Poverty of property rights

Author: Deng Jianpeng
Publisher:
Publish Date: 2006-12-01
Features: Deng Jianpeng, a Ph.D. in law from Peking University, has entrusted me to write a preface for his legal history monograph. This is, of course, an obligation I cannot refuse, as we share a connection as fellow natives of Jiangxi and alumni of Peking University. This bond seems to extend to a shared interest in the moral and scholarly achievements of Hong Hao and Hong Mai, the father and son from Hongyan Town in Leiping. Additionally, there is a delightful anecdote of how our mutual friend, Professor Hisao Takeda of Kyoto University Law School, facilitated our connection. After carefully reviewing the manuscript, I found that despite the grand scope of the topic, which might initially give the impression of being overly historical, the author actually places great emphasis on the organization of historical materials and empirical analysis. His research demonstrates commendable strengths in textual criticism, documentation, deduction, comparison, and legal reasoning. The text also exudes the unique spiritual essence of southern Jiangxi, a land renowned as a "literary and poetic region."
By the way, to clarify, I have had no personal interactions with Jianpeng to date, so this evaluation is in no way influenced by personal ties or reluctance to criticize. As is well known, traditional state orders were based on obligations rather than rights, a proposition that is not novel. Examining social structures from the perspective of the conflict between officials and the populace even evokes a sense of "familiarity with the return of spring," as the paradigms and methods of Chinese legal history research have undergone significant changes in recent decades: Baor·Kohn advocated for a "China-centered" perspective while rejecting the binary of "tradition versus modernity," Huang Zongzhi argued that Chinese judicial operations exist in an "intermediate field" between officials and the populace, and Du Zangqi sought to integrate history with the social sciences to construct a new system of social history. However, Jianpeng manages to pour fragrant new wine into an old bottle, pointing to what seems to have been a settled matter and declaring, "The clamor is loud, and the dust has settled." Upon closer inspection, indeed it has. This leads to the question, "Why does the dust settle?"
Thus, the author calmly presents the newly discovered Zhangjiashan Han bamboo slips, the Zoumalou Wu bamboo slips, the Huangyan litigation archives, notes, and case files, each in turn, and contrasts them with canonical institutions, historical and philosophical texts, as well as contemporary research findings, offering some novel and insightful interpretations or judgments. For example, regarding the historical concept of civil rights, this book focuses on the most basic form of property in agricultural societies—land and housing—and examines the prominent feature of China's economic system transformation—the early emergence of private land ownership and real estate transfer relationships. The core question remains: Why could private land rights not escape frequent government interference, even exploitation? Based on established historical views and new insights, the author points out that ancient China's land was nominally privately owned but, in reality, monopolized by the state. In other words, the dynasty was the ultimate owner of all land, and land control formed the most stable foundation of imperial fiscal revenue. Under such conditions, landlords and tenant farmers largely held only perpetual contractual rights, while true private land, in terms of scale and impact on the overall livelihood, was not significant. The sale of land rights was also constrained by state policies that suppressed land consolidation in industries and redistributed wealth, making it far from entirely free.
What is particularly noteworthy here is the description of the cyclical system of the so-called "officially owned" versus "privately owned," and "prosperity" versus "poverty." Although the Italian theory of partitioned ownership during the Renaissance proposed a framework of "dominium utile" (useful ownership) and "dominium directum" (direct ownership) in opposition, their rights and obligations were clear and fixed. In China, however, the "redistribution of surplus and compensation for deficiency" was not only recognized institutionally but also encouraged by policy. It is precisely this dynamic and fluid structure of land ownership that made it impossible to develop a concept of definite, stable, or even absolute private rights. It also made it unnecessary for the state to rely solely on taxation as its administrative revenue source, as it could adopt other methods to meet the needs of bureaucratic operations. Consequently, Chinese dynasties lacked the motivation to provide sufficient "public goods" or administrative services as compensation for taxation, and to some extent, this reduced or alleviated the potential pressure on the people to demand representative participation in political decision-making. Thus, the author's conclusion, based on historical analysis, is that land ownership is a result, not a cause, of social status, and that "property rights play a passive role in Chinese political discourse."
From the existing examples and narrative structure, we can see that traditional Chinese land rights were largely defined in terms of exchange value (initially through tenancy contracts, later through sales contracts), severely limiting the role of B·Windscheid's emphasis on the "force of will." Relatedly, China's economic perspective has always been dominated by profit-seeking through land-based leases. The state restricted transaction conditions between itself and the gentry landowners or small-scale farmers, and the use of force by state organs to alter transaction terms was limited to survival rights, contractual agreements, or the benevolence of the powerful. In this sense, the state itself functioned as a super "rent-collecting agency," revealing a clear profit-seeking tendency, often disregarding accusations of "competing with the people for profit."
