- 505 Ramapo Valley Road
Mahwah, New Jersey, 07430
Mihaela Serban
Ramapo College of New Jersey, Law and Society, Faculty Member
This article examines law as mnemonic infrastructure, tracing how archival laws and policies in Romania shape the construction of its collective memory of communism and fascism. The four layers analyzed here-archival institutions, norms,... more
This article examines law as mnemonic infrastructure, tracing how archival laws and policies in Romania shape the construction of its collective memory of communism and fascism. The four layers analyzed here-archival institutions, norms, processes, and practices-help produce a memory regime characterized by nationalism, the securitization of historical memory, and a selectively amnesic collective memory. Focusing on law as mnemonic infrastructure highlights indirect and structural pathways in the construction of memory regimes, with distinctive, if not always obvious knowledge and truth effects that help clarify the role of law in promoting or undermining hegemonic memory regimes.
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Research Interests: Law and Political Science
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The embodiment of twentieth century constitutionalism, 1 constitutional adjudication appears to be relied upon as an absolute constitutional insurance by many Central and East European countries in their transitions to democracy.... more
The embodiment of twentieth century constitutionalism, 1 constitutional adjudication appears to be relied upon as an absolute constitutional insurance by many Central and East European countries in their transitions to democracy. Moreover, the absence of a constitutional court or another means of constitutional adjudication has tended to cast long shadows of suspicion over the democratic character of a country. Clearly, however, the existence of a constitutional court is no panacea. The paradox that democracy is to be ensured by the existence of an institution whose democratic legitimacy is quite insecure is largely overlooked. Almost all East European courts pride themselves in playing a most vigorous role in guaranteeing the supremacy of the constitution, the principle of separation of powers and, more than anything else, the rights of the individuals. Constitutional Courts, similarly to Ombudsmen, are new institutions in East Central Europe, and thus untainted
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The article examines how the experiences of post-communist transitional justice policies could inform current controversies in the United States regarding its reckoning with the past. To lay the ground for this analysis, three facets of... more
The article examines how the experiences of post-communist transitional justice policies could inform current controversies in the United States regarding its reckoning with the past. To lay the ground for this analysis, three facets of American exceptionalism—the dual state reality, the triumphalist myth, and the denialist myth—are identified as principal obstacles that have preempted any substantive reparations for the crimes against humanity perpetrated against enslaved Africans and their descendants. This is followed by a presentation of how the 1989 revolutions in East and Central Europe failed to promote an inclusive and pluralistic model of the past. Instead, current representations of the past rooted in essentialist and ethnocentric historical narratives are weaponized by non-democratic political actors. Finally, the authors caution against misguided representations of historical trauma and memory wars in the United States that could potentially reproduce White supremacist i...
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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... more
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 Timisoara (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.
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This paper explores the rise of rights-based regulation through litigation as a distinctive feature of legal culture in Central and Eastern Europe post-1989. This type of adversarial legalism was born at the intersection of... more
This paper explores the rise of rights-based regulation through litigation as a distinctive feature of legal culture in Central and Eastern Europe post-1989. This type of adversarial legalism was born at the intersection of post-communist, European integration, and neoliberal discourses, and is characterized by legal mobilization at national and supranational levels, selective adaptation of adversarial mechanisms, and the growth of rights consciousness. The paper distinguishes Eastern European developments from both American and Western European types of adversarial legalism, assesses the first quarter century of post-communism and represents a first step towards constructing a genealogy of the region’s legal culture post-1989.
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This article analyzes rights consciousness as distinct from legal consciousness, and uses the post-1989 housing restitution in Romania to study property rights consciousness as a type of rights consciousness. I argue that property rights... more
This article analyzes rights consciousness as distinct from legal consciousness, and uses the post-1989 housing restitution in Romania to study property rights consciousness as a type of rights consciousness. I argue that property rights consciousness is only partially an outcome of state power and the political regime, and that rights consciousness more generally must be explicitly analyzed beyond formal rights, legal mobilization, and litigation. I explore sources of rights consciousness for former owners and their heirs, state tenants, and lawyers. Sources of rights consciousness include state policies under distinct property regimes, value systems and ideologies, history, identity, practices, supranational actors, and expectations of what rights can deliver. I find clear distinctions between legal and rights consciousness, as well as variations between and within the groups. The article is based on extensive archival research, interviews conducted in the city of Timişoara, Roman...
