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Vol. 2, No. 2 (2020)

Journal of Romanian Studies, 2, no. 2 (2019)

Special issue: Law, History and Justice in Romania. New Directions in Law and Society Research

Guest Editors: Mihaela Șerban and Monica Ciobanu

Editors: Peter Gross, Diane Vancea, Iuliu Raţiu

Contents

Articles

Mihaela Șerban and Monica Ciobanu

Law, History and Justice in Romania. New Directions in Law and Society Research (pp. 9-23)

This special issue of the Journal of Romanian Studies examines law as a social institution and the ways in which it intersects with the larger social, historical, political and economic world. While the articles included here mostly explore the intersections between law, history, and justice, they consciously reject positivist and doctrinal analyses of law and an understanding of law as primarily a (repressive) instrument of the state. Instead, we focus on “living law” and the complex interactions between law and social issues, including how law is created, interpreted and implemented, and how individuals and organizations live, shape and evade it in everyday interactions within and outside of the state. We also want to situate this flourishing area of research not only within broader fields, such as transitional justice and legal history, but also in the expansive law and society tradition that has been open to interdisciplinary legal research worldwide, but is perhaps less well known in Romania.

Cosmin Cercel

Reversing Liberal Legality: Romania’s Path to Dictatorship, 1930-1938 (pp. 23-52)

Romania’s anti-liberal turn at the end of the interwar period is a useful case study for analysing the dissolution of the liberal nomos fostered by the Versailles arrangements against the background of the authoritarian takeover in Europe. In this article, I explore the legal and constitutional mechanisms at the core of the instauration of King’s Carol II dictatorship. I propose to do so by mapping the reconstruction of the concepts of legality and authority within the political and legal processes seeking to contest, challenge and ultimately reverse the liberal features of the constitutional armature of the Romanian state. Drawing on jurisprudence, political theory, and constitutional history, I seek to unearth the ideological underpinnings of this regime of power and to reflect on the nexus between law and anti-liberal projects of state-building at the end of the interwar period.

Ştefan Cristian Ionescu

Perceptions of Legality during the Antonescu Regime, 1940-1944 (pp. 53-80)

This article examines how legality was perceived by the highest officials of Romania’s pro-Nazi Ion Antonescu regime and by a group of intellectuals (mostly jurists) closely connected with the judiciary. For Antonescu, legality meant a new type of authoritarian understanding of the role of the law in a state and its subordination to the will of the ruler; for him, legality mainly had an instrumental role. He understood his power to be discretionary and, usually, not bound by the extant law, even though he sometimes referred to the idea of constitutional order (a convenient source of legitimacy). Intellectuals, including jurists, harbored a diversity of opinions regarding legality. Some jurists supported the regime’s authoritarian legalism, or at least accepted it, while others, especially those with a more democratic mindset or belonging to minorities, perceived legality differently than Antonescu, and favored a liberal democratic version of legality involving the rule of law.

Mihaela Şerban

Litigating Identity in Fascist and Post-Fascist Romania (1940-1945) (pp. 81-108)

This paper examines legal mobilization and resistance to efforts through law to delineate ethnic identities during World War Two in Romania. Anti-Semitic legislation adopted under the fascist regime attempted to create and classify Jewish identity, while the end of war legislation formally reversed all discriminatory statutes and decrees and more broadly banned all inquiries into the ethnicity of Romanian citizens. Under both legal regimes, one’s identity, whether de jure or de facto, was decisive for repressive state policies that targeted Romanian citizens based on their ethnic identity. The concept and content of ethnic identity, however, were far from a clear matter. I explore in this paper how the local administrative court in the city of Timişoara (both first instance and appeal) constructed ethnic identity based on the wartime racial legislation, and how the court continued to apply this judge-made identity to the newly disfavored groups, primarily Germans, at the end of the war.

