Land Law in Chinese History

Abstract

Although land law or “real property law” is but one of several branches of what scholars commonly call “economic law,” or laws that regulate everyday economic activity, its history has drawn, over the past several decades, an unusually large amount of attention from legal theorists, economists, and comparative scholars of all methodological orientations. This has been especially true within the field of Chinese legal history: few scholars outside the field have any clear sense of pre-modern, early modern, or even modern Chinese family law, the law of personal injury, or even criminal law, but a much larger number will likely have some impression of historical Chinese land law, and may even have an educated opinion about it. This is not because land law was any more important to everyday socioeconomic life than those other bodies of law, but rather because land law has played a much larger role in theoretical and comparative scholarship, particularly in scholarship that seeks to explain global economic divergence—specifically, the divergence between China and the West in the 18th and 19th Centuries. Although this literature has perpetrated its share of myths about Chinese property institutions, much progress has been made over the past few decades, to the point where something approaching an academic consensus on core institutional features has emerged. This chapter outlines these core features of Chinese land law, focusing primarily on the late imperial era, and provides a short summary of how the field arrived at them. Whereas it was once thought that Chinese property rights were comparatively less secure or less alienable than Western European property rights, it now seems unlikely that major differences existed at this general level. They did exist, however, in the finer institutional details of tenancy law and collateralization instruments, and potentially in inheritance law as well. In these latter features, Chinese land law tended to produce institutional incentives that leveled and fractured the pattern of rural landholding, thereby reinforcing the economic dominance of household-level production throughout the late imperial era, and well into the 20th Century. The chapter then discusses relatively recent trends in the academic literature, reaching back to 1970s and 1980s, when the study of Chinese land law became deeply intertwined with debates over economic divergence. It concludes by briefly pondering the costs and benefits of such intertwinement, and what it means to study “the history of Chinese land law” as a consolidated subject.