Rights Consciousness

Three types of challenges have recently been pushing toward a more clearly defined approach to rights consciousness. The first one is the global nature of rights, which includes how rights travel and translate in multiple locales (Merry Reference Merry2006), the normative pluralism of rights and hybrid rights constructions (Osanloo Reference Osanloo2009), and the limits of rights (Engel Reference Engel2012). The second is the simultaneous deployment of multiple meanings of rights as formal legal rights, international human rights, values, and practices (Merry et al. Reference Merry, Levitt, Rosen and Yoon2010), while the third is comparative approaches to rights consciousness (Li Reference Li2009, arguing that in China there is no rights consciousness but, instead, rule consciousness that follows historical patterns and supports, not subverts or challenges authoritarian rule).

The 2013 Law and Society Association presidential address and the responses to it directly address these developments. Michael McCann's hopeful address sketches four paradoxes of rights—which rights claims count, the “contradictory promise of individual freedom,” who can assert rights, and “rights as a potential resource for social justice”—and highlights key contributions to rights research from a global and comparative perspective (McCann Reference McCann2014, 245–74). David Nelken focuses on the destructive potential of rights, the dilemmas, tensions, contradictions, constraints, and limits of rights, and asks “why rights regimes claim to be better than what came before—injustice does not deserve defending just because it is hallowed by tradition” (2014, 277). Finally, Sally Merry examines both “the potential and the failure of rights: their promises of freedom, recognition, and social justice along with their limitations, exclusions, and burdens on the rights holder” (2014, 285).

The disillusion with rights and the questions and challenges raised by both the old and the new rights agendas take a distinct shape in a postcommunist context rife with rights skepticism, yet also witness to significant rights-based legal mobilization. For communist legal regimes, (some) rights were just words on paper, promises without delivery. The post-1989 period saw the establishment and growth of constitutional courts, the explosion of rights-based litigation before the ECHR, and the expansion of infrastructure and resources for domestic judicial systems. Tellingly, since its establishment in 1959, almost half the judgments delivered by the ECHR concerned only five member states, three of them from postcommunist Eastern Europe (the Russian Federation, Poland, and Romania) (ECHR 2013). For Romania, property is one of the top areas of litigation before the ECHR.

Across the board, we see citizens who are willing to defend their rights and challenge their state, each side mobilizing different understandings of rights before supranational actors, who rule and thereby privilege particular understandings of rights over others. In fields as complex as property restitution, multiple actors—former owners, tenants/new owners, state actors, and the ECHR—have distinct understandings, expectations, and goals for property rights, and rights draw no clear line of demarcation between submitting to or resisting the state. In short, there are variations in property rights consciousness, and rights consciousness emerges as a distinct category from overall legal consciousness.

In this article, I focus on (property) rights consciousness as conceptually distinct from legal consciousness. I understand rights consciousness as a recursive, fluid, evolving social practice and discourse centered on claims, expectations that are broader than formal rights awareness and mobilization through courts that draws from multiple sources (everything from ideologies to state policies), is not bound by formal state law, is anchored in different interpretive contexts, and signals distinct identities. I am interested in how individuals and groups conceive of and engage with rights, how various meanings of rights play out in rights practices (including how rights are created through practices), how various actors mobilize the symbolic value of rights and sources of rights consciousness, and how conflicting rights claims shape rights consciousness.

This is broader than “rights consciousness as a greater willingness by an aggrieved individual or group to make a claim for redress on the basis of a ‘right’” (Lorentzen and Scoggins Reference Lorentzen and Scoggins2015, 4), as it encompasses the realm of rights consciousness beyond courts and litigation (Engel and Munger 2003). It is also broader than a definition of rights consciousness as awareness of existing rights, willingness to assert rights, and the understanding of social relations in terms of rights (defined as individual claims against the state) (Li Reference Li2009, 11–12). I am interested in the construction of rights consciousness that includes rights as values and practices, which may or may not dovetail with formal rights enshrined in law. Property rights consciousness refers specifically to practices and discourses related to property, so a key source includes various property ideologies.

Understanding rights consciousness distinctly from legal consciousness captures multiple dimensions of rights that do not easily fit within the classic liberal legal paradigm, and in particular the three types of challenges identified above. Crucially, it repositions the state vis-à-vis rights, which in turn allows for a clearer understanding of the contexts in which individuals conflate law and rights, the multiple, often conflicting sources and meanings of rights, and the implications for rights mobilization in both local and global settings. If legal consciousness encompasses individuals' recursive engagement with the law in all its manifestations, rights consciousness zooms in on claims and expectations that are mediated through law, but explicitly reach beyond formal, positive law. There is significant overlap between legal and rights consciousness, but also key differences: looking through the lens of rights consciousness decenters the state in novel ways (compared to legal pluralism debates, for example), and exposes how rights are overtly reconstructed below and above the state.

Property Rights Consciousness

Property rights consciousness, and specifically consciousness of rights over homes, is an excellent site for studying rights consciousness for three reasons: the resilience of private property, the centrality of private property rights, and the distinctive nature of housing.

The first is private property's resilience across radical (property) regime changes, and specifically of ownership over housing. The goal of communist regimes, Romania included, was to dismantle the institution and concept of private property, initially through massive expropriations and the nationalization of land, industry, commerce, and housing. Housing was different from all other takings, however, because it had a much narrower scope (only involving approximately 30 percent of all housing in the country; see Chelcea Reference Chelcea2004, 1, 112; Dawidson Reference Dawidson2004, 125), it lacked finality (some restitutions took place and some of the seized housing was sold back to the population), and the regime allowed and even encouraged at times the construction of private housing (Şerban Reference Şerban2015), thus sending mixed messages about the importance of private property.

