The Law of Expropriation: A Reflection of the
Underlying Social Thought of a Legal System?
Rebecca L. Roman
Exam Code: 1005589
LAW380-01-F08 – Comparative Law
Fall 2008
1
INTRODUCTION:
Each group of people living or working with others in this world must grapple with one of the
most fundamental tensions brought up by communal existence: the place of the individual in the
community. As one scholar noted, “almost all serious … theorists have seen or formulated the
fundamental social problem as … the struggle between … love of the self and love of the state,
between individual interest and the collective good, between civil society and the political state ….”1
The balance that a community chooses between the individual and the collective is best characterized
as part of the “social thought” of that community. A society’s social thought is the synthesis of its
observations about the welfare of the group and the ways society should structure itself to achieve that
welfare. 2
Law, on the other hand, can be characterized as the set of “rules and principles that govern
relationships between a person and other persons [and] the community, and … handle problems that
may arise within these relationships.”3 Under this conceptualization, law and social thought are
undoubtedly interrelated in some way. However, there are different conceptions as to whether the
interrelationship between the law and social thought of the society where it exists is one of parallelism
or one of divergence. These views range from Montesquieu’s statement that laws are particular to and
consistent with the people for whom they are made,4 to the view that law stands in close relationship
with the needs or desires of the ruling élite of society,5 to the opinion that law is often out of step with
the needs and desires of society.6 One way to examine the relative accuracy of these contentions is to
1
Eugene Kamenka, Community and the Socialist Ideal 3-4 in COMMUNITY AS A SOCIAL IDEAL (Eugene Kamenka ed.,
1982) [hereinafter Kamenka].
2
EMORY S. BOGARDUS, A HISTORY OF SOCIAL THOUGHT 14 (1922).
3
GEORGE B.N. AYITTEY, INDIGENOUS AFRICAN INSTITUTIONS 67 (2d ed. 2006).
4
CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS (1748) Book 1, Ch. 3 (Hafner Pub. Co.,
1949).
5
Prominent scholar Cornel West, for example, uses the United States legal system to highlight the fact that the
structure of law is not built for progress, but for maintaining the status quo of those in power. Cornel West, The Role
of Law in Progressive Politics, 43 VAND. L. REV. 1797 (1990).
6
ALAN WATSON, THE NATURE OF LAW 86 (1977).
2
study a legal doctrine that would appear to be particularly representative of the balance between
individual and state, and compare it to the underlying social thought in that legal system.
It would seem logical to search for such a doctrine somewhere within property law, as scholars
have argued that property should be understood basically as a legal relationship establishing a
boundary between an individual and the state.7 One particularly representative doctrine within
property law would appear to be the legal act of confiscation of private property by the state for public
or communal use without the owner's consent – alternatively called eminent domain,8 expropriation,9
compulsory purchase,10 compulsory acquisition,11 or resumption12 in different legal systems.13
Because this legal theory directly encompasses one of the central problems in communal existence –
defining the relative power of the state and the individual in a community – it would be logical that the
law would reflect prevalent social thought of the community about these roles. Scholars of
expropriation have affirmed this conclusion in stating that, “perhaps better than any other single topic
in the law, the law and practice of expropriation of private property throw light on… the relationship
between the citizen and the state.”14
This paper will attempt to determine whether it is true that the contours of the legal concept of
expropriation in a given legal system provide an accurate barometer of a culture’s dominant social
thought on the role of the individual versus the collective. In order to do so, it will first examine the
ideological underpinnings behind each legal system, and will then review the concept of property and
law of expropriation in each system. Next, this paper will briefly review prevalent social thought in
O. Lee Reed, What is “Property”?, 41 AM. BUS. L.J. 459, 484 (2004).
1-1 Nichols on Eminent Domain § 1.11.
9
See generally EXPROPRIATION IN THE AMERICAS (Andreas F. Lowenfeld ed., 1971).
10
See generally KEITH DAVIES, LAW OF COMPULSORY PURCHASE AND COMPENSATION (1975).
11
See generally DOUGLAS BROWN, LAND ACQUISITION: AN EXAMINATION OF THE PRINCIPLES OF LAW GOVERNING
THE COMPULSORY ACQUISITION OR RESUMPTION OF LAND IN AUSTRALIA AND NEW ZEALAND (1972).
12
Id.
13
For purposes of clarity, this paper uses the term “expropriation” for the act of state or communal taking of property
without the owner’s consent in all legal systems.
14
Andreas F. Lowenfeld, Introduction to EXPROPRIATION IN THE AMERICAS, supra note 9, at 1.
7
8
3
the communities where this type of legal system is found and will compare and contrast the extent to
which the law of expropriation parallels the prevalent social theory on the balance of the individual
and the state in each legal system. Finally, this paper will compare the findings between legal systems,
and will tease out what these conclusions say about the character of law, the role of the law in society,
the various goals that law seeks to promote, and the source of law in different legal systems.
I.
CHTHONIC LEGAL SYSTEMS AND EXPROPRATION OF LAND
A.
Development and Ideals of the Chthonic Law System
The chthonic legal tradition is the oldest legal tradition of those people who have alternatively
been described as “aboriginals,” “natives” or “indigenous peoples,” but who are most properly
described as those who live in close harmony with the earth.15 There was no point of origin of the
chthonic legal tradition of these peoples, rather it emerged from the oral and informal expression of
law over time.16
This gradual evolution of the chthonic legal system is highly consistent with the source and
content of its law. Chthonic law results out of the “information which guides all forms of action in the
chthonic community.”17 Because its substance is the stuff of life, law is widely known, profoundly
rooted, and vested in communal, oral knowledge in which all or most share and may participate.18
Because of its oral nature, the tradition also does not lend itself to complex institutions to implement
the law; the most common institution is a council of elders who speak with authority on the law, given
their assimilation of tradition over a long period of time.19 In some chthonic systems, the council of
elders is supplemented with a chief, yet both are consultative forms of rule that garner their authority
15
H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD 58, 60 (3rd ed. 2007).
Id. at 60-61.
17
Id. at 69.
18
Id. at 62.
19
Id. at 63.
