Poverty of Property Rights - A Study of Traditional Chinese Civil Law

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 certainly an obligation, as we share a connection as fellow Jiangxi natives and alumni of Peking University, and we seem to have a common interest in the moral and literary achievements of Hong Hao and Hong Mai, the father and son from Hongyan Town in Leiping. Additionally, there is a delightful anecdote about how our mutual connection was facilitated by the introduction of Professor Hiroaki Terada, a former colleague at Kyoto University Law School. After carefully reviewing the manuscript, I found that despite the grand title, which might initially give the impression of overly historical analysis, the author actually places great emphasis on the organization of historical materials and empirical analysis. His research includes commendable strengths in textual criticism, documentation, deduction, comparison, and legal reasoning. The text also exudes the unique spiritual essence of "Literary Homeland, Poetic Kingdom" in southern Jiangxi.
By the way, I have not had any personal interactions with Jianpeng to date, so this evaluation is absolutely not based on personal ties or any sense of obligation. As is well known, traditional state orders were based on obligations rather than rights, and this academic proposition is not new. Examining social structures from the perspective of the conflict between officials and the people even evokes a sense of "familiar faces returning," as the paradigms and methods of Chinese legal history research have undergone significant changes in the past one or two decades: Baor & Coen advocated for a "China-centered" perspective while rejecting the dichotomy of "tradition versus modern," Huang Zongzhi argued that Chinese judicial operations exist in an "intermediate field" between officials and the people, and Du Zangqi attempted to combine history with the social sciences to construct a new system of social history. However, Jianpeng managed to pour fragrant new wine into an old bottle and pointed to what seemed to be a settled issue, declaring, "Much ado, and dust has settled." Upon closer inspection, indeed. Then came the question, "Why the dust?"
Thus, the author calmly presented the newly discovered Zhangjiashan Han bamboo slips, Zoumalou Wu bamboo slips, Huangyan litigation archives, notes, and case files, one by one, and compared and verified them against canonical institutions, historical texts, and contemporary research findings, making some innovative interpretations or judgments. For example, regarding the historical concept of civil rights, the book focuses on tiange (fields and houses), the most basic form of property in agrarian society, and highlights the prominent feature of China's economic system—early-maturing 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 actually monopolized by the state. In other words, the dynasty was the ultimate owner of all land, and land control was the most stable foundation of imperial finances. Under this premise of denying private land ownership, landlords and tenant farmers largely held only perpetual contractual rights, while true private land, in terms of scale and impact on the general population, was not significant. The sale of land rights was also constrained by state policies that suppressed land consolidation in industries and redistributed wealth, meaning it was not entirely free.
What is particularly noteworthy here is the description of the cyclical system of the so-called "officially owned" versus "privately owned," and "prosperous people" versus "poor people." 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, the rights and obligations of the two were clear and fixed. In China, however, the "redistribution of surplus to compensate for deficiency" was not only recognized institutionally but also encouraged by policy. It is precisely this dynamic and adaptable structure of land ownership that made it impossible to develop a concept of definite, stable, or even absolute private rights, and it also made it unnecessary for the state to rely solely on taxation as an administrative revenue source. Instead, it could adopt other methods to meet the needs of bureaucratic operations. Thus, Chinese dynasties lacked the motivation to provide sufficient "public goods" or administrative services as compensation for taxation, and to a certain extent, they were exempted or reduced from the potential pressure of the people demanding representation in political decision-making.
Therefore, the author's conclusion, based on historical analysis, is that land ownership is a result, not a cause, of social status, so "property rights play a passive role in Chinese political discourse." From existing examples and the 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), and B. Windscheid's emphasis on the power of will was greatly limited. Relatedly, China's economic perspective has always been based on profit-driven land leases. The state restricted transaction conditions between itself and gentry landlords or small-scale farmers, and the idea of state agencies changing transaction conditions through force was limited to survival rights, contractual agreements, or the benevolence of the powerful. In this sense, the state itself became a super "rent-collecting institution," revealing a very clear profit-seeking nature, often disregarding accusations of "competing with the people for profit."