The second is the archetypal nature of property rights for all other rights in modernity, in particular in terms of the key values underpinning private property that are also central to the modern rights discourse: individual freedom, autonomy, personhood/agency, and power, the latter understood both in a relational sense and as self-mastery (MacPherson Reference MacPherson1962; Radin Reference Radin1982; Waldron Reference Verdery2004). The third is the special nature of housing as homes with emotional and cultural value, and separately as assets, again across regime changes.

Private property's resilience over time illuminates the longitudinal construction of rights consciousness and the archetypal nature of private property rights provides a baseline for understanding the broader category of rights consciousness, while the special nature of housing indicates various sources of rights consciousness.

The research for this article suggests that the state is only one source of property rights consciousness, and thus that rights consciousness should be decoupled from the state. State policies are a potential source of rights consciousness and a pivot in how rights are deployed. In Romania, former owners before the ECHR, for example, attempt to reconceptualize rights as against the state and others/tenants, and the state is a pivot in a network of rights cutting across power/resistance lines. State agents mobilize their own understandings of rights and protect, restrict, channel, or privilege different meanings of rights. “The state” is not a single external actor imposing a coherent rights regime from above, even in the area of property. Everyone has rights consciousness and mobilizes rights, including state actors, building on distinct property ideologies or policy priorities.

Sources for property rights consciousness include not just (changing) state laws, but also value systems and ideologies (coexisting, plural, occasionally overlapping or competing, both about property and about justice), history, identity, practices (such as lengthy processes of nationalization-contestation-restitution), supranational actors (such as the ECHR), and expectations of what rights can deliver.Footnote ² For restitution, expectations for rights center as much on restitution of actual housing or compensation, as on history and identity (as Liviu Chelcea pointed out, genealogy and restitution are a collective process and genealogical practice).

Private Property in Communist Romania

Romania's transition to communism began in 1945, after World War II, and private property in particular seemed to be in free fall. Two continuities and two major ruptures are important here.Footnote ³ First, the Romanian Civil Code of 1864 was never abolished, even though it was heavily amended, and the sections on movables, immovable, and property rights remained largely intact.Footnote ⁴ The legal map and main attributes of property did not fundamentally change from precommunist days, but were adapted for socialist purposes. The communist property hierarchy was different—state, collective, and, lastly, personal property, but ownership was still the pinnacle right among all other property rights.Footnote ⁵

Second, there were fundamental ideological continuities between precommunist and communist official understandings of property, including the centrality of property, property as power, and labor as a legitimating value. Labor in particular has been the ideological linchpin between precommunist, communist, and postcommunist concepts of property. As in the Soviet Union, labor was the essence of the socialist narrative of property: the opposite of exploitation, reward, and effective guarantee for claiming rights such as housing and social security.

The three communist constitutions of Romania, from 1948, 1952, and 1965, signal the transition from private property based on exploitation—to be eliminated, to personal property based on labor—to be protected, with labor as a bulwark against exploitation. Communist lawmakers and legal scholars distinguished private property from personal property in large part based on the distinction between labor and exploitation (Fekete Reference Fekete1954), but the distinction is specious to the extent that personal property maintained key characteristics of private property and is thus best understood as a subtype of private property (narrower in scope, but not essentially different).

Personal property continued to be regulated by the same civil code provisions as private property in all its aspects (Article 480 of the 1864 Civil Code). Labor was the key ideological and moral value at the core of personal property, which provided continuity with bourgeois ideas of property, particularly Lockean theories—property as an incentive for labor (exemplified by the socialist principle of repartition according to work), and personality theories—the end result of ownership was the socialist person who fully participated in civic life. As such, the narrow scope of personal property dovetailed with a rather puritanical concept of socialist personhood that revolved around needs, avoiding exploitation, and being a responsible owner. Unsurprisingly, labor is a key constitutive value of property rights consciousness for both former owners and tenants post-1989.

The major ruptures between the property regimes of precommunism and communism are the extensive restrictions on private property and the exceptionalism of state property. The four main communist restrictions of private property were significant. First, the communist regime undertook extensive takings, primarily nationalization and expropriation. Second, the scope of private property was narrow, as it included only the home and household objects, objects of personal use, some land, income, and savings. Third, there were numerous regulatory restrictions on the circulation of property, as well as building and demolishing houses. Inheritance was protected in principle, however. Fourth, housing policies were perhaps the most significant restriction, for example, the lack of freedom of contract in the rental market.

From a legal and rights consciousness perspective, continuities and changes in the legal regime of property were reflected in the legal education of the tightly controlled labor market. There were only three law schools in the entire country, and they graduated very small numbers of legal professionals (the entering classes for all three for full-time study dwindled to about 200 overall by the late 1980s, in a country of approximately 20 million). Property law was taught as a “marriage of convenience.” The lawyers I interviewed, all of whom were trained before 1989 and are still active, were told that “there was a bourgeois point of view, and a socialist one, and regarding property, we are on the way to socialist property, but in the meantime we tolerate other forms of property, including private property, for the promotion of the interests of the individual.” Property law was then taught based on the 1864 Civil Code—the baseline, with socialist amendments as exceptions.

These continuities and changes indicate that early communism is not a story of the disappearance of private property, or about socialism creating truly new forms of ordering property relations. Rather, this is about mutual adaptation: property adapting to socialism and socialism adapting to private property, and about the conflicting property messages, ideologies, and practices embedded and constituted in law. The result was a hybrid concept of private property, drawing from both capitalist and socialist sources, which in turn contributed to the creation of new, hybrid forms of legal and property rights consciousness (Şerban Reference Şerban2014). Nowhere is this process more clearly illustrated than in the housing nationalization process of the 1950s.

