Rethinking Property through Resilience: Lessons from Rural China

21 May 2025 / zuozhenbin / Leave a comment

By Professor Ting Xu, Essex Law School

On 16 May 2025, Professor Ting Xu presented at the Open University’s online legal histories conference, Land and Property Beyond the Centenary, marking 100 years since the transformative property law reforms of 1925 in England and Wales. The centenary offered a rich opportunity to reflect not only on English legal history, but also to look beyond it—to consider alternative models of property governance across time and place.

Professor Xu’s presentation, ‘Beyond 1925: Households, Property, and State Governance—Comparative Perspectives from Rural China’, grew out of her recent research on Resilience, Institutional Change, and Household Property in Rural China. This work draws on Chinese legal history, interdisciplinary scholarship on resilience, and Martha Fineman’s vulnerability theory to rethink how we understand property systems, particularly in contexts that don’t conform to liberal assumptions.

For a field so often shaped by Western, individualist models, rural China offers a compelling case that challenges many taken-for-granted ideas in property law. In her presentation, Professor Xu asked: what sustains property systems under pressure? And what might English legal history gain by looking East?

Revisiting the 1925 Reforms

The 1925 property law reforms in England and Wales were undoubtedly revolutionary. They sought to simplify and modernise a fragmented land system, advancing values such as clarity and certainty of title and ease of transfer—cornerstones of a liberal, market-oriented property regime. Yet, even within this liberal framework, English law has long recognised informal interests, especially within the household. Trusts over the family home, for example, remain one of the most contested and evolving areas in property law.

As Robert Ellickson has argued, the household operates largely through informal norms, rather than strict legal rules. These norms—based on intimacy, trust, and shared routines—are efficient and reduce the need for legal intervention. But the limits of this view become clear when we account for issues of dependency, vulnerability, and inequality—particularly in household governance.

Feminist scholars such as Martha Fineman have pushed back against the liberal ideal of the autonomous, self-sufficient property holder. Fineman’s vulnerability theory reminds us that all human beings experience dependency and vulnerability at various points in their lives, and that resilience—our ability to navigate life’s inevitable challenges—is deeply shaped by institutions and their willingness to support us.

**Figure 1: Vulnerable Subjects and Layered Institutional Support**

A Shift in Perspective: Property as Adaptive Governance

Inspired by Fineman and Ellickson, but also moving beyond them, Professor Xu’s presentation invited the audience to shift how we think about property. Rather than focusing only on legal certainty or formal title, what if we view property as a form of adaptive governance? And what if, instead of seeing informality as a deviation or a problem, we understand it as a site of institutional adaptation (and innovation)—particularly in systems that have long relied on collective, state-controlled, or non-liberal traditions?

To explore these questions, Professor Xu turned to the rural Chinese household and its role in property governance during the 20th century. From imperial systems of collective responsibility, through Maoist collectivisation, to the post-1978 rural reforms, the household has served as a key governance unit adapted to profound ecological, socio-economic, and political transformations.

The model that crystallised in the late 1970s and 1980s was the Household Responsibility System (HRS). Under this system, rural land remained collectively owned, but the rights to use and benefit from land were contracted to individual households. These households gained control over key production decisions—like what crops to grow or how to invest, while still being part of a broader collective governance framework.

The HRS was not a spontaneous market-driven reform. It was an institutional innovation shaped by history, political negotiation, and grassroots experimentation. It was also a response to crisis: the failures of collectivised agriculture and the need to revive rural productivity without dismantling state oversight altogether.

Resilience Over Certainty

In legal terms, the HRS is striking. It doesn’t offer private ownership in the liberal sense. Nor does it offer full certainty or enforceability by Western standards. Yet it has endured, evolved, and adapted across decades of political and socio-economic transformation.

From a resilience theory perspective—drawn from ecological and institutional scholarship—this makes perfect sense. Systems survive not because they are static or clear-cut, but because they can bend without breaking. They absorb shocks, adapt to new conditions, and renegotiate relationships among actors and institutions.

In her presentation, Professor Xu argued that property should be understood as a socio-ecological system—an evolving interaction among resources (e.g., land and housing), governance structures, and legal rights and entitlements (she calls the interaction of these three elements ‘a resilience triad’). As discussed above, what is often ignored is the governance aspect—one key component of property. In the Chinese context, the household plays a central role in this socio-ecological system. Beyond being a mere private unit, it is a resilient institution, from lineage structures and collective responsibility systems to contemporary contracting practices.

**Photo: A Farmer Working in the Field**

The Gendered Dimensions of Informality

However, as Fineman’s work reminds us, we must be cautious not to romanticise informality or resilience. Systems that appear stable at the surface can mask deep inequalities.

One of the clearest examples in the Chinese case is gender. Although households contract with the collective, land contracts are often issued in the name of the male head. Women’s rights to land are frequently tied to marital and registration status. When households divide or dissolve—due to divorce or migration, for instance—women may lose access to land altogether.