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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... more
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 ...
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The paper analyzes the exceptionalism of housing during the early communist period in Romania, in particular the extent to which the regime’s ambivalent policies regarding housing undermined the overall political and ideological goal of... more
The paper analyzes the exceptionalism of housing during the early communist period in Romania, in particular the extent to which the regime’s ambivalent policies regarding housing undermined the overall political and ideological goal of dismantling private property. Focusing on takings, restitutions, and new constructions in the city of Timişoara and the surrounding re-gion, the paper emphasizes conflicting and inconsistent policies regarding housing and the con-sequences of these policies. Housing’s double meaning as home and asset further complicated the overall ideological mission of denaturalizing bourgeois private property, and allowed for the continuous relevance of pre-communist legal ideologies and property rights consciousness during this period. The paper is based on document and archival research conducted in the city of Timişoara, Romania, in 2007-2008.
Research Interests:
The embodiment of twentieth century constitutionalism,1 constitutional adjudication appears to be relied upon as an absolute constitutional insurance by many Central and East European countries in their transitions to democracy. Moreover,... more
The embodiment of twentieth century constitutionalism,1 constitutional adjudication appears to be relied upon as an absolute constitutional insurance by many Central and East European countries in their transitions to democracy. Moreover, the absence of a constitutional court or another means of constitutional adjudication has tended to cast long shadows of suspicion over the democratic character of a country. Clearly, however, the existence of a constitutional court is no panacea. The paradox that democracy is to be ensured by the existence of an institution whose democratic legitimacy is quite insecure is largely overlooked.
In this article we examine the encounter between global human rights ideas and domestic discourses of civil rights and social justice, focusing on processes of translation and adaptation of women’s human rights in two ethnographic sites... more
In this article we examine the encounter between global human rights ideas and domestic discourses of civil rights and social justice, focusing on processes of translation and adaptation of women’s human rights in two ethnographic sites in New York City. The first site is a citywide coalition working for the adoption of a New York City human rights ordinance. The second site is an advocacy organization working on domestic violence issues. We find that the local adoption of human rights in New York City – the ‘domestication’ of human rights – takes place in two central sites: law and social movement. We further find that the process of translation takes place unevenly in the two sites, and it is driven primarily by the actors, mechanisms and technologies in the social movement arena. Overall, we witness the emergence of a domestic human rights movement as a new counter-hegemonic space, characterized by multiplicity in meanings, ideological heterogeneity and ambivalence from those eng...
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What happens to legal and rights consciousness when rights previously protected 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... more
What happens to legal and rights consciousness when rights previously protected 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 construction of new hegemonic legalities and power regimes. The article is based on extensive document and archival research.
Research Interests:
The paper analyzes the exceptionalism of housing during the early communist period in Romania, in particular the extent to which the regime’s ambivalent policies regarding housing undermined the overall political and ideological goal of... more
The paper analyzes the exceptionalism of housing during the early communist period in Romania, in particular the extent to which the regime’s ambivalent policies regarding housing undermined the overall political and ideological goal of dismantling private property. Focusing on takings, restitutions, and new constructions in the city of Timisoara and the surrounding region, the paper emphasizes conflicting and inconsistent policies regarding housing and the consequences of these policies. Housing’s double meaning as home and asset further complicated the overall ideological mission of denaturalizing bourgeois private property, and allowed for the continuous relevance of pre-communist legal ideologies and property rights consciousness during this period. The paper is based on document and archival research conducted in the city of Timisoara, Romania, in 2007-2008.