Urban Housing Nationalization and Legal and Property Rights Consciousness

Nationalization of urban housing in Romania lasted for years and took place both directly, through Decree 92/1950, and indirectly for houses attached to nationalized businesses, industries, or land. It encompassed preparations for the takings, the issuing of various decrees, implementation and restitution instructions throughout the years, and dealing with claims against the takings. The focus here is only on Decree 92/1950, the emblematic legal act of urban housing nationalization in Romania. Urban housing nationalization was a process that lasted from 1950 until at least 1965,Footnote ⁶ was shrouded in secrecy, lack of transparency, arbitrariness, and ambiguity, and saw significant push back from the nationalized owners (Şerban Reference Şerban2010).

Decree 92 nationalized the houses and apartments of manufacturers, bankers, businessmen, and other elements of the high bourgeoisie, landlords, hotel owners, and others like them, but excluded from nationalization housing that belonged to workers, civil servants, small craftsmen, intellectuals by profession, and retirees (Article 2). The appendices to the decree listed alphabetically (by owner's name in each town and city) the nationalized buildings. Decree 92 nationalized between 120,000 and 140,000 residential units in the entire country, approximately a quarter of privately owned houses (Chelcea Reference Chelcea2004, 1, 112; Dawidson Reference Dawidson2004, 125; Stan Reference Stan2006). For Timişoara, Decree 92 listed 1,022 owners in its appendix (but buildings not listed were also de facto nationalized). Timişoara had a slightly higher nationalization rate than the rest of the country's big cities—35 percent versus 25 percent (smaller cities and towns had smaller nationalization rates) (Chelcea Reference Chelcea2004, 19–20), a large number of the nationalized owners were ethnically German, Jewish, or Hungarian, and most of the nationalized owners were not primarily landlords and can be more accurately classified as middle and even lower-middle class (Şerban Reference Şerban2010, Reference Şerban2014). Jewish owners who recovered their property after 1945 almost immediately lost it again under housing nationalization.

Decree 92 did not include any mechanism for challenging the nationalization. Despite this, however, half the nationalized owners in Timişoara contested the taking, often multiple times, both through administrative and court channels, and the process of petitioning and answering the petitions lasted for years (from 1950 to at least 1965) (Şerban Reference Şerban2010). Most petitioners considered themselves exempt from nationalization under Article 2 of Decree 92, and went to great lengths to prove that the house had been obtained through labor, not exploitation, that its primary function was as a family home and not as rental income (exploitation), and furthermore that others in a similar position had not been nationalized.

Petitioners commonly deployed two key discourses during this period: labor, and rights and justice (both mirrored in post-1989 restitution claims). Petitioners referred to their own labor and the labor of their forebears, and to the house as their home and the embodiment of family. These are efforts to contextualize and historicize the nationalization and to counter the regime's own discourse of houses as means of exploitation and assets. Labor represented a common ground between the petitioners and the socialist regime, as both considered it a legitimate fountain of private property rights.

Petitioners also brought up both rights claims and justice claims—claims that they were wronged, that the taking was not right, not just, but a “screaming injustice” [nedreptate strigătoare].Footnote ⁷ The petitioners' understanding of what was just and right was rooted in natural law and was entirely at odds with the local authorities' understanding, for whom justice meant class justice (and former owners were exploiters) (Şerban Reference Şerban2010, Reference Şerban2014).

Most petitioners complained administratively, as well as in court, but this was not a linear process and the court was rarely the last resort. Initially, local administrative bodies approved for restitution almost 20 percent of the nationalized housing. This decision was revisited multiple times over the subsequent years, but ultimately less than 1 percent of housing nationalized under Decree 92 in the whole country was returned to its owners.Footnote ⁸ In Timişoara, only 5 percent of petitions were ultimately admitted.

This brief genealogy of property (including nationalization) highlights that both law and property were sites of contestation characterized by hybridity and plurality from the very beginning of the communist regime. It is important to note here that petitioners clearly distinguished between legal consciousness and rights consciousness. Former owners engaged with the regime did not openly challenge the law or its legitimacy, but its interpretation and application in their particular cases. They attempted to capture socialist law for their own purposes, saw it alternatively as a resource to be harnessed or a potential objective arbiter, as well as a link with the past and internalized ideas of self, property, and legality (Şerban Reference Şerban2014).

From a rights consciousness perspective, dispossessed owners primarily mobilized conceptions of property rights rooted in labor, the civil code, natural rights, and as the price for obedience, overall an absolutist conception of property rights as embedded in precommunist property law. While time did not stand still between the 1960s and 1990s, there are some strong continuities with the postcommunist housing restitution process.

The State as a Source of Legal and Property Rights Consciousness

The first step in the housing restitution debate came early on in 1990, with Decree-Law 61/1990, which allowed 3 million state tenants to buy the state-owned and state-built apartments they occupied at very good prices (Stan Reference Stan2006). (The number sold in Timişoara is over 50,000 housing units [Timişoara City Hall 2008, 11].) This included tenants who occupied nationalized buildings. Among them were members of the new elites across the political and economic spectrum, who had either lived there before 1989 or moved in right after (under five-year rental contracts, with the possibility of renewal; see Stan Reference Stan2006, 188–90).

Many owners of nationalized buildings initiated restitution claims in court as early as 1990, including all of my interviewees in Timişoara. The number of court decisions throughout the country is estimated in the thousands (see also Stan Reference Stan2006, 191). Courts responded, for the most part, in favor of former owners and ordered the eviction of tenants.Footnote ¹⁰ The government, meanwhile, wanted a statutory solution, while major political figures such as the president of the country at the time (Ion Iliescu) publicly criticized restitutions and the courts for resolving these types of cases, and asked for the nonimplementation of court decisions in favor of former owners.