This parallels, in some ways, the difficulties faced in English co-ownership disputes, where informal arrangements and non-financial contributions (such as caregiving) can be difficult to assert legally. In both contexts, legal informality without institutional support leaves vulnerable members at risk.

Resilience, then, must be understood not simply as survival or adaptation, but as something that must be supported—and made just—through institutional design. This is where Fineman’s idea of the responsive state becomes important. Whether in liberal or non-liberal contexts, property systems that work in practice are those that can support resilience equitably, not just functionally.

What Can English Legal History Learn from China?

Presenting this work at the Open University conference sparked excellent conversations. While many in the audience were not experts on China, they immediately saw the relevance of these ideas to broader legal questions. What happens to property under conditions of uncertainty—whether ecological, economic, or political? How do communities maintain access and control when formal systems fall short?

There is no one-size-fits-all model. But the Chinese experience shows that property systems can be stable without being rigid, and adaptive without relying entirely on individual title. It also reminds us that households, communities, and informal institutions are not remnants of the past, but active sites of governance in the present.

As we reflect on 100 years since the 1925 property reforms, this moment invites us to think globally and historically. The liberal vision of property—rooted in autonomy, clarity, and marketability—has achieved many successes. But it is not the only way property works. And in an era of climate stress, displacement, and inequality, it may not always be the most resilient one.

Looking Ahead

Professor Xu’s research continues to explore how property systems evolve under pressure, and what we can learn by comparing across legal traditions and historical trajectories. She is particularly interested in how non-liberal or hybrid institutions help sustain access to land and resources—not only in China, but also in other parts of the Global South and beyond.

Legal history offers us more than a story of how we got here—it offers tools for reimagining where we might go next. As we face global challenges that affect land, livelihoods, and governance, property law will need to become more adaptive, more relational, and more responsive.

Rethinking property through resilience is one way to start.

Building Better Communities? Examining How Section 106 Agreements Shape Local Development

9 May 20249 May 2024 / essexlawresearch / Leave a comment

By Dr Edward Mitchell, Essex Law School

Picture a city with an acute housing shortage. Now, envision a plot of land formerly used for industrial purposes, now vacant following a fire that razed most of its buildings two decades ago. Next, imagine a property development initiative set to deliver 150 shiny new houses and 100 smart apartments on that very site. Finally, consider that the project also includes plans for landscaped stretches of open space and a dedicated area earmarked for on-site biodiversity protection.

In this fictional setting, 250 new homes sound great. The open space and the bio-diversity protection area sound good too. But let’s also imagine some potential adverse effects of the development. Perhaps there are many families in acute housing need in the local area who will be priced out of the development. Maybe local primary and secondary schools are already oversubscribed. Perhaps traffic crawls along local roads at the pace of a sedated snail.

Can a local authority compel the developer carrying out this type of development project to mitigate these adverse effects?

In a recent article published in the journal Current Legal Problems, I explore this complex issue.

My article develops ideas I discussed in a lecture I gave in December 2023 as part of UCL’s flagship Current Legal Problems lecture series and expands upon work I previously discussed in a blog on the role of contracts in contemporary town planning. In my lecture and blog post, I highlighted tensions in current planning practice that arise when local authorities rely on private developers to provide public goods that the local authority has identified as important.

UCL Current Legal Problems Lecture: Contracting in the public interest? Re-examining contract in contemporary town planning processes

I build on my earlier work in my latest article by investigating how local authorities and developers create ‘planning obligations’ to mitigate the potentially adverse effects of property development on local communities and on local infrastructure needs. The planning obligations that I discuss are made by local authorities and developers by agreement pursuant to section 106 of the Town and Country Planning Act 1990. The article asks important questions about the detailed and highly intricate framework of duties, rights and powers that these ‘section 106 agreements’ create.

I base my analysis in the article on two case study developments. Examining the section 106 agreements created for these developments enables me to provide rich insights into this complex area of legal and planning practice.

I summarise my findings below.

Finding 1: A limited role in ordering ‘private’ relations

In most property development projects, the developer will seek to obtain planning permission by applying to the planning part of a local authority. Before the local authority grants planning permission, the local authority and the developer will usually identify potential negative effects of the proposed development, and the two parties will negotiate planning obligations to be secured in a section 106 agreement. These obligations might aim to mitigate the development’s negative impacts through the provision, by the developer, of funding for local schools, affordable housing, and local amenities, amongst other things.

When a developer and a local authority enter into a section 106 agreement, the developer should perform the planning obligations and the local authority can enforce them.

The first key issue that my article considers is the nature of the ‘private’ bilateral contractual relations between a developer and a local authority that a section 106 agreement creates.

I ask an important question about this in my article: How do section 106 agreements contribute to a development culture in which private developers do not always perform their public policy obligations?

In the pursuit of answers to this question, I examine the content of the obligations in the section 106 agreements created for my case study developments, I scrutinise monitoring arrangements and I investigate enforcement powers.