Monica Ciobanu

Writing History Through Trials: The Case of the National Peasant Party (pp. 109-134)

This article provides a comparative account of two criminal trials that addressed the role played by the National Peasant Party (PNŢ) in national history. The focus is on the ability of legal trials to construct historical narratives. The first was conducted in 1947 by the newly-established communist regime and resulted in the legal ban of the party. In 2015, the narrative was entirely reversed in court. The PNŢ was presented as a fully democratic actor. Alexandru Vişinescu – a former commandant of the Râmnicu-Sărat prison where prominent party leaders were subjected to repression – was sentenced for crimes against humanity. The sharp differences between these two legal proceedings – a Soviet-style show trial versus legal action that was oriented to providing some redress for the victims of communism – is emphasized.  But the conclusion is that criminal trials in general fall short in providing historical lessons and that retrospective justice does not necessarily produce reconciliation or accountability.          

Emanuela Grama

Restitution Reversal or “Re-nationalization”? An Analysis of Law, Property, and History Through the Case of the “Szekely Mikó” High School in Transylvania (pp. 135-164)

In 2002, the Reformed Church in Transylvania requested the retrocession of the Reformed Szekely Miko high school in Sf. Gheorghe/ Sepsiszentgyörgy, Covasna’s capital city. The state restitution commission at that time approved the return. In 2012, a court invalidated the initial restitution decision, accused the members of the former commission of fraud, and requested that the Church return the building to the city authorities. A close reading of the legal arguments that each party employed to justify or reject the restitution reveals competing temporalities of law and visions of history. This paper analyzes the long and tense debates around this case of property restitution – reversal, to further explore several interconnected phenomena: broader ideologies about the relationship of historical, ethnic, and property rights in contemporary Transylvania; the political mobilization of Romania’s ethnic Hungarians around property restitution; the ways in which negotiations around property propelled more conservative elites to the leadership of Transylvanian Hungarians and enabled them to strengthen their ties with their kin-state, Hungary.

Simona Livescu

Institutional Memories and Transgenerational Dynamics: The House of Terror and the Memorial of the Victims of Communism and of the Resistance (pp. 165-194)

This article provides an insight into the twenty-first century politics of institutionalized memory in two former communist countries, Romania and Hungary, as illustrated by their respective human rights memorial museums’ practices of documenting communist era abuse. After discussing the ways in which the two museums under consideration here inscribe themselves into the red and dark tourism phenomena, the article focuses on acts of over-remembering and misremembering that affect the politics of museal representation, highlighting the emotional communities created by these museums as well as the incomplete representation of the victim-victimizer rapport. In doing so, the article argues that institutionalized museal interventions into recent collective national and regional memories are representative of the still undecided legacy of communism in East and Central Europe.

Dragoş Petrescu

Law in Action in Romania, 2008–2018: Context, Agency, and Innovation in the Process of Transitional Justice (pp. 195-218)

This article tackles a hitherto-unnoticed innovative mechanism of transitional justice. Creatively interpreting the legislation, CNSAS, the institution dealing with the former secret police files, gradually transformed itself from a vetting agency into a fact-finding commission. While the law restricted the meaning of collaboration, CNSAS produced an open-access electronic database including digest versions of the screening process and providing quick access to excerpts from secret police documents. This repository demonstrates the multifaceted nature of collaboration, the wide variety of information gathered and the complicity of individuals originating from all social, cultural, and professional backgrounds. The e-database created by CNSAS offers not a simple list of wrongdoers, but evidence of wrongdoings according to rule-of-law principles. In brief, this registry of shaming represents a para-legal mechanism of transitional justice, which allows moral judgement, promotes transparency, and legitimizes the mission of CNSAS in fostering democracy by widely illustrating what democracy is not.          

Book Reviews

Marian Voicu, Matrioşka Mincinoşilor: Fake News, Manipulare, Populism.
(Review by Peter Gross)


Matei Călinescu and Ion Vianu, Scrisori din exil: corespondenţă inedită.
(Review by Iuliu Raţiu)