The Supreme Court obliged in 1995 when it banned lower courts from hearing cases before the adoption of the restitution statute. Moreover, the Prosecutor General began to use the recurs in anulare (annulment appeal) to overturn final court decisions (Stan Reference Stan2006). This practice was intensely criticized locally and internationally and was finally abandoned in 2008 under EU and ECHR pressure (SAR 2008).

It was only in 1995, after five years of bitter debates, that parliament managed to reach some consensus over housing restitution and compensation. The result, Law 112/1995, limited natural restitution (the house/apartment itself) to cases where the houses or apartments were either vacant or occupied by the original owners, and allowed the tenants to buy their housing, again at good prices. The 1995 statute also allowed tenants to stay for five years in the building they occupied. A buying frenzy followed, while efforts to amend the law in favor of the original owners overall failed. Critics of the 1995 statute argued that favoring tenants meant, in fact, favoring the former communist nomenklatura who occupied and bought these houses.

The Constitutional Court overall confirmed the protection afforded tenants and implicitly the operative conception of property. The court established the principle that former owners were not protected by the Constitution because of the principle of nonretroactivity of the law (Decision 62/June 13, 1995). The court also held that the Constitution guaranteed only the right to already existing property, and did not embrace the right to acquire property, which in this case meant that former owners had to observe property rights constituted under the communist regime (Decision 126/November 16, 1994). Furthermore, in a seminal 1995 decision, the court held that there was no constitutional right to restitution or compensation (later the court clarified that a statutory right was created by Law 112) (Decision 73/July 19, 1995). Finally, the court held that, as a matter of public law, there were no legal relations between former owners and tenants of nationalized housing (Decision 2/February 3, 1998).

Former owners interpreted the post-1989 restitution efforts as another nationalization. Despite their pressures, it is unlikely the situation would have changed had it not been for the aspiration of the country's elites to join the European Union. Eager to overturn perceptions of failing in transitional justice, modernization, and capitalism, parliament reversed course and adopted Law 10/2001, which established the principle of natural restitution as primary, and compensation as secondary (only when physical restitution was not possible), thus reversing the logic behind Law 112, and sending a message about the state's newfound commitment to protect private property in its more absolutist version.

Law 10 expanded the scope of claimants, allowed for restitution on the basis of court decisions, protected tenants' leases and the property rights of tenants who had bought on the basis of Law 112, imposed short statutes of limitations for owners to file restitution claims, and restricted physical restitution for buildings used for institutional purposes (see Stan Reference Stan2006, 195–96; SAR 2008). The implementation of Law 10 (amended multiple times) has also been problematic, plagued locally by wide discretion at the local level, extensive litigation, difficulties determining compensation, contradictions between Law 10 and its implementation instructions (which were issued two years after Law 10 itself!), and the lack of centralized coordination and unified implementation (Stan Reference Stan2006; SAR 2008).

The European Court of Human Rights as a Source of Legal and Rights Consciousness

A key element distinguishing restitution post-1989 from nationalization is the mobilization of supranational power structures, and in particular the ECHR. If nationalized owners in the 1950s and 1960s had as final recourse the Council of Ministers and the top level of the Communist Party, by the late 1990s they had the option of leveraging Romania's desire to become “European” and to appeal to the ECHR. Former owners challenged in particular the practice of annulment appeals, the sale of nationalized property to tenants, and the mandatory extension of rental contracts (SAR 2008). The ECHR has responded positively and found Romania responsible for failing to provide effective mechanisms for restitution and compensation (Străin and Others v. Romania 2005), failing to decide promptly on claims (Atanasiu v. Romania 2010), conflicting interpretations of restitution laws, and perpetuating legal uncertainty for former and new owners (Tudor v. Romania 2009) (Council of Europe 2011; DGIP 2010, 96–115).

In 2010, the court applied its pilot-judgment procedure (allowing the court to deal with large number of identical cases stemming from the same structural problem) for restitution issues in Romania. The court asked Romania to revise its national legislative framework and in particular to deal with two issues: the right to a fair hearing within a reasonable time, and the protection of property, more precisely, the ability to obtain compensation under the restitution laws (DGIP 2010, 96–97; Stan Reference Stan2013).

Following Atanasiu, the government recognized that the statutory framework for restitution was too complex, that it was incoherent, that the high number of unresolved claims—approximately 200,000—was unacceptable, and that the system overall was inefficient (see the statement of purpose for Law 165/2013). The Romanian government assumed responsibility and three years post-Atanasiu passed yet another restitution statute, Law 165/2013.Footnote ¹¹ Law 165 established four principles at the heart of the process: favoring restitution over compensation, equity (fairness), transparency of the process, and, finally, maintaining a fair balance between the interests of former owners and the general interest of society. Eerily reminiscent of the nationalization process, Law 165 established a points-based compensation procedure when restitution was not possible,Footnote ¹² and created the National Commission for Compensating Building Owners (Stan Reference Stan2013).

Like Laws 112 and 10, Law 165 faced numerous constitutional challenges, primarily related to its scope, deadlines, and restrictions on returned property. The Constitutional Court upheld the constitutionality of the statute overall and held fast to the concept of operative property, balancing throughout the claims of the former owners versus societal interests, for example, allowing temporary restrictions of property for buildings returned to their former owners (Decision 232/May 10, 2013), while also criticizing the government for constantly moving the goalposts for owners who had already filed a lawsuit (Decision 88/February 27, 2014).