Research Interests:
The article examines how the experiences of post-communist transitional justice policies could inform current controversies in the United States regarding its reckoning with the past. To lay the ground for this analysis, three facets of... more
The article examines how the experiences of post-communist transitional justice policies could inform current controversies in the United States regarding its reckoning with the past. To lay the ground for this analysis, three facets of American exceptionalism-the dual state reality, the triumphalist myth, and the denialist myth-are identified as principal obstacles that have preempted any substantive reparations for the crimes against humanity perpetrated against enslaved Africans and their descendants. This is followed by a presentation of how the 1989 revolutions in East and Central Europe failed to promote an inclusive and pluralistic model of the past. Instead, current representations of the past rooted in essentialist and ethnocentric historical narratives are weaponized by non-democratic political actors. Finally, the authors caution against misguided representations of historical trauma and memory wars in the US that could potentially reproduce white supremacist ideologies and escalate existent political and cultural divisions.
Research Interests:
Despite the ambivalent history of the domestic application of human rights in the United States, human rights increasingly offer important resources for American grassroots activists. Within the constraints of U.S. policy toward human... more
Despite the ambivalent history of the domestic application of human rights in the United States, human rights increasingly offer important resources for American grassroots activists. Within the constraints of U.S. policy toward human rights, they provide social movements a kind of global law "from below": a form of cosmopolitan law that subalterns can use to challenge their subordinate position. Using a case study from New York City, we argue that in certain contexts, human rights can provide important political resources to U.S. social movements. However, they do so in a diffuse way far from the formal system of human rights law. Instead, activists adopt some of the broader social justice ideas and strategies embedded within human rights practice.
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This chapter examines the survival of private property during the early transition to communism in Romania at the intersection of state policies, ideologies, and legal practices. It focuses on petitions contesting urban housing... more
This chapter examines the survival of private property during the early transition to communism in Romania at the intersection of state policies, ideologies, and legal practices. It focuses on petitions contesting urban housing nationalization in the city of Timisoara between 1950 and 1965. I argue that petitions are partially successful acts of microresistance through law that contested the communist regime's concept of private property, played a role in halting further urban housing nationalization, undermined the regime's attempts at building legitimacy through legality, and challenged ideas about legal instrumentalism in a communist system.
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Abstract: For fifty years, communist states in Central and Eastern Europe tried to unmake the hegemony of private property and for the last twenty, post-communist policy-makers have tried to revive it through means such as privatization... more
Abstract: For fifty years, communist states in Central and Eastern Europe tried to unmake the hegemony of private property and for the last twenty, post-communist policy-makers have tried to revive it through means such as privatization and restitution. The key assumption ...
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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... more
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.
Research Interests:
This paper explores the rise of rights-based regulation through litigation as a distinctive feature of legal culture in Central and Eastern Europe post-1989. This type of adversarial legalism was born at the intersection of... more
This paper explores the rise of rights-based regulation through litigation as a distinctive feature of legal culture in Central and Eastern Europe post-1989. This type of adversarial legalism was born at the intersection of post-communist, European integration, and neoliberal discourses, and is characterized by legal mobilization at national and supranational levels, selective adaptation of adversarial mechanisms, and the growth of rights consciousness. The paper distinguishes Eastern European developments from both American and Western European types of adversarial legalism, assesses the first quarter century of post-communism and represents a first step towards constructing a genealogy of the region's legal culture post-1989.
Research Interests:
This article analyzes rights consciousness as distinct from legal consciousness, and uses the post-1989 housing restitution in Romania to study property rights consciousness as a type of rights consciousness. I argue that property rights... more
This article analyzes rights consciousness as distinct from legal consciousness, and uses the post-1989 housing restitution in Romania to study property rights consciousness as a type of rights consciousness. I argue that property rights consciousness is only partially an outcome of state power and the political regime, and that rights consciousness more generally must be explicitly analyzed beyond formal rights, legal mobilization, and litigation. I explore sources of rights consciousness for former owners and their heirs, state tenants, and lawyers. Sources of rights consciousness include state policies under distinct property regimes, value systems and ideologies, history, identity, practices, supranational actors, and expectations of what rights can deliver. I find clear distinctions between legal and rights consciousness, as well as variations between and within the groups. The article is based on extensive archival research, interviews conducted in the city of Timişoara, Romania, textbooks, academic articles, and court decisions pre- and post-1989.
