Land Ownership――Past and Present

With Some Focus on China

                                Ryuichi Nagao

  1. Animal Sociology

   Some people suppose that there is an instinct to enclose land in human nature.  In order to judge the veracity of such a hypothesis, we must first study the observations of animal sociologists.

Animals are divided into two kinds: social and a-social.  Ringworms and tigers are examples of the latter.  As for social animals, two main structural types of their society are territorial co-existence and ranking (pecking order).  Many kinds of birds, fishes and mammals establish their territory, within which they are brave and tough against aggressors, whereas outside of which they become timid.  In this way a kind of balance of power and coexisting system generates.

The territory which animals establish can be divided into two kinds: collective and individual.  Ants fight with each other to defend their collective territories.  Male cuckoos and other songbirds announce their individual territories.  Dogs are known to have an instinct to defend their territories, whereas beasts of cat family (tigers, lions etc.) are less territory-oriented.  Apes, the nearest kin of mankind, have little tendency to have individual territory.  Their principle of society building is ranking.  At least from the zoological point of view, the hypothesis of human instinct for land enclosure does not find full support.

  2. Early History of Mankind

   The earliest mankind procured their food by gathering, hunting and fishing. They may have had some tendencies to occupy a land and defended it as their (private or collective) territories.  They, however, moved from one place to another incessantly to find crops, animals and fishes.

   The people, who lived on cattle, sheep, goats and pigs, may have had some notion of collective territory.  Carl Schmitt pointed out that the Greek word for law, nomos, is the noun form of the verb nemein, which means Nehmen, Teilen and Weiden at the same time.  Nehmen means collective occupation of a land.  Teilen means division of land among kinship or family groups.  Weiden means pasturing.  When season or climate changes, they moved to another place where they occupy, divide and pasture anew.  Thus the term nomos reflects the relationship of the Proto-Indo-European nomadic peoples to land.  Though temporarily, they had some notion of collective and family territory.

  3. Agriculture

   Owen Lattimore (1900-1989), a specialist in northern Eurasian peoples, taught that the origin of stock farming and agriculture were interdependent and they started almost simultaneously there.  The beginning of agriculture is by no means the later stage of development than stock farming, he says.  It is plausible.

   In any case, agriculture necessitates long-term occupancy and intensive cultivation of land.  For an agricultural society, land ownership is a rational system for productivity and social security.  Full-scale land ownership began with agriculture.

   There are several problems concerning the legal system in agricultural societies, one of which is the relative merit or demerit of collective and individual ownership.  The former has the merit of division of labor and large-scale planning whereas the latter promotes incentives, sense of responsibility and independent mind. 

   Landlordism is a system in which great landlords possess great tract of land.  Those who actually till lands in this system are slaves, serfs or tenant farmers.  Slaves had little incentive to work intensively.  Serfs, who had responsibility for the productivity of his land, and paid tribute to landowners annually, obtaining the rest for themselves, had more incentive. The development from slavery to serfdom in the early middle age in the West and China are an economic necessity.

4. The Origin of the State

   Another important problem concerning agriculture is the power and function of the government.  Peasants must live sparsely and it is difficult for them to organize themselves to effective military units.  Their grain storehouses are vulnerable to military plunder.

Ludwig Gumplowicz (1838-1909) taught that the origin of the state was the conquest of nomadic horse-riding peoples over peasants.  Horse is very different from cattle etc. from the military point of view.  As soon as horse breeding started, large-scale and fast-moving military units were organized.  Then, through one way or another, a kind of symbiosis between horse-riding rulers and peasants was established, in which the former gave peace and protection, the other food. 

This is the origin of the dualism of imperium and dominium.  Peasants possess the land whereas the cavalry rulers govern it.  Interest of the conquerors is to levy more taxes, but too much exploitation would serve to no purpose because peasants would then find little incentive to work.  Starvation is disaster to both.  In this way, the interests of conquerors and peasants converge to some extent.