By April 2013, based on statistics offered by then Prime Minister Victor Ponta, approximately 10,000 buildings had been physically returned to the former owners (it is unclear how many residential units this includes), and only 13,000 compensation claims had been solved, out of a total number of over 200,000. Romania lost 435 property restitution cases before the ECHR, and had 3,500 pending cases before the court (Ponta Reference Ponta2013; Stan Reference Stan2013). By November 5, 2015, the National Authority for the Restitution of Property had solved 16,373 claims initiated under Law 10/2001, was working on approximately 700 claims per month, and estimated that it would finish them by June 2016. Still waiting at this point are 29,723 claims, and the Authority needs to finalize all requests by 2018 (Autoritatea Naţională pentru Restituirea Proprietăţilor 2015). Figure 1 shows key steps in the timeline of restitution.

Figure 1 Restitution Timeline. [Color figure can be viewed at wileyonlinelibrary.com]

The importance of the ECHR as a source of both legal and rights consciousness was evident during my interviews. Although the Constitutional Court's role is acknowledged, it is the ECHR that holds the emblematic role held by the Supreme Court in the United States. An attorney representing both owners and tenants was happy that there was a “true legal path” in property cases, but was also clearly bothered that “Romania is not independent from a property rights perspective … there is no national paradigm, but only the ideas of the ECHR.” Attorneys representing owners only (who are a minority; most take both types of clients) also acknowledge that the Strasbourg jurisprudence has become jus commune for property in the country, but embrace it completely, see it as more dynamic and in tune with current needs, and are deeply critical of Romania's lack of compliance with the court's decisions.

Owners, keenly aware that the ECHR has consistently ruled in their favor, see the Strasbourg Court as “Damocles' sword,” the only institution on their side, and the court's understanding of property as the true one. Some owners and their lawyers expected to lose in Romania, and therefore strategically prepared for Strasbourg from the first trial. The tenants I interviewed fear Strasbourg, but do not question its legitimacy and trust it. Tenants, like former owners, are critical of the Romanian state's approach to restitution because it did not promote legal certainty for property rights, whether old or new.

Owners' Legal Consciousness: The Weight of Unmet Expectations

Owners' legal consciousness has been shaped not just by the length, complexity, and uncertainty of the restitution process, but also by divisions among owners and relationships with tenants. There are two types of key differences that determined how and why former owners mobilized. The first is the distinction between owners nationalized under Decree 92/1950, and those who lost their property through other means, primarily expropriations. Initially, all former owners mobilized through the Association of Former Owners Victims of Communist Abuses. The association helped former owners to connect with each other, find sympathetic lawyers, gather evidence, reconstruct property genealogies for seized housing, draft restitution bills, coordinate efforts in court, mobilize public opinion, and so forth.Footnote ¹³

According to one of my interviewees, a retired construction manager who was very active in the local chapter of the association in the 1990s, divisions quickly emerged, however, between former owners whose houses still existed, and those whose houses had been demolished. For the former, restitution of housing itself was an option, while for the latter, compensation was the only option. The infighting led to permanent splits and distinct lobbying efforts in parliament. Separately, former owners who had also been tenants of nationalized housing simultaneously pursued restitution and purchase (of housing they occupied as tenants). For the other former owners, this was an unforgivable sin.

Another key distinction was between former owners and their heirs. Former owners had witnessed, as children or teenagers, the loss of housing and saw the impact this had on their families. One of them remembered her father walking down the street every week to check on the nationalized house throughout communism. Still alive in 1989, he immediately began efforts to reclaim the house, looking for documents and writing petitions to authorities. My interviewee's mother, who was not alive anymore, had collected ownership documents going back to 1943 in a bundle tied with a pink ribbon. My interviewee's daughter, on the other hand, who emigrated to Israel with her family after 1989, had no emotional attachment to the house, and reproached her mother for being more attached to the house than to her.

Attorneys representing owners, as well as other heirs I interviewed, confirmed this rift. Heirs were significantly less interested in fully throwing themselves into the restitution battle. Some were resigned, as was the case with the nephew of an interwar rabbi, who was living abroad and decided to pursue compensation, instead of physical restitution, for his uncle's nationalized house. Others were interested only in the financial aspects of the restitution. Whether and how one pursued restitution was thus a matter of opportunity, not just repairing a historical injustice. The value of the housing was significant enough that an entire cottage industry of both lawyers chasing restitution (a Romanian version of ambulance chasers) and buyers of claims emerged. The distinction between former owners with a stake in the restitution process and peddlers of history was recognized both by Law 165 and the Constitutional Court, which upheld the provision that compensated differently former owners from those who had merely bought the claim to restitution, precisely because of the personal connection and the abusive nature of the taking vis-à-vis the former owners (Decision 197/April 3, 2014).

Maria's case is also typical in terms of complexity of the restitution process, and in particular the evidence required. My interviewees had to prove their genealogy and family history, ownership, and that the house had been seized by the state. In the early 1990s, former owners who sued claimed they should have been exempt from nationalization. Two former owners I interviewed, both in their late seventies, had to prove their parents had not been “exploiters.” They spent time and money collecting documents of their social origin (leather craftsman and engineer, respectively), a nationalization time warp.

Another interviewee faced a Kafkaesque task: part of his garden had been expropriated to build a block of flats. The block was never built, but the state had nonetheless registered it in the real estate registry, which officially meant the building existed. My interviewee had to pay and bring three different experts to the site to certify that the block of flats had never been in fact erected.