In addition, 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, and disaster relief) to society, it always adopted commercial practices. In fact, starting from the institutional design of the Ritual of the Zhou Dynasty, "facing the east and facing the market" had already been settled, forming a political structure somewhat close to market economy and leading to the flaw of mixing public and private interests. 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 small self for the greater good" or a sense of social responsibility, even if they did, it was rare or weak.
The book's insight lies in recognizing the key or pivot point in the relationship between private rights and public law through historical phenomena such as the equal-field system and the freedom of land use rights transactions. According to the metaphor of the Japanese modern thinker Fukuzawa Yukichi, "the state is like a merchant company selling security at the price of taxes"—this seems 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 situations actually occurred. Why? According to my understanding of the book, it is precisely because Chinese rulers have always adopted monopolistic policies of "profit from one source," controlling the right to dominate land and the right to operate and monopolize high-profit industries. As a result, the state's 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" showed that excessive and arbitrary strengthening of government's revenue collection capabilities could also reverse and 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 problem of mindset, making rulers feel good about themselves and leading them to act and speak according to the logic of "the people do not support the government, but the government supports the people." This made it impossible to truly form and implement the concept of "public servants" providing administrative services, and it was also difficult to ensure that financial expenditures for public affairs (such as litigation cases) were used properly. After examining the ecosystem of substantive private rights through land, the author turned his attention to procedural rights of petition, particularly the paradox of coexisting "litigiousness" and "aversion to litigation." Here, it is interesting to note the subtext about the differences in fiscal expenditures under China's characteristic taxation system.
Ideally, since the government could maximize tax revenue and litigation was almost the only daily service provided to the people by the government, judicial funds should have been sufficient. However, due to the state's monopoly over land and industries, it did not collect funds (taxes) from the private sector to meet public needs while simultaneously providing institutionalized protection and services to private rights. As a result, a strange pattern of "maximized power and minimized responsibility" emerged, leading to such absurdities as meager judicial funds, difficulty in openly raising additional taxes (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." In fact, relevant authorities were also reluctant to handle civil cases involving only private interests.
Against the backdrop of overly narrow civil litigation doors, 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 ethics, just like the popular saying among petitioners today, "small disturbances lead to small solutions, big disturbances lead to big solutions." This easily led to false accusations and incitement, and also provided various justifications or legitimacy for suppressing petitioners and imposing penalties.
Analyzing civil law rights and civil litigation as private law phenomena from the perspective of the relationship between taxation and finance, as presented in this book, is a very novel viewpoint. Since traditional Chinese culture blurred the distinction between public and private or did not fully separate them, there were almost no issues of pure private law significance, and most institutional practices remained stagnant at the intersection of private rights and public power. Private rights had to proactively adopt some public law characteristics to avoid infringement or seek redress. For example, by "attaching" to state power to gain attention and protection, which further facilitated arbitrary interference by officials and the exploitation of private interests. The same was true for intellectual property. Through rich examples and meticulous analysis, the author proves that although private demands for copyright protection existed long ago, the government paid little attention to protecting private legitimate interests and focused only on publishing control laws related to social order. As a result, people had no choice but to "paint private interests with the colors of imperial interests," to put it bluntly, "using public means for private gain."
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. While the themes and arguments of each part have already been explored in many existing studies, this work explores the complex relationships between public and private, state and individual, at different levels—taxation, fiscal expenditures, and market competition mechanisms. It questions the rationality of institutional design through dual transformations of public power privatization and private power publicization, leaving a fresh and distinctive 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 that the author's strong concern for reality combines historical research with contemplation on the development of law and society, paying special attention to empirical verification of objective causal relationships and the pursuit of regular phenomena. I believe readers will benefit greatly from this book.