This article offers a critical review of recent literature on Chinese legal tradition and argues that some subtle but fundamental differences between the Western and Chinese legal traditions are highly relevant to our explanation of the economic divergence in the modern era. By elucidating the fundamental feature of traditional Chinese legal system within the framework of a disciplinary mode of administrative justice, this article highlights the contrasting growth patterns of legal professions and legal knowledge in China and Western Europe that would ultimately affect property rights, contract enforcement and ultimately long-term growth trajectories. The paper concludes with some preliminary analysis on the inter-linkages between the historical evolution of political institution and legal regimes.

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Law and economic change in traditional China: a comparative perspective

In a seminal 1989 article, Douglass North and Barry Weingast argued that by making the monarch more answerable to Parliament, the Glorious Revolution of 1688 helped to secure property rights in England and stimulate the rise of capitalism. Similarly, Daron Acemoglu, Simon Johnson, and James Robinson later wrote that in the English Middle Ages there was a ‘lack of property rights for landowners, merchants and proto-industrialists’ and the ‘strengthening’ of property rights in the late 17th century ‘spurred a process of financial and commercial expansion’. There are several problems with these arguments. Property rights in England were relatively secure from the 13th century. A major developmental problem was not the security of rights but their feudal nature, including widespread ‘entails’ and ‘strict settlements’. 1688 had no obvious direct effect on property rights. Given these criticisms, what changes promoted the rise of capitalism? A more plausible answer is found by addressing the post-1688 Financial and Administrative Revolutions, which were pressured by the enhanced needs of war and Britain's expanding global role. Guided by a more powerful Parliament, this new financial system stimulated reforms to landed property rights, the growth of collateralizable property and saleable debt, and thus enabled the Industrial Revolution.

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1688 and All That: Property Rights, the Glorious Revolution and the Rise of British Capitalism

Author(s): Ludin, Sarah Monira | Advisor(s): Lieberman, David | Abstract: Martin Luther was declared a heretic and outlaw in 1521. In the years that followed, dozens of city councils and princely rulers nevertheless undertook changes in their domains to reform church and polity in the Lutheran manner. In practice, introducing reformation in a particular place involved violations of local customary law, canon law, civil law, or imperial law. Thus, reformation spawned litigation. Attempts throughout the first half of the sixteenth century to resolve disputes that had arisen out of local reformations through arbitration, imperial-level negotiations, religious colloquies, and a church council did little to stop “old-faith” (altglaubig) clergy and church authorities from suing proto-Protestant princes and cities. The most consequential litigation of this period took place in the Imperial Chamber Court, a Roman civil law court that had been established in 1495. With a stable location (that did not travel with the Emperor), and judges appointed by both Emperor and Estates, the Imperial Chamber Court was the first Empire-wide judicial forum that aspired to be independent of the personal justice of the Emperor. In this relatively new, and initially unstable, Roman law court, old-faith litigants sued princes and cities for violating the Land-Peace, confiscating church property, seizing jurisdiction, and other illegal acts. Because its first-instance litigants were primarily princes and cities directly subject to the Emperor, the litigation also had the character of public law.This dissertation is a socio-legal history of Reformation-related litigation that appeared in the Imperial Chamber Court prior to the 1555 Augsburg Religion-Peace. It offers a new kind of legal history of the Reformation. The legal history of the early German Reformation has primarily been the territory of intellectual historians, theologians, and scholars of public law. Their focus on political negotiations, watershed treaties, theological writings, and top-down legislative output, while invaluable, tell us only part of the story. My work, by contrast, elevates the importance of civil litigation as a distinctly important forum in which the Reformation unfolded. I show that legal praxis—the work of classification, of performative speech acts, and of experimentation in high-stakes contexts—are just as important, if not more important, than politics and doctrine for understanding the legal significance of the Reformation. The Reformation holds a particular potency in the historiography of the Christian West as an originary moment for forms of political arrangement and social life that would recognize and acknowledge internal Christian difference, and, eventually, an ever-expanding circle of worldviews. In particular, historians have tended to look to the Augsburg Religion-Peace of 1555 as the headwaters variously of modern secularism, religious freedom, the rule of law, and sovereignty. I argue that we need to look to the early decades of the Reformation to understand what precisely the Peace was aiming to settle and contain. A careful examination of civil litigation can help us account for the most consequential legal transformation of the early Reformation period: while in 1521 Lutheranism was outlawed as a heresy (in the Edict of Worms), in 1555 it was recognized as a legal confession (in the Augsburg Peace). Put another way, we cannot understand how the Holy Roman Empire got from Worms to Augsburg without understanding the Reformation cases. This dissertation also provides a new genealogy for “religion” as a secular legal category. While historians have tended to look to the Enlightenment for a point of origins of “religion” as an academic category, or to the Augsburg Peace as its origins as a political-legal category, in fact, the question of what counted as a “matter of religion” was a key issue as early as the 1520s in the context of Reformation litigation. My research shows how the deep ambiguity of the term “religion” in these cases was decisive in shaping the Augsburg Peace and imperial public law.Finally, my dissertation offers a new way of understanding the impact of Protestantism on modern law. Rather than examining how Protestant rulers reformed law in their domains, or the writings of theologians like Luther and Melanchthon on law, my dissertation analyzes the ways in which Protestant litigants experimented with imperial law in the context of high-stakes litigation. I identify certain patterns of usage that can help explain some of the features of the post-1555 imperial system—including its recognition of multiple “religious parties,” its increased investment in the consolidation of state institutions to manage agonistic difference, and the formation of two distinct legal interpretive universes along confessional lines which eventually destabilized the Augsburg system in the seventeenth century.For readers interested in law and legal history, they will find an exposition of fundamental questions of lawmaking in the Holy Roman Empire, and the way this legal culture shaped how the Reformation unfolded in the German lands. For readers interested in the Reformation, they will find a new approach to considering the role of law in this period, and its consequences on modern law. For readers interested in secularism, they will find a fresh scene in which the religion category gets re-invented, and a detailed examination of the role of the Reformation in producing the particular intractability of “religion” as we have inherited it in late modernity.

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The Reformation Suits: Litigation as Constitution-Making in a German Imperial Court, 1521-1555

The parallel 2008 campaigns for President of the United States and Prime Minister of Canada provided a unique opportunity for a comparison of the issues raised in the campaigns of two neighboring countries with many similarities. After exploring the roles of information policy in recent political campaigns, this article compares the information policy and technology issues emphasized in the platforms and positions of the major party candidates in the 2008 races, both between the candidates of each nation and across the border. The article also compares the uses of information technologies by the campaigns to organize and disseminate their messages. As information policy issues are central aspects of the political agenda in technologically advanced nations and those nations that wish to become technologically advanced, the ways in which the issues are raised in political campaigns can be quite instructive about current approaches to and future directions in information policy.

https://terpconnect.umd.edu/~jbertot/Jaeger/Jaeger_JITP.pdf

Information Policy in National Political Campaigns: A Comparison of the 2008 Campaigns for President of the United States and Prime Minister of Canada

As legal pluralism has entered the lexicon of policy makers and development partners in Africa, a clear understanding of the concept is essential. For this purpose, decoding legal pluralism from a ...

Decoding legal pluralism in Africa

Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition

This article explores some of the intellectual influences which have shaped the development of Critical Legal Studies in Britain and the contexts in which these influences made themselves felt. It then considers which influences might or should steer Critical Legal Studies in the future. In terms of the past, specific attention is given to the influence of Marxism, Freud and Lacan, feminism, Foucault and Derrida, and recent genres of history-writing. As to the future, the question is asked whether Critical Legal Studies will engage constructively with recent developments in the life sciences and the philosophy of science, and, more generally, whether it will be able to surpass its established mooring in the philosophy of history.