All the former owners and heirs I interviewed deeply distrusted the legal process, in particular the lawyers and judges at the local and national level (but not at the ECHR). Their restitution claims were the first encounter with the courts, and their experiences were unsettling. Some encountered judges who swore at them (“the judge showed me the finger”) or screamed at them. One owner observed that “[t]hey—judges—do not like you talking much.” One interviewee claimed that documents disappeared from the official file (so she made copies of everything separately, as did all my interviewees). Former owners perceived the state attorneys and judges to be biased based on two factors: whether they or a family member lived in a nationalized house, and whether one of the parties in the trial knew them personally.

Confirming findings elsewhere about the link between procedural justice and trust in the legal system (Tyler and Huo Reference Tyler and Huo2002), former owners distrusted the system even when they eventually won. In one case, the prosecutor (state's attorney in restitution cases) gave up his argument that the plaintiff's father had been a businessman and therefore subject to housing nationalization when he realized his parents-in-law had been neighbors with the plaintiff's parents in the 1960s. My interviewee found this out at the end of the lower court trial, when the prosecutor approached her and congratulated her for winning.

To the extent that former owners pursued their claims to the Supreme Court (many did), their experiences and perceptions of the legal system did not improve. They did not understand the endless delays, yet were themselves willing to delay trials if they thought political changes would bring legal changes (e.g., in 1996). They followed the advice of their attorneys and, without understanding the legal reasons (by their own admission), petitioned the Constitutional Court as another delaying tactic (“with the law”).

This deep distrust in the law—“against the law” legal consciousness—was an interesting finding in light of the fairly consistent record of wins for former owners at the trial level in Timişoara and the surrounding area. Winning was not enough to counterbalance the poor treatment former owners experienced in court, the seemingly open-ended nature of the restitution process (“Nothing in Romania is definitive and irrevocable,” said one of my interviewees, echoed by others), and the counterclaims by tenants. The distrust in the law was connected, but separate, for them, from distrusting the state. All my interviewees claimed that the key reason the state did not return the seized houses was that state officials lived in them and wanted to keep them.

Finally, owners' legal consciousness is shaped by their interactions with tenants. Although state law does not acknowledge direct relations between owners and tenants, these relations are, in fact, key for understanding the restitution field. The beginning was somewhat auspicious, as former owners placed the blame for nationalization squarely at the feet of the communist regime, and depicted tenants as equal victims of the regime (Vasiliu Reference Vasiliu1992). Lawsuits and counterlawsuits, as well as Law 112, fractured this fragile peace permanently.

Former owners vacillated between feeling sorry for the tenants, to claiming they knew or should have known all along they lived in nationalized housing, to suspecting tenants of using their jobs to derail the restitutions (e.g., if tenants worked in city government). Some former owners claimed that tenants purposely neglected or destroyed housing, and there were divisions between former owners who wanted to evict the tenants immediately and those who preferred to have them stay and collect rent. This was especially true for very long-term or life tenants, such as a tenant who had lived his entire life, from the early 1930s until the present, in an apartment from a nationalized house. The owner remembered him from their childhood, and found deep meaning in his continued presence in the house.

Tenants' Legal Consciousness: Cautious Distance

Tenants' legal consciousness is not far removed from the former owners'. While they perceive themselves to be on different sides of the restitution battle, tenants share with owners the distrust in the legal process and the state, think the state favors the owners, and think that they are unfairly paying for the failings of the communist regime. While all the former owners I interviewed were either directly involved with the Association of Former Owners or used its resources, none of the tenants were involved with the local tenants' association. The tenants I interviewed had different professions: teacher (elementary and high school), university professor, musician, accountant, librarian, computer programmer, mechanic.

Half the tenants had an easy experience buying their housing from the state under Laws 61 or 112, while two found it a somewhat difficult process. Two of my interviewees did not manage to buy because former owners had started the restitution process. The owners were eventually successful and the tenants had to move out. The tenants who were sued did not expect it, and were surprised to find out that former owners even existed. One of the tenants was sued every time a new statute or implementing decree was issued, but the tenant never met the former owner or spoke to her. Another tenant, an elementary school teacher, was shocked to find out that her neighbor of twenty-five years had owned the house prenationalization and had never told her, even though they shared the same hallway. The tenant and her husband found out only by accident that the former owner had started the restitution procedure.

Tenants, like the owners, and for similar reasons, also deeply distrusted the law and legal system, and thought “the law was unfair, the Romanian state did not do what it should have done to protect tenants.” They found the frequent statutory changes confounding, and complained about legal uncertainty (length of trials and lack of resolution through multiple appeal levels), lack of clarity, and how “every political change brought a different interpretation, which is not right.” Tenants, like former owners, did not necessarily favor compensation or restitution, but wanted legal clarity and finality. They thought the law was biased in favor of former owners because “the law was so big—everyone could come and ask for property, and did not need many documents to verify their quality of former owners.”

While tenants did not experience hostility from judges, some of them thought judges were biased in favor of the owners, and that the outcome of the cases depended on judges' personal opinions on restitution. Unlike former owners, none of the tenants had to compile lengthy or complex evidence files, and some of the tenants (depending on trial type) had not only their own lawyer present, but also the lawyer representing city hall.

Tenants most distrusted the lawyers representing former owners. They found the owners' lawyers to be extremely combative, and thought a key reason for the trials and restitution overall was that the lawyers were manipulating the former owners in exchange for the house or on a contingency fee basis: “The problem is that there are too many lawyers who do not defend the interests of the real owners, but various other interests. This is a disaster, even dead people can go to court as owners, this is inadmissible, it's all because lawyers want to get rich.” (The attorneys I interviewed were paid either on an hourly basis, or based on a contingency fee type of arrangement.) Tenants were also aware that lawyers were repeat players, and thought this put them at a disadvantage.