In the article, I explain the first key insight from my case studies as follows:

My [case studies] show how these agreements consist of administrative clauses that appear to create an intricate framework of rights, responsibilities, duties and powers relating to the performance of planning obligations. But I also showed how the detail, complexity and apparent rigidity of the obligations in the agreements belies the one-sidedness and the haphazardness of these arrangements. This is important, and suggests that these agreements are ill-equipped to serve as effective instruments for ordering the ‘private’ relations between a [local authority] and a developer.

Finding 2: New questions about the ‘expressive force’ of section 106 agreements

A further crucial finding that my article presents relates to the public-facing work that section 106 agreements do.

My second case study involved a development proposed for a site where ownership of the land was divided amongst multiple unwilling sellers. The local authority had granted a developer planning permission for that development and, to enable that development to take place, had agreed to use its compulsory purchase powers to acquire the entire site.

The land acquisition context of this development enables me to analyse the operation of section 106 agreements as a justificatory device local authorities and developers deploy at planning inquiries convened to consider the use of compulsory purchase powers.

Alongside this, another striking aspect of my second case study development was the way that the section 106 agreement addressed local policies relating to affordable housing provision.

In my article, I ask a second important research question: How does the presence of ostensibly binding promises in section 106 agreements facilitate the exercise of regulatory decision-making in planning and property development processes?

By examining my second case study development, I conclude in my article as follows:

My discussion here presents new findings showing how these agreements can have a powerful expressive force in signalling a commitment to public policy interests that ‘de-risks’ these contentious land acquisition and affordable housing issues for developers and local authorities (Legacy and others 2023). But the crucial point in this section is that these agreements do this despite the emptiness of the commitments that they sometimes contain. These findings demonstrate how planning scholarship needs to look beyond the impression of binding force that a section 106 agreement creates to scrutinise the way that these agreements reinforce uneven outcomes and marginalise certain interests.

Photo by Maximillian Conacher on Unsplash

Finding 3: The need for greater transparency and community participation

My second case study provides an opportunity to examine a section 106 agreement containing developer obligations designed to discharge a local authority’s public sector equality duty.

The third research question that my article asks relates to this public sector equality duty. I ask: How do local authorities manage the implementation of novel developer obligations designed to shape broader community relations?

In my article, I describe my findings in response to this question as follows:

[Making] a section 106 agreement containing developer obligations designed to discharge a local authority’s public sector equalities duty … is an innovative and under-explored way of using a section 106 agreement, so this part of the paper provides a rare insight into the more unusual obligations in these agreements and into the practical challenges local authorities can face when monitoring the implementation of novel planning devices.

My findings also enable me to explain how equalities considerations created a focal point for opposition to an apparently settled development trajectory.

I argue that this highlights the need for greater transparency and public involvement in setting and implementing planning obligations.

Agenda for further research

Planning, public law and contract law scholars will find helpful insights in my article about the diverse and multilayered roles contractual arrangements play in current regulatory practices.

But while my article highlights various problems with the current use of section 106 agreements, understanding how local authorities might more effectively compel developers to mitigate the impacts of property development requires further research.

Here are some key areas where a greater understanding of section 106 agreements and their use might enable insights that would inform better practice:

How might planning law and planning practice enable greater transparency and public involvement in setting and implementing planning obligations?
How do planners and lawyers gather and use the monitoring information about developer behaviour theoretically made accessible through the section 106 agreements studied in my article?
How do planners and lawyers use the enforcement powers contained in section 106 agreements, and could they use those powers differently?

Unlocking Urban Futures: The Role of Contracts in Contemporary Town Planning

15 Nov 202316 Nov 2023 / essexlawresearch / Leave a comment

On Thursday 14 December 2023, Dr. Edward Mitchell will deliver a lecture as part of the flagship Current Legal Problems lecture series, hosted by University College London’s Faculty of Laws.

Dr. Mitchell’s contribution to the lecture series and the accompanying volume will address the role of contract in contemporary town planning processes. Dr. Mitchell will argue that contract has the potential to work in town planning practice to offer administrative efficiency and secure binding commitments from landowners and developers. However, he will also explain that, while contract mechanisms often contribute to the successful performance of planning processes, there are significant gaps in the existing practice.

Interested readers can find more details about Dr Mitchell’s contribution to the lecture series, including booking details, on the Current Legal Problems website.

The Essex Law School Research Visibility Team had the opportunity to interview Dr. Mitchell about his research and his forthcoming contribution to the Current Legal Problems lecture series.

Could you explain, in simple terms, the role of section 106 agreements in the development of land and how they affect residential property development in England?

Certainly, section 106 agreements play a crucial role in shaping residential property development in England. Section 106 agreements are a type of contract used in town planning processes. Local authorities and property developers negotiate these contracts when a developer applies for permission to carry out a property development project. In the context of residential property development, these section 106 agreements operate as a set of contractual rules designed to regulate what developers do when they’re building new housing projects.

Let’s say that a property developer has purchased some land on the edge of Colchester and wants to construct 100 new homes on that land. That developer can’t start building those homes unless it has obtained permission to do so from Colchester City Council. Of course, a development of 100 new homes will increase demand for school places and healthcare services in the local area, as well as placing pressures on transport networks and existing open spaces. Consequently, Colchester City Council will probably not grant planning permission unless the developer agrees to provide or fund improvements to local infrastructure.

