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

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.