Title: The Evolution of Relational Property Rights: A Case of Chinese Rural Land Reform
Abstract: (ProQuest: ... denotes non-US-ASCII text omitted.)I. INTRODUCTIONThe most notable, or at least the most noted, form of property evolution has been the transfer of exclusive from collectives to individuals and vice versa. The competition between individual and collective property, according to Harold Demsetz, was a main theme of the 20th century.1 Attention has been primarily on the radical property reforms that resulted in the shift of exclusive control over resources from one to another, such as the farm collectivization in Soviet Union or the establishment of the People's Communes in Mao's China and their reversals.2 It is undeniably true that a sudden and fundamental change in the form of ownership of an entire society or economic sector is exciting. That is perhaps why the literature on the evolution of property has focused on the transition from communal to private, or the reverse.3 Such radical moments, however, constitute only a small part of history. For the most part, property evolve quietly and incrementally, which is hard to explain if we take exclusive as the core of property, or, to put it more generally, if we are focusing solely on the question of who owns the things.4This Essay argues that the right to exclude is not always at the heart of property evolution, and, further, that other sticks in the of property can play a central role in property evolution. As we demonstrate with the Chinese example, the metaphor of bundle of rights can better capture the nuanced, flexible, and idiosyncratic processes that have actually characterized the evolution of property rights.To describe the evolution of property in China, we employ the concept of property. It is a concept that is heavily influenced by Joseph William Singer's relations model 5 and Ian Macneil's relational contract6 and, in particular, their emphasis on the determinative role of social relations in the construction of property and contract rights. The of sticks metaphor is at the heart of property because it recognizes that property can be, and often are, disaggregated as they adapt to changing social, economic, and technological demands. As we will show in the context of the reform of Chinese rural land, the combination of the metaphor of separable interests-the sticks in the bundle-and the dependence of property interests on social relationships can explain the evolution of property more accurately than a perspective that stresses a single central meaning of property.The core of our argument is simple: it is analytically more accurate to define each stakeholder's specific interests in rural land than to answer the question of legal title. Identifying the distinct powers of developing and transferring rural land, for example, tells us more about control of the land than the right to exclude. What's more important, when property law lags behind property relations, the latter will prevail and shape the eventual allocation of economic, social, and political powers. It is the social relations of particular villages in similar or identical institutional structures that determine their future development. Different villages make different and even opposite property arrangements. The normative implication is that property can function without property law, but property law cannot function without embedding itself in social relations.The rest of this Essay is structured as follows: Part II criticizes the in rem view of the evolution of property rights. Part III develops the concept of property and evaluates its compatibility with the bottom-up evolution of property rights. Part IV utilizes the concept of property to analyze Chinese rural land reform. Part V concludes.II. IN REM PROPERTY AND THE EVOLUTION OF PROPERTY RIGHTSWho is eligible to serve as an owner of property? Individual persons, close-knit communities, and governments all can and do own property. …
Publication Year: 2015
Publication Date: 2015-08-01
Language: en
Type: article
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Cited By Count: 7
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