The purpose of creating section 106 agreements often relates to this infrastructure provision. These agreements should ensure that new developments benefit local communities in some way and do not place excessive pressure on local infrastructure, like schools, hospitals, transport networks, and so on.

Section 106 agreements seem to play an essential role in shaping the built environment. Could you provide one or two examples of how these agreements impact the places where people live?

There are lots of possible examples! Local authorities and property developers negotiate these agreements for most types of property development activity. For a large project with 1,000 new homes, a local authority may expect a developer to allocate 30% of these homes as ‘affordable’ housing, create substantial public open spaces, provide a site for, and fund the construction of, a new primary school and a community building, and to fund improvements to both the local transport network and local healthcare provision.

On the other hand, for a smaller development of around 15 new homes, a local authority might expect a developer to provide just 4 or 5 affordable homes, a small amount of public open space and a small financial contribution to a community resource (like a contribution to the maintenance of a village hall, or a local public swimming pool).

In other words, for developments big, small and somewhere in between, local authorities seek to use section 106 agreements to secure the delivery of these community benefits. Local authorities and property developers usually work out the details of these community benefits in section 106 agreements, which allows for a negotiated arrangement between the developer and the local authority.

In your research, you mention that the existing methods for affordable housing delivery in England cause instability and tension. Could you explain how these methods operate?

My research took place in the context of an acute shortage of safe, warm and genuinely affordable homes in England.

The Government defines ‘affordable housing’ as residential properties provided to occupants at below-market value, either through discounted sales or discounted rents. Current Government policy requires local authorities to set rules outlining the amount of affordable housing that developers should provide in new housing projects. Local authorities then use section 106 agreements in an attempt to secure the delivery of this affordable housing.

You examine the power dynamics visible in these section 106 agreements. Can you elaborate on how these dynamics influence the outcomes of affordable housing delivery?

My research argues that there is a one-sided power dynamic running through some section 106 agreements. I argue that this dynamic enables property developers to exercise significant control over affordable housing delivery, exacerbating pre-existing problems relating to a shortage of warm, safe and genuinely affordable homes.

This lopsided power dynamic arises because current affordable housing policy relies upon developers providing this affordable housing alongside private market housing in the projects they build. This affordable housing delivery method depends, therefore, on a developer being able to project a profit from a development project. If a developer concludes that providing affordable housing would undermine a project’s profitability, that developer might seek to negotiate a reduction in its affordable housing obligations before signing a section 106 agreement with a local authority.

These negotiations often lead to the creation of highly complex contractual arrangements in section 106 agreements. Moreover, and as noted in various mainstream media outlets, there is evidence suggesting that some developers have sought to manipulate these negotiations to secure significant reductions in the amount of affordable housing that local authorities expect them to deliver.

I argue that these outcomes are an inevitable product of a tendency to prioritise private profit-making over public housing need in current policy relating to affordable housing delivery.

You mentioned the complexity of the contractual arrangements governing affordable housing delivery. Can you share some specific examples of these complexities and how they affect ordinary people’s lives?

I’m interested in the way that any given section 106 agreement can appear to commit a particular property developer to a very specific course of action. For example, a local authority that receives an application from a developer for permission to build 100 new homes might agree to grant planning permission to that developer if that developer promises to provide 30 of those homes as ‘affordable’ housing. This might then lead to the creation of a series of complex clauses in a section 106 agreement, stipulating the deadline by which the developer must provide those affordable homes, and giving the local authority a right to enforce that commitment if the developer fails to fulfil it.

However, my research shows that the ostensibly prescriptive clauses in section 106 agreements relating to affordable housing can sometimes operate as part of a wider and sometimes hidden network of flexible contractual arrangements. My research offers a case study of three inter-linked development projects that illustrates how an intricate network of contractual arrangements can empower developers to choose not just when but also where and how they fulfil their public policy obligations.

Of course, it shouldn’t surprise us that, when local authorities rely on property developers to provide affordable housing, those developers will seek to create outcomes that are favourable to them. But my research provides new perspectives on opportunism and the pursuit of control in town planning processes and shows how developers can create flexibility even amidst highly formal contractual behaviour.

This affects ordinary people’s lives because it disrupts the equitable supply of safe, warm and genuinely affordable housing in our communities.

The government proposes to reform the existing system of developer contributions to the provision of affordable housing and other types of infrastructure in England. Is this reform welcome and could you elaborate on how this change might impact the contractual arrangements in section 106 agreements for affordable housing development?

In its 2020 White Paper, Planning for the Future, the Government proposed to reduce the role of section 106 agreements in town planning processes by implementing a new ‘Infrastructure Levy’. This new Infrastructure Levy will be a mandatory, nationally set land value-based flat rate charge that developers will pay to local authorities during the property development process. The Government has since taken these proposals forward in the Levelling-Up and Regeneration Act 2023, which received Royal Assent on 26 October 2023. The 2023 Act empowers the Secretary of State for Levelling Up, Housing and Communities to make regulations to facilitate the implementation of this levy. While the Secretary of State has not yet exercised this power, the prospect of doing so is an important legislative development.