Whether and how tenants engaged with the law, however, was significantly determined by their relations with the former owners. The elementary school teacher who had not been aware that her neighbor was the initial owner was so deeply hurt and betrayed that she decided not to engage in the restitution process or make any compensation claim for the improvements to the house. She thought the former owner had stabbed her in the back after all the help the tenant had given her over the years. Tenants who did not know the former owners, however, found it easy to use the law. The less contact they had with the former owners, the more comfortable they felt turning to the law and, to a certain extent, trusting the law to give them justice. They rarely condemned the owners outright (more often condemning their lawyers).

Tenants accused the former owners of greediness. They thought owners had already received compensation from the communist regime (or Germany or Israel, if they emigrated), so asking for restitution or compensation after 1989 was unfair. (In fact, nationalized owners received no compensation, while those who were expropriated received a nominal sum, and not always. Owners who emigrated received some minimal support from the countries of immigration to help them integrate in the new society.) Owners overall, as a category, were perceived as “having no soul” if they evicted tenants after winning back their houses, if they gloated, and if they sold the houses or apartments.

Tenants who were sued by former owners (mostly to annul purchase contracts under Law 112) deeply resented it; it is “as if we were criminals, we had to prove we did nothing wrong.” One of them, a business owner, had a stroke and blamed it on the stress of the trials, while another one developed an ulcer.

For both owners and tenants, whether and how they engaged with the law depended not only on the state, but also, equally importantly, on their expectations, experiences with courts and lawyers, and relationships with each other. Both groups distrust the state and national legal system (“against” the law, albeit at different levels), respect and value the ECHR (“before” the law), and are overall very strategic (“with” the law) (Ewick and Silbey Reference Ewick and Silbey1998). That none of the lawyers, owners, or tenants were ever physically present before the court (including an attorney who won landmark ECHR cases) casts an aura of international justice with which the local courts can hardly compete.

Owners and Their Heirs: Title, Labor, Historical Justice

Rights consciousness for the former owners has distinct, not necessarily consistent, sources: precommunist state laws, formal title, natural law ideas about property and justice, postcommunist restitution laws, history, and identity. Rights in this understanding, certainly property rights, have a rather static quality, in large part connected to the erasure of time, itself linked to perceptions of the lack of legitimacy of communism, and confirmation by the ECHR and postcommunist laws of former owners' property claims. Their rights expectations are intimately connected with the rejection of the prior, communist regime, and the restoration of the prewar past.

Former owners and their lawyers hold an absolutist view of private property—“the holy light of property,” said a former owner—and see it as the basis of order and civilization, and the opposite of communism. They see property titles acquired before communism as inherently beyond reproach, while property acquisition during communism, whether by the state or individuals, is inherently suspicious. Former owners did not question title acquired during the war, either, even when they had sufficient reason to do so. Two of my interviewees were aware that their houses were bought during World War II from Jewish families who were subject to policies of Romanianization (an integral part of the Holocaust) and were forced to sell at below market value. The tenants I interviewed, meanwhile, were aware of these histories and held them against the former owners when comparing title.

Former owners or their heirs also mobilize discourses of family, labor, justice, and compassion. In both written documents and interviews, they describe how their parents or grandparents had worked to build or buy houses that could serve the extended family: “My parents worked like oxen to build a house, only for the communists to take it all away.” My interviewees gave me long family histories that involved piecemeal acquisition or building of the houses, mostly by parents and grandparents of middle and lower-middle class origin (such as leather maker, carpenter, teacher, grocery store owner, etc.). Heirs were significantly less likely to romanticize the houses, and simply talked about the importance of title.

Unlike the 1950s, post-1989 the injustice of the taking became a more important source of property rights consciousness for the former owners. Former owners had always emphasized in their 1950s and 1960s petitions that housing nationalization, from their perspective, was an unjust taking, wrong based on both socialist and bourgeois notions of justice. The discourse of the fundamental injustice perpetrated through nationalization resurfaced post-1989 in the articles, bills, and memoranda prepared by the National Association of Owners Abusively Dispossessed by the State, for whom housing restitution symbolizes reparatory justice, an acknowledgment that communism was wrong and that the takings were unjust (Association of Owners Forcibly Dispossessed by the State [APDAS] 1994, comment on Law 112). Former owners repeatedly mentioned the injustice of nationalization and expropriation, and expected formal apologies from the state and from tenants of nationalized houses, whom they perceived to have taken advantage of the situation. When the former center-right president Traian Băsescu apologized to the victims of communism, one of my interviewees was very touched and cried because it was the first time any state official had addressed the issue.

To former owners' claims of historical justice, meanwhile, the state opposed its own concerns about the impossibility of full restitution, costs of compensation, protection of vested interests, and ensuring everyone's right to housing. The government believed that former owners had rights to their property, but that restitution needed to reflect the “juridical, social, temporal and material changes these properties suffered” under communism (Stan Reference Stan2006, 191–92). The ruling coalition within the government, the social democrats, clearly privileged the tenants/new owners' property rights, with use more important than old title. Finally, and aside from the issue of corruption, for the government this was fundamentally a housing problem, and only secondarily a historical property rights problem (Stan Reference Stan2006, 191).

Once again, relationships between former owners and tenant/new owners are an important source of rights consciousness, as not all property rights are created equal from the owners' perspective. The distinction lies in the mode of acquisition, as former owners saw the tenants as schemers, “profiteers” preying upon someone else's labor: “My grandfather worked all his life very hard to get this house, why couldn't tenants do the same? They just took advantage.” The “good faith” clause—allowing tenants to buy the nationalized housing they were living in—has been in this context a particularly bitter point of debate. For the former owners, it was adding insult to injury, as owners claim tenants knew the housing they occupied had been abusively seized by the communist state (APDAS 1993, 1994; Stan Reference Stan2006).