16
4
from their ability to generate consensus.20 Informal and alternative dispute resolution is also used,
with a primary goal being reconciliation rather than adjudication.21
Thus, a theme that emerges out of chthonic legal systems is their focus on community,
consensus, and reconciliation. Substantively, this is reflected in a lack of protection for individual
rights under chthonic law.22
B. Conceptions of Property and the Law of Expropriation in the Chthonic Law System
i. Conceptions of Property in Chthonic Legal Systems
Land has an entirely different importance in chthonic legal systems than in Western systems;
the spirit of one’s ancestors is fused with the soil and thus belongs to one’s ancestors and to future
generations as much if not more than to those living.23 Thus, land is much more than property; it is
another actor in society. As such, it is inconsistent with chthonic thought that any individual would
have “property” or “ownership” of the land; those alive are merely stewards of the land while they are
on this earth and before they return to the earth.24
As a result of this worldview, traditional chthonic law has “no formal concept of property” that
defines the loose relationship between groups of people and the soil upon which they live, or formally
defines property rights of people with respect to others.25 Rather, land is held by the community and,
“the major characteristic … is that the land is regarded as belonging not to the individual but to the
whole social group.”26 Although not exactly the same, chthonic property is most similar to the
Western concept of ownership and control of land by the group as a whole. As a result of this group
control, land is not subject to personal ownership or the right of alienation that comes with
20
Id.
Id.
22
Id. at 71.
23
RENÉ DAVID & JOHN E.C. BRIERLEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY 549-50 (1990).
24
Id. at 550.
25
GLENN, supra note 15, at 67.
26
GEOFFREY PAYNE, URBAN LAND TENURE AND PROPERTY RIGHTS IN DEVELOPING COUNTRIES 3 (1997).
21
5
ownership.27 However this does not mean that individuals have no interest in land whatsoever in
chthonic systems. While land ownership is held at the group level, “land use [is] exercised at the
individual or household level.”28 Chiefs may allocate land for individual use, such as hunting,
farming, and limited forms of excavation, without disruption of the communal holding.29 Notably,
however, the individual here is “not so much a single person, but rather the representative of a family
group.”30
While traditional chthonic law communities were able to survive without formalizing their
property system because groups were so insular and distinct,31 there are now no chthonic peoples in
the world who do not live within a state, itself a non-chthonic construction.32 Thus, in order to fully
understand current property law in chthonic or customary legal systems, it is necessary to examine the
influence of other cultures in addition to traditional conceptions of property. During the colonial
period, chthonic principles of property were exposed and often subjected to the property rights systems
of the colonizers. Colonial states claimed that there was an inherent lack of security in land tenure in
chthonic land rights, which resulted in a “dualist land tenure system organized hierarchically in which
progress was seen and presented as a movement away from (traditional) customary to (modern)
statutory forms of land tenure.”33 Other scholars affirm that this resulted in a widespread consensus
that “customary rights are incompatible with a ‘modern’ agriculture, economy, or society.”34 Because
of this, customary or chthonic land tenure received “little recognition or no mention at all in the
national legal system of almost all contemporary countries” when adjusting their legal systems to
27
Id.
DAVID LEA, PROPERTY RIGHTS, INDIGENOUS PEOPLE AND THE DEVELOPING WORLD: ISSUES FROM ABORIGINAL
ENTITLEMENT TO INTELLECTUAL OWNERSHIP RIGHTS 99 (2008) (emphasis added).
29
GLENN, supra note 15, at 67.
30
Marco Guadagni, Trends in Customary Land Property, in Land Law in Comparative Perspective 7 (Maria Elena
Sanchez Jordan & Antonio Gambaro eds., 2002) [hereinafter Guadagni].
31
DAVID & BRIERLY, supra note 23, at 548.
32
GLENN, supra note 15, at 81.
33
PAYNE, supra note 26, at 15.
34
Id.
28
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colonizing forces, either during or after colonial presence.35 Instead, many countries with customary
systems of land tenure adopted reforms that led to the implementation of European tenure concepts,
either capitalist or socialist.36
On the other had, in some countries, chthonic legal principals have taken the form of reverting
to pre-colonial concepts of communal rather than individual ownership.37 An early study found that
one of the main reasons for extinguishing private freehold ownership in sub-Saharan Africa was a
belief that they were carrying on a traditional African practice, in which ownership of the land resided
in the community and not in the individual.38 Two modern examples of this include Vanuatu, where
the independent government overthrew the colonial system of land tenure and reverted to customary
ownership, effectively abolishing freehold39 and Lesotho, where the 1979 Land Act vested all land
absolutely and irrevocably in the tribal Basotho Nation.40 In conclusion, although chthonic property
regimes have reemerged in a few countries, the imposition of Western ideas of property and their
demand for individual tenure systems threatens chthonic tenure systems today. 41
ii. Expropriation of Land within the Chthonic Conception of Property
Based the lack of a formal concept of individual property ownership, some may conclude that
chthonic law is completely inconsistent with the idea of state expropriation of private property. This is
true to the extent that there is no formal idea of expropriation of land by the state in chthonic legal
systems because there is no private ownership of property. However, the conclusion that a parallel
concept does not exist within the bounds of chthonic understandings of property would be misleading.
35
Guadagni, supra note 30, at 7.
PAYNE, supra note 26, at 15.
37
Id. at 5.
38
Id. at 11.
39
LEA, supra note 28, at 97; see also P. Larmour, Alienated Land and Independence in Melanesia, 8 PAC. STUD. 1, 38
(1984).
40
The Land Act 1979 of Lesotho (Act No. 17 of 1979), Supplement No.1 to Gazette No.41 (14 Dec. 1979), available
at http://faolex.fao.org/cgibin/faolex.exe?rec_id=014626&database=FAOLEX&search_type=link&table=result&lang=eng&format_name=@ER
ALL.
41
PAYNE, supra note 26, at 15.
36
7
Although there is no “state” and no individual ownership of private property, chthonic legal
systems do have procedures by which the group could regain possession of land being used by an
individual member. As part of their enormous powers over distribution of land as leader of the group,
chiefs in chthonic legal systems also have the powers of appropriation and confiscation of land from
individual use.42 Moreover, the chiefs retain the right to banish anyone from their area,43 which has
the same functional result as expropriation of land use rights. These powers could not be exercised
arbitrarily, however: the chief “could not recklessly exercise his powers of appropriation and
confiscation without the full consent of the Council of Elders.”44 The chief could dispossess someone
of his land after taking into account the councilors’ advice and only in serious cases such as “the
commission of a grave offense against the community [or] abandonment of the land.”45 Expropriation,
therefore, was used as a mechanism of social control and maintaining group cohesiveness, through
centralized control of land and seizure of land when the individual has violated social norms.