The Government’s proposals envisage that local authorities will use the proceeds that the levy generates to fund the provision of affordable housing and other types of infrastructure that is needed in their communities. The idea is that this will improve the speed of town planning decision-making and provide both greater certainty and simplicity in town planning processes by removing the scope for negotiation that currently exists in affordable housing delivery.

Some reform of the current system for securing affordable housing does seem necessary given the current shortfall in provision. Research commissioned by the Government suggests that, in some property development settings, the Government’s proposals might generate greater developer contributions to local infrastructure provision and alleviate some of the complex and time-consuming negotiations that the current system causes. However, other town planning stakeholders question whether this proposal will either simplify town planning processes or provide more funding for affordable housing provision.

Moreover, the Government has acknowledged that section 106 agreements will still play an important role in securing developer contributions to community infrastructure needs. I’m interested in exploring this further in my next research project by looking beyond affordable housing to examine the other developer commitments commonly incorporated into section 106 agreements. If there is still a role for section 106 agreements, we need a better understanding of the way the current system operates. I think that we need to get inside the text of section 106 agreements to understand the possibilities that they enable and the problems that they create. By doing this, I think we’ll know more about the appropriateness of the use of contract to secure the delivery of vital public services.

In Defense of the Social Right to Property

13 Jun 2023 / essexlawresearch / Leave a comment

By Dr Koldo Casla, Lecturer at the Essex Law School and Director of the Human Rights Centre Clinic, University of Essex

In the last year, I spoke with academics, practitioners, and representatives of human rights NGOs about the right to property. These conversations originated from my ongoing research on the relationship between the right to property and socioeconomic rights, which resulted in an article recently published by Human Rights Quarterly, as well as a longer-term project.

I show how international human rights bodies that deal with socioeconomic rights, both in the UN and at the regional systems, have largely bypassed the issue of property. I believe that this is a missed opportunity. The right to property can be reformulated as a right that should be interpreted in accordance with all other human rights in international law—in other words, not as an exclusivist, absolutist, and individualist right, as libertarians would desire, but as a right with an inherent social function.

Most of the people and organizations I encountered in this journey were intrigued by the proposition, and a good number of them were sympathetic. Others, however, resisted the move, arguing that property should not be put in the same category with the other values and entitlements that we hold dear, such as nondiscrimination or access to health, as it sustains colonial and neoliberal inequalities.

My response in defense of a new social right to property contains five points.

First, property and private property are not synonymous. It is important to distinguish between communal and private property—in the former case nobody has the right to exclude anyone else from accessing the resource in question.

Back in 1990, the UN General Assembly adopted without vote Resolution 45/98 on the “respect for the right of everyone to own property alone as well as in association with others and its contribution to the economic and social development of Member States.” The resolution recognized that there are many forms of property, private property, but also “communal, social and state forms.”

Regional case law in the Americas has shown how property can go beyond private property. In Awas Tingni v. Nicaragua (2001), the Inter-American Court recalled that, in the drafting process of the American Convention on Human Rights, it was purposefully decided to leave the word “private” out of article 21, a point the court used to extend the application of this provision to other forms of communal and collective property rights of indigenous and tribal groups. In that case, and others that followed, the Inter-American Court connected the right to property with the economic survival, spiritual life, and cultural identity of Indigenous peoples.

Second, many groups have historically been discriminated against and prevented from accessing property. This includes ethnic and national minorities, Indigenous communities, colonized people, women, and people with disabilities. The recognition of property was a progressive achievement for many who were and are denied the opportunity to be more autonomous and have greater control over their lives. Despite not recognizing property as a right as such, the two key treaties from 1966, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, mention property as one of the prohibited grounds of discrimination, as do the other core human rights instruments dealing with groups deserving of special protection: ethnic minorities, women, children, people with disabilities and migrants.

The third point is this: property is not a euphemism for the accumulation of capital and is not necessarily property over the means of production. The distinction between property over personal items and economically productive property was of primary importance in the 1936 Soviet Constitution (articles 6–10).

The right to property is—or can be—the right to the protection of items that are of value to humans. This protection need not be absolute. A useful starting point to strike the right balance between (private) property and other legitimate interests in human rights may be article 23 of the 1948 American Declaration of the Rights and Duties of Man, which provides protection as a matter of human rights only to the level of private property that “meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.”

Fourth, in a market economy, satisfying economic and social rights requires property, including economically productive property, and a fair tax system. The social function of property changes the role of taxes from a potentially but moderately acceptable form of interference—article 1, Protocol 1 of ECHR—to an indispensable tool to ensure economic, social, and cultural rights. States’ duty to fulfill these rights ought to be seen as one of the most important objectives that may justify limiting the right to property as a matter of public interest.

