Communal Property Research Network

British Academy International Partnership and Mobility Scheme
‘Diversifying Ownership of Land?: Communal Property in the UK and China’, 2014-2017

Project Summary

Communal property is increasingly important in both the UK and China. Although the history and present structure of land rights in the two regions is very different,communal property nevertheless emerges in both regions as a key component in the management of resources, notably in four related areas: agriculture,environmental protection, rural and urban development and housing. This project will establish a new research network between UK and Chinese scholars with mutual research interests in communal property and community governance of land and natural resources, exploring the lessons each can learn from the other about the developing role of communal property in these four areas.

Although the current focus is a China/UK Comparison, we welcome approaches from academics and practitioners interested in communal property from regional and global perspectives.

The PI, Dr Ting Xu, is happy to discuss with anyone interested in this project. Please contact her at Ting.Xu@sheffield.ac.uk

Rationale and Research Questions

This research network is a new initiative bringing together scholars interested in communal property. It explores the similarities and differences between the UK and China in how communal property is perceived and how it operates, and its present and potential role in the management of resources. It also draws comparisons to communal property in other regions of the world.

Context: While private property is commonly posited as a prerequisite for economic growth, the importance of communal property, transcending the public/private divide in property rights, is increasingly apparent. Comparison between the two regions is instructive because, whilst historically communal property has had very different meanings and functions in China and in the UK, modern perceptions are converging as each region faces similar challenges in the management of land and natural resources. In China, the Property Law (2007) institutionalised the revival of private property rights. But in recent years, different forms of ‘quasi-commons’ are also emerging, paralleling developments in the UK. In England and Wales, the importance of communal land rights has been brought back into sharp focus by a number of developments which have revived interest in communal land and resources rights amongst academics, policy makers and social commentators. The Commons Registration Act 1965 and Commons Act 2002 guaranteed the continued survival of traditional agricultural and recreational commons in England and Wales and opened up the potential for recognition of newly emerging commons, whilst different histories unfolded in Northern Ireland and Scotland.

Key research questions include:

What are the similar and different structures of land rights and usages that can usefully be categorised as ‘communal property’ within the different jurisdictions? What is the relationship between communal property, community management and common pool resources? What is the present and potential role of communal property in each jurisdiction in relation to the management of resources? What parallels can be drawn between developments in these areas? The project currently has four working packages: communal property in each jurisdiction in relation to: 1. agricultural management 2. environmental protection 3. rural and urban development 4. development and management of residential communities

Participants

Dr Ting Xu (Principal investigator, School of Law, University of Sheffield, UK) Professor Fengzhang Li (Co-investigator, Shanghai University Law School, China) Professor Jean Allain (School of Law, Queen’s University, Belfast, UK) Professor Samuel Amoo (Faculty of Law, University of Namibia, Namibia) Professor Sarah Blandy (School of Law, University of Sheffield, UK) Dr Anne Bottomley (Kent Law School, UK) Dr Maja Hojer Bruun (Department of Learning and Philosophy, Aalborg University, Denmark) Professor Lidong Cai (School of Law, Jilin University) Professor Kristen A. Carpenter (University of Colorado Law School, US) Professor Alison Clarke (School of Law, University of Surrey, UK) Dr Heather Conway (School of Law, Queen’s University, Belfast, UK) Professor Roger Cotterrel (School of Law, Queen Mary, University of London, UK) Professor David Cowan (University of Bristol Law School, UK) Dr Dug Cubie (School of Law, Queen’s University, Belfast, UK) Professor Norma Dawson (School of Law, Queen’s University, Belfast, UK) Dr Peter Doran (School of Law, Queen’s University, Belfast, UK) Mr Belachew Fikre (School of Law, University of Surrey, UK) Dr Wei Gong (School of Law, University of Sheffield, UK) Professor Douglas Harris (Faculty of Law, the University of British Columbia, Canada) Dr Robin Hickey (School of Law, Queen’s University, Belfast, UK) Ms Julie Gjørtz Howden (Faculty of Law, University of Bergen, Norway) Mr Jacques Jacobs (Department of Private Law, University of Cape Town, South Africa)

Professor Bingqin Li (Crawford School of Public Policy, Australian National University, Australia) Professor Jianhua Li (School of Law, Jilin University) Ms Linlin Li (Faculty of Law, University of Groningen) Professor Fiona Macmillan (School of Law, Birkbeck, University of London, UK) Professor Rosalind Malcolm (School of Law, University of Surrey, UK) Mrs Melanie McGlone (School of Law, University of Surrey, UK) Dr Owen McIntyre (Faculty of Law, University College Cork, Ireland) Professor Hanri Mostert (Department of Private Law, University of Cape Town, South Africa) Mr Tom Muinzer (School of Law, Queen’s University, Belfast, UK) Professor Tim Murphy (Law Department, London School of Economics, UK) Professor Sarah Nield (Southampton Law School, University of Southampton, UK) Dr Walters Nsoh (Anglia Law School, UK) Professor Michael Palmer (Shantou University Law School; SOAS, University of London, China/UK) Professor Gideon Parchomovsky (University of Pennsylvania Law School, US) Professor Amanda Perry-Kessaris (Kent Law School, UK) Miss Natalie Pratt (Dickson Pool School of Law, King’s College London, UK) Professor Chris Rodgers (Newcastle Law School, Newcastle University, UK) Ms Katrien Steenmans (School of Law, University of Surrey, UK) Professor Shengmin Sun (The Centre for Economic Research, Shandong University) Professor Leon Verstappen (Faculty of Law, University of Groningen, Netherlands) Professor Feng Wang (School of Public Economics and Administration, Shanghai University of Finance and Economics, China)

Reading List

Blandy S & Wang F, ‘Curbing the Power of Developers? Law and Power in Chinese and English Gated Urban Enclaves’ (2013) 47 Geoforum 199.

Blandy S & Sibley D, ‘Law, Boundaries and the Production of Space’ (2010) 19 Social and Legal Studies 275.

Bottomley, A & Moore, N, ‘From Walls to Membranes: Fortress Polis and the Governance of Urban public Space in 21st Century Britain’ (2007) 18 Law and Critique 171.

Carpenter, K, Katyal S & Riley, A, ‘In Defense of Property’ (2009) 118 Yale Law Journal 1022.

Clarke, A, ‘Integrating Private and Collective Land Rights: Lessons from China?’ (2012) 7 Journal of Comparative Law 177.

Clarke, A, ‘How Property Works: the Complex World View’ (2013) 22 Nottingham Law Journal 143-154.

Clarke, A, ‘Creating New Commons: Recognition of Communal Land Rights within a Private Property Framework’ (2006) 59 Current Legal Problems 319.

Cotterrell, R, ‘Community as a Legal Concept? Some Uses of a Law-and-Community Approach in Legal Theory’, in Cotterrell, R, Living Law: Studies in Legal and Social Theory (Farnham: Ashgate, 2008), 17-28.

Cotterrell, R, ‘Rethinking “Embeddedness”: Law, Economy, Community’ (2013) 40 Journal of Law and Society 49.

Dolšak N & Ostrom E (eds), The Commons in the New Millennium: Challenges and Adaptation (Cambridge MA, MIT Press, 2004).

Fennell, LA, ‘Ostrom’s Law: Property Rights in the Commons’ (2011) 5 International Journal of the Commons 9.

Harris, D, ‘Condominium and the City: The Rise of Property in Vancouver’ (2011) 36 Law & Social Inquiry 694.

Heller, MA, ‘The Boundaries of Private Property’ (1999) 108 Yale Law Journal 1163.

Hess C and & Ostrom E (eds), Understanding Knowledge as a Commons: From Theory to Practice (Cambridge MA, MIT Press, 2011).

Levahi, A, ‘Mixing Property’ (1998) 38 Seton Hall Law Review 137.

Lehavi, A, ‘How Property Can Create, Maintain, or Destroy Community (2009) 10 Theoretical Inquiries in Law 43.

Macmillan, F, ‘The Protection of Cultural Heritage: Common Heritage of Humankind, National Cultural Patrimony or Private Property?’ (2013) 64 Northern Ireland Legal Quarterly 351.

Mostert, H, ‘South Africa’s Communal Land Rights Act: A Plea for Restraint in Reform’ 2010 (54) 2 Journal of African Law 298.

Ostrom, E, ‘Beyond Markets and States: Polycentric Governance of Complex Economic Systems’ (2010) American Economic Review 641.

Ostrom, E, Governing the Commons: the Evolution of Collective Action (Cambridge University Press, 1990).

Palmer, M, ‘The Surface-Subsoil Form of Divided Ownership in Late Imperial China: Some Examples from the New Territories of Hong Kong’ (1987) 21 Modern Asian Studies 1.

Perry-Kessaris, A (2008) Global Business, Local Law: The Indian Legal System as A Communal Resource in Foreign Investment Relations Ashgate.

Perry-Kessaris, A, ‘Reading the story of law and embeddedness through a community lens: A Polanyi-meets-Cotterrell economic sociology of law?’ (2011) 62 Northern Ireland Legal Quarterly Special Issue on Socializing Economic Relationships 401.

Perry-Kessaris, A, ‘Anemos-ity, Apatheia, Enthousiasmos: An Economic Sociology of Law and Wind Farm Development in Cyprus’ 40:1 (2013) 40 Journal of Law and Society Special Issue on Towards an Economic Sociology of Law 68.

Rodgers C, ‘Reversing the “Tragedy” of the Commons? Sustainable Management and the Commons Act 2006’ (2010) 73 Modern Law Review 461.

Rodgers C, ‘A New Deal For Commons? Common Resource Management and the Commons Act 2006’ (2007) 9 Environmental Law Review 25.

Xu, T, ‘The End of the Urban-Rural Divide? Emerging Quasi-Commons in Rural China’ (2010) 96 the Archiv für Rechts und Sozialphilosophie (the Archives for Philosophy of Law and Social Philosophy) 557.

Xu, T, ‘Hidden Expropriation in Globalization and Soft Law Protection of Communal Property Rights’, in B Hoops et al (eds.) Rethinking Expropriation Law: The Context, Criteria and Consequences of Expropriation Law, The Hague, NL, Boom/Eleven; Cape Town, RSA, Juta, 2015, forthcoming. Also available at SSRN. 

Activities

Legal Strategies for the Development and Protection of Communal Property 23rd-24th May 2016

A two day workshop was successfully held on 23rd and 24th May 2016 in collaboration with Sheffield Centre for the Study of Law and Society (CLIS), bringing together a diverse range of expert academics researching issues on communal property.

The workshop explored interconnected key issues in the study of communal property and examined, but without being limited to, the following topic areas from both the empirical and theoretical perspectives:

(a) conceptual clarification;
(b) the boundaries of communal property;
(c) the role of communal property in resource management and community development;
(d) legal recognition and protection that should be afforded to communal property.

Further details about the event

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Workshop on ‘Collective Land Rights’ held on 26 March 2016

As part of the research project on ‘Diversifying Ownership of Land?: Communal Property in the UK and China’ (PI, Dr Ting Xu, School of Law, University of Sheffield; CI, Professor Fengzhang Li, School of Law, Shanghai University), A workshop on ‘Collective Land Rights’ was successfully held at Shanghai University Law School in collaboration with the communal property research network. The workshop focused on land ownership and use rights and included three themes: property theory and land ownership; collective ownership of rural land; and land use rights and development rights. Members of the communal property research network, Professor Fengzhang Li (School of Law, Shanghai University), Dr Ting Xu (School of Law, University of Sheffield), Dr Gong Wei (School of Law, University of Sheffield/Chongqing University), Professor Shengmin Sun (School of Economics, Shandong University), presented papers at the workshop. Other speakers included: Professor Fuping Gao (Property Law Academy at East China University of Political Science and Law), Professor Rui Liu (Law Department at Chinese Academy of Governance), Mr Liefei Qiu (Ministry of Land and Resources of the People’s Republic of China), Mr Ding Zhang (the National Committee of the Chinese People’s Political Consultative Conference), Professor Xiaojun Chen (Department of Law, Shandong Agricultural University), Dr Xueyang Cheng (Suzhou University Law School), Mr Nan Jiang (School of Law, Jilin University) and Ms Yu Zhang (School of Law, Shanghai University). PhD and LLM students from Shanghai University Law School also attended the workshop.