Not only does chthonic law utilize concepts similar to expropriation, but chthonic peoples are
also heavily subjected to land seizure by states with other legal systems. As noted previously, in many
countries traditional systems of chthonic law operate side by side with one or more statutory systems
inherited from countries; these often embody very different legal and cultural traditions.46 When faced
against other property systems, such as those with private ownership, the legal status of the customary
holdings may also become ambiguous or even subordinate. As one scholar noted, “[i]n academic
writings, judicial interpretation and administrative practice, customary tenure came to be identified and
treated as inferior to statutory or common law tenure.”47 Thus, because chthonic ideas of property are
not institutionalized like the property law of the other system, indigenous peoples are often exposed to
42
AYITTEY, supra note 3, at 91.
PAYNE, supra note 26, at 4.
44
AYITTEY, supra note 3, at 91, 95.
45
Id. at 95.
46
PAYNE, supra note 26, at vii.
47
Id. at 14.
43
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further hardship due to their lack of land ownership through title.48 Their land rights are not
recognized and, often, seized.
C. Does Expropriation Law Reflect the Underlying Social Order
The practice of expropriation in chthonic systems is consistent with a social theory that would
value the group over the individual. Correspondingly, in chthonic legal systems, the teleological
emphasis on the community overshadows the interests of the individual.49 The interests of the
community are supreme and the principal concern is for those social groupings which endure
throughout time, such as the tribe, village, or bloodline, rather than the individual.50 Because the
kinship or tribal group is the prevalent social organization, one’s own group is the center about which
all else revolves.51
Within the group, social conformity, cooperation and harmony are emphasized.52 Such
harmony and cohesiveness is achieved by proper social behavior. The limits of behavior and rigid
boundaries of social conformity within are not imposed from above by the chief or king, however, but
are the prescription of the community and the people themselves.53 For example, strong bonds
between members of the kinship group influence the character of the child and lay the basis for adult
uniformity and conformity: “through the subtle processes of sociation the experiences of the more
mature members dominate and fuse with those of the immature, thus begetting the attitudes,
sentiments, social ritual, and traditions of the kinship group.”54 Thus, social control tend to be exerted
by the older members of the group in an indirect way, leading by example and thereby transmitting the
traditions of the past.55
48
Id. at 15.
AYITTEY, supra note 3, at 100.
50
DAVID & BRIERLEY, supra note 23, at 549.
51
HOWARD BECKER & HARRY ELMER BARNES, SOCIAL THOUGHT FROM LORE TO SCIENCE 10, 17 (3rd ed. 1961).
52
AYITTEY, supra note 3, at 41.
53
Id. at 45.
54
BECKER & BARNES, supra note 51, at 10.
55
Id. at 11.
49
9
Because the clan is the individual’s ultimate reference model for identity, it serves an
important function of social and behavioral control, as individuals desist from acts likely to bring
shame to the clan as a whole.56 However, if the individual were to violate tradition and accepted
behavioral modes and harm others, “any action tending to harm others was a great threat to the whole
society, and must be purged by appropriate counteraction.”57
The fact that the law of expropriation is highly consistent with chthonic social thought is not
surprising, given the scope and source of chthonic law. As mentioned previously, law encompasses
“all forms of action in the chthonic community” and is thus inextricably interwoven and infused with
all else in chthonic society.58 Because it is so intertwined with life, “its content is necessarily
dictated”59 by this society and predominant social thought and tradition controls the law. A scholar of
one chthonic group expressed that “there was no separation between law, morality, ethics, religion, and
the social and political organization.”60 It logically follows that chthonic law overall, and the law of
expropriation, in particular, reflects the underlying social order and ideals of chthonic peoples.
II.
CIVIL LAW SYSTEMS AND EXPROPRIATION OF LAND: CHILE
A. Development and Ideals of the Civil Law System
The oldest source of civil law tradition can be traced back to the influence of Roman law, with
the publication of the Twelve Tables,61 and later Emperor Justinian’s compilation and codification of a
series of laws on the relations of persons, things, and obligations in the Corpus Juris Civilis.62 The
Corpus Juris Civilis was meant to be the sole solution of legal problems, and no reference was to be
56
AYITTEY, supra note 3, at 24.
Id. at 100.
58
GLENN, supra note 15, at 69.
59
Id. at 70.
60
Kojo Yelpaala, Circular Arguments and Self-Fulfilling Definitions: ‘Statelessness’ and the Dagaaba, 10 HISTORY
IN AFRICA 349, 377 (1983).
61
JOHN HENRY MERRYMAN & ROGELIO PÉREZ-PERDOMO, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE
LEGAL SYSTEMS OF EUROPE AND LATIN AMERICA 2 (3rd ed., 2007).
62
Id. at 6.
57
10
made to any prior law or commentary,63 thereby laying the ideological foundation for the supremacy
and completeness of the code as the source of law in the civil code system.64 With the fall of the
Roman Empire, the Corpus Juris Civilis fell into disuse until the Renaissance, when there was a
revival of interest in Roman law and recognition of the high intellectual quality of the code at the
European universities.65 At those universities, the Corpus Juris Civilis became the object of study and
commentary; those who had studied at the universities returned to their nations to similarly teach and
study the law of the Corpus Juris Civilis.66 Thus, Roman civil law was received through a large part
of Western Europe and thrived during the formation of national law during the rise of the nationstate.67 A large part of this influence was seen during the adoption of civil codes by the principal states
of Western Europe during the nineteenth century. These codes, of which the Napoleonic Code was the
archetype, included subject matter, organization, and conceptual structures almost identical to that of
the Institutes of Justinian.68 In addition, these Western European nations began engaging in
colonialism, thereby spreading the influence of the civil law system to their colonies.
