EAI Fellows Program Working Paper Series No.25

Author

Susan Whiting (Ph.D, Michigan; B.A. Yale) is Associate Professor of Political Science and Adjunct Associate Professor of Law and International Studies at the University of Washington in Seattle. She specializes in Chinese and comparative politics, with particular emphasis on the political economy of development.

Her first book, Power and Wealth in Rural China: The Political Economy of Institutional Change, was published by Cambridge University Press in 2001. She has contributed chapters and articles on property rights, fiscal reform, governance, contract enforcement and dispute resolution to numerous publications. She has done extensive research in China and has contributed to studies of governance, fiscal reform, and nongovernmental organizations under the auspices of the World Bank, the Asian Development Bank, and the Ford Foundation, respectively. She, along with colleagues in the law school, is participating in a project on access to justice and legal aid provision in rural China. Professor Whiting’s current research interests include property rights in land, the role of the courts in economic transition, as well as the politics of fiscal reform in transition economies. Among her courses, she teaches Comparative Politics, Chinese Politics, Qualitative Research Methods, and Law, Development, & Transition, a course offered jointly in the Department of Political Science, the Jackson School of International Studies, and the Law, Societies and Justice Program.

This paper was submitted to "EAI Fellows Program on Peace, Governance, and Development in East Asia" supported by the Henry Luce Foundation based in New York. All papers are available only through the online database.

Introduction

Does formal law matter in determining who controls land rights? Property rights in land are an increasingly valuable asset in rural China. In asserting and defending their claims to land, rural residents, in principle, have recourse to a new body of “rights-protective” legislation and a rapidly developing system of courts (Fu 2009). However, there exist competing sources of law-like authority in this arena, namely the local Communist party-state and the semi-autonomous village. This reality can be conceptualized as a situation of legal pluralism, with the coexistence of multiple forms of official and unofficial ordering/regulation. This study finds that the interaction of these different forms of law-like authority over the land rights of Chinese farmers produces two significant results. First, such legal pluralism limits the impact of formal state law embodied in the Land Management Law, the Rural Land Contracting Law and the Property Law. Second, the situation of legal pluralism works to divert conflict over land rights away from the state itself, shielding the state from challenges to its power and authority.

The paper focuses on land takings disputes in which the state requisitions arable land for conversion to real estate or industrial development. Yu Jianrong recently identified these rural land conflicts as “the focal problem of rural China (Yu 2009).” Indeed, tensions over rural land have the driven the issue of land rights to the top of the policy agenda of the Chinese party-state. In 2007, the State Council initiated a nationwide campaign to end violations of land contracting rights. Earlier State Council documents had already expressed concern about the increasing number of “mass incidents involving contracted land.” Concerns about instability arising from land disputes are echoed all the way down to the county level.

In the context of land takings, the local Communist party-state—one source of law-like authority—seeks to generate substantial rents (in the form of land transfer fees) from the non-agricultural development of arable land, often with disregard for formal state law and yet tolerated by the state. The village committee/assembly—another source of law-like authority—seeks to limit eligibility for monetary compensation for requisitioned land and to limit eligibility for reallocation of remaining village land to a select group of insiders defined by village tradition.

Formal state law—a third source of law-like authority—sets forth yet another set of principles/standards for land takings, including land use and land compensation standards. The state, in many cases, escapes direct legal challenge. At the same time, the local party-state relies on fat land-transfer fees to fulfill under-funded state mandates, and some villagers benefit disproportionately in the allocation of land and compensation. Although villagers do turn to the local courts for recourse in land takings disputes, most instances of litigation are civil cases reflecting disputes over who’s eligible for land and compensation rather than administrative cases challenging the legality of the taking itself or challenging the level of total compensation to the village. At issue are village norms and traditions, as villagers fight over the distribution rather than the size of the land-compensation pie. Moreover, the state allows this battle over distribution to occur by implicitly recognizing traditional village norms, even when they contravene formal state law. As Yu Jianrong (2009) writes of rural farmers, “the most notable characteristic of rights defense activities is that they are battles over financial interests and are not battles over power. Said more simply, it’s all about the money… they just want money. They don’t want your political power, nor do they want your position as an official.” As a farmer interviewed for this study highlighted, “Everyone wants higher quality land, and everyone hopes to receive more land, but in the village there are a lot of people and little land; so, conflicts arise (Author’s interview _).”

Theoretical Grounding

Theoretically, legal pluralism is a useful lens through which to view the dynamic interaction of plural legal orders (Merry 1988; McCann 1994; Galanter 1983). Merry (1988), in her oft-cited review of legal pluralism, identifies two types of legal pluralist analysis—one, reflecting the experience of colonial rule over “traditional” societies, and the other, identifying multiple sources of law-like authority within advanced capitalist regimes. “Legal order is pluralistic… Not only is official state law a maze of diverse, indeterminate, and often contradictory legal traditions, but in addition a multitude of relatively autonomous ‘indigenous’ law traditions contend for preeminence within the many subcultures and institutional terrains of society (Galanter 1983b as cited in McCann).” Liu Sida (2006, 79) suggests that the experience of post-socialist systems constitutes a new, distinct type in which “the coexistence of Western legal institutions, socialist political/economic system, and local traditional culture presents new patterns of interactions between [sic] multiple sources of law.” Furthermore, he calls for more studies of “the interactions between state law and local social and legal systems in micro-level social settings (Liu 2006, 79).” Zhang Jing (2003) similarly identifies competing norms in the specific context of rural land-use conflicts in China: households, villages, and local governments all uphold different principles, each claiming legal status. In her view, such conflicts devolve into struggles over power and interest, and, as a result, there is no single, identifiable legal norm by which such disputes are consistently resolved. Her perspective is consistent with studies of legal pluralism, which find that plural legal orders often limit the effectiveness of formal state law. In the view of Zhu Suli (2000), China is institutionally and professionally unprepared for thorough implementation of formal state law at the grassroots of rural society. Rather, he advocates relying on traditional norms upheld not by professionally trained judges but by judges deeply embedded in local communities. He Weifang, by contrast, regards Zhu’s proposals as tantamount to abandoning the project of building formal state law altogether.

Beyond limiting formal state law, situations of legal pluralism may—surprisingly—promote the power of the regime itself rather than the rights of constituent groups. As Henry (1985, 306) points out, some plural legal orders “serve to reinforce existing social arrangements and to preserve the stability of the state rather than to reallocate power between groups.” Similarly, analyzing the context of globalization, Gad Barzilai (2008) highlights the place of political power in legal pluralist contexts. He lays bare “the imagined separation between state law and non-state legal orders, analyzing why state power is being maintained and how it is strategizing legal pluralism (Barzilai 2008, 399).” This perspective is consistent with the notion from the institutional literature that complementary institutions embodying complementary norms are necessary to achieve a coherent and effective ‘rule of law’ (Haggard).

Methodology

This paper draws on a multiple-method research design, including survey, interview, and documentary research. The survey, conducted in 2007, is based on a sample (probability proportionate to size) of 638 households drawn from six villages in each of three townships in each of two counties in a province of central China. The survey measures the incidence and type of land disputes, along with the types of actions taken by disputants and motivations for taking (or not taking) action. It also measures social, economic, and political attributes of households and individual respondents. Finally, it measures the individual respondent’s legal knowledge, his/her social capital; attitudes regarding law, substantive justice, gender, and other attitudes. The study counties, where cotton is a major crop, rely on agriculture for 30-40 percent of GDP and host populations of 600-700 thousand registered population (Table 1). Fourteen percent of households in the sample report one or more self-defined land dispute(s) in the preceding ten years (Table 2). The survey captures multiple types of land disputes, which are condensed into four categories in Table 2: compensation for land taking, land-holding reallocation, abandoned or transferred land, and boundary/other disputes. This paper focuses on disputes over compensation for land takings, which account for nearly one third (29 percent) of the total. The paper develops one of the two survey counties as a case study to illustrate the dynamics among multiple sources of law-like authority over land...(Continued)