Law & Humanities Blog

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• The History of Agricultural Property Rights in China Since the Eighteenth Century
• Thinking Like Lawyers, Or Others
• Hannah Arendt As Theorist of International Criminal Law
• Christian Doctrine and Moral Theory In Locke's "Two Treatises of Government"

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.