Land Law in Chinese History

Taisu Zhang
Yale Law School

Introduction

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.

Features of Historical Chinese Land Law

“Historical” Chinese land law is, of course, a concept that stretches over some 3000 years of
history, and incorporates multiple major legal paradigms that are as different from each other as
Chinese land law is from, say, European, Middle Eastern, South American, or African land law.
That said, the vast majority of academic attention has focused on what might be called the “early
modern paradigm” that existed during the Ming and Qing dynasties, and continued to dominant
rural economic life until Communist land reforms began en masse around 1950. The core
feature of this paradigm was privatized landownership by commoners, as opposed to both the

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communal model that the People’s Republic created and the state-controlled or aristocrat-
dominated models that were prevalent during the Tang and Northern Song.

As a significant amount of 20th Century historiography has argued, the transition between the
Tang and Song was, for the most part, a sweeping process of privatization. (McDermott 1984;
Naito 1969) The Tang state, at least initially, sought to distribute land usage rights equally
among peasants, while controlling and restricting the transfer of those rights through state
ownership of formal title. In the later Tang, however, state control over land had weakened
significantly due to the erosion of central authority, and collapsed almost entirely during the
Tang-Song transition, replaced as the central legal-economic paradigm by large, aristocratically-
controlled private manors. By the Southern Song, these clan-owned manors had begun to give
way to smaller private estates owned by commoner families—some very wealthy, no doubt—a
process of disintegration and marketization that stretched well into the Ming Dynasty.
(McDermott 1984) This eventually produced the “late imperial paradigm” that legal historians
have devoted the lion’s share of their attention to: a predominantly privatized land law system in
which most owners, regardless of their economic stature or political power, held rights to
property under the same kinds of legal rules and institutions. To borrow Henry Maine’s famous
conceptual distinction, it was a legal system in which the nature of one’s property rights
depended, for the most part, not on inherent features of personal of familial “status,” but on
“contracts” such as sales, grants, tenancies, subtenancies, collateral rights, and so on. (Maine
1917, 101) In this sense, it was, for lack of a better descriptive term, broadly “modern.”

That said, the sources of authority in this late imperial system were substantially different from
what one commonly sees in modern legal systems. Modern law derives most of its coercive
force from the authority of a formally recognized sovereign state. In late imperial China,
however, the state’s coercive power was mired in long term decline, hitting rock bottom in the
mid-to-late 19th Century. (Brandt, Ma & Rawski 2014, 68) This correlated to a consistent decline
in the state’s fiscal capacity throughout most of the Qing dynasty, a consequence of the Qing
Court’s persistent refusal to raise the absolute volume of land taxes despite a rapidly growing
agrarian economy: the total annual yield of the land tax in 1890 was not significantly different
from its yield in 1730, even though the economy and the population had both more than doubled
over the same period. The decline of state fiscal capacity eventually decimated both the
administrative and the legal reach of the state.

Case archives from the late 18th and 19th Centuries suggest that local courts at the county or
township level rarely attempted to issue and enforce contentious adjudicative decisions in non-
criminal cases. (Huang 1996, 110-37) Instead, they relied heavily on communal mediation of
various kinds to settle socioeconomic disputes out of court. (Zhang 2017a, 53-63) By this time,
the state had already ceded many day-to-day administrative duties, of which dispute resolution
was but a small subset, to local communities and social groups. These local entities, which
ranged from village units to kinship networks to religious groups, tended to make and enforce
regulatory systems of their own—“customary law,” in other words.i

There are five basic functional questions one can ask of any land system: Who were the primary
owners of land? How secure were their property rights vertically and horizontally, that is,
against the state and other regulatory entities, and against other private parties? How

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constrained—institutionally—were they in the usage of land? What were the institutional
options for the total transfer of landed property? What were the institutional options for
subdivision of title? Finally, upon the owner’s death, who could inherit his property, and how?
With regards to the first three questions, the answers produced by late imperial Chinese land law
are not terribly different from those produced by most modern legal systems, rendering it broadly
recognizable as a privatized, market-oriented property regime. The specific mechanisms of
subdivision and inheritance contained, however, deep differences in both economic functionality
and social logic.