   The cavalry group establishes city states surrounded by walls in order to defend against other horse-riding aggressors.  As far as the defense technology of city states was superior to the offense technology, the coexistence of city states continued.  When this power relationship was reversed, great empires were born.  This process happened rather early in the ancient Middle East, whereas in Greece the small city states system continued to exist until the Macedonian hegemony by Philip and Alexander in the fourth century B.C.E.  Nearly thousand years earlier, the Greeks had to fight for ten years to conquer Troy, and the victory was not brought about by military means but by treachery (the Trojan Horse), if we believe some parts of Homer’s Iliad and post-Homeric epics as history.(By the way, recent scholars teach that the slaughter of suitors by Odyssey after the war and wandering occurred on April 16, 1178 BCE, with reference to the eclipse (Odyssey, 23.243-6), new moon (14.162), Venus (13.93-4), Pleiades and Bootes (5.272) and Mercury (5.43ff.).)

5. Flood Control and Irrigation

   Another circumstance which necessitates the subjugation of peasants to the state power is the necessity for controlling rivers.  The earliest civilizations arose on the river valleys of Nile, Tigris-Euphrates, Indus and the Yellow River (moreover, recent studies found that there were high-level civilizations on Yang-tze River in the third millennium B.C.E.).  According to the tradition, Yu, the legendary emperor of China, said “Who controls the Yellow River, controls the world (i.e., the Chinese world).”  He was, though of humble origin, succeeded in controlling the Yellow River and was nominated as emperor by his predecessor Shun.  

The necessity of flood control and irrigation demands large-scale mobilization of man power, technology and leadership.  Herodotus reported how the Egyptian rulers controlled the flood of the Nile and supplied and distributed water by dams and canals (Histories, II, 97-99).  The source of the authority of its priest class was their technology of measuring land for redistribution after the flood.

   Karl Wittfogel (1896-1988) says that “as manager of hydraulic and other mammoth constructions, the hydraulic state prevents the nongovernmental forces to counterbalance and control the political machine,” and that its “rival forces lacked the proprietary and organizational strength that in Greek and Roman antiquity, as well as Medieval Europe, bulwarked the nongovernmental forces of society.”(Oriental Despotism, 1957, p.49)  He quotes the words of Paul Milukow (1859-1943) who said that in such a system, “the state became stronger than society.” (Skizzen russischer Kulturgeschichte, I, 1898, p.111)

6. Absolutism in Europe

   Wittfogel says:

The rulers of European absolutism schemed as ruthlessly and killed as mercilessly as did their Eastern confrères.  However, their power to persecute and appropriate was limited by the landed nobles, the Church, and the cities, whose autonomy the autocratic overlords could restrict, but not destroy.  In addition to this, the representatives of the new central governments saw definite advantages in developing the newly rising capitalistic forms of mobile property.”(op.cit., p.78)

   Stereotypical historical writings have taught that the absolutism of 17^th and 18^th century Europe introduced the strict dualism of imperium and dominium.  The bearer of the imperium was the absolute monarch who defied supranational authorities of the pope and the emperor.  The dominium is the property right which was formulated in 1804 as absolute (in the sphere of private law).  The intermediate authority of medieval feudal landlords with its half-public and half-private character was transformed to the status of public servant on the one hand and private landowner on the other.  The dualism of Obereigentum and Untereigentum was unified into the “absolute property right.”  Tenants became only the subject of Schuldrecht, not of Sachenrecht.

   Hans Kelsen teaches that the structure of any legal system consists in relative centralization and decentralization, and that the ideas of “absolute” sovereignty and “absolute” property right are nothing but products of personifying and reifying way of thinking.  I believe he is right, but the property right in the modern European law is quantitatively far stronger than its counterparts in other legal systems.

7. Criticism of Land Ownership

Land ownership has been the target of moral doubt from the beginning.  Ovid, in his Metamorphoses, depicted the degeneration of human history from the Golden to the Iron Age, in which the division of land was introduced at the last and worst phase, i.e., in the Iron Age.  I found the same story in a Buddhist literature which was written in China in the 13th century but its source must be in ancient India.