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Workshop on ‘Communal Property in China and the UK’ held at the School of Law, University of Sheffield on 21-22 January 2016

On 21-22 January 2016, the School hosted a workshop on ‘Communal Property in China and the UK’ organised by Dr Ting Xu. The workshop is part of the “Diversifying Ownership of Land” project funded by the British Academy International Partnership and Mobility Scheme 2014-2017. Speakers include Professor Sarah Blandy (University of Sheffield), Professor Alison Clarke (University of Surrey), Dr Peter Doran (Queen’s University Belfast), Dr Wei Gong (University of Sheffield), Professor Rosalind Malcolm (University of Surrey), Professor Sarah Nield (University of Southampton) and Professor Christopher Rodgers (Newcastle University).

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Workshop on ‘Collective Ownership from a Global Perspective’held at at Shanghai University Law School in October 2014

A workshop on ‘Collective Ownership from a Global Perspective: Past, Present, and Future’ was held at Shanghai University Law School in collaboration with the Communal Property Research Network on 24 October 2014. Members of the Communal Property Research Network, Dr Xu Ting, Professor Li Fengzhang, Dr Gong Wei and Professor Li Jianhua, presented at the workshop. Other speakers and participants include: Professor Wang Weiguo (Civil, Commercial and Economic Law School at China University of Political Science and Law), Professor Gao Fuping (Property Law Academy at East China University of Political Science and Law), Professor Liu Rui (Law Department at Chinese Academy of Governance), Professor Zhang Peiguo (School of Sociology and Political Science at Shanghai University), Professor Yan Shipeng, Dr Wei Yan, Dr Yang Xianbin, Dr Wang Tao from Shanghai University Law School, Dr Cheng Xueyang from Suzhou University Law School and Some LLM students from Shanghai University Law School. A Centre for Land Issues in China has also been founded at Shanghai University Law School in collaboration with the Communal Property Research Network.

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Dr Ting Xu’s lecture on ‘Communal Property in the UK’ at the School of Law, Shanghai Jiaotong University in October 2014

Dr Ting Xu gave a public lecture on ‘Communal Property in the UK’ at the School of Law, Shanghai Jiaotong University on 29 October 2014.

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Workshop on ‘The Transformation of the Chinese Land System’ held at Jilin University Law School in October 2014

A workshop on ‘The Transformation of the Chinese Land System’ was held at Jilin University Law School in collaboration with the Communal Property Research Network on 31 October 2014. The Conference was organised by Professor Cai Lidong. Other members of the Network, Dr Xu Ting, Professor Li Fengzhang, Dr Gong Wei and Professor Li Jianhua, presented at the workshop. Speakers also include the acting chairman of the Association of Civil Law Studies Professor Sun Xianzhong from the Institute of Law at Chinese Academy of Social Science, the chief editor of Legal Science Professor Han Song from North-west China University of Political Science and Law, Professor Guo Jie from Liaoning University Law School, the editor of China Legal Science Zhu Guangxin, Professor Wu Chunqi from Shandong Normal University, Associate Professor Geng Zhuo from Zhongnan Economic and Law University, Professor Wang Hongping from Yantai University Law school , Dr Hou Debin from Changchun Normal University, Dr Tian Yao from Shandong Normal University Law School, Dr Wang Yufei from China University of Political Science and Law, Associate Professor Li Guoqiang, Mr Jiang Nan, Ms Tang Xinyu from Jilin University Law School. Speakers also include many practitioners and stakeholders including Mr Li Jingzhu, deputy director of Jilin Land Bureau, Ms Wang Linlin, from the Finance Office of Jilin provincial government, Mr Liang Wei from the first Civil Chamber of Changchun Intermediate Court, and Mr Li Haijing, director of rural economic management centre. Other participants include Professor Ma Xinyan, professor Li Hongxiang, Professor Cao Xianfeng, Professor Sun Liangguo, Dr Li Xin, Dr Wang Guozhu and some PhD students and LLM students from Jilin University Law School.

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Seminar given by Professor Fengzhang Li at Queen's Law School on 2 March 2015

Professor Fengzhang Li (Shanghai University Law School) visited Queen’s Law School, and gave a seminar entitled “What is going on in China? The Present and Reform Perspective of Chinese Land Law” on 2 March 2015.

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Seminar given by Professor Douglas Harris at Queen's Law School on 4 March 2015

Professor Douglas Harris (School of Law, University of British Columbia) visited Queen’s Law School, and gave a seminar entitled “Dissolving Condominium, Private Takings and the Nature of Property” on 4 March 2015.