jtuckermohlfinal

jtuckermohlfinal - Property Rights and Transitional...

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Property Rights and Transitional Justice: Restitution in Hungary and East Germany Jessica Tucker-Mohl May 13, 2005 Property Rights Under Transition Prof. Annette Kim
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“How can an emerging democracy respond to public demands for redress of the legitimate grievances of some without creating new injustices for others?” 1 The past 50 years have been a period of tremendous change in the way that many people in the world are governed. When a new government attempts to correct for rights violations of the prior regime, policies for the transition often reflect considerations of “retroactive justice.” 2 This paper attempts to explore how different applications of retroactive (or “transitional”) justice regarding land expropriations lead to different land restitution programs in different countries. In Section I, this paper will lay out the link between transition and changing property rights regimes. In section II, land reform policy options for transitioning countries are described, focusing on restitution and factors that might influence policy design. In section III, case studies of Hungary and the former East Germany are presented as two countries that included land restitution policies as part of their transition. The paper concludes in section IV with implications from restitution efforts for other policy areas. I. TRANSITION Literature on transitions in property rights regimes portrays property rights as socially constructed reflections of a country’s economic systems and social values. Demsetz would argue that legal rules around property rights “evolve” to arrive at the most efficient set of rules. 3 Merrill, however, would refine Demsetz’s thesis to allow social norms and 1 Solomon, Richard H. “Introduction,” from Transitional Justice, ed. Kritz, Neil J., (1995) p. xxiii. 2 Morvai, Krisztina. “Retroactive Justice based on International Law: A Recent Decision by the Hungarian Constitutional Court,” from Transitional Justice, ed. Kritz, Neil J., (1995) p.661. The term “retroactive justice” is a translation of a term used in a Hungarian Constitutional Court ruling allowing statutes of limitations to be extended in order to prosecute specific crimes that occurred under communism. “Retroactive justice” will be used broadly to apply to all applications of historical justice considerations, while “transitional justice” refers more narrowly to justice considerations regarding a prior regime. 3 Demsetz, Harold. “Towards a Theory of Property Rights.” 57 American Economic Review Papers and Procedures 347-358 (1967). 1
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interest group theory to affect a property rights system in a given society. 4 In the past 50 years, the world has experienced regimes that have substantially weakened property rights. This weakening has often resulted in expropriation of individual property.
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jtuckermohlfinal - Property Rights and Transitional...

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