The fifth argument in favor of a social right to property is worth pointing out even at the risk of stating the obvious. The right to housing is not the right to be given a house. The right to social security is not the right to be given an income irrespective of personal circumstances. Socioeconomic rights declare certain standards of adequate material well-being, identify duty bearers, and affirm the principle that those standards should improve over time (progressive realization). Everyone is entitled to those standards, and public authorities must implement policies accordingly. For some, the state will need to provide tailored programs, for instance, in the form of social benefits or social housing. But, for others, their own private resources will be the means by which they satisfy their right to an adequate standard of living, even though they may still rely on universal services like public education and public healthcare.

Three decades ago, the then Commission on Human Rights issued the last UN report to date on the right to property, written by Luis Valencia Rodríguez. The world has changed remarkably since then. The human rights sector is also more mature, with a now vibrant community of activists working on economic and social rights who can rely on literature from UN treaty bodies and special procedures, as well as case law from national and international courts that did not exist in the early 1990s.

Human rights bodies, academics, and practitioners should feel confident in addressing the meaning of property and its coexistence with other human rights.

In the middle of a cost-of-living and food crisis, and in the aftermath of an appalling pandemic, it is now more urgent than ever to redefine the contours of property and its social function in light of economic and social rights.

This piece was first published on the Open Global Rights platform and is reproduced on the ELR Blog with thanks. The original piece can be accessed here.

The Co-evolution of Diversity in Property and Economic Development: Evolutionary Economics and the Vertical Dimension (Part 2)

22 Sep 202223 Sep 2022 / essexlawresearch / 1 Comment

By Professor Ting Xu, Essex Law School

Having laid out the horizontal dimensions of diversity in property in Part 1, I here offer a critique of the assumption in mainstream economics that all kinds of property institutions need to be or will be transformed into private property to promote economic development. I also reflect on my previous work that applies and develops Darwinian mechanisms of variation, inheritance, and selection—which have been extensively discussed in evolutionary biology and evolutionary economics—to study property regime transformation in China.

While working on our co-authored paper, Professor Erik Reinert introduced me to two very important books and encouraged me to think about the relevance of the work of Darwin and Veblen to study property regime transformation in China: Full House: The Spread of Excellence from Plato to Darwin by Stephen Jay Gould (1941-2002), Harvard biologist and historian of science; Thorstein Veblen: Economics for an Age of Crises edited by Erik himself and Francesca Viano. Erik also introduced me to the work of evolutionary economists including Professor Richard Nelson of Columbia University.

In On the Origin of Species (1859), Darwin specified three mechanisms of evolutionary change—variation, inheritance, and selection. It should be noted that Darwin never liked the word evolution due to ‘his denial of progress as a predictable outcome’ (Gould 1996/2011:137). Gould (1996/2011: 41) argued that ‘Darwin’s revolution should be epitomized as the substitution of variation for essence as the central category of natural reality.’ He further argued:

…in Plato’s world, variation is accidental, while essences record a higher reality; in Darwin’s reversal, we value variation as a defining (and concrete earthly) reality, while averages (our closest operational approach to “essences”) become mental abstractions.

In Thorstein Veblen: The Father of Evolutionary and Institutional Economics, Hodgson (2012: 287) argued that Veblen had contributed to evolutionary and institutional economics by bringing ‘Darwinian ideas into the economic arena’.

Veblen’s (1899/2007: 126-127) definition of institution is dynamic:

Institutions are, in substance, prevalent habits of thought with respect to particular relations and particular functions of the individual and of the community […] The situation of today shapes the institutions of tomorrow through a selective, coercive process, by acting upon men’s habitual view of things, and so altering or fortifying a point of view or a mental attitude handed down from the past. […] The evolution of society is substantially a process of mental adaptation on the part of individuals under the stress of circumstances which will no longer tolerate habits of thought formed under and conforming to a different set of circumstances in the past.

Changing socio-economic contexts may shift and reframe ‘perceptions and dispositions within individuals’ and give rise to new ‘habits of thought and behaviour’ (Hodgson 2012: 287) and thus new forms of institution. Veblen (1899/2007) termed this phenomenon ‘selection’ as ‘selective adaptation’. Although Veblen ‘did not make the context, criteria or mechanisms of selection entirely clear’, he ‘generally saw institutions as units of selection in a process of economic evolution’ (Hodgson 2012: 291).

In terms of ‘co-evolution’, it is the ‘signature term’ of Richard Nelson. His 1982 book with Sidney Winter An Evolutionary Theory of Economic Change represented the start of the neo-Schumpeterian wave. Most evolutionary economists use the term ‘co-evolution’. Further, the Darwinian mechanisms have been extensively discussed by biologists, institutional and evolutionary economists, for example Parker 1980 (discussing creation, selection and variation) and Luksha 2008 (discussing variation, selection, and niche construction).

Bringing Darwinian ideas and Veblenian institutions to the analysis of property regime transformation, I completed a working paper in 2015 and argued that the works of Darwin and Veblen also contribute to studies of property. The (Darwinian) transformation of property can be elucidated not only by drawing analogies to the Darwinian mechanisms of variation, inheritance, and selection, but also by broadening the scope of the Darwinian framework, from the biological world to human interactions in society.

