobilization and resistance to authoritarian regimes
located outside of courts and rooted in speaking the new language
of power, yet simultaneously subverting it.
The article is structured in the following manner: After a short
methodological section, I briefly discuss the key sociolegal findings
on the relationship between marginalization and legal conscious-
ness, and the centrality of legal consciousness for the communist
regime. I then introduce the housing nationalization process in the
early 1950s in Romania, followed by a section exploring the con-
struction of legal consciousness in the petitioning process, and last,
a section presenting the key property rights discourses advanced by
the former owners and the bureaucratic responses to these dis-
courses. The conclusion discusses implications for further studies of
legal and rights consciousness.
The article is based on extensive document and archival
research conducted in the city of Timis¸oara, Romania, in 2007–
2008. The archival material is from the Timis¸oara branch of the
National Archives of Romania (187 files in 14 collections), mostly
pertaining to the activity of the local state bodies. I used the quali-
tative research software HyperRESEARCH (ResearchWare Inc.,
Randolph, MA) for coding and analyzing the archival material
(unless otherwise noted, all translations from Romanian are
mine). I examined the petitions filed by former owners with local
S¸erban 775

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