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Law & Humanities Blog

The History of Agricultural Property Rights in China Since the Eighteenth Century

Posted: 06 Apr 2011 03:43 PM PDT

Taisu Zhang, Yale University has published Property Rights in Land, Agricultural Capitalism, and the Relative Decline of Pre-Industrial China in volume 13 of the San Diego International Law Journal. Here is the abstract.


Scholars have long debated how legal institutions influenced the economic development of societies and civilizations. This Article sheds new light on this debate by reexamining, from a legal perspective, a crucial segment of the Eighteenth and Nineteenth Century economic divergence between England and China: By 1700, English agriculture had become predominantly capitalist, reliant on "managerial" farms worked chiefly by hired labor. On the other hand, Chinese agriculture counter-productively remained household-based throughout the Qing and Republican eras.

The explanation for this key agricultural divergence, which created multiple advantages for English proto-industry, lies in differences between Chinese and English property rights regimes, but in an area largely overlooked by previous scholarship. Contrary to common assumptions, Qing and Republican laws and customs did recognize private property and, moreover, allowed reasonably free alienation of it. Significant inefficiencies existed, however, in the specific mechanisms of land transaction: The great majority of Chinese land transactions were "conditional sales" that, under most local customs, guaranteed the "seller" an interminable right of redemption at zero interest. In comparison, early modern English laws and customs prohibited the redemption of "conditional" conveyances - mainly mortgages - beyond a short time frame. Consequently, Chinese farmers found it very difficult to securely acquire land, whereas English farmers found it reasonably easy. Over the long run, this impeded the spread of capitalist agriculture in China, but promoted it in England.

Differences between Chinese and English norms of property transaction were, therefore, important to Qing and Republican China's relative economic decline. By locating the causes of key global economic trends in customary property rights, the Article also has ramifications for influential theories of social norm formation and law and development.
Download the article from SSRN at the link.

Thinking Like Lawyers, Or Others

Posted: 06 Apr 2011 11:19 AM PDT

Donald J. Kochan, Chapman University School of Law, has published Thinking Like Thinkers: Is the Art and Discipline of an 'Attitude of Suspended Conclusion' Lost on Lawyers? as Chapman University Law Research Paper No. 11-15. Here is the abstract.

In his 1910 book, How We Think, John Dewey proclaimed that "the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . ." This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in lawyering and law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs.

Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must approach every problem with an open-mind, without a predetermined conclusion. She must overcome the anxiety associated with suspense. One attains "the attitude of suspended conclusion" when developing an art and discipline that quells the impulse for the satisfaction of reaching a conclusion, that accepts an operative state of doubt, and that maintains the patience for careful and thorough inquiry before reaching an eventual conclusion. A conclusion is the end of a reflective process, not an end in and of itself.

Perhaps the insight on this matter seems obvious and straightforward. This Article defends the proposition that this lesson deserves attention precisely because it is so obvious but too often ignored as to make its study intellectual instead. A discipline of following a rule of suspended conclusion can act like a trigger lock for the mind, disabling the tendency to "shoot first and ask questions later." The rule of suspended conclusion must be engaged before firing the synapses of thought. The Article explains that unpeeling the obviousness of the attitude – to understand its rich core and to see the tendencies that rot its practice – allows us to develop a valuable art and discipline in the thinking process.

The Article includes sections on the educator's role in "thought"; the importance of developing an appreciation for an art and discipline toward attaining the attitude of suspended conclusion; a brief survey on the research related to psychological tendencies or poor habits that form barriers to the effective adoption – or the positive habitual substitution – of an attitude of suspended conclusion; and wraps up with a discussion of whether lawyers, by the inherent nature of their task, face insurmountable obstacles to developing the discipline of an attitude of suspended conclusion and whether they can exercise the freedom to think like thinkers within their professional obligations. Lawyers certainly face some unique obstacles to adopting an attitude of suspended conclusion, making attention to it all the more important.
Download the paper from SSRN at the link.

Hannah Arendt As Theorist of International Criminal Law

Posted: 06 Apr 2011 10:53 AM PDT

David J. Luban, Georgetown University Law Center, has published Hannah Arendt as a Theorist of International Criminal Law in the International Criminal Law Review for 2011. Here is the abstract.



This paper examines Hannah Arendt's contributions as a theorist of international criminal law. It draws mostly on Eichmann in Jerusalem, particularly its epilogue, but also on Arendt's correspondence, her writings from the 1940s on Jewish politics, and portions of The Human Condition and her essays. The paper focuses on four issues: (1) Arendt's conception of international crimes as universal offenses against humanity, and the implications she draws for theories of criminal jurisdiction; (2) her "performative" theory of group identity as acts of political affiliation and disaffiliation, from which follows a radically different account of the crime of genocide than that of Raphael Lemkin; (3) the "banality of evil," and its relation to legal conceptions of mens rea; and (4) her ultimately inconclusive assessment of law's capacity to confront the radically unprecedented crimes of regimes that are themselves criminal, and which systematically invert the values necessary to distinguish legal rules from exceptions. The essay was written for a symposium on women and international criminal law in honor of Judge Patricia Wald.
Download the article from SSRN at the link.

Christian Doctrine and Moral Theory In Locke's "Two Treatises of Government"

Posted: 06 Apr 2011 10:50 AM PDT

Steven Menashi, Georgetown University Law Center, has published Cain as His Brother's Keeper: Property Rights and Christian Ethics in Locke's Two Treatises of Government in volume 42 of the Seton Hall Law Review (2012). Here is the abstract.


Those scholars who regard Locke's theory of property as a reflection of conventional Christian views pay insufficient attention to the deliberate rhetorical method of his Two Treatises of Government. Close attention to the text reveals profound criticisms of prevailing Christian doctrine. In fact, Locke's theory of property forms the core of a moral theory that aims to supplant traditional religious teaching with an ethic of human industry and individual autonomy. Understanding Locke's intention illuminates the foundations of American constitutionalism and of modern liberalism.
Download the article from SSRN at the link.
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