“Where the Emperor can’t enter:” rethinking the case for property and housing rights in China

Eva Pils
27 June 2014

In over thirty years of reform, China has changed from a Marxist-Leninist planned economy to a ‘socialist market economy with Chinese characteristics’. This period has also seen an enormous expansion of Chinese cities and transformation of the Chinese urban landscape. This latter development makes an instructive case for private property and housing rights - and it supports criticism of economic efficiency arguments that can undermine human rights. Injustices that occur during evictions in China also illustrate the intrinsic interconnectedness of different rights.

Most urban development in China starts with the granting, by the state, of rights of use (or ‘usufruct rights’) in land; these are private and can be freely transferred under Chinese law. The ownership of land lies with the state. In order to be able to grant these rights of use, the state evicts or expropriates the land of any existing users: urban residents in inner city areas, for example; or rural residents who may have been farming the land, as well as residing on it. Thus over seventy million rural residents have been affected by land seizures that often also involve the destruction of their homes. In urban areas, the State may decide to take back the land it already owned, in a process known as chaiqian, an expression meaning ‘demolition [of buildings] and relocation [of residents].’

Regardless of whether they are owners, tenants, or occupants with unclear legal title, citizens affected by these decisions have generally no choice but to move. The legal rules that purport to limit the government’s power to make these decisions are ineffective. At best, some may receive better compensation if they complain. But many who have complained about expropriations and evictions have suffered harassment and persecution, be it at the hands of government-hired thugs, or directly at the hands of the police. 

The Chinese example, therefore, might appear as a perfect illustration of why rights – at least, private property rights – are not important for economic growth. Clearly, the development of Chinese cities is premised on the state disregarding or destroying property rights, the right to housing, and other rights when it takes land to redistribute it for use by developers. Indeed, on this basis, a body of literature has challenged the assumptions of the World Bank and others that there is a causal connection between strong private property rights, legal certainty, and economic growth. The low-cost and speedy destruction of property rights, Frank Upham has persuasively argued, has enabled rapid urbanisation, which has fuelled overall economic growth.  Like it or not, according to this argument, growth has been possible due to the firm control of an authoritarian government not hampered by legal and political challenges to its decisions. 

However, in some ways echoing the World Bank’s arguments, the government and academic establishment in China have argued exactly the opposite.  They have extolled the wonderful contribution made by modern (albeit ‘socialist Chinese’) markets and the legal protection of private property rights to incentivising property development and hence, prosperity. These claims seem correct, too: there would surely have been no real estate boom but for the official recognition of the rights of those who acquire land use rights under the legal rules introduced from the 1980s onward. 

Both arguments may well be correctly pointing to the causal links between denial or protection (respectively) of rights and economic growth; but both overlook that the argument for human rights, including property rights, does not hinge on growth considerations.

The property boom set off by allowing a real estate market to emerge shows neither that rights are a hindrance, when they stand in the way of growth, nor that they are justified if and when they serve growth. Rather, the Chinese example illustrates that welfare-utilitarian moral theory may  require  invidious discrimination, between social groups that ‘merit’ protection of their rights and social groups that don’t. Individual human rights must not be granted, or taken away, in accordance with some paramount goal of increasing the general welfare, regardless of individual loss or suffering. The Chinese example provides two clear further reasons against subordinating rights to economic growth.  

First, the fixation with growth leads to a reductionist conception of the role of law. Mainstream transnational and domestic discourses have extolled law’s ability to promote ‘development’ in ways that have, however unintentionally, subordinated rule of law to growth goals. Thus the Chinese government-led discourse about evictions portrays the problem as a question of money -- of simply determining and administering the compensation due to evictees, while the state lawfully and efficiently controls land as a resource in ‘socialist public ownership.’ Dominated by economic analysis, and perhaps confounded by the complexities of the Chinese land tenure system, observers can be too easily persuaded by this approach. 

Second, economic analysis falsely characterises serious rights violations as a ‘cost.’ When Tang Fuzhen, facing what she saw as unlawful and violent demolition of her home, set herself on fire in 2010, officials accused her of putting her own interests above those of the public. Even though she had chosen death to protest injustice, they could not see her action as anything other than a selfish struggle for material advantage (liyi). In fact, evictees protest many different rights violations, including their lack of say in the decision made to remove them from their homes and land, and denials of access to justice. It is small wonder that dozens have killed themselves or risked being killed in violent eviction processes, and that thousands have protested in less extreme ways, calling for property rights to protect their homes so that  'the wind may enter, the rain may enter, but the Emperor may not'.

Their actions remind us not only of the political function of human rights and the centrality of the right to free speech in political-legal contexts, but also and more deeply show that injustices cannot be measured as though they were nothing but economic losses. 

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