Chile provides a fascinating example of the civil law system at work in one of these colonies
because of how closely the codification efforts followed traditional civil codes, even after Chilean
independence from its European colonizers. Prior to colonization, the population of what is now
modern-day Chile had a culture and legal system that was influenced both by Tiahuanaco culture and
later the Inca conquest.69 During the sixteenth century, however, the Spanish crown conquered the
Chilean people following the efforts of conquistadors Diego de Almagro and Pedro de Valdivia.70
Through such colonization, the Spaniards asserted their civil law influence on the people in a very
63
Id. at 7.
ALAN WATSON, THE MAKING OF THE CIVIL LAW 168 (1981).
65
MERRYMAN & PÉREZ-PERDOMO, supra note 61, at 8-9.
66
Id. at 9-10.
67
Id. at 10-11.
68
Id. at 10.
69
JOHN L. RECTOR, HISTORY OF CHILE xvii (Palgrave Macmillan, 2005).
70
Id. at 31-33.
64
11
direct manner.71 The influence of law and legal institutions were particularly strong because the
colonies were treated as direct and exclusive possessions of the king.72 Specifically, colonial
administrations sought to “extend and replicated Spanish royal structures and Spanish society that
supported the law.”73 Thus, the law functioned as “an essential tool of royal economic and social
control over distant possessions.”74
In 1810, the Chilean independence movement began, resulting in eight years of turmoil
between Spanish and Chilean forces and culminating in full independence in 1818.75 From its first
days as a free and independent state, Chile felt the need to establish its own legal system.76 The first
constitution of Chile was written in 1833 and, under the influence of the conservative aristocracy,
established a stable republican system with a strong president and provided strong individual rights to
be protected from government infringement.77 Chile’s first constitution is thus highly consistent with
that of most countries belonging to the Civil Law tradition, which have “a written Constitution
wherein the acknowledgement of a series of individual rights and freedoms is solemnly declared.” 78
However, in civil law systems, while the constitution proscribes the extent of government powers, the
civil code is supreme with respect to private law and provides the basis for most of the law. 79
Accordingly, a Law of Codification soon provided for a commission charged with codifying the civil
laws in Chile.80 In drafting the Code, the key authors focused on taking advantage of foreign civil
71
David S. Clark, Judicial Protection of the Constitution in Latin America, 2 HASTINGS CONST. L. QUARTERLY 405
(1975) in THE CIVIL TRADITION: EUROPE, LATIN AMERICA, AND EAST ASIA 370 (John H. Merryman, David S. Clark
& John O. Haley eds., 1994).
72
Id. at 370.
73
M.C. MIROW, LATIN AMERICAN LAW: A HISTORY OF PRIVATE LAW AND INSTITUTIONS IN SPANISH AMERICA 11
(University of Texas Press 2004).
74
Id.
75
RECTOR, supra note 69, at xix-xx.
76
Juan G. Matus Valencia, The Centenary of the Chilean Civil Code, 7 AM. J. COMP. L. 71, 71 (1958).
77
POLITICAL CONSTITUTION OF THE REPUBLIC OF CHILE (1833) (C.W. Tooke, trans.); MANUEL ANTONIO GARRETÓN,
INCOMPLETE DEMOCRACY: POLITICAL DEMOCRATIZATION IN CHILE AND LATIN AMERICA 99 (2003).
78
Rafael Sanchez Aristi & Nieves Moralejo Imbernon, Spain, INTERNATIONAL ENCYCLOPAEDIA OF LAWS PROPERTY
AND TRUST LAW, 27 (2008).
79
WATSON, supra note 64, at 168.
80
Valencia, supra note 76, at 71-72.
12
codes, using them as a guide and adopting the major ideological provisions of the civil law system.81
Accordingly, the sources which are most frequently cited as contributing to the formation of the
Chilean Code are Roman law, Spanish law in force in Chile before the Civil Code, the Napoleonic
Code of France, and other civil codes in force at the time of the preparation of the Chilean Civil
Code.82 Thus, 19th century Chilean society preserved the essence of the colonial civil legal structure.
This legal system, based heavily on the traditional civil law system, remained in place until the
middle of the 20th century, when the formal legal system experienced massive pressures for adjustment
and change.83 During this period, characterized by a prevalence of socialist thought in the government,
the governments of Jorje Alessandri, Eduardo Frei, and Salvadore Allende increased the power of the
state, expanded administrative and regulatory power, and hastily drafted laws and regulations to try to
respond to the political and social problems that they were facing.84 The Allende government, for
example, attempted to achieve a “program for revolutionary social transformation”85 through such
legal reforms. Unfortunately, however, the laws and regulations enacted during this period in an
attempt to resolve prevailing Chilean social problems were “awkwardly grafted onto the formal legal
system… often internally inconsistent, and were in conflict with the formal legal system.” 86
Out of the economic and political turmoil of the Socialist Party rule, therefore, exploded a
backlash of epic proportions. In 1973, Chile experienced a violent military coup d’état which ended
the presidency of Allende, and resulted in the dictatorship of General Augusto Pinochet for seventeen
years.87 Over the last years of the dictatorship, the military oversaw a gradual, controlled transition to
81
Id. at 73.
Id. at 76-77.
83
JAMES A. GARDNER, LEGAL IMPERIALISM: AMERICAN LAWYERS AND FOREIGN AID IN LATIN AMERICA 150 (1980).
84
Id.
85
KATHERINE HITE, WHEN THE ROMANCE ENDED: LEADERS OF THE CHILEAN LEFT, 1968-1998 xiv, 27 (2000).
86
GARDNER, supra note 83, at 150.
87
HITE, supra note 85, at xiii.
82
13
democracy, culminating in the 1989 national election of a democratic government.88 This ushered in a
period of democratic legal reforms that built the current Chilean political and legal system. 89
B. Conceptions of Property and the Law of Expropriation in the Civil Law System
i. Conceptions of Property in Civil Law Systems
Although the law of property has changed much over the years in many civil law countries, the
basic ideological conception of property Chile was originally founded upon the ideas of the traditional
European civil codes that so influenced the formation of the Chilean legal system. The fundamental
conception of property under the civil law system was seen in the Corpus Juris Civilis, which held that
“property consists in an absolute and exclusive right that embraces, in an abstract sense, every
possible action of its owner.”90 During the resurgence of civil law ideals in Europe during the
Renaissance, individualistic notions of property were also reborn as a result of the bourgeois
revolutionary movement.91 The bourgeois movement arose in direct reaction to the French
Revolution of the mid-nineteenth century, which abolished all feudal institutions that encumbered title
to land.92 This resulted in a forceful revival of the “individualistic Roman notion of ownership” in the
concept of property in European civil law systems. 93 One scholar noted that “the bourgeois model of
property is an individual and free one. ‘Individual’ because the goods could belong to individuals,
and not necessarily to the community, the family, the ecclesiastical order or the guild. And ‘free’,
not only because it is already not subject to limits that interfere with its conveyance or
encumbrance, but also because it belongs to free individuals, competent to have the use of their
respective goods without obstructions.”94
88
Id.