   The most formidable critic of private land ownership in the modern era is Jean Jacques Rousseau.  In his essay On the origin of inequality among human beings (1754), he said:

Le premier qui ayant enclos un terrain s’avisa de dire : « Ceci est à moi » et trouva des gens assez simples pour le croire, fut le vrai fondateur de la société civile. Que de crimes, de guerres, de meurtres, que de misères et d’horreurs n’eût point épargnés au genre humain celui qui, arrachant les pieux ou comblant le fossé, eût crié à ses semblables : « Gardez-vous d’écouter cet imposteur ; vous êtes perdus si vous oubliez que les fruits sont à tous, et que la terre n’est à personne ! 

   The first occupants then concluded a state contract among themselves in order to defend their property against the “lawless mass” (people who were in reality simple and naïve ones, not shrewd enough to take part in the division of land).   The state promulgates a code which guarantees the property right of land.  In Rousseau’s eyes, this positive law is against the natural law, according to which “la terre n’est à  personne” (Land does not belong to a person).

8. John Locke

John Locke, on the other hand, justifies land ownership by a kind of labor theory of value.

   He begins his expositions by quoting Psalms CXV,16: God “has given the earth to the children of men,” and interprets this passage as “God has given it to mankind in common.”(The Second Treatise of Civil Government, 25)  This starting point is the same as Rousseau.  However, Locke says, when one person “mixes” his labor to something which has been the common good of mankind, he “removes” it out of the natural state and makes it his property. (27)

   One natural question to this thesis is: “Why the one who ‘mixed’ his labor with land has the exclusive right to have it?”  If land has its own value independent of the labor (for example thirty percent of the tilled land), he can claim only seventy percent of it. 

   This question leads us to the further question on the so-called “Locke’s labor theory of value.”  If his thesis is the purely ethical statement which asserts that only labor has ethical value, land has by definition no value.  He says, however, that ground is of “little value” without labor. (36)  “No value” and “little value” are different.  His example is the stock of corn a man produced by tilling waste land.  The value he produced is not purely ethical value but economic value.  These expositions imply the existence of more or less economic value of land independent of labor, perhaps market value because of its scarcity after the increase of population.  This means those who “mixed” his labor to the land cannot claim the exclusive right to it. His title to the value of land is the same as the one of Rousseau’s shrewd man: that is occupatio prima.

9. Land Problems in Traditional China

   Long history and vast area of China defy simple and convenient schematization. 　

From ancient time onward, typical Chinese towns were wall-surrounded kinship communities with the same family names with the custom of exogamy.  In the maps we can find such city names as Zheng Jia Tun or Tang Zia Chen.  Zia means house or family, Zheng or Tang is family name, and Tung or Chen represents community.  The most famous of such cities at present is Shijiazhuang with nine million populations.

In the daytime, the inhabitants cultivate surrounding farmlands.  At the center of the city, there is a shrine consecrated to ancestors, before which ceremonies, litigations and political discussions took place.  In Mencius (ca.310 B.C.E.) we read that within such a community the people annually decided who should till which part of land.  Landlordism is another conspicuous aspect of the Chinese land history, although there were many small independent peasants as well. 

In Wittfogel’s view, the decisive factor was the “Oriental despotism” developed on the necessity of hydraulic management, although some specialists in Chinese economic history are skeptical about the general validity of his hypothesis.  The huge transportation system such as the project of grand canal by Yangdi of Sui dynasty presupposed the large-scale flood control and irrigation system.