As previously discussed, most landowners were either commoners or literati who, regardless of
their position within the official bureaucracy, possessed no aristocratic titles. Relative to many
other early modern economies, landownership in late imperial China was relatively fragmented:
the top 10 percent or so of landowners consistently held a significantly smaller share of all arable
land compared to, say, their English, French, or Japanese peers. Most rural households owned
some land, and while land distribution was hardly equal, there was no discernable trend of
wealth concentration by larger landowners comparable to what happened in Western Europe, and
especially in England, during the 17th and 18th Centuries.ii Late imperial China was, for the most
part, a society of smallholders, a fact that, as discussed below, was both socially and legally
significant. (Esherick 1981, 405; Huang 1985; Huang 1990; Zhang 2017a, 220-51)

The security of private landownership was, generally speaking, quite robust, both against state
and communal authorities, and against neighbors and other potential private trespassers. What
little administrative capacity the late imperial state possessed at the local level was, by the mid-
Qing, in near-constant erosion, which meant that its ability to seize, expropriate, and tax land
was low, and becoming lower. Communal governance entities, such as lineages or religious
groups, owned some land, ranging from small amounts in North China and the Lower Yangtze to
much larger amounts in South China, (Pomeranz 2000, 71-72) but these collective estates were
rarely assembled through coercive force. (Ruskola 2000) In terms of anti-trespass protection,
Chinese property owners were about as well off as one could expect in an early modern setting:
there were plenty of disputes, especially over land that contained ancestral graves, some of which
were serious enough to be brought to court, but hardly any evidence that private trespass and
encroachment was so severe a problem that efficient investment in the property was no longer
desirable.

There were few direct legal restraints on how landowners could use their property. The vast
majority of purely private estates were essentially at the discretion of the owner, unless he or she
happened to owe contractual obligations to other private parties. (Zelin 2004) As discussed
below, formal title to land and usage rights over it could become separated in cases of
“permanent tenancy,” but this merely transferred usage rights to some other household, and did
not usually lead to any legal restrictions on how the land could be used. The major categories of
landed property that did come with use restrictions were usually related to kinship relations:
lineage owned corporate property, where it existed, often came with terms on how it could be
used, and for whose benefit. Ancestral graves and lineage worship halls (zongci), on the other
hand, were the target of formal legislation: the Qing Code dictated, under pain of corporal
punishment, that they should be maintained as places of worship, and could not be transferred to
outsiders.iii All things considered, late imperial China was, compared to modern legal regimes,

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relatively laissez faire when it came to land use regulation: despite some limitations on a subset
of landed property, it did not come close to imposing the kind of widespread and rigorous control
that modern zoning systems produce.

The transfer and subdivision of property rights was a far thornier issue. On the one hand, formal
and customary law imposed few restrictions on the ability of landowners to gift, sell, rent, or
collateralize their property—in that narrow sense, the legal “alienability” of real property was as
high in Qing China as it is in most modern economies—but the specific institutional mechanism
through which they conducted these transactions contained a number of features that did impair,
to some extent, the economic efficiency of land markets.

Strictly in terms of “selling” land—that is, transferring full, permanent title in return for a sum of
cash—the Qing land market functioned largely in the same way as modern land markets:
transactions were recorded in written contracts, which were the main basis for dispute resolution
going forward. Both communal and formal authorities tended to respect contractual language,
rarely overtly overruling it. (Zelin 2004; Allee 2004) Grants, donations, or other free transfers of
full, permanent title usually operated along similar institutional lines. There was sometimes a
customary expectation that sellers would first offer the land to kinsmen before selling to non-
relatives, (Huang 1990, 108; Mazumdar 1998, 226-31) but this rule, where it existed, likely did
not significantly burden the free alienation of land. This was both because kinsmen enjoyed only
a right of first purchase, rather than a right of veto over sales to outsiders, and because kinship
networks were very often large enough to produce an adequate number of competitively priced
offers—in other words, to generate their own market for land. (Pomeranz 2000, 70) Beyond this
latter feature, there was nothing terribly “unmodern” about the economic functionality of late
imperial land sales.

This was not, however, the case for subdivisions—that is, for partial transfers of title—where
major functional differences existed both between early modern Chinese land law and its
temporal counterparts in Western European, and between historic Chinese land law and most
kinds of modern property regimes. Partial conveyances came in two main varieties: various
kinds of tenancy relations, and various kinds of conditional sales (“dian”), both of which existed
in very significant numbers at the local level. These transactions came with striking institutional
features that created at least some level of economic inefficiency, defined here, perhaps
myopically, as maximizing the monetary economic value and productivity of land, even as they
generated significant benefits for socioeconomic stability and equity.