See generally GARRETÓN, supra note 77.
90
Aristi & Imbernon, supra note 78, at 34.
91
Id.
92
Valencia, supra note 76, at 76.
93
Id.
94
Aristi & Imbernon, supra note 78, at 35.
89
14
The first Civil Code of Chile went into effect in 1857, “at the height of the ‘liberal,’
individualistic, nineteenth-century legal tradition”95 and thus was very influenced by such individual
views of property under European codes. The individualistic notion of ownership “was adopted by
Bello [the primary author of the Civil Code] as one of the fundamental pillars of the Civil Code and
forms the basis of the law of real and personal property and of succession.”96 The Chilean Code, like
the traditions before it, reflected “a general emphasis on rationalistic individualism, the central position
of private property, and a limited social role for the state.”97 One prime example of the similarity
between conceptions of property in traditional civil codes and the definition of property in the Chilean
Civil Code was found in Article 582 of the Chilean Code. This section closely resembled Article 544
of the Napoleonic Code, often viewed as the purest expression of individualistic concept of private
ownership. 98 Both provisions define property as “the right to enjoy and have the use of the goods in
the most absolute way provided that the owner does not use them in a way forbidden by laws or
regulations.”99 Similarly, in defining individual rights against the government, the Constitution of
Chile guaranteed the inviolability of property until its amendment in 1967.100
However, as noted by many scholars, it is not completely accurate to say that the Chilean Civil
Code’s view of property has ever been completely liberal or absolutist.101 There were always state
limits on property, albeit minor ones, such as restraints on the use of certain types of property, the
taxation of property, or imposing ceilings on rent charged for property.102 Yet these were not
considered violations of the right to property guaranteed in the Constitution, but limitations on the
95
Alamiro de Avila Martel & Manuel Salvat Monguillot, Chile, in EXPROPRIATION IN THE AMERICAS 85 (Andreas F.
Lowenfeld ed., 1971) [hereinafter Martel & Monguillot].
96
Valencia, supra note 76, at 76.
97
GARDNER, supra note 83, at 150.
98
PAYNE, supra note 26, at 4.
99
Aristi & Imbernon, supra note 78, at 35.
100
Martel & Monguillot, supra note 95, at 85.
101
Id. at 86.
102
Id. at 85.
15
exercise of that right.103 One such limitation that has been present in Chile since independence is the
law of expropriation.
ii. Expropriation of Land within the Civil Law Conception of Property
Expropriation in civil law systems is defined as “the actual transfer and possession of title from
an individual to the state in return for payment of compensation.”104 Chilean law on expropriation has
evolved over the years and run the gamut from almost complete protection of individual ownership of
property to unlimited governmental expropriation.
Although the earliest post-colonial Chilean Constitutions included provisions on expropriation
of property, they were largely phrased in terms of negative rights against deprivation of property
except as required under rare and grave circumstances, such as defense of the nation or serious public
necessity.105 Thus, the rural oligarchy benefitted from the civil system ideal of individual ownership
of property and preserved the latifundia system whereby individual Chileans – the “favored few” – had
acquired great landed estates in exchange for military service for colonial Spain.106 These individuals
resisted reform by arguing that any reform of in land tenure was dangerous and unnecessary.107
Because Chile adopted the protectionist of property of civil law systems, independence did little to
change the property structure in Chile, with its great inequalities in wealth and distribution of land.108
This protectionist definition of expropriation remained largely unchanged until the early
twentieth century, when the question of the guarantee of property became one of the most debated
issues at the convention which produced the 1925 Constitution.109 While some delegates sought to
retain strong individual property rights by maintaining the language of the 1833 Constitution, other
delegates had become dissatisfied with Chilean development and wanted to change the language to
103
Id.
Id.
105
Id. at 86-87.
106
JOHN J. JOHNSON, POLITICAL CHANGE IN LATIN AMERICA: THE EMERGENCE OF THE MIDDLE SECTORS 21 (1958).
107
GARDNER, supra note 83, at 156.
108
MIROW, supra note 73, at 219.
109
Martel & Monguillot, supra note 95, at 87.
104
16
emphasize the needs of society.110 In the end, the 1925 Constitution restated the inviolability of
private property, but on the other hand wrote into the Constitution the concept of the social function of
property and clarified the “utility of the state” as the basis for expropriation.111
The next great change in the law of expropriation, and the first major departure from the civil
law emphasis on the individual nature of property, occurred early 1960s, when President Jorge
Alessandri sought to institute large-scale land reform programs and found Article 10 to be a serious
obstacle to this goal.112 As a result, Congress passed Law 15,295, amending Article 10(10) of the
1925 Constitution; it greatly expanded the ability of the state to take private land by providing that the
government could seize poorly exploited land and compensate the owner over a fifteen year period.113
While the Alessandri government did not achieve significant success in its agrarian reform
program, the government of Eduardo Frei took over and expanded expropriation law for this reform
purpose.114 Frei was committed to the concept of the social function of property, and planned to
increase the government’s ability to expropriate land for nationwide agrarian reform purposes,
instituting “a process of massive redistribution of the ownership of land … in direct favor of those who
work for the land.”115 Shortly after his election, the Frei government codified this through
congressional passage of Law 16,640, the Agrarian Reform Law of 1967, which revised Article 10(10)
110
Id. at 88.
Specifically, it assured to all inhabitants of Chile “[t]he inviolability of all property without any
distinction” and declared that “[n]o one may be deprived of property… except by virtue of a judicial
decree or by expropriation, in account of public utility… The exercise of the right of property is
subject to the limitations or rules demanded by the maintenance and advancement of the social order
and, to that end, the law may impose obligations or servitudes of public utility in favor of the general
interest of the State, the health of the citizens, and the public welfare.” Constitution of Chile, Art. 10(10)
111
(1925).