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Rule of law indicators are relatively new technologies of governance that promise objectivity, efficiency, transparency and consistency. This paper examines rule of law indicators as a technology of power in Romania and identifies two... more
Rule of law indicators are relatively new technologies of governance that promise objectivity, efficiency, transparency and consistency. This paper examines rule of law indicators as a technology of power in Romania and identifies two main discourses. First, rule of law indicators are a technology of control by the European Union through the Cooperation and Verification Mechanism. Its disciplinary effects include (re)defining the rule of law as anti-corruption and judicial reform. Second, rule of law indicators are a technology of reform deployed by state and civil society actors unevenly and within distinct reformation domains. This domestic mobilization depends upon indicators’ value added and ability to deliver on promises of objectivity and impartiality.
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The paper analyzes the exceptionalism of housing during the early communist period in Romania, in particular the extent to which the regime’s ambivalent policies regarding housing undermined the overall political and ideological goal of... more
The paper analyzes the exceptionalism of housing during the early communist period in Romania, in particular the extent to which the regime’s ambivalent policies regarding housing undermined the overall political and ideological goal of dismantling private property. Focusing on takings, restitutions, and new constructions in the city of Timişoara and the surrounding re-gion, the paper emphasizes conflicting and inconsistent policies regarding housing and the con-sequences of these policies. Housing’s double meaning as home and asset further complicated the overall ideological mission of denaturalizing bourgeois private property, and allowed for the continuous relevance of pre-communist legal ideologies and property rights consciousness during this period. The paper is based on document and archival research conducted in the city of Timişoara, Romania, in 2007-2008.
Research Interests:
What happens to legal and rights consciousness when rights previously protected 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... more
What happens to legal and rights consciousness when rights previously protected 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 construction of new hegemonic legalities and power regimes. The article is based on extensive document and archival research.
Research Interests:
"For fifty years, communist states in Central and Eastern Europe tried to unmake the hegemony of private property and for the last twenty, post-communist policy-makers have worked equally hard to revive it through means such as... more
"For fifty years, communist states in Central and Eastern Europe tried to unmake the hegemony of private property and for the last twenty, post-communist policy-makers have worked equally hard to revive it through means such as privatization and restitution. The key assumption underlying each effort has been that the state largely determines law and legal culture. The dissertation challenges this assumption and investigates the extent to which the state influences ideas, practices and processes of using the law.
Drawing conceptually and methodologically from the disciplines of law, sociology, anthropology, political science and history, I examine the survival and reconstitution of private property during the communist regime in Romania at the intersection of state policies, ideologies and legal practices. I investigate the extent to which past property regimes continue to affect beliefs and everyday consciousness about law and contend that law was at the core of reshaping ideas and practices of property during the transition to communism in two significant ways. First, law was a site for continuities and changes in the legal model and mental map of property that resulted in a hybrid conception of private property, drawing from both pre-communist and communist sources. Second, law provided a partially autonomous and legitimate
terrain for competing property ideologies, creating a space where citizens engaged the state to resist its efforts and advance their property interests. As a case study, the study focuses on houses that were nationalized and expropriated by the communist regime in the city of Timisoara, Romania, from 1950 to 1965. The multi-method field research consists of document and archival research, including previously unknown archival material, court observation and interviews.
The contributions of this interdisciplinary study include clarifying the extent to
which political structures determine legal culture in a non-democratic regime and the impact of law in an authoritarian regime, producing findings about the operation and effects of law in everyday life under communism, and offering a better understanding of the opportunities and challenges of current transitions from communism in the field of politics and property."
