УДК 341.01

ЭТО МОЯ ЗЕМЛЯ: СРАВНИТЕЛЬНОЕ ИЗУЧЕНИЕ ГОСУДАРСТВЕННОГО ПРАВА НА ЗЕМЛЮ В КИТАЕ И ВЕЛИКОБРИТАНИИ

Бутаев Юрий Георгиевич
Университет Сямэнь, Китай
Школа Права, докторант

Аннотация
Право собственности на землю является одним из самых архаичных понятий в законoведении. В статье сравниваются права собственности на землю в англосаксонской и китайской цивилизациях , выявляются общие представления о государственной собственности, формулируются понятия естественного закона в отношении земельной собственности в национальной психике, определяются вехи исторической временной шкалы, на которой общая концепция разветвляется и делается краткий футуристический прогноз дальнейшего развития государственных прав собственности на землю в этих двух крупнейших правовых системах.

Ключевые слова: англосаксонское право, архаичное право, государственное землевладение, естественное право, законодательство Китая, Небесный Мандат, сравнительное законоведение, 上帝的权利, 中国法律, 古代法, 土地所有权, 天命, 比较法学, 盎格鲁 - 撒克逊法


THIS LAND IS MINE: A COMPARATIVE STUDY OF THE STATE LAND OWNERSHIP EVOLUTION IN CHINA AND THE GREAT BRITAIN

Butaev Yuri
Xiamen University
Ph.D Candidate in International Law

Abstract
Land ownership is one of the most archaic yet perennial concepts in law. The article compares land ownership in the Anglo-Saxon and Han civilizations, pinpoints the common notions of the state ownership, formulates the notions of natural law regarding the land ownership in the national psyche, identifies the historical timeline milestones at which the common concept started to diverge, and makes a brief futuristic prognosis for further developments in the land ownership laws of these two great legal systems.
土地所有权是在法律上最古老却常年概念之一。文章比较了土地所有权的盎格鲁 - 撒克逊人,汉族文明,查明国家所有制的共同概念,制定自然法关于土地所有权的民族精神的概念,确定了历史时间表的里程碑,在这共同的理念开始分歧,并使得一个简短的未来预测在这两个伟大的法律制度的土地所有权法律的进一步发展。

Keywords: Anglo-Saxon law, archaic law, Chinese law, comparative law, divine rights, Heavenly Mandate, land ownership


Рубрика: 12.00.00 ЮРИДИЧЕСКИЕ НАУКИ

Библиографическая ссылка на статью:
Бутаев Ю.Г. This Land Is Mine: A Comparative Study Of The State Land Ownership Evolution In China And The Great Britain // Современные научные исследования и инновации. 2016. № 2 [Электронный ресурс]. URL: http://web.snauka.ru/issues/2016/02/63108 (дата обращения: 03.10.2017).

The story of sovereign land ownership in the United Kingdom of Great Britain and Northern Ireland, as we know it, starts with the conquest of the eponymous William the Conqueror, also known under perhaps more apt appellation of William the Bastard, (French Guillaume le Conquérant or Guillaume le Bâtard, c. 1028, —Sept. 9, 1087).

Four major historical and legal preconditions have helped to legitimize the Norman Conquest of England in 1066, which was followed by the expropriation of all the land on the islands by the crown.

First, Britain was ripe for the rule of a centralized and sovereign monarchy for quite a long time already, staring if not from the times of the Roman emperors (ending when in 410 the roman emperor Honorius refused to send the Roman army to protect the islands from the marauding Scoti, Saxons, and Picts, effectively admitting the loss of Britannia to the Rome) – then from the time of Offa and Alfred the Great who, in the eighth and ninth centuries have emerged as the dominant rulers unifying and structuring the splintered tribes of the early medieval Britain.

Second, William was a legitimate heir by virtue of being a first cousin once removed, of the childless Edward the Confessor, (Old English: Ēadweard Andettere, Latin: Eduardus Confessor; 1003 – 5 January 1066) who is considered the last king of the dominant House of Wessex, ruling from 1042 to 1066.

Third, although Edward has changed his decision on his deathbed, naming an English earl Harold Godwinson his eventual successor, William was previously designated as a successor by Edward. Furthermore, William had the support of Emperor Henry IV and papal approval. [1, p. 181].

Fourth, by his decisive victory over Harold at the Battle of Hastings on 14 October 1066, William was able to prove that he is in possession of the ‘mandate of Heaven’, or, that in Christian terms ‘God was on his side’, which was sealed by the ceremony of him being crowned as the king in London on Christmas day of 1066.

The details of the said ceremony are important as they show the large degree of acceptance and legitimization of William as the king, as well as the ill-omens for the future: ‘in the presence of the bishops, abbots, and nobles of the whole realm of Albion, Archbishop Ealdred consecrated William duke of Normandy as king of the English and placed the royal crown on his head. This was done in the abbey church of St Peter the chief of the apostles, called Westminster , where the body of King Edward lies honorably buried.’ [2, p. 98].

However, ‘when Archbishop Ealdred asked the English, and Geoffrey bishop of Coutances asked the Normans , if they would accept William as their king, all of them gladly shouted out with once voice if not in one language that they would’, the guards, believing that the king is under attack, and being generally Normans, came up with nothing better than setting fire to a neighboring building, which caused pandemonium and nearly hindered the ceremony of crowning William while he ‘was trembling from head to foot’ [2, p. 101].

Thus was William legitimized as the king of the whole Albion. We know that next, William took an unprecedented step of confiscating all the land in Albion, therefore the next logical question would be to see what legitimacy was attached to this measure by the concerned parties, and what were the alleged justifications.

Right off the bat, by virtue of being a victor in the battle, as well as being an allegedly contested, but still a legitimate successor to the throne, William received the lands of the previous king Edward and those of Harold. Then, his kingdom, went through several iterations of rebellions, at which the rebelling nobility was dispossessed of their land, and either eliminated physically or run out of the country, effectively replacing all of the English top aristocracy with Norman one. De jure, the transfer of the land to the crown took place over the time between the Battle in 1066 and the compilation of Domesday Book in 1085-1086.

‘…had the king a large meeting, and very deep consultation with his council, about this land; how it was occupied, and by what sort of men. Then sent he his men over all England into each shire; commissioning them to find out “How many hundreds of hides were in the shire, what land the king himself had, and what stock upon the land; or, what dues he ought to have by the year from the shire.” Also he commissioned them to record in writing, “How much land his archbishops had, and his diocesan bishops, and his abbots, and his earls;” and though I may be prolix and tedious, “What, or how much, each man had, who was an occupier of land in England, either in land or in stock, and how much money it were worth.” So very narrowly, indeed, did he commission them to trace it out, that there was not one single hide, nor a yard of land, nay, moreover (it is shameful to tell, though he thought it no shame to do it), not even an ox, nor a cow, nor a swine was there left, that was not set down in his writ. And all the recorded particulars were afterwards brought to him.’ [3, pp. 105–107].

While it appears that by 1086, the landed population were designated ‘occupiers’ not the owners, meaning that de facto, the allodial ownership of land by the crown was an accepted situation, the question of whether there was a normative act by William establishing this situation formally remains unresolved. To the contrary, Statutes of William The Conqueror (Ten Articles), contain but one reference to the land laws:

7. This also I command and will, that all shall hold and keep the law of Edward the king with regard to their lands, and with regard to all their possessions, those provisions being added which I have made for the utility of the English people.’ [4, p. 187].

This statute, in fact upholds the ownership of the land by its pre-Conquest owners, which is a circumstantial evidence that allodial ownership of the land by the king was never put in writing nor in question, remaining instead, a tacitly understood circumstance, under the principle of royal vis et voluntas, or ‘force and will’. Further, it is highly unlikely that a proclamation by William, or the succeeding Angevin kings, designating all land in the kingdom his property, with its momentous significance, would remain unavailable for research if it existed, yet it is nowhere to be found. [5].The only conclusion to be made that it was never proclaimed explicitly, coalescing instead, over the centuries of monarchical rule, into what is now an accepted legal convention, or as some call it, a legal fiction.

What distinguishes a legal fiction from an enforceable right, is by definition a precedent of its execution. Leaving aside Scotland, where acts of revocation were the norm for grants made when the monarch was in the minority and where the disastrous Act of Revocation (1625) was last enforced (by which all gifts of royal or church land made to the nobility since 1540 were revoked, with continued ownership being subject to an annual rent) by King Charles I (19 November 1600 – 30 January 1649), who was monarch of the three kingdoms of England, Scotland, and Ireland from 27 March 1625 until his execution in 1649, such acts were a juridical rarity. After that, it seems, since early modern times, to the best of my knowledge, there was no monarch who had executed his allodial rights by revoking a land grant.

On that conclusion, leaving the foggy Albion for a time, we turn now to another powerful nation and a legal system in its own right, that of Han China, to investigate whether the emperor of China was the allodial owner, whether such rights were ever executed, how he came about to that possess that right and how it evolved into the present state of affairs.

The history of the documented land ownership in China starts with the Zhou dynasty ( 1046 BC–256 BC), but it is commonsensical to assume that the kings of the previous Xia and Shang dynasties also owned not only all land within their dominion, but also the very lives and possessions of their subject, thus being absolute monarchs in the fullest sense of the word. Again, as is the case with the establishment of the allodial ownership in England, the same concept in China is underpinned by a more fundamental right of the king – their divine right to rule over their subjects, so a short investigation into the development of that concept will help us to understand the king’s allodial rights in China.

Similarly to the West, China also possessed a concept for the divine rights of the kings which came to be known in China as the Heavenly Mandate (天命), with the common saying of ‘the peacemaker is the king, the losers are the bandits’ (成者為王,敗者為寇) indicative of the right of the strongest but with a Chinese twist: the victor is not just the strongest with the brute unjust strength but somebody who become a peacemaker, with the universal peace being brought to everywhere Underheaven, while those who oppose him, becoming in fact bandits, since the war is a most feared calamity in the national Han psyche.

The concept of the Heavenly Mandate was first formulated and used as a justification by Zhou for their violent seizure of power from Shang in an ancient collection of documents titled The Book of Documents (Shujing), purportedly originating in 11th century BC, as genuine pronouncement of the Zhou leaders, but historically believed to be fabricated in the Warring State period (400-300 BC). These speeches represents appeals to the nobility of the period with the apologetic aim to justify the Zhou’s war on Shang as the culmination of a historical cycle in which Heaven bestows his mandate on a virtuous dynasty and takes it away when the dynasty becomes corrupt in a progression from Xia to Shang and now to Zhou. Note that the Heavenly Mandate is not a stand alone concept, but is antithetically paired with the concept of loyalty, another eternal Confucian virtue, breach of which constituted the highest crime. The Heavenly Mandate was called on to nullify that crime. The Shujing also documents the first registered appearance of land rights, through the process of enfeoffement the loyal nobility with the lands once belonging to Shang aristocracy. [6, p. 203].

It should be noted that, as opposed to Europe, where the divine right of the kings is long extinct, the Heavenly Mandate has survived in the modern times being used, for example, by the Vietnam communist party (with Vietnam historically belonging to the Chinese culture areal) in 1945 to legitimize the transition from the empire to the communist republic: ‘According to the Vietnamese Communists, the “Mandate of Heaven” was passed on to them by Bao Dai, the last emperor of Vietnam, in 1945 when he willingly gave his ceremonial seal and sword to the representatives of Ho Chi Minn.’ [7, p. 4].

In modern Chinese history, the deep significance of the Heavenly Mandate in the Chinese psyche was signified by preserving the persona of the last Chinese emperor Pu-yi first by the Guomindang in 1912, then by the Japanese in 1934 and finally by the Communist Party in 1949, as a living token of a legitimate passage of the Heavenly Mandate from the Qing dynasty to the Communist Party in an unbroken succession since the beginning of times. It goes without saying, that the allodial land rights were the second important domestic component of the mandate, superseded only by the right to legitimate violence both abroad and domestically by the newly born Communist state.

Also of note, is the perseverance with which the concept was kept in Han psyche in our days, under either the paraphrased slogan of ‘The history has chosen the CCP’ (历史选择了共产党), or outright under its ancient form, in political works such as ‘The CCP still has its Mandate of Heaven’ in the ‘Hongqi Wengao’ state organ (《红旗文稿》刊文:中国共产党的“天命”还在). [8, p. 1].

Therefore, the notion of the Heavenly Mandate is the prerequisite for the king’s right to own all the land in China. One of the earliest written documents of ancient China, the Shi-jing, Book of Poetry, [Western Zhou (1046 BC - 771 BC)]), states [6, p. 102]:

溥天之下、莫非王土。
率土之濱、莫非王臣。
Under the Heaven that covers the Earth,

Nothing is there but the king’s lands.

In all the land till the seashore ends,

No one is but the king’s servant.

Having established their allodial rights to land by virtue of the Heaven-approved conquest of the empire, Zhou proceeded to enfeoff its aristocracy with the large areas of land, with the process of sub-enfeoffement continued down the hierarchy of the archaic feudal state devolving into the system of the ‘square field-system’ at the bottom of the social ladder, whereas the land was in estate of an aristocrat who parceled it between the peasants on his land. The legal statute of peasantry was a mix of a private and state serfdom, so naturally the peasants did not own their land but were rather bound to it, including bodily owned by the vassals, who in turn were owned by the king.

The next question to answer would be establishing when the private ownership of land came into being in China and how it affected the rights of the sovereign? The legal test for the existence of private property is to answer the question whether this property can be freely bought, sold and inherited, and whether it can be alienated without compensation by the emperor. The following table summarizes what is known about the evolution of the land ownership rights under successive dynasties from the antiquity to Republic days [6]:

Name of the dynasty

Dynasty characters

From

To

Length (years)

Land ownership

Xia

2070 BC

1600 BC

470

The emperor has the full allodial rights. From 10th century on, while not being private property, estates were being traded by the nobility, with peasantry in state serfdom.
Shang

1600 BC

1050 BC

571

Western Zhou

西周

1050 BC

770 BC

275

Eastern Zhou

东周

770 BC

250 BC

514

Spring and Autumn period

春秋

770 BC

479 BC

295

Peasant private tenure of the land recognized by the direct taxation. Direct state ownership and serfdom underplayed. Land is privately held, bought, sold, rented, inherited yet subject to confiscations by the king or a vassal. A powerful landlord class arises.
Warring States period

战国

476 BC

221 BC

255

Under the laws of Shang Yang, the well system was abolished, the peasants were given the right to transact the land. The land confiscation was institutionalized as a punishment.
Qin

221 BC

206 BC

15

Western Han

西汉

206 BC

9

215

The private property was countered by short-lived reforms of Han’s Wang Mang who aimed at land nationalization.
Xin

9

23

14

Eastern Han

东汉

25

220

195

Three Kingdoms

三国

220

265

45

Western Jin

西晋

265

317

52

Eastern Jin

东晋

317

420

103

Southern and Northern Dynasties

南北朝

386

589

169

In the borderlands the Northern Wei state rented land to the peasantry for life in usufruct, reclaiming it after the tenant’s death. Some peasants also received inheritable private plots. These policies were continued under Sui.
Sui

581

618

37

Tang

618

907

289

The equal-field system (均田制度 Jūntián Zhìdù) continued to mid-Tang, in indication of executable allodial rights.
Five Dynasties and Ten Kingdoms

五代十国

907

960

53

Illegal seizures of private land by the government, forcing tenure on previous owners in a de-facto reaffirmation of allodial rights. Land also was seized by the powerful elite leading to uprisings in Song.
Kingdom of Dali

大理国

937

1253

316

Northern Song

北宋

960

1127

167

Southern Song

南宋

1127

1279

152

Liao

907

1125

209

Jin

1115

1234

119

Western Xia

西夏

1038

1227

189

Yuan

1271

1368

97

In execution of its allodial rights Yuan granted generous donations of land and of peasants to Buddhist monasteries.
Ming

1368

1644

276

Large-scale land nationalization.
Qing

1636

1911

268

Land of Ming nobility confiscated, awarded to peasantry tenants.

As shown in the table, a de-facto land property existing before, has become a de-jure practice in several warring kingdoms of ancient China [9, p. 112], most importantly in Qin, under the guidance and ideas of Shang Yang ( 商鞅, 390–338 BCE) a prominent legalist: ‘Applying the law of Shang Yang, the institutions of the ancient emperors and kings were changed, the well system was abolished, and the people acquired the right to sell and buy the land.’ [10, p. 85].

However, although the land was inherited, bought and sold, the land was not owned unconditionally but was subject to confiscation by the kings, thus the end user’s rights to it being a type of a freehold, with the owner being more of a tenant from the king, both in written royal proclamations and in an understood social contract. The practice of confiscation was widely applied to the unworthy or disloyal nobility, whereas the confiscated land was given to soldiers meritorious in battles. Importantly, the inheritance of the land was also regulated by the state, underscoring its partial ownership. Such system of land ownership has survived for a long time historically with a short interruptions by the unsuccessful but lasting reforms of Wang Mang, a Han usurper-emperor who tried to establish a reactionary land redistribution process, mandating that all land in the empire again become the allodial property of the king, in a regime of the so called (王田wangtian) royal fields.

Interestingly, sometime before and during the Song dynasty the legal practice of ‘same land two masters’ have taken shape whereas the two masters were the landowner and the tenant with permanent usufruct rights, or topsoil (田皮) and subsoil (田骨) rights. In practice the land always had three owners instead of one the third being the emperor, diluting the property rights and maintaining the imperial ownership. [9, p. 231].

The allodial rights were again reaffirmed in Ming dynasty where the large estates accumulated from the previous dynasties exempted themselves from taxation. The idea was ‘to confiscate large areas of land controlled by rich families, and re-allocate this land to the poor and the needy. In this way social wealth was politically distributed and the right to land politically secured…Existing land titles were nullified under the Great Ming Code’. [11, p. 154]. The land was also revoked from the government officials and the nobility in exchange for compensation in commodities. The Buddhist monasteries were dismantled and stripped of their land holdings, including the personal property of the monks and nuns. The resulting land was awarded to the poor peasantry, in a striking reinstatement of the crown’s rights not only to land but also to the people, encapsulated in an ancient expression ‘king’s land, king’s people’ (王土王民).

The modern times have seen the reaffirmation and reformulation of this ancient concept when the land was nationalized in the first half of the past century by the Chinese government. currently, according to the Constitution and the land laws, Chinese individuals cannot privately own land and/or subsoil natural resources, land in urban areas must be owned by the state, whereas land in rural and suburban areas is owned by the state or by local collectives. To the private owners the land is granted for up to 70 years and is inheritable. [12].

Having reviewed the development of legal concepts pertaining to the royal allodial right both in England and China we can to turn to the theoretical legal underpinning of the said right in both nations.

In England as in the rest of the medieval Europe, the kings ruled on the basis of the absolute ‘divine rights of kings’. The said right was not put in writing during Wilhelm’s conquest but was based on tacit understanding that since there is only one Christian god, the strength of the conqueror could have come only from above. By the same measure, any opposition to the strongest player, who of course also happened to be the king, was an act of disobedience to God. Also, since the Norman conquest took place between nations with strong roman background, both of which were parts of the Roman empire, a roman concept of Auctoritas is relevant, which is a Latin word with the meaning of a divinely conferred authority. The most prominent feature of the divine right was its absolutism, meaning that the king holds power of the life and death over its subjects, including, naturally, the right to their land.

While both the divine right and the Auctoritas were understood tacitly, rather than formulated and substantiated explicitly before the 11th century, interestingly, the divine right of kings was most specifically formulated by the penultimate absolutist monarch of England, James I, who instilled these principles into his executed successor Charles I, when the nation of England executed its ‘right to rebellion’, which in the natural law, is the right of the population to rise against an unjust monarch, thus counterbalancing the divine rights of the kings. It goes without saying that the land ownership was a central issue under these rights, and the right to rebellion, was essentially the right to own or at least to enjoy more unburdened land by the commoners. However, while during the French Revolution of 1796 the allodial titles were redistributed to the commoners, the similar push by the Levelers in England during the Civil War one and a half-centuries earlier have been put down violently by Cromwell, which shows that at that time, there was no belief in the right to own land directly in the national English psyche. The absolute private ownership of land has suffered another refutation under the Enclosure Acts of Parliament, which were a realization of the royal ownership of the land under the guise of a parliamentary legislation. [13, p. 51].

To summarize our findings, we conclude with the three main differences and similarities between the history of the royal allodial right ownership in China and Great Britain which can be formulated as follows:

Similarities:

  • Sovereign land ownership started at the beginning of civilization in China, with the notion of the Heavenly Mandate and was propagated by distribution of the land to the loyal vassals and royal kin. Two thousand years later, the same cycle has been repeated in the Great Britain under the aegis of the divine rights of the kings.
  • Sovereign land ownership has persisted in both legal systems from the ancient times to our days, reaffirmed with every change of dynasty and power.
  • In both countries, this notion underpins the entire structure of the land ownership.

Differences:

  • The royal allodial rights were very actively used over the entire course of the Chinese history to maximize the land tax revenue and to harmonize the wealth structure of the society in the Underheaven. In contrast, the royal allodial rights were but rarely and limitedly executed in England.
  • In modern times, the land holders in England hold their land in perpetuity, while in China there is a mandatory time limit on land tenure.
  • While in the Great Britain the allodial rights are relegated to a status of a legal fiction, and thus will likely to prove immutable in the predictable future, in China the situation can change with continuing changes in state domestic policies, land regulations and a designated goal of building a harmonious Moderately Prosperous Society (小康社会).

References
  1. History of the Monarchy . London, 2015.
  2. The Ecclesiastic History of Orderic Vitalis, translated by Marjorie Chibnill. Oxford University Press, 1978.
  3. The Anglo-Saxon Chronicle. http://www.britannia.com/history/docs/1083-86.html
  4. English and Normans , Thomas. London, 2008.
  5. Select Historical Documents of the Middle Ages, Henderson, Ernest F. London : George Bell and Sons, 1896.
  6. China: Five Thousand Years of History and Civilization, edited by The Editorial Committee of Chinese Civilization: A Source Book, City University of Hong Kong, 2007.
  7. Why The North Vietnamese Will Keep Fighting, Brian Michael Jenkins. Rand, 1972.
  8. 本文来源:中国共产党新闻网责任编辑:NN12.
  9. The Premodern Chinese Economy: Structural Equilibrium and Capitalist Sterility, Gang Deng. Routledge, 2002.
  10. The Book of Lord Shang, Duyvendak, J. J. L. Arthur Probsthain, London, 1928.
  11. The Ming Maritime Trade Policy in Transition, 1368 to 1567, Li Kang-ying. Wiesbaden, 2010.
  12. Xian Fa (1982) (P.R.C.), Xinbian Zhonghua Renmin Gongheguo Changyong Falü Fagui Quanshu, 2014.
  13. The Act for the Enclosure of Commons in England and Wales: With a Treatise on the Law of Rights of Commons, in Reference to this Act : and Forms as Settled by the Commissioners, George Wingrove Cooke. O. Richards, 1846.


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