112
Martel & Monguillot, supra note 95, at 90.
113
Specifically, the law provided that “The judge may authorize the taking of material possession of the property once
the judgment of first instance has been handed down in the case of expropriation for public works which are urgently
required or of rural lands. … Nevertheless, if abandoned rural properties or agricultural properties which are plainly
poorly exploited or are cultivated at a level below the normal level … are expropriated for reasons of public utility
with the objective of encouraging appropriate distribution of agrarian property, the proprietor shall be given prior
compensation of 10% and the remainder in equal annual installments…” Law 15,295 of the Republic of Chile.
114
Martel & Monguillot, supra note 95, at 104.
115
GARDNER, supra note 83, at 151(quoting Programa de Gobierno de Frei 4 (1964).
17
of the Chilean Constitution once more.116 This law accomplished “a substantial change in the relation
of private property to the state” and was “a conscious determination to reverse the law that had
developed in Chile” up until that point.117 Among other things, the Agrarian Reform Law added
“social interest” to the basis for expropriation, eliminated the requirement that compensation be paid
before the property could be taken by the state, created a number of situations in which there would be
no compensation or partial compensation, and required that compensation take into account the interest
of society as well as the expropriated party.118 Using the new legal instrument of expropriation in the
Agrarian Reform Law, the Frei government expropriated 1,400 large estates, or 15% of the irrigated
land in Chile, organized them into cooperatives, and divided the land among the associates of the
cooperatives.119
The law of expropriation continued to play a key rule when power transitioned to Marxist
Salvador Allende. Allende was committed to utilize the existing legal mechanisms in Chile to effect a
socialist revolution.120 One of the key steps in undertaking social and economic change through the
law was economic reorganization toward social property through continuing and expanding agrarian
reform.121 To achieve this socialist revolution through law, then, the Allende government utilized the
1967 Agrarian Reform Law of the Frei government to expropriate large land holdings122 – his
administration wished to “first exhaust the possibilities of this instrument before proposing a new
law.”123 Through this law, the Allende government expropriated over 555,000 irrigated hectares of
land.124 Because Allende had an objective more sweeping reform than that for which the Agrarian
Reform Law was initially passed, however, the Allende administration eventually began to push the
116
Law No. 16,640, Agrarian Reform Law of 1967.
Martel & Monguillot, supra note 95, at 91-92.
118
Law No. 16,640, Agrarian Reform Law of 1967; see also Martel & Monguillot, supra note 95, at 92.
119
GARDNER, supra note 83, at 157.
120
Id. at 159.
121
HITE, supra note 85, at 39.
122
Id.
123
GARDNER, supra note 83, at 172-73.
124
Id. at 173.
117
18
limits of the law.125 Although the government gave lip service to the legality of their reforms,
declaring that “indiscriminate take-overs of agricultural estates are unnecessary and prejudicial,” and
that “we cannot accept illegal occupations, we cannot accept that the proprietor who has rights before
the law be run over,”126 the Allende government benefitted from the illegal takeovers of land by the
other political parties. While the Allende government condemned these takeovers, they also did not
prevent them.127
After the 1973 coup when Pinochet came to power, he instituted a neoliberal model through
economic and legal reforms, including replacing existing legal institutions with a new set of codes,
decrees, and an authoritarian constitution.128 Pinochet made significant changes were made to the law
of expropriation with the writing and implementation of the new 1980 constitution, which is the
current Constitution of Chile.129 Currently, the Chilean Constitution guarantees to all persons the right
of ownership in its diverse aspects over all classes of corporeal and incorporeal property. 130 The
Constitution helps define this right of ownership of privacy: it states that no one may be deprived of
his property or powers of ownership, except by virtue of a general or a special law which authorizes
expropriation for the public benefit or the national interest.131 Moreover, if land is expropriated, the
Constitution guarantees that the expropriated party will be able to dispute the legality of the
expropriatorial act before regular Courts and will always have the right to an indemnification for the
damage effectively caused, which will be established by an amiable agreement or by a sentence
handed down according to law for said Courts.132 Thus, it appears that, at least with respect to laws
regarding state deprivation of individual of property, Chile has reverted back toward the civil code’s
125
Id. at 172.
Id. (quoting Allende, Speeches of March 30, 1971 and May 1, 1971).
127
Id. at 173-74 (1980).
128
HITE, supra note 85, at 41.
129
Id.
130
CONSTITUTION OF CHILE, Art. 19, Nº 24 (1980).
131
Id.
132
Id.
126
19
focus on the rights of the individual. Although the government is still permitted to acquire private
property, in order to do so it must comply with legal procedures that are meant to grant a degree of
protection to the individual landowner.
C. Does Expropriation Law Reflect the Underlying Social Order?
On its face, the Chilean experience with the law of expropriation seems to involve periods of
great deviation from the expected social theory of the civil law system. However, to determine
whether this facial inconsistency is accurate, it is necessary to examine whether the individualistic
conception of the social order remained in Chile throughout its history.
Similar to what occurred with the legal system in Chile, social thought was greatly affected by
the arrival and infiltration of the Spanish and Portuguese conquerors of Latin America. When they
arrived, the European emissaries to Latin American spent much time and effort on reforming and
converting the “curious customes of ye heathen.”133 As a result, the social thought underlying the civil
law countries flowed directly to Chile and a westernized conception of social nature and philosophy
began to emerge very early in Latin America. 134 The most fundamental aspect of social thought of
European civil law countries is that they held “an individualistic conception of the social order, based
on the idea that every individual has an inherent ability to hold rights… that leads to the organization
of a strong judicial protection for civil rights against the action of public powers.”135 This is consistent
with the laws of expropriation contained in the constitutions of Chile until the early 1960s. As noted
previously, provisions on expropriation were not integrated into the Constitution as methods to expand
state power, but were rather included “as a liberal safeguard to the right of property.”136 The early
expropriation laws can also be seen as consistent with individualist social thought because they
ensured that, if the right to property was to be taken away, it would be justly replaced with the right to
133
BECKER & BARNES, supra note 51, at 1120.