Tenants: Labor, Use, Justice, and Time

For tenants, meanwhile, property rights consciousness also arises from title and the importance of property, property practices (labor to maintain it, occupancy, family histories), restitution laws and state support, and time. For them, the passage of time is crucial, regardless of the legitimacy of the communist regime. Tenants agree with former owners that property is an essential institution, and think that the communist regime's attempt to eliminate private property was “utopian” and “wrong.” However, overall they are significantly more supportive of the communist regime's goal of an egalitarian society, think former owners paint a “too rosy” picture of prewar capitalism, when in fact “times were better, everything was more ordered, more disciplined” during communism, and observe deep poverty and inequality post-1989.

Tenants who bought their pre-1989 housing, like former owners, rely on title, specifically title as established under Law 112. All of them described buying their house or apartment with “legal contract, in legal conditions, fully observing the law” (în condiţiile legii), “so there's nothing to argue” (with former owners). Tenants explicitly rejected the owners' accusations that they knew the takings had been abusive, and place the blame on the regime: “It wasn't the tenants' fault they ended up in these houses, it was the system's fault.” One of my interviewees emphatically pointed out: “I am not a thief, I did not steal this house, I took it because I had the right.”

Tenants also introduce their own labor discourse. Tenancy of nationalized houses was often a stable, lengthy status (all my interviewees had lived in their nationalized houses since at least the early 1970s, and in one case, the tenant had lived in the house for almost fifty years), and depending on the period, it was either a hard-won prize or a solution of last resort. In the 1970s, for example, tenants who were in their early twenties saw newly built socialist flats as more comfortable and desirable than older housing (central heating was a key reason), although the location (outskirts) was often an issue. Nationalized housing, although bigger, was already in a poor state and expensive to maintain. A tenant who was an accountant, for example, exchanged her apartment, which was more valuable, for the nationalized house based on location (closer to her workplace). The house was in terrible shape because it had been nationalized while unfinished, the former owners never lived there, and the state never took care of it. She and her husband put all their money and labor into renovating the house, building bathrooms, the attic, and so forth.

Tenants who ended up in nationalized housing saw the state as an “indifferent owner” that occasionally pitched in, but ultimately the apartment or house was the tenants' own responsibility. They did not distinguish between formal tenancy and ownership status, and treated their housing, for all intents and purposes, as “their own.” This included investing significant resources into renovations and maintenance. Like the accountant, a university professor renovated the entire interior of his house in keeping with the original style of the house (this included a custom staircase).

Post-1989, the labor, resources, and love they put into their homes led the tenants to resent deeply the original owners' characterization of them as “leeches,” responding “as if we have not put any effort in this house.” Moreover, as long-term occupants, the tenants had also become emotionally attached to the houses—in their opinion, more attached than the original owners, whose emotional attachment was merely “historic” after such a long time. Labor is not just a source of property rights consciousness for the tenants, but also of justice—after all they did to take care of the homes and improve them, losing them “would not have been right” and would have been a “big injustice.” Attorneys representing both former owners and tenants agreed for the most part with this characterization. One of them explicitly compared the former owners' claims with the tenants' claims as “title plus historical injustice” versus “title plus labor and time.”

Like former owners in the 1950s, tenants also mobilized a discourse of compassion post-1989: “The tenant families [were] ‘on the brink of desperation as a result of continuous court hearings and wrongful, hasty verdicts. You'd see unprotected professors, workers, engineers, pensioners in despair, you'd hear the cry of mothers and children thrown out of homes they legally received, you'd see elderly tormented by an uncertain tomorrow’” (quoted in Stan Reference Stan2006, 192). For many tenants who did not manage to buy, the future was indeed dire. One tenant family I interviewed lost a protracted lawsuit against the former owner and had to move out. In their late sixties now, they cannot afford to retire because they have to pay two mortgages (their daughter's and their own). They feel bitterly disappointed and wronged by the restitution process.

In summary, key sources of property rights consciousness for both former and new owners, aside from the state, are labor, the ideology of private property, and positive law/title. Labor and law are not separate threads, however, as labor justifies property rights and both sets of owners' belief in the righteousness of these rights. The state, meanwhile, acknowledges labor as a basis of property rights, yet clearly privileges other meanings of property (exploitation under communism vs. use now), and is also concerned with protecting vested interests. Former owners stress title and an understanding of property rights based on title (absolutist, static), while tenants see use, particularly over a prolonged period of time, as the basis of grounded property rights.

A key distinction in terms of rights consciousness for the former owners and tenants is time. They operate within different timelines of property, as each piece of property is at the center of multiple claims within different timelines. Time passes differently for the former owners, tenants, and the state.Footnote ¹⁴ Former owners expect the restitution process to suspend time (one former owner, for example, is planting trees as closely as possible to the site where she remembers them to be prenationalization), while tenants harness time for their own use-based claims—there are different time rights at stake. Rights consciousness for former owners overtly elides time, while time is an essential component for tenants of nationalized housing. Katherine Verdery (Reference Verdery1998, 102–16) talked about “fuzzy property” vis-à-vis post-1989 land restitution, and the housing restitution process similarly suggests a certain fluidity of property arising out of the passage of time throughout regime changes, which in turn changed the nature of property itself, as different property regimes and practices coexist in the same housing unit. Because of the multitude of stakes and ownership claims, the concept of property may appear less, rather than more, stable in postcommunism.