In functional terms, the basic structure of late imperial tenancy across the country resembled
tenancy relations elsewhere in both the early modern and modern world. Landlords conferred
usage rights on tenants in exchange for rent payments, which could be as high as half the annual
produce of the land, but was usually far lower. The primary economic “problem” with this
system was not that tenancy laws and customs were unusually harsh towards tenants, but rather
that, quite the opposite, they were often unusually lenient. As scholars have long known, many
tenants, especially those in the Lower Yangtze, held their rights under a system of “permanent
tenancy” (“yongdian”), in which the landlord gave up two critical rights: the right to unilaterally
raise rents, and the right to evict the tenant barring exceptional circumstances, most commonly if
the total sum of unpaid rent exceeded the market value of the rented land. In most cases, this

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effectively made the tenant the permanent “owner” of the land’s usage rights, and reduced the
landlord to only owning the underlying title—hence the common description of “two masters
over a single piece of land” (“yitian liangzhu”), in which the tenant owned the “topsoil,” or the
“skin of the land” (“tianpi”), whereas the master owned its “subsoil,” or “bones” (tiangu”).
(Pomeranz 2008, 131; Yang 1988, 92-93; Zhou & Xie 1986, 290-92)

Not all Chinese tenancies were “permanent” in this sense, and its popularity varied from region
to region. It tended to emerge in cases where the bargaining power of the entering tenant was
relatively strong vis-à-vis the landlord, which often happened during crisis or post-crisis
scenarios of population reduction—for example, in the Lower and Middle Yangtze following the
Ming-Qing transition or the Taiping Rebellion. (Huang 2001, 99-118) Another common scenario
was land reclamation: landlords would often offer these terms as a contractual incentive for
tenants to reclaim previously untilled land for them. (Pomeranz 2008, 131-33) Once created,
such arrangements were exceedingly difficult to break, as tenants rarely fell so behind in rent
payment that the total sum of arrears exceeded the land’s full value, while landlords had little
success—not necessarily for lack of trying—escaping their contractual obligations through
regulatory or adjudicative intervention. Some provincial governments in the Qing, perhaps
sensitive to both landlord complaints and the genuinely high volume of social dispute that these
long-lasting arrangements could sometimes generate, occasionally turned hostile to permanent
tenancy, and attempted to curb its applicability through legislation and rulemaking, but there is
little evidence to suggest that their efforts yielded the desired results. (Huang 2001, 99-118)
Instead, local customs continued to recognize and protect permanent tenancy rights well into the
20th Century.

Permanent tenancy, where it existed, conferred major benefits on lower income households,
many of whom did not own enough land to make ends meet, and therefore relied at least partially
on rented land. It gave them some degree of economic security under conditions of otherwise
high duress, and contributed significantly to the social stability of rural society by lowering the
likelihood that smallholders would be driven to landlessness. In fact, the Chinese rural economy
continued to be smallholder-centric—in terms of both demographic distribution and land usage,
if not in terms of landownership—as opposed to wage laborers throughout the late imperial and
Republican eras. This stands in sharp contrast to the situation in England and much of Western
Europe, where most large, consolidated estates had begun to evict their tenants by the early
modern era, and had largely shifted to “managerial farming” by wage laborers from around 1700
onwards. (Zhang 2017a, 220-51)

This socioeconomic stability came at substantial cost to pure economic efficiency, which fell into
two primary categories: transaction and information costs, and costs to capital accumulation.
The former is relatively easy to conceptualize under conventional institutional economic theory:
permanent tenancy essentially split a single property entity into two layers of rights, usage and
ownership, that were held separately by different households. This significantly increased the
complexity of property use and transfer by making it more costly for landowners to accurately
compile and convey the specific legal parameters of their property. (Ellickson 2011) The costs of
this system to capital accumulation are both more direct and potentially more controversial:
permanent tenancy clearly eroded the economic value of landownership to landlords, which
potentially had negative downstream effects on their ability to reinvest land-based capital.

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(Brenner & Isett 2002) If one believes that such reinvestment was important to
protoindustrialization and technological innovation or transplanting, then this was a substantial
blow to the late imperial economy; if, however, one believes that capital accumulation by large
landlords was not only unnecessary, but in fact economically harmful—this is not an uncommon
position among agrarian economists—then such concerns are of course immaterial.

Much of this analysis—in particular, the tradeoff between socioeconomic equity and stability
and economic efficiency—also applies in a somewhat abstract sense to conditional sales.
Functionally speaking, conditional sales were the late imperial Chinese equivalent of mortgages:
they allowed landowners (or, in some places, tenants) to collateralize their property rights for a
lump sum loan, usually covering between 60 to 80 percent of the land’s full market value.
Unlike most modern mortgages, however, this gave the creditor not merely the right to look to
the land for loan repayment, but also to use the land as his own until repayment. Many creditors
in North China and Lower Yangtze chose not to till the collateralized land themselves, but
instead rented it back to the original owner, and collected rent from the temporary tenancy. This
functionally took the place of monetary interest, and supplied the primary incentive for
conditional buying/lending. To protect the use interests of the creditor, the conditional seller—
that is, the debtor—was often prohibited by either contract or custom from attempting to redeem
within a fixed period of time, usually ranging from one to three years. Beyond that, in many,
likely most, parts of the country, he could generally redeem at any time, paying back the original
loan to terminate the creditor’s use rights. If the conditional seller ever wished to convert the
conditional sale into a permanent conveyance of full title, he could generally do so by accepting
one or more rounds of “price compensation” (“zhaojia”) payments from the creditor, which made
up the difference between the original loan and the land’s full market value.iv (Zhang 2017a, 35-
41)

The institutional feature of conditional sales that has drawn the lion’s share of academic interest
is, unsurprisingly, the common ability of conditional sellers to redeem at any time—in other
words, with no deadline—beyond the “guaranteed usage period.” Most other features of the
transaction were not terribly different from early modern mortgage-like transactions found
elsewhere in the world, whether in Western Europe, Japan, or the Middle East. The strength of
the redemption right it gave to debtors, however, was highly unusual, dramatically exceeding the
one year redemption windows commonly seen in English mortgage law, or the longer but
nonetheless finite windows customary in pre-Meiji Restoration Japan. Local case archives from
the Qing and Republic are stocked with examples of conditional sellers attempting—very often
successfully—to redeem after some 50 plus years since the original conditional sale. (Zhang
2017a, 41-63)

This strikingly strong right of redemption was generally not created by contract, but was instead
mandated by local customs, which tended to impose a universal expectation of unlimited
redemption on such transactions within their jurisdiction. (Id.) Both Qing and Republican
regimes attempted, from time to time, to limit the temporal scope of redemption rights—to
eleven years in the Qing, and to thirty in the Republican era—under the given rationale that
unlimited rights of redemption created high levels of social conflict between conditional seller
and buyer. (Huang 2001, 88-89) They were likely supported in these efforts by wealthier rural
households, who, with their larger cash supplies, tended to play the role of buyer/creditor in these

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transactions, and therefore found the indefinitely long redemption window substantially
inconvenient. Nonetheless, these legislative efforts did not seem to have much impact on how
conditional sales operated in local land markets, or on the customary legal norms that governed
them.

The almost certainly had much to do with the preferences and interests of smallholders, who
were the primary beneficiaries of infinite redemption rights. With the option of infinitely
redeemable collateralization on the table, smallholders rarely had much need or incentive to
permanently sell land: a conditional sale offered most of the economic return of a permanent
sale, while preserving a significant chance of successful redemption. (Zhang 2017a, 91-117)
Given that most smallholders strongly preferred, in a predominantly agrarian economy, to remain
on their land, this offered them a crucially important measure of institutional protection against
land accumulation by large estates: Republican era surveys indicate that, compared to the rapid
rise of large landlords in Western Europe, Chinese landlords owned a much lower share of arable
land during the late Qing and early Republic, at close to 40 percent nationwide, and were unable
to consistently expand their share. (Esherick 1981, 405) Small wonder, then, that smallholders
strongly preferred to preserve the norm of infinite redeemability, which goes a long way towards
explaining its institutional resilience against government hostility.v

As with permanent tenancy, the relatively strong protection of smallholder interests in

conditional sales came at some substantial economic cost: like permanent tenancy, the
potentially long term division and layering of property rights in conditional sales relations likely
produced higher information and transaction costs for both current and potential landholders,
with similarly negative effects on the economic efficiency of market-based land reallocation.
(Ellickson 2011) In terms of impeding capital accumulation, the impact of infinite redeemability
was even more pronounced than that of permanent tenancy: It directly obstructed the
consolidation of land use rights into large, managerial farms, which tended to rely, in the absence
of strong landlord eviction powers, on tenant-to-tenant or landowner-to-landowner land
purchases, both of which were severely hampered by the low supply of permanent sales and the
interminable shadow of redemption that hung over conditional sales. This helped produce a
highly fractured pattern of land use in much of the Chinese countryside, which led to both lower
labor productivity and less capital accumulation into the hands of the most economically
entrepreneurial rural households. (Zhang 2017a, 220-51)

Partial title conveyance vehicles were not the only segment of the late imperial property regime
that, over the long run, had a functional tendency towards fractured landownership and use. So,
too, did land inheritance law. Unlike the general trend towards inheritance by will in early
modern Western Europe, which some argue reaches as far back as the 13th Century in England,
Chinese inheritance practices were, until the Republican era, predominantly governed by
mandatory legal rules. (Shiga 2003; Wakefield 1998) These rules, both formal and customary,
expressed, at least nominally, a preference for family unity: larger families were discouraged
from splitting into smaller units upon the death of the patriarch, and could sometimes be
reprimanded—usually symbolically—by local magistrates for doing so. When division had to
happen, as it often did in larger families, the general rule was equal division among legally
eligible sons, including those who were adopted. (Bernhardt 1999) Beyond this baseline, two
primary modifications could be made: a larger share was usually granted to the son who took

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care of the surviving spouse, if there was one, and a smaller share—which shrunk significantly
from the Song Dynasty to the Qing—could be set aside to provide for unmarried daughters.
There was, of course, much local variation in how these rules were specified and applied, but the
basic principle seemed to apply in one form or the other across most of the country.

Scholars have argued that this system of equal division produced, over the long run, a leveling
and fracturing effect on Chinese landownership—much more so than in Western Europe.
(Lavely & Wong 1992) Wealthier families with larger landholdings were able to, and usually
did, support more male children than poorer ones, and therefore faced a higher likelihood of
division over time. Whereas major Western European estates could sometimes be shielded from
intergeneration division by the practice of primogeniture, there was functional equivalent in
Chinese land law, and therefore no easy legal mechanism to prevent the estate from fracturing: a
morally conscious magistrate might attempt to “persuade” brothers to stick together, sometimes
coercively, but this was rarely a viable long term strategy. If larger estates were more likely to
fracture than smaller ones, then, all other things being equal, one would expect landownership to
eventually become more decentralized and more equal. Even if larger estates otherwise had a
tendency to snowball over time through land purchases, the existence of family subdivision
norms could nonetheless neutralize at least some of this assimilationist trend.

This account is not without its difficulties: theoretically speaking, a subdivided richer household
would simply produce several smaller estates that were still, on a per capita basis, better off than
poorer households. In other words, the per capita resource gap between rich and poor families
would not have been affected by subdivision, unless we assume a major economy of scale effect
to land use—which may have existed for labor productivity, but likely not for land productivity.
Moreover, the use of infanticide and birth control as population control measures, coupled with
the widespread practice of male adoption between households, introduces a number of potential
demographic complications to the basic model. From a comparative perspective, the increasing
prevalence of inheritance by will in early modern Western Europe significantly diluted the
socioeconomic impact of primogeniture by allowing parents to provide for their other children
through wills. It is therefore rather difficult to attribute major patterns of divergence between
early modern European and Chinese landholding to differences in inheritance law, even if did
produce some leveling and fracturing effects on Chinese landholding in an absolute sense.

All in all, whereas the “core” structural features of the late imperial Chinese land law system—
the security of ownership, the basic freedom of use, and the relatively free alienability of title—
were functionally similar to the basic paradigm of “modern” private property, the finer
institutional details of tenancy, collateralization, and inheritance contained significant
idiosyncrasies that helped reinforce the socioeconomic stature of smallholders against their
wealthier neighbors and kinsmen. How these idiosyncrasies came into and existence and were
institutionally sustained over time has been the subject of some academic debate, which is briefly
summarized, alongside other academic trends, in the following section.