There are key mechanisms for understanding and analysing the co-evolution of diversity in property and economic development:

Variation: the existence of diversity in property in accordance with dynamic socio-economic conditions.
Inheritance: the persistence and continuity of the old property regime despite legal and political changes.
Selection: the formation of new forms of property more adapted to socio-economic contexts.

Institutions are created or modified to selectively adapt to the changes in socio-economic contexts. But institutions which enable economic development are often brought about by emulation and innovation beyond adaptation. I will leave the discussion of emulation to my next blog posts and focus on innovation here.

To further illustrate the importance of innovation for economic development, we need to bring in Schumpeterian institutions, which are concerned with the importance of innovation in generating new knowledge and modes of production, which helps move the economic activities to the next ‘stage’ or ‘paradigm’ (Reinert 2000: 11). The relevant discussion of Schumpeterian institutions can be found in my previous blog post on ‘Institutions, Economic Development, and China’s Development Policy for Escaping Poverty’.

When we bring in Schumpeterian institutions to Darwinian mechanisms and Veblenian institutions discussed above, the third mechanism can be developed as selection: the formation of new forms of property more adapted to socio-economic contexts; for economic development, selection need to be prompted by emulation and innovation.

All three mechanisms can be found in China’s long-term property (in rural land) regime transformation (see Part 1).

Variation (diversity) existed in all four periods. The introduction of collective ownership to rural China (1956-1978) by political forces did result in the decrease of diversity in property, therefore reducing the degree of resilience of the property regime in instances of natural disasters and economic and political crises.

The attempt to eliminate diversity in property, however, only lasted for a relatively short span of time, as the political programmes could not change the mode of agricultural production, which still relied on household-based productions. Fundamental aspects of the old property regime persisted and continued, despite alterations, if the economic conditions have not been fundamentally changed (inheritance).

The household responsibility system—a development-promoting institution—was introduced in the late 1970s. This rural land management system was adapted to household-based agricultural productions (selection). Once farmers had discharged their duty to meet the grain quota imposed by the state, they could retain their additional production—the grain produced over and above the required quota.

Further, beyond being a property institution formed through selection adaptation, the household responsibility system was also an innovative property institution in the period between the late 1970s and 1980s, which gave incentives to individual farmers and their households to engage in farming within collective ownership of rural land (innovation).

In the 1990s techno-economic development in agricultural production, however, began to require a new mode of production for promoting cooperation and consolidated/industrialised farming. The household responsibility system, which was once an innovative initiative that promoted economic development, had come to function as a roadblock to further development. New development-promoting property institutions were created in the 1990s and further developed to promote the new mode of production, initiating a process of ‘creative destruction’.

In my 2017 paper, I further clarified three interrelated terms: property regime transformation; innovative property transformation; and property evolution.

Property regime transformation in the broad sense does not indicate either a clear trend or a foreseeable outcome; it need not be progressive. By contrast, innovative property transformation with reference to Schumpeterian institutions conveys a positive connotation of enabling economic development and structural change, which may not be a smooth process. Property evolution in the broad sense conveys a positive connotation (it may even contain a teleological element), but not necessarily the identical form of connotation found in innovative property transformation.

In conclusion, the transformation of property is neither a spontaneous process nor a process solely prompted by external factors; it does not move towards a predictable outcome. Diversity in property and economic development co-evolve. We need to examine changing contexts, in particular techno-economic change over time rather than a linear, normative series of changes such as from communal property to private property, as the inevitable result of property regime transformation.

This article first appeared on Developing Economics and is reproduced on the ELR Blog with permission and thanks. You can read the original post here.

The Co-evolution of Diversity in Property and Economic Development: Key Concepts and the Horizontal Dimension (Part 1)

22 Sep 202223 Sep 2022 / essexlawresearch / 1 Comment

By Professor Ting Xu, Essex Law School

This blog post builds on the ‘Institutions, Economic Development, and China’s Development Policy for Escaping Poverty’ piece and comprises two parts dealing with the key concepts (Part 1) and mechanisms (Part 2) for evaluating the co-evolution of diversity in property and economic development. I argue that diversity in property plays a key role in economic development and that there are two dimensions that are important for examining the co-evolution of diversity in property and economic development—horizontal (Part 1) and vertical (Part 2).

In this post, I offer a critique of the assumption in mainstream economics that private property is the only kind of property institutions that can stimulate and preserve economic development (I am, of course, not the first to offer critiques of this assumption; for existing studies, see e.g., Kennedy 2011). I focus on the meaning of ‘diversity in property’, which concerns the horizontal level analysis.

Introducing the concept of ‘diversity’

‘Diversity’ means ‘many different types of things or people being included in something.’ Professor Erik Reinert introduced me to the concept of ‘diversity’ and encouraged me to examine the nature and significance of diversity in institutions such as property and the co-evolution of diversity in institutions and economic development. I started my research in this area by co-authoring a working paper on ‘Declining Diversity and Declining Societies: China, the West, and the Future of the Global Economy’ with Erik in 2013.

