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Social Hierarchies and the Formation of Customary Property Law in Pre-Industrial China and England

Social Hierarchies and the Formation of Customary Property Law in Pre-Industrial China and England AbstractComparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: one of the most striking characteristics of Qing and Republican property institutions is, in fact, that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households than richer ones, but Chinese customary law allowed debtors to indefinitely retain redemption rights over collateralized property, whereas English debtors would generally lose the property permanently if they failed to redeem it within one year.This article argues that the comparatively “egalitarian” tendencies of Qing and Republican property institutions stemmed from the different ways Chinese and English rural communities allocated social status and rank. Hierarchical “Confucian” kinship networks dominated social and economic life in most Chinese villages. Within these networks, an individual's status and rank depended, in large part, on his age and generational seniority, rather than personal wealth. This allowed many low-income households to enjoy status and rank highly disproportionate to their wealth. In comparison, substantial landed wealth was generally a prerequisite for high status in early modern England, effectively excluding lower-income households from positions of sociopolitical authority. Chinese smallholders possessed, therefore, significantly more social bargaining power, and were able to negotiate more desirable property institutions. Paradoxically, the predominance of kinship hierarchies actually enhanced macro-level political and economic equality. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

Social Hierarchies and the Formation of Customary Property Law in Pre-Industrial China and England

American Journal of Comparative Law , Volume 62 (1) – Jan 1, 2014

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References (101)

Publisher
Oxford University Press
Copyright
© 2014 by The American Society of Comparative Law, Inc.
ISSN
0002-919X
eISSN
2326-9197
DOI
10.5131/AJCL.2013.0010
Publisher site
See Article on Publisher Site

Abstract

AbstractComparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: one of the most striking characteristics of Qing and Republican property institutions is, in fact, that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households than richer ones, but Chinese customary law allowed debtors to indefinitely retain redemption rights over collateralized property, whereas English debtors would generally lose the property permanently if they failed to redeem it within one year.This article argues that the comparatively “egalitarian” tendencies of Qing and Republican property institutions stemmed from the different ways Chinese and English rural communities allocated social status and rank. Hierarchical “Confucian” kinship networks dominated social and economic life in most Chinese villages. Within these networks, an individual's status and rank depended, in large part, on his age and generational seniority, rather than personal wealth. This allowed many low-income households to enjoy status and rank highly disproportionate to their wealth. In comparison, substantial landed wealth was generally a prerequisite for high status in early modern England, effectively excluding lower-income households from positions of sociopolitical authority. Chinese smallholders possessed, therefore, significantly more social bargaining power, and were able to negotiate more desirable property institutions. Paradoxically, the predominance of kinship hierarchies actually enhanced macro-level political and economic equality.

Journal

American Journal of Comparative LawOxford University Press

Published: Jan 1, 2014

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