Drawing conceptually and methodologically from the disciplines of law, sociology, anthropology, political science and history, I examine the survival and reconstitution of private property during the communist regime in Romania at the intersection of state policies, ideologies and legal practices. I investigate the extent to which past property regimes continue to affect beliefs and everyday consciousness about law and contend that law was at the core of reshaping ideas and practices of property during the transition to communism in two significant ways. First, law was a site for continuities and changes in the legal model and mental map of property that resulted in a hybrid conception of private property, drawing from both pre-communist and communist sources. Second, law provided a partially autonomous and legitimate
terrain for competing property ideologies, creating a space where citizens engaged the state to resist its efforts and advance their property interests. As a case study, the study focuses on houses that were nationalized and expropriated by the communist regime in the city of Timisoara, Romania, from 1950 to 1965. The multi-method field research consists of document and archival research, including previously unknown archival material, court observation and interviews.
The contributions of this interdisciplinary study include clarifying the extent to
which political structures determine legal culture in a non-democratic regime and the impact of law in an authoritarian regime, producing findings about the operation and effects of law in everyday life under communism, and offering a better understanding of the opportunities and challenges of current transitions from communism in the field of politics and property."
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This chapter examines the survival of private property during the early transition to communism in Romania at the intersection of state policies, ideologies, and legal practices. It focuses on petitions contesting urban housing... more
This chapter examines the survival of private property during the early transition to communism in Romania at the intersection of state policies, ideologies, and legal practices. It focuses on petitions contesting urban housing nationalization in the city of Timisoara between 1950 and 1965. I argue that petitions are partially successful acts of microresistance through law that contested the communist regime's concept of private property, played a role in halting further urban housing nationalization, undermined the regime's attempts at building legitimacy through legality, and challenged ideas about legal instrumentalism in a communist system.
Despite the ambivalent history of the domestic application of human rights in the United States, human rights increasingly offer important resources for American grassroots activists. Within the constraints of U.S. policy toward human... more
Despite the ambivalent history of the domestic application of human rights in the United States, human rights increasingly offer important resources for American grassroots activists. Within the constraints of U.S. policy toward human rights, they provide social movements a kind of global law "from below": a form of cosmopolitan law that subalterns can use to challenge their subordinate position. Using a case study from New York City, we argue that in certain contexts, human rights can provide important political resources to U.S. social movements. However, they do so in a diffuse way far from the formal system of human rights law. Instead, activists adopt some of the broader social justice ideas and strategies embedded within human rights practice.
In this article we examine the encounter between global human rights ideas and domestic discourses of civil rights and social justice, focusing on processes of translation and adaptation of women's human rights in two ethnographic sites... more
In this article we examine the encounter between global human rights ideas and domestic discourses of civil rights and social justice, focusing on processes of translation and adaptation of women's human rights in two ethnographic sites in New York City. The first site is a citywide coalition working for the adoption of a New York City human rights ordinance. The second site is an advocacy organization working on domestic violence issues. We find that the local adoption of human rights in New York City – the 'domestication' of human rights – takes place in two central sites: law and social movement. We further find that the process of translation takes place unevenly in the two sites, and it is driven primarily by the actors, mechanisms and technologies in the social movement arena. Overall, we witness the emergence of a domestic human rights movement as a new counter-hegemonic space, characterized by multiplicity in meanings, ideological heterogeneity and ambivalence from those engaged in its construction.
Research Interests:
Subverting Communism in Romania explores the role of law in everyday life and as a mechanism for social change during early communism in Romania. I focus on the regime’s attempts to extinguish private property in housing through housing... more
Subverting Communism in Romania explores the role of law in everyday life and as a mechanism for social change during early communism in Romania. I focus on the regime’s attempts to extinguish private property in housing through housing nationalization and expropriation. This study of early communist law illustrates that law is never just an instrument of state power, particularly over the long term and from a ground up perspective. Even during its most totalitarian phase, communist law enjoyed a certain level of autonomy at the most granular level and consequently was simultaneously a space of state power and resistance to power. The book draws from archives recently made available in Romania, which have opened up new perspectives for understanding a mundane yet crucial part of the modern human experience: one’s home and the institution of private property that often sustains it.