Trends in Recent Scholarship

Over the past three to four decades, the study of historical Chinese land law has been deeply
intertwined with broader debates over global economic and institutional divergence. While

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recent decades have seen a spike of scholarly interest in this direction, engagement between the
two fields has a much longer history: scholars as early as Max Weber made sweeping claims
about the nature of Chinese law, property, and contract, in the context of broader arguments
about the causes of Sino-Western divergence, (Marsh 2000) which clearly had some impact on
early scholarship on historical Chinese law, such as the influential study and case compilation
published by Derk Bodde and Clarence Morris (1967). Within the narrower confines of
economic history, the field’s “institutional turn” under Douglass North and others in the 1970s
and 1980s once again put property rights at the forefront of an immense debate over the
relationship between law and economic development. (North 1990) North’s argument that the
relative security of property and contractual rights was the primary reason for economic
divergence between the global north and south eventually became—despite, or perhaps because
of, its well documented empirical flaws—the focal point for a generation of empirical and
theoretical scholarship. In the context of Chinese history, it both seemed to reinforce and draw
support from the common belief, at the time, that pre-modern China lacked “civil law” nearly in
its entirety: the law was merely and vehicle of state and communal control, which rendered
property and contractual rights insecure and unpredictable.

Legal scholars and historians alike spent much of the next two decades, reaching into the early
21st Century, pushing back against this belief, targeting all of its subcomponents: historians
began to coalesce around the view that the late imperial Chinese state was simply too limited in
administrative and fiscal capacity to substantively interfere with local affairs. At around the
same time, the emergence of several new legal archives across China, most notably those in
Baxian, Baodi, Danshui, Xinzhu, and eventually Nanbu and Longquan, allowed scholars to go
beyond their traditional reliance on provincial and central level criminal appeals to observe
“true” civil dispute resolution of “household, marriage, and land cases” (“huhun tiantu”), which
as a rule could not be appealed beyond the county level.

Once they did so, the Chinese legal history field, then pioneered by scholars such as Philip
Huang (1996; 2001), Mark Allee (1994), and Melissa Macauley (1998), quickly came to a basic
consensus that late imperial contract and property rights were likely enforced with sufficient
regularity, in both adjudication and mediation, to be economically meaningful. In other words,
they were, functionally speaking, reliable enough to provide the usual kinds of positive economic
incentives we usually associate with privatized ownership. This wave of scholarship eventually
culminated with an essay collection edited by Madeleine Zelin, Jonathan Ocko, and Robert
Gardella (2004), which, as a whole, drove home the general enforceability of contracts and the
basic economic security of property rights.

These developments paralleled a broader trend in comparative and global history in the later
1980s and 1990s against the North hypothesis that secure property rights were, by and large, the
exclusive domain of the global North. (Angeles 2011) The relatively limited administrative
capacity of early modern states, it turned out, allowed property rights to be held and used without
much coercive intrusion in most major economies. With the basic security and enforceability of
early modern property rights largely established, scholars quickly turned their attention else for
institutional explanations for global divergence.

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Within Chinese history, the primary alternative has been a strand of recent scholarship that
emphasizes the overcomplexity and functional inalienability of Chinese property rights as their
primary economic “problem.” This literature, which has gone through multiple iterations since
the late 1990s, looks to the various legal instruments that facilitated property selling, renting, and
collateralization for explanations for China’s relative economic underdevelopment after 1700.
Earlier attempts to solve this puzzle, including several of Huang’s books (1985; 1990, 107-08),
and later a book by Sucheta Mazumdar (1998, 217-30), argued that the central issue was simply
inalienability: landowners were unable to freely sell or transfer their land due to customary
restrictions, most notably the common requirement that they exhaust their kinsmen before
offering to outsiders. This argument drew criticism, most notably by Kenneth Pomeranz (2000,
70-72), for overstating the extent to which such rights of first refusal could truly impede land
selling.

Perhaps recognizing these difficulties, later attempts at making the liquidity argument focused
less on direct inalienability—that is, on claims that landowners were legally banned from
transferring certain kinds of title—and more on the institutional details of specific kinds of
transactions, namely tenancy and conditional sales. Some of these writings, including work by
Robert Brenner and Christopher Isett (2002), Taisu Zhang (2017a), and others, readily
acknowledge the existence of active land markets in late imperial China, but argue that those
markets failed to allocate landholding and ownership in an economically optimal fashion, largely
due to the strong economic bias against agglomeration inherent in tenancy and collateralized
lending relationships. Land was freely alienable, but the legal instruments through which
alienation operated tended to discourage the formation of economies of scale.

These arguments come in very different varieties: Brenner and Isett (2002), for example,
emphasize permanent tenancy as the primary obstacle to managerial farming and the productivity
bonuses it could have generated, whereas Zhang (2017a) focuses more on conditional sales, and
employs managerial farming more as a proxy for proto-industrial capital accumulation than as an
avenue towards agricultural productivity growth. An earlier article by William Lavley and R.
Bin Wong (1992) looks instead at inheritance practices, arguing that family division norms
produced, over multiple generations, a relatively egalitarian distribution of landed wealth in late
Qing and Republican China. Despite their different institutional focal points, these studies share
a common fascination with the scale of resource ownership and use, and belie a moderately—or
in some cases, explicitly—Marxist belief that some level of resource agglomeration is necessary
for industrialized economic growth.

In contrast, a recent article by Robert Ellickson (2011), a prominent legal scholar who has taken
some interest in Chinese property law, deemphasizes macro-level resource fragmentation as the
primary inefficiency produced by permanent tenancy and conditional sales, and argues instead
for a Coasean microeconomic focus on the transaction costs and information costs created by
multilayered title structures. There is no necessary contradiction between these claims, which
operate, for the most part, at different levels of economic analysis, but they do represent two
theoretically distinct ways of thinking about the economic impact of property rights: the former
somewhat Marxist, the latter predominantly neoliberal. For the most part, institutional
economics has aggressively moved away from the former towards the latter in recent decades,

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but with the recent rise of anti-capitalist sentiments both within and beyond the academy, the
trend may not necessarily be permanent.

For now, scholars have yet to reach anything resembling a consensus on what relationship, if
any, exists between late imperial Chinese economic underperformance—specifically, relative to
Western Europe—and property institutions. There are some, most notably Pomeranz (2008),
who would strongly deny any such comparative link, even while acknowledging that, in absolute
terms, there may have been something economically inefficient about Chinese land law. The
debate is one of degree, not of qualitative assessments, and will likely continue for some time.

A separate strand of scholarship that has, since the 1990s, branched off of this economic
development-oriented literature concerns itself with explaining the anti-agglomeration tendencies
of late imperial property institutions. Early attempts to explain permanent tenancy or the
prevalence of unlimited redemption rights in conditional sales, including those by Huang and
Macauley, tended to argue that “pre-commercial” economies employed a fundamentally different
institutional logic than do commercialized ones—one that, presumably, favors “permanency in
landholding.” Later works by Thomas Buoye (2000), Zhang (2017a; 2017b), and others
questioned these claims, largely by arguing that late imperial China was already heavily
commercialized, and that property institutions tended to reflect this. Some go even further:
books by Chiu Pengsheng (2018) and Long Denggao (2018) have proposed, for example, that
commercialization and the specific demands of the late imperial market economy were the
primary forces driving the formation of “traditional” property institutions. Cao Shuji and Liu
Shigu (2014) have attempted to bridge the gap between these market-oriented theories and
Huang’s “pre-commercial” paradigm by unifying both into a single analytical framework that
portrays the Qing land system as transitioning from pre-commercial to commercial, but they, too,
comes down firmly on the commercialization side when giving thick descriptions of Lower
Yangtze land markets in the mid-to-late Qing. To some extent, this transition towards a
commercialization paradigm echoes an earlier strand of work produced by the Japanese scholars
Terada Hiroaki (2003) and Kishimoto Mio (2003), which argues that Chinese land institutions
should be understood less from the perspective of traditional social morality, and more through
economic incentives and their market-based transaction.

Other recent work takes a more sociopolitical approach: Zhang (2017a), for example, argues that
the “Confucian” organizational principles of Chinese kinship networks produced a more
egalitarian distribution of sociopolitical status in the Chinese countryside than in early modern
England, and that this explains why Chinese property rights afforded stronger institutional
protections, specifically in the contexts of conditional sale redemption and permanency tenancy,
to smallholder interests. This thesis is, however, a strictly comparative one, and therefore does
not purport to offer a complete explanation for the functional characteristics of Chinese land law
in and of themselves. Another kind of academic methodology can be found in the South China-
focused work of Kentaro Matsubara (2004) and Patrick Hase (2013): more descriptive, more
anthropological, more sensitive to local conditions and social contexts. How this kind of
historical ethnography can interact with the more comparative and theory-driven literature
outlined above remains to be worked out, but it does offer an intellectual alternative to those who
are epistemologically skeptical of attempts to uncover any sort of generalized institutional logic
behind historical Chinese land law.

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Looking Forward

The field’s turn towards economic and institutional comparisons would probably have been
somewhat troubling to an early generation of Chinese and Japanese scholars, such as Fu Yiling
(1961), Yang Guozhen (1981; 1987), Shiga Shuzo (2002), and Terada Hiroaki (2003), who were
more focused on thick descriptions of laws, cases, and contracts, rather than on their potential
application to more general debates in economic history and the social sciences. This tradition of
descriptive legal history remained highly visible into the 1980s—one can, for example, trace a
clear intellectual lineage from Shiga to Terada and Kishimoto—but by the 1990s it had clearly
been eclipsed, in terms of influence, at least, by the more comparative and economically-oriented
work outlined in the previous section. From the viewpoint of conventional historiography, this
may seem like a mixed blessing: a legal history that is heavily engaged with economic analysis,
especially comparative economic analysis, may be more thematically coherent and theoretically
sophisticated, but it can easily come at substantial cost to the depth of archival excavation and
the thickness of historical narrative.

More problematically, there seems to be a danger of letting theoretical paradigms of economic

and institutional development drive historical research—of, in other words, fitting facts to
theory. This is a particularly serious problem with comparative work, which, by its very nature,
is forced to take at least some historical phenomena out of its original context, placing it instead
into a theoretical construct, usually functional in nature, that allows for intelligible cross-societal
and cross-cultural comparisons. Comparisons are inherently exercises in abstraction, and
therefore in theorizing. Allowing the study of Chinese land law to be driven, to a very
significant extent, by the shadow of Sino-Western economic and institutional comparisons would
therefore seem to contaminate the field with external theoretical baggage.

The rebuttal is, of course, that no historical analysis can ever avoid fitting facts into theoretical
constructs, even if individual historians, or groups of historians, attempt to deny this. No act of
documentary interpretation is ever free of some heuristic premonitions, and no attempt at
connecting basic facts into a broader pattern is ever “purely” empirical. There are always
assumptions about human behavior or social interaction woven into the intellectual background,
consciously or not. This implies, therefore, that the optimal way of doing historical research is to
uncover and express one’s own theoretical inclinations as clearly and as systemically as possible,
and from that cognitive foundation attempt to interpret historical sources as thoroughly and
carefully as possible. Insofar as the turn towards economic and comparative analysis forces
scholars to confront and express their own theoretical and epistemological assumptions, that is a
positive development, not a negative one.

From this perspective, studying the history of Chinese land law in isolation—free from
intellectual connections with social, economic, or political theory, and without comparison to
other historical legal systems—is counterproductive: the veneer of topical isolation and purity
tends to mask, rather than reveal, underlying assumptions about the sociopolitical structure of
historical societies, about models of individual incentives and behavior, or about the nature of
legal rules. Law’s inherently sociopolitical nature and its fundamental enmeshment with
economic activity mean that our thinking about it is never free from these kinds of assumptions:

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it would not even be possible to state “what the law is” without assuming certain models of
sociopolitical and economic behavior, much less explain how the law functioned in real life. Far
better, then, to use economic and comparative analysis as a medium to force out our basic
theoretical assumptions, and to supply the kind of intellectual transparency that all historical
analysis could benefit from.

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i
But see Bourgon 2002 for criticism of this concept.
ii
On English landholding, see Beckett 1984.
iii
See, e.g., Da Qing Lü Li [The Great Qing Code] (1768) §93.04.
iv
It should be noted that “zhaojia” payments were not a unique feature of conditional sales, but also
existed in some permanent sales when the original payment was deemed to be unsatisfactory—this was
especially likely to happen when the two transacting parties were closely related, most commonly by
kinship, which seemed to create an expectation that the buyer would treat the seller more generously than
usual.
v
But not all the way: smallholders in other countries also preferred to have longer redemption windows in
mortgage repayment, so a complete explanation must also explain why Chinese smallholders were more
successful at protecting their legal interests than, for example, English or Japanese smallholders. See
Zhang 2017 and Zhang 2016 for one attempt to do this.

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