Mihaela Serban | Ramapo College of New Jersey (original) (raw)

Papers by Mihaela Serban

Law, Culture and the Humanities, 2024

This article examines law as mnemonic infrastructure, tracing how archival laws and policies in R... 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.

Law as Mnemonic Infrastructure: Archival Legal Discourses and Memory Battles in Romania, 2024

This article examines law as mnemonic infrastructure, tracing how archival laws and policies in R... 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.

Edward Elgar Publishing eBooks, Jul 14, 2023

Social Science Research Network, 2022

Law & Society Review, 2020

Social Science Research Network, 2003

East European Faces of Law and Society: Values and Practices, 2014

Journal of East European Law, 2002

Ten years after the collapse of the communist regime in Romania, the country has not fully confro... more Ten years after the collapse of the communist regime in Romania, the country has not fully confronted its past. Like other countries of the region, Romania has largely avoided political trials. The civil society has paid its symbolic tribute to victims of communist political persecution through books, public debates, and memorials. Institutionally, however, there has been silence. 1 In December 1999, the Romanian Parliament at last passed a law that begins this often painful process. 2 This paper analyzes this law from a 1 The activity of military and secret services after 1989 continue to be a constant problem in Romania. At present, there are no less than nine official secret services in Romania, and only one of them-the Romanian Service of Information-is subject to parliamentary control. Many security institutions are not subject to any form of civilian control. The Law on National Security, enacted before the adoption of the 1991 Constitution, sealed the Securitate files for fifty years (the law adopted in December 1999, however, explicitly provides that these provisions cannot preclude the application of the lustration law). A substantial number of former secret-service officers ventured into various forms of entrepreneurial activities without abandoning their strategic positions within the state administration, thanks in part to the 1991 law on national securoty archives. There also exist many private secret services, and apparently their information is procured for them by the official secret services. Former Securitate officers very likely staff these new services.

Romanian Journal of Society and Politics, 2001

The embodiment of twentieth century constitutionalism, 1 constitutional adjudication appears to b... 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

Social Science Research Network, Oct 9, 2020

Memory Studies, 2021

The article examines how the experiences of post-communist transitional justice policies could in... 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...

SSRN Electronic Journal, 2014

for their constant support; and to Lief Carter and Douglas Edlin for their insightful observation... more for their constant support; and to Lief Carter and Douglas Edlin for their insightful observations that helped me see the project in a new light.

SSRN Electronic Journal

This paper examines legal mobilization and resistance to efforts through law to delineate ethnic ... 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.

Communist and Post-Communist Studies

This paper explores the rise of rights-based regulation through litigation as a distinctive featu... 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.

Law & Social Inquiry, 2017

This article analyzes rights consciousness as distinct from legal consciousness, and uses the pos... 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...

Europe-Asia Studies, 2015

The paper analyzes the exceptionalism of housing during the early communist period in Romania, in... 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 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 Timişoara, Romania, in 2007-2008.

Studies in Law, Politics and Society, 2010

Journal of Romanian Studies, 2020

This paper examines legal mobilization and resistance to efforts through law to delineate ethnic ... 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 ...

Europe-Asia Studies, 2015

The paper analyzes the exceptionalism of housing during the early communist period in Romania, in... 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.

Law, Culture and the Humanities, 2024

This article examines law as mnemonic infrastructure, tracing how archival laws and policies in R... 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.

Law as Mnemonic Infrastructure: Archival Legal Discourses and Memory Battles in Romania, 2024

This article examines law as mnemonic infrastructure, tracing how archival laws and policies in R... 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.