BritCrits: Subversion and submission, past, present and future

IntroductionExamination of the transformation of urban China tends to rely on dichotomies such as tradition vs. modernity, past vs. future, collectivism vs. individualism, public (gong) vs. private (si), and rural vs. urban. This paper tries to sidestep these distinctions by looking at the revival of private property and its limits in urban China.In the governmental scheme of traditional China no clear distinction was drawn between cities and the countryside.(l) Urbanisation and the formation of "modern" cities in Republican China undermined such uniformity and gave birth to the urban-rural divide. The gap between the urban and the rural has become even wider in the post-1949 era. Mao's revolutionary rhetoric was pro-village and anti-city, because the rural area in Southern China (e.g., Jiangxi and Fujian) was his revolutionary base. But in the post-1949 era, industrialisation was set, in emulation of the USSR, as the priority in state policy and state-building. The development of the city thereafter proceeded at the expense of the countryside, and the household registration system (huji zhidu){2) made, at least in theory, the gap between the rural and the urban even wider.Yet in post-Deng China, as cities expand into their rural peripheries, legal distinctions between urban and rural become blurred, and in due course the boundaries of cities and the legal regimes applicable in them will need to be redefined.(3) For example, in the rural area, a de facto real estate market is emerging with affordable prices under the label of "minor property ri^its" (xiaochanquan) or "township property rights" (xiangchanquan). This invites an analysis of how the boundaries between the urban and the rural and between public property and private property are being drawn in modern China.The emergence of urban property markets in ChinaThe advent of socialist rule in 1949 brought significant changes to the official conception of property. Between 1956 and 1978, "the private" was deemed to be evil and virtually abolished.(4) Since the beginning of market reform, the Property-holding and the complexity of urban governanceThe lease of state-owned land has been legalised since the promulgation of the 1986 Land Administration Law (LAL). In April 1988 the Constitution was also amendedprivate sector has re-emerged and the status of private property has gradually been rehabilitated. Legislation acknowledged this rehabilitation. In the post-1978 era, the long process of drafting a new property law (wuquanfa) for China took place against the backdrop of the development of the private sector and legislating to promote a "market economy." (5) The 1988 Constitution was amended to allow the transfer of land use rights.(6) The Provisional Regulation on the Grant and Transfer of Use Rights in Urban Land (1990)Urban land, one of the most important state-owned assets, became leaseable and transferable in the late 1980s through the mechanism of the land use rights (LUR) system.(9) The LUR system - in emulation of "legacy" leasehold in Hong Kong - was first developed to attract foreign direct investment (FDI) in order to fund the construction of Special Economic Zones (SEZs) such as Shenzhen.In parallel with changes to the urban land system, the urban housing sector has also involved transformations: when the PRC was established in 1949, private ownership was not abolished immediately; in the cities, people owned their houses. The 1954 Constitution acknowledged the status of private ownership. …

The City as Laboratory and the Urban-Rural Divide

The West and its values are understood in China by the Chinese who have studied abroad. It is not a closed society anymore, and less closed perhaps than some of its neighbours like Viet Nam. Such people, many of whom work in central government or administration, know something or a lot about Western notions of accountability, the rule of law, democracy and freedom. Whether and if so how local officials understand these themes is more difficult to discern.

China's Laws and Flaws

Niklas Luhmann’s theory of politics and law By Michael King and Chris Thornhill. Basingstoke: Palgrave MacMillan, 2003. ISBN 0333993101. 272 pp. £52.50 .

Tim Murphy

Papers

Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition

BritCrits: Subversion and submission, past, present and future

The City as Laboratory and the Urban-Rural Divide

China's Laws and Flaws

Niklas Luhmann’s theory of politics and law By Michael King and Chris Thornhill. Basingstoke: Palgrave MacMillan, 2003. ISBN 0333993101. 272 pp. £52.50 .