This system, along with the military crush of all independent cities by the Qin dynasty in the 3^rd century B.C.E. introduced the notion of the Imperial ownership of all the land.  In ordinary circumstances, things may go on according to the custom, but at times the emperor enforces his will by way of his dominium eminens.  Even in the Book of Poetry which, according to the legend, was edited by Confucius (552?-479 B.C.E.), there is a passage,”All the land under the heaven belongs to the emperor,” which had been quoted again and again as the expression of such an idea.  Amidst the civil war in 485, Bei Wei dynasty (fifth century) introduced a land redistributing system (juntianzhi) which presupposes the idea that all the lands belong to the emperor.  This system at least nominally continued to exist up to the end of Tang dynasty (907).  The idea itself continued to exist in some way or other thereafter.

10. People’s Commune

   In the postwar Japan, the American occupation force eradicated landlordism by confiscating their land with nominal compensation and distributed it to tenant farmers with nominal pay.  This policy was planned and carried out by Wolf Radejinsky (1899-1975) who used to be a landowner’s son in Ukraine and migrated to the United States after the Russian Revolution (1921).  In the postwar China, in sharp contrast to Japan, a radical collectivization policy was executed.

Mao Zedong wrote in 1926: Who are our enemies? Who are our friends? This is a question of the first importance for the revolution.

Mao’s land policy changed from time to time.  Before the revolution of 1949, the Communist Party redistributed confiscated land to peasants.  After the revolution, however, he found his archenemy in economic incentive.  Land distribution, he recognized, makes peasants ”bourgeois,” who work for economic incentive.  In 1953, he started a large-scale collectivization of agricultural land allegedly based on the incentive of proletarian heroism.  The People’s Commune which Mao promoted resembled to some extent the traditional village communities, but their size was far greater.  Communes were not real communities.  In many cases, group of peasants were sent “today here, tomorrow there.”  Those former comrades who opposed the policy were stigmatized as reactionaries and were harshly persecuted.  The result was the disaster of mass starvation.

11. New Legislations

After Mao’s death, once-ousted leader Deng Xiao-ping restored to the leadership position and reintroduced the system based on economic incentives.  In the agricultural areas, small piece of land (ziliudi) was admitted to each family, though this is not the property right but the right to use it.  In the urban area, there are no such exceptions, so that inhabitants could be evicted any time for the necessities of the state.

Since 1990s, the policy of “socialist market economy” was carried out vigorously, laying bare the inherent contradiction of the system.  The interests of public and private enterprises, urban inhabitants, rural communities and individual peasants are conflicting with each other seriously.  Economic development has proceeded inflicting the use of land by urban inhabitants, rural communities and peasants and precipitated various protests including large-scale riots.

Meanwhile, the project for the legislation of Sachenrecht started in 1993 and, after heated arguments, bore the fruit in 2007.  It is an attempt at demarcation of the rights of state property, (rural) community property and private property and at systematizing the legal procedure concerning movable and immovable properties.  By way of the methods of public law, however, state and publicly authorized enterprises are expropriating private land, as we witnessed in the radical city reformation for the preparation of the Beijing Olympic Games.

12. Migrant Workers

The disparity in wealth enlarged along with the introduction of market economy.   The mass movement of rural residents to cities because of their incredible poverty is one of the most serious problems in contemporary China.

One legacy of Mao’s rule to peasants is the system of registration, called hukou, according to which Chinese nationals are divided into two classes: city dwellers and peasants.  The latter were originally not allowed to live in cities.  Later their entrance into cities was tolerated, but they can live only as migrant laborers.  They are called nongmingong or mingong which means urban workers of agricultural registration.  Most of them live in subhuman existence, without health insurance, even without the possibility of appeal for the unpaid wages.  Many of their children are not accepted to elementary schools.  There are about more than one hundred million people (about 10 percent of the total population) who are in such a situation.

The introduction of this system in the 1950s does not seem to be the result of ideological Maoism but of a provisional measure to prevent the mass influx of peasant population into cities which occurred, among others, because of the disaster caused by the Great Leap Forward policy in the latter half of 1950s. 

Recently the Chinese government has taken some measures to rescue their plights, but China watchers don’t see the possibility of abolishing this caste system in near future.  These migrant workers are the descendants of those who were naive enough to take part in the division of land.