Edward Elgar Publishing eBooks, Jul 14, 2023

Social Science Research Network, 2022

Law & Society Review, 2020

Social Science Research Network, 2003

East European Faces of Law and Society: Values and Practices, 2014

Journal of East European Law, 2002

Ten years after the collapse of the communist regime in Romania, the country has not fully confro... more Ten years after the collapse of the communist regime in Romania, the country has not fully confronted its past. Like other countries of the region, Romania has largely avoided political trials. The civil society has paid its symbolic tribute to victims of communist political persecution through books, public debates, and memorials. Institutionally, however, there has been silence. 1 In December 1999, the Romanian Parliament at last passed a law that begins this often painful process. 2 This paper analyzes this law from a 1 The activity of military and secret services after 1989 continue to be a constant problem in Romania. At present, there are no less than nine official secret services in Romania, and only one of them-the Romanian Service of Information-is subject to parliamentary control. Many security institutions are not subject to any form of civilian control. The Law on National Security, enacted before the adoption of the 1991 Constitution, sealed the Securitate files for fifty years (the law adopted in December 1999, however, explicitly provides that these provisions cannot preclude the application of the lustration law). A substantial number of former secret-service officers ventured into various forms of entrepreneurial activities without abandoning their strategic positions within the state administration, thanks in part to the 1991 law on national securoty archives. There also exist many private secret services, and apparently their information is procured for them by the official secret services. Former Securitate officers very likely staff these new services.

Romanian Journal of Society and Politics, 2001

The embodiment of twentieth century constitutionalism, 1 constitutional adjudication appears to b... 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

Social Science Research Network, Oct 9, 2020

Memory Studies, 2021

The article examines how the experiences of post-communist transitional justice policies could in... 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...

SSRN Electronic Journal, 2014

for their constant support; and to Lief Carter and Douglas Edlin for their insightful observation... more for their constant support; and to Lief Carter and Douglas Edlin for their insightful observations that helped me see the project in a new light.

SSRN Electronic Journal

This paper examines legal mobilization and resistance to efforts through law to delineate ethnic ... 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.

Communist and Post-Communist Studies

This paper explores the rise of rights-based regulation through litigation as a distinctive featu... 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.

Law & Social Inquiry, 2017

This article analyzes rights consciousness as distinct from legal consciousness, and uses the pos... 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...

Europe-Asia Studies, 2015

The paper analyzes the exceptionalism of housing during the early communist period in Romania, in... 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 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 Timişoara, Romania, in 2007-2008.

Studies in Law, Politics and Society, 2010

Journal of Romanian Studies, 2020

This paper examines legal mobilization and resistance to efforts through law to delineate ethnic ... 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 ...

Europe-Asia Studies, 2015

The paper analyzes the exceptionalism of housing during the early communist period in Romania, in... 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.

Constitutionalism in Transition: Africa and Eastern Europe, 2003

In early 1990s, several dozen countries adopted new constitutions. This process primarily include... more In early 1990s, several dozen countries adopted new constitutions. This process primarily included two regions. In one, sub-Saharan Africa, the constitution-making process is still under way. In the second region, which includes countries that are recovering their genuine independence−the former member-states of the Warsaw Pact and the states that emerged after the collapse of the USSR−this process has already come to an end. So far, these processes have developed independently, as there was no exchange of opinions or experience between researchers, academics, policy makers, and the leaders of the civil society addressing practical aspects of constitutionalism and governance in these two geographical regions. There are differences and similarities between these two regions. Some of their problems are common, while others are specific for either Africa or post-communist Europe. In addition, these regions are also internally different. The constitution-making processes included states with very different histories, from countries with ancient traditions in limiting the governing authorities by means of strong organizations of civil society, to states whose history knew only absolute political regimes. In many regions of Africa, Eastern Europe, and Central Asia which are involved in the process of establishing new states, there was little, if any, historical experience connected with the independent governance of one's own, independent country. Therefore, there was neither awareness, nor tradition to which one could refer. In Africa and in post-Soviet Central Asia, but also, for example, in Belarus, state boundaries were fixed only several generations earlier, often arbitrarily and irrespective of ethnic, racial, or language divisions. With time, these states began to genuinely identify themselves with the imposed political system, but societies of these states differ from the nations of Western Europe that have been living within the boundaries of their own national states for many centuries. The absence of experience with one's own democratic state and the ensuing lack of political culture trigger the absence of awareness of the consequences of political choices which are

Subverting Communism in Romania explores the role of law in everyday life and as a mechanism for ... 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.

Constitutionalism in Transition: Africa and Eastern Europe, 2003