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

• Date: 01 December 2014
• Published date: 01 December 2014
• DOI: http://doi.org/10.1111/lasr.12103

The Loss of Property Rights and the Construction

of Legal Consciousness in Early Socialist Romania

(1950–1965)

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: mserban@ramapo.edu.

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Law & Society Review, Volume 48, Number 4 (2014)

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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

discourses.

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.

Methodology

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

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