Beyond this, the state's profit-seeking nature was also reflected in its complete monopoly over highly profitable industries through state operations or monopolies. Even when providing public goods such as equal distribution, price stabilization, or disaster relief, it always adopted commercialized operational methods. In fact, starting from the institutional design of the Zhou Li, the phrase "facing the south, facing the market" had already been settled, forming a political structure with a strong resemblance to the market economy, albeit under authoritarianism, which also led to the flaw of blurring the distinction between public and private. Since the monarch "took my great private as the great public of all," the subjects found it difficult to develop a spirit of "sacrificing the self for the greater good" or a sense of social responsibility, even if they did, it was rare or faint.
The book's keen insight lies in recognizing the pivotal role of taxation in the relationship between private rights and public law through historical phenomena such as the equal-field system and the free trade of land use rights. As the Japanese modern thinker Fukuzawa Yukichi metaphorically put it, "The state is like a trading company selling peace at the price of taxes," and this seems equally applicable to Chinese historical research. From this, we can infer that if Chinese dynasties did not rely entirely on taxation for revenue, the people should have been able to purchase administrative services at a low cost; conversely, if taxes were heavy, the people should have demanded high-quality administrative services. However, neither of these scenarios actually occurred. Why? According to my understanding of the book, it is precisely because Chinese rulers have long adopted a monopolistic policy of "profit from a single source," controlling the right to dominate land and the management rights and monopoly rights of high-profit industries. As a result, the state's fiscal revenue had direct and certain sources and could be maximized according to the authorities' wishes and monitoring capabilities. However, historical facts such as "land as a burden" show that excessive and arbitrary strengthening of government's revenue collection capacity could, in turn, undermine the reasonable foundation of the relationship between taxation and finance, as well as other institutional conditions of the state.
The state's monopoly over land and industries also raises a question of mindset: it makes the rulers feel good about themselves, leading them to act and speak based on the logic that "the people do not support the government, but the government supports the people," making it impossible to truly form and implement the concept of "public servants" providing administrative services. It is also difficult to ensure that financial expenditures for public affairs (such as handling litigation cases) are properly allocated. After examining the ecosystem of substantive private rights through land, the author turns his attention to procedural rights of petition, particularly the paradox of coexisting "litigiousness" and "aversion to litigation." Here, it is interesting to note the underlying implication of the differences in fiscal expenditures under China's characteristic taxation system.
Ideally, since the government can maximize tax revenue and litigation is almost the only daily service provided to the people by the government, judicial funds should be ample. However, due to the state's monopoly over land and industries, there was no concept of raising funds from the private sector (through taxation) to meet public needs while simultaneously compensating private rights with institutionalized protection and services. As a result, an odd pattern of "maximized power, minimized responsibility" emerged, leading to such absurdities as meager judicial funds, difficulty in openly collecting additional fees (according to Jianpeng's research, a formal litigation fee system was not established until 1907), and strict prohibitions on litigants hiring their own agents to maintain the principle of "no double interpretation of law." The relevant authorities were also reluctant to handle civil cases involving only private interests.
Against the backdrop of overly narrow access to civil litigation, parties had to exaggerate the severity of disputes to attract government attention and break the deadlock of official inaction, transforming the issue of private rights into a major case concerning public order and morality, much like the popular saying among petitioners today: "small disturbances lead to small resolutions, big disturbances lead to big resolutions." This easily led to false accusations and incitement, and also provided various justifications or grounds for suppressing petitioners and their agents.
Analyzing civil rights and civil litigation as private law phenomena from the perspective of public law in the relationship between taxation and finance is a very novel perspective raised by this book. Given China's tradition of blurring or incompletely distinguishing between public and private, there were almost no issues of pure private law significance. Most institutional practices remained stuck at the intersection of private rights and public power. To avoid infringement or seek redress, private rights had to proactively adopt some public law color. For example, by "hanging onto" state power to gain attention and protection, which in turn left room for arbitrary interference by officials and the exploitation of private interests. The same was true for intellectual property. Through abundant examples and meticulous analysis, the author demonstrates that although private demands for copyright protection existed long ago, the government paid little attention to protecting legitimate private interests, focusing instead on publishing control laws related to social order. As a result, people had no choice but to "paint private interests in the colors of imperial interests," to put it bluntly, "using public means to serve private ends."
It is evident that the author has put in considerable effort in collecting historical materials and organizing, analyzing, and deducing them, making the references to examples and previous scholarship rich and diverse. The descriptions, explanations, and personal insights are also enlightening and worth referencing.
Regarding the themes and content of each section, although many prior research achievements already exist, this work explores the complex relationship between public and private, between the state and individuals, at different levels such as taxation, fiscal expenditures, and market mechanisms. It examines the rationality of institutional design in the dual transformations of privatization of public power and publicization of private rights, leaving a fresh impression. It must be admitted that the book is not perfect and still has some areas that require further refinement and improvement. However, these are merely minor flaws in form and technique, which do not diminish the overall academic significance and value of the work.
What is particularly commendable is the author's strong concern for reality, which integrates historical research with contemplation on the development of law and society. He places great emphasis on empirical verification of objective causal relationships and the pursuit of regular phenomena. I believe readers will benefit greatly from this book.