In our co-authored paper, Erik and I examined diversity not only as part of nature’s strategy for the survival of species from natural shocks but also as a strategy consciously employed in human societies for the same reason. We argued that diversity constitutes a key element in economic development. Starting in the 1400s, Europe—and later the West in general—experienced an explosion of intellectual creativity and economic development, due to increasing diversity in polities, policies, cultures and ideas. Simultaneously, China started a process of de-diversification in that period and fell behind. We were worried about the lack of concern for diversity in today’s mainstream economics and development policies.

Due to diminishing diversity in mainstream economics and development policies, economists and policy makers tend to see ‘all economic activities as either being qualitatively all alike or all different’ (Reinert 2000: 180) and changes to be predicted or prescribed. When this pattern of thinking is transferred to evaluate the nature of property and the process of property regime transformation, the importance of ‘strong and clear’ property rights is emphasised as if they were a panacea that can create and preserve a well-functioning market. Further, to promote economic growth, other kinds of property institutions need to be transformed into private property as ‘good institutions’ understood by the World Bank (discussed in my 2017 paper). Diversity in property is eliminated.

Diversity in property

When examining the nature and significance of diversity in property, I see diversity in property as a ‘development-promoting’ institution, in contrast to what is considered ‘good institutions’ by the World Bank, which tends to focus more on eliminating corruption and securing private property. To understand the nature and significance of diversity in property, we need to clarify some basic concepts.

First, property refers to both a resource over which an individual, a community or the state has overall control and the way a resource is managed and regulated by an individual, a community or the state. Property is more concerned with how a resource is used, managed, or governed rather than how it is owned. Communal property, for example, means ‘a resource over which a community and its members together have overall control and the way a resource is managed and regulated by a community for its collective purposes’. The term ‘property’ is more helpful than ‘ownership’ especially in the Chinese context where ownership is defined by the owner’s identity (which gives little information on how the resource is used and governed) and closely associated with ideology.

Second, the concept of private property is both ambiguous and broad: individual and corporate ownership are ‘private’, while ‘government ownership of resources such as office buildings [is also] essentially private’, as Davies (2007: 63-64) argued. When referring to a resource controlled by a human person, it is better to use the term ‘individual property’ rather than ‘private property’.

Third, within communal property, individual property rights/interests may co-exist with communal property rights/interests. Here I use ‘individual property rights’ rather than ‘private property rights’ which may be held by either a human being or an artificial legal entity. The ‘household responsibility system’ introduced in China in the late 1970s is a classic example. The collective issues contracts to the household, which has responsibility for the management of farming an area of land called ‘responsibility land’. Farmers have an individual property right/interest in rural land to possess and use it for farming purposes.

The ‘responsibility land’ is subject to the farmer’s individual property interests and various layers of communal property interests including the household’s interest and the collective’s interest. Although diversity in property is not unique to China, the household responsibility system is an innovative development-promoting institution introduced in China in the late 1970s, while the ideological function of collective ownership of rural land is preserved but less constrained for individual and communal property rights performing their economic functions.

Diversity in property in China

Diversity in property has a much broader scope than that of diversity in ownership. The latter exists in China’s ‘socialist market economy’ with a mix of state ownership, collective ownership, and individual ownership. Diversity in property differs from the evolution of diverse forms of property, for example, from communal property to individual property or from informal property to formal property. These are different forms of property existing at different times.

To use my previous work as an example, my book The Revival of Private Property and Its Limits in Post-Mao China discussed the re-emergence and recognition of private property rights in the context of China’s social and political transformation and economic development since 1978. Illustrative cases include the revival of private property rights in the reform of State-owned enterprises (SOEs) and development of township and village enterprises (TVEs). The focus was on diverse forms of property.

After my 2014 book, I moved my research area from examining diverse forms of property at different times to diversity in property. Two research projects facilitated this new area of research. I was awarded two research projects on diversity in 2014: declining diversity and the global economy funded by the European Commission, Joint Research Centre (completed in 2015); ‘Diversifying Ownership of Land?: Communal Property in the UK and China’ funded by the British Academy International Mobility and Partnership Scheme 2014-17 (completed in 2017).

The meaning of diversity in property (in rural land) in the Chinese context is elaborated in the following table, focussing on four key periods of property regime transformation. The collectivisation period (1956-1978) is not included, as diversity in property was virtually eliminated in this period. Diversity in property includes two levels:

the coexistence of different types of property;
within communal property, the coexistence of individual and communal property interests.

Table 1 below demonstrates that diversity existed in most parts of China’s long-term property regime transformation except the collectivisation period.

**Table 1: Property regimes across vertical and horizontal dimensions**

Diversity in property, offering a better reflection of China’s socio-economic realities than diversity in ownership, plays at least three important functions in reshaping development policies:

it shifts the focus away from ideological debate on public versus private dichotomy;
it directs the focus to thinking about how a resource can be better governed;
it directs policies to match context.

In Part 2 of this post, I explore the vertical dimension of the co-evolution of diversity in property and economic development by focussing on some key mechanisms informed by evolutionary economics.