Debunking the Chinese unitary state via legal pluralism: Historical, indigenous and customary rights in China (1949–present)

Ho, Peter

Abstract

In the literature on legal pluralism, there is minimal attention paid to the state – apart from being generally conceptualized as a unitary entity vis-à-vis an otherwise legally pluralist society. However, this perspective has been critiqued by a modest, yet growing, group of scholars. In furthering the debate, this article postulates that states are constituted by competing semi-autonomous fields and are thus, to varying degrees, inherently inconsistent, contradictory, and pluralist in nature despite the superficial conveyed imagery of unity. To substantiate this thesis, the article: 1) equally applies the concepts of legal pluralism as hitherto applied to issues such as historical rights, indigenous peoples, and customary law; 2) employs this exercise to deconstruct what is perhaps one of the world's most archetypal unitary states: the Peoples’ Republic of China. As a strongly, centralist state governing a substantially socio-culturally and ethnically diversified society, China provides a noteworthy case of the workings of what is termed “state legal pluralism”. To demonstrate this, the article examines a critical right (ownership) around an equally critical resource (land). This is achieved with reference to different, coexisting legal orders that are considered highly sensitive and potentially explosive in China: historical, indigenous, and customary rights. The analysis is based on a comprehensive review of laws and policies, National People's Congress reports, verdicts of the Supreme People's Court, (local) regulations, and court cases. It covers a period exceeding 70 years from 1949 to 2020. The data analysis ascertains that the different organs of the Chinese state constitute competing semi-autonomous fields that, at times, put forward rules in flagrant contradiction with state law up to the point of upholding pre-revolutionary, private land ownership.

Citation

Ho, P. (2022). Debunking the Chinese unitary state via legal pluralism: Historical, indigenous and customary rights in China (1949–present). World Development, 151, Article 105752. https://doi.org/10.1016/j.worlddev.2021.105752

• Journal Article Type: Article
• Acceptance Date: Nov 10, 2021
• Online Publication Date: Dec 6, 2021
• Publication Date: Mar 1, 2022
• Deposit Date: Oct 15, 2024
• Publicly Available Date: Oct 16, 2024
• Journal: World Development
• Print ISSN: 0305-750X
• Electronic ISSN: 1873-5991
• Publisher: Elsevier
• Peer Reviewed: Peer Reviewed
• Volume: 151
• Article Number: 105752
• DOI: https://doi.org/10.1016/j.worlddev.2021.105752
• Keywords: State legal pluralism, Semi-autonomous field, Historical land rights, Ethnic and customary law, Normative ambiguity, China
• Public URL: https://nottingham-repository.worktribe.com/output/40576043
• Publisher URL: https://www.sciencedirect.com/science/article/pii/S0305750X21003673?via%3Dihub
• Additional Information: This article is maintained by: Elsevier; Article Title: Debunking the Chinese unitary state via legal pluralism: Historical, indigenous and customary rights in China (1949–present); Journal Title: World Development; CrossRef DOI link to publisher maintained version: https://doi.org/10.1016/j.worlddev.2021.105752; Content Type: article; Copyright: © 2021 Elsevier Ltd. All rights reserved.