Legal pluralism and land ownership in Shenzhen, China

Language: Englisch
Format: online
Registration and contact: All colleagues who are interested in this topic are warmly welcome, please contact Cheng Jing directly (Email: 1062065545@qq.com). The papers will be made available after registration.

The following two texts will be discussed: 
1. Peter Ho: "Debunking the Chinese unitary state via legal pluralism: Historical, indigenous, and customary rights in China (1949–present)"
 
In the literature on legal pluralism, there is minimal attention paid  to the state – apart from being generally conceptualized as a unitary  entity vis-à-vis an otherwise legally pluralist society. However, this  perspective has been critiqued by a modest, yet growing, group of  scholars. In furthering the debate, this article postulates that states  are constituted by competing semi-autonomous fields and are thus, to  varying degrees, inherently inconsistent, contradictory, and pluralist  in nature despite the superficial conveyed imagery of unity. To  substantiate this thesis, the article: 1) equally applies the concepts  of legal pluralism as hitherto applied to issues such as historical  rights, indigenous peoples, and customary law; 2) employs this exercise  to deconstruct what is perhaps one of the world’s most archetypal  unitary states: the Peoples’ Republic of China. As a strongly,  centralist state governing a substantially sociocultural and ethnically  diversified society, China provides a noteworthy case of the workings of  what is termed ‘‘state legal pluralism”. To demonstrate this, the  article examines a critical right (ownership) around an equally critical  resource (land). This is achieved with reference to different,  coexisting legal orders that are considered highly sensitive and  potentially explosive in China: historical, indigenous, and customary  rights. The analysis is based on a comprehensive review of laws and  policies, National People’s Congress reports, verdicts of the Supreme  People’s Court, (local) regulations, and court cases. It covers a period  exceeding 70 years from 1949 to 2020. The data analysis ascertains that  the different organs of the Chinese state constitute competing  semi-autonomous fields that, at times, put forward rules in flagrant  contradiction with state law up to the point of upholding  pre-revolutionary, private land ownership.

2. C01: "The Three Modes of Appropriation Lessons of Chinese Practice for Theorizing Property"
 
Motivated  by our empirical research on an urban village in Shenzhen, China, the  paper introduces the distinction of three modes of appropriation:  property, possession, and ownership. In the land regime of urban  villages, we observe significant family resemblances with conditions in  Late Imperial China, which we characterize as ‘state-centred legal  pluralism’. In state-centred legal pluralism, customary law co-exists  with state law, with significant deviations, including illegality; yet  the state recognizes customary law as legitimate concern. A similar  constellation characterizes the urban villages, such as in the so-called  ‘small property housing’. Our three-modal approach explains the complex  institutional dynamic of forms of appropriation that emerge under  state-centred legal pluralism. In particular, we distinguish between  statist property and contractual property, resulting in the inversion of  the classical Polanyian approach to embeddedness: contractual property  (without legal property title) is embedded in structures of social  capital (kinship groups and the associated shareholding cooperatives)  and thereby enables market exchange by contracting, whereas statist  property (with legal title) manifests social and political orders beyond  the market. We track the current evolution of modes of appropriation,  which result in the emergence of a capitalist real estate sector based  on state ownership of land, after nationalization of former collective  property, with shareholding cooperatives as one of the key players.