Id.
135
Aristi & Imbernon, supra note 78, at 25.
136
Martel & Monguillot, supra note 95, at 87 (emphasis added).
134
20
compensation.137 Although the government deprived the individual of one of his rights, they
compensated it with another.
It appears difficult, then, to reconcile such an individualist view of society with the subsequent
changes that occurred in expropriation law between the 1960s and 1973, when expropriation became a
tool of the state to obtain private property with little protection for the individual owner. It is crucial to
note, however, that socialism “stands under the shadow of the French Revolution.”138 While the
French Revolution proclaimed “Liberty,” it also championed “Equality” and “Fraternity” which, as
one scholar succinctly noted, “[stands] in some, at least implicit, contradiction to the rights of property
protected, admittedly to varying degrees, in all the constitutions produced by the French
Revolution.”139 It was from these very internal contradictions of the French Revolution that socialism
was born.140 Socialism rejected the gross social inequality resulting out of the conception of society as
“an association of individuals for the protection of property and private rights.” 141 Rather, socialism
claimed that inequality was not an ineradicable part of the nature of society, but that “[e]galitarian
communities in which all property belonged to all as a group and in which men and women worked
and shared … were possible.”142 To mainstream socialists, “state and law were the necessary tools for
the advance of socialism and the betterment of mankind….”143
The socialist project in Chile provides an example of the close relationship between the civil
law system’s focus on the individual and the emergence of socialism. Growing industrialization and
urbanization in the early twentieth century, combined with the fact that civil law did not build in
provisions addressing social welfare,144 generated new social cleavages in the country and the
137
Id. at 93.
Kamenka, supra note 1, at 9.
139
Id. at 7.
140
Id.
141
Id. at 11.
142
Id. (emphasis in original).
143
Id. at 12.
144
GARDNER, supra note 83, at 150.
138
21
emergence of socialist ideals in Chile.145 During the 1960s, a belief became dominant in Chilean
society that capitalist development, furthered by a liberal focus on the individual, had become
incompatible with social democratization for the good of the community.146 This transition in social
thought led to significant ideologically-driven political changes. Legal and political revolutionaries
believed that their collective ideological vision could bring true socialist transformation to Chile. 147
The first official Chilean administration to implement laws under a social democratization and income
redistribution platform was Frei.148 This work was further by Allende’s socialist project, which
similarly resulted out of an ideological struggle to come to terms with the contradictions of “societies
based on imperialism and material gain at the expense of class, race, gender, and community
harmony.”149 Not surprisingly, it was also Alessandri, Frei, and Allende socialist governments that
most expanded the state’s ability to expropriate property for the general welfare at the expense of the
individual.
Another ideological shift occurred in 1973, however, when Pinochet came to power and
engaged in concerted efforts to reorganize the structural relations between the state and society. 150
Pinochet “reordered traditional Chilean social and political structures based upon an extreme
neoliberal model of economy.”151 Under the neoliberal economic model, “private capitalist interests
become equivalent to the public interest,”152 thereby returning the individual to a central position in
society and minimizing the social role of the state. The current democratic government in place since
1989 has retained similar ideological visions of a reduced function for the state, replacing it with
145
GARRETÓN, supra note 77, at 99.
Id. at 101.
147
HITE, supra note 85, at 28.
148
GARRETÓN, supra note 77, at 101.
149
HITE, supra note 85, at 30.
150
Id. at 41.
151
Id.
152
Id. at 42.
146
22
mechanisms of self-regulation to increase efficiency and productivity. 153 As would be expected, given
what we have seen with other periods in Chilean history, this change in social thought corresponded to
a change in the law of expropriation. The current legal system has built protection for individual
property back into the constitution, proclaiming that no Chilean shall be deprived of his property
unless it is for a public purpose declared by law, and assuring that he will receive just compensation
and may dispute the expropriation of this land.
Thus, the initial impression that the law of expropriation diverged from social thought in Chile
is inaccurate when fully examined. While Chilean law on expropriation may have diverged from the
traditional civil law conception of the supremacy of the individual, it did not diverge from social
thought in Chile, and rather remained highly consistent with the evolving social thought of the country.
The consistency between social thought and law has been noted by scholars of Latin America: there is
a “close connection of the practices of law… and the teaching of the social sciences.”154 The most
fascinating evidence that Latin Americans do not make a marked distinction between law and social
thought is the fact that, linguistically, the concepts make use of the same word, derecho – best
translated as “right” or “justice.”155 Etymologically, at least, social rights are the same as legal rights.
Thus, it becomes clear that Chilean law on expropriation parallels social thought to great extent.
III.
CHINESE LEGAL SYSTEM AND EXPROPRIATION OF LAND
A. Development and Ideals of the Chinese Legal System
Scholars of China have noted that, because of its nearly five thousand years of continuous
civilization, “the forces of tradition are probably stronger in China than in most other countries in the
153
GARRETÓN, supra note 77, at 53-54.
BECKER & BARNES, supra note 51, at 1122.
155
Id.
154
23
contemporary world.”156 Thus, it is especially important in studying the Chinese legal system to
examine the historical and traditional forces that shaped early Chinese conceptions of law.
Traditional Chinese conceptions of law have been largely influenced by three sources:
Confucianism, Legalism, and, later, communism.157 The first and strongest influence on the traditional
Chinese view of law comes from Confucianism.158 Confucianism teaches that an individual should be
guided by li, which is virtue or propriety, rather than fa, the law.159 Thus, the source of law in
Confucianism was never “a rigid code of law” but instead was the social mores of proper conduct that
derived from one’s position in a hierarchical society and the good within the person.160 If people
model their behavior according to such social ideals, crime would be prevented and social order would
be maintained, eliminating the need for fa.161 When one had to resort to legal action, this reflected an
incapacity to work things out in negotiation and maintain the desired harmony in society. 162
Confucianism was challenged for a brief period of time by the philosophy of Legalism under
the Qin Dynasty in approximately 200 B.C.163 The Legalists believed that man was basically selfish
and evil, and thus “required a draconian set of laws that would make the continent easier to control and
to avoid social disruption.”164 Neither moral influence nor the virtue of the ruler would be powerful
enough to create order in society.165 Accordingly, the Legalist saw the need for a “strict, clear, and
public legal code” to secure law in society. 166 The constant threat of punishment under the code,
156
JIANFU CHEN, CHINESE LAW: TOWARDS AN UNDERSTANDING OF CHINESE LAW, ITS NATURE AND DEVELOPMENT 3
(1999).
157
Id. at 7.
158
JAMES M. ZIMMERMAN, CHINA LAW DESKBOOK: A LEGAL GUIDE FOR FOREIGN-INVESTED ENTERPRISES 32 (2d ed.
2004).
159
Id.
160
Id.
161
Id.
162
Id. at 33 .
163
CHEN, supra note 156, at 12.
164
ZIMMERMAN, supra note 158, at 35.
165
CHEN, supra note 156, at 10.
166
ZIMMERMAN, supra note 158, at 36.
24
however, led to distrust of all forms of government and severe distaste for Legalism.167 The Qin
Dynasty was viewed as a reign of terror, and ended the first and only period in Chinese history when
Legalism reigned.168 Once Confucianism triumphed, it remained enshrined as the state orthodoxy and
“Confucian bureaucrats kept the empire intact for two thousand years” until the twentieth century.169
However, the traditional Confucian legal system, which persisted throughout many Chinese
dynasties for thousands of years, was “deliberately broken off by modern legal reforms at the turn of
this century.”170 These resulted out of a variety of influences around the turn of the century, including
the penetration of Western legal concepts into China, the social unrest that arose out of the economic
changes of the Open Door Policy and the corruption of Imperial officials.171 The most significant
change to the Chinese legal system came with the collapse of the Qing Dynasty in 1912.172 Following
that period, the Chinese set up a Republic that lasted from until 1949, when the Chinese Communist
Party established the People’s Republic of China and “abolished all laws and the legal system” set up
until that point.173
Thus, the origin of the current law of China is traced back to the foundation of communism in
1949. The Communist Party “pursued a program based upon the concept of historical determinism,
which provides that the party is the primary means of transforming China from a feudalistic society
into a Communist utopian society.”174 In order to accomplish this, the country focused on developing
policy that would heighten economic productivity and self-reliance through the collectivization of land
and the decentralization of production.175 Such a use of the legal system as a tool for economic
prosperity continues today in China’s market socialist system. Modern China views the “building of a
167
Id.
CHEN, supra note 156, at 12.
169
ZIMMERMAN, supra note 158, at 34.
170
CHEN, supra note 156, at 6.
171
Id. at 17-18; JAMES M. ZIMMERMAN, supra note 158, at 37-46.
172
CHEN, supra note 156, at 19.
173
ZIMMERMAN, supra note 158, at 46.
174
Id. at 47.
175
Id. at 48.
168
25
modern legal system as a key element to ensure the institutionalization of economic reform, and to
gain the confidence of the global community.” 176 The Chinese legal system, then, has become highly
intertwined with the economy.
Finally, it is crucial to recognize that, though the contemporary legal system and laws have no
direct links to traditional Chinese law and instead tend to focus on encouraging economic
development, the “values and techniques of traditional Chinese law continue to influence
contemporary legal thinking and practice.”177 The Confucian ethos, with its focus on harmony and
proper social behavior rather than formal law, remains alive and in practice in modern Chinese
society.178 This is arguably in part due to the rise of Communism in China: Marx believed that law
was a means by which the bourgeoisie maintained their class rule over the proletariat, and that in the
ideal society, there would be no need for law to exist.179 This ideology this perpetuated the minor role
given to the legal system in traditional Chinese legal culture.
B. Conceptions of Property and the Law of Expropriation in the Chinese Legal System
i. Conceptions of Property in the Chinese Legal System
From the beginning of Chinese history until the mid-nineteenth century and the imposition of
foreign economic influence, China was predominantly an agricultural economy. 180 During this period,
which ranged from the time of the Xia Dynasty – considered to be the first dynasty in China – until the
defeat of the Qing Dynasty during the Opium wars with the British, the fundamental concept of
property shifted between a feudal style of land ownership and a system of individual private ownership
and state ownership, depending on the dynasty in power.181 The end of Qing Dynasty marked a
transition away from any notion of private property ownership in China, at least by the Chinese people
176
Id. at 49.
CHEN, supra note 156, at 7, 15.
178
ZIMMERMAN, supra note 158, at 34.
179
ALBERT H.Y. CHEN, AN INTRODUCTION TO THE LEGAL SYSTEM OF THE PEOPLE’S REPUBLIC OF CHINA 2 (1998).
180
PATRICK A. RANDOLPH, JR. & LOU JIANBO, CHINESE REAL ESTATE LAW 1 (2000).
181
Id. at 1-5.
177
26
themselves. Toward the end of the Dynasty in the mid-1800s, there was a major Peasants’ Revolt,
where the rebel peasants repealed all private ownership in the areas they controlled, and “declared
ownership of land by all people, with the peasants who worked the land having a right to use, but not a
right to own.”182 The British helped to defeat the Peasant Revolt, and for almost a century afterwards
the British influence was felt heavily in Chinese property law.183 The primary impact of the British on
the Chinese property system was their opportunism and exploitation: the British exacted conditions
that gave their citizens broad license to profit from Chinese property, and which they did. 184
This exploitation of private property by foreigners was likely a force that drove the
entrenchment of communism in China and the formal elimination of private property, beginning as
early as the 1920s.185 Upon the founding People’s Republic of China in 1949, the Chinese Communist
Party invoked massive land reform policies, transferring most privately owned land into the hands of
the common collective.186 The adoption of the 1982 Constitution “completed the… appropriation of
land in China.”187 Consistent with communist philosophy, there was no provision for private property
in the 1982 Chinese Constitution.188 Thus, as a consequence of the Constitution, all land in China was
owned either by the state or by Agricultural Collectives,189 which are modern day versions of
communes, where the Collective itself “owns” the land and the individuals in the Collective have land
use rights.190
However, since the introduction of socialist market economy under Deng Xiaopeng, China has
enacted an array of reforms with respect to the property system that indicate an evolution in
182
Id. at 5-6.
Id. at 12-14.
184
Id. at 12-13.
185
Id. at 6.
186
JONATHAN D. SPENCE, THE SEARCH FOR MODERN CHINA 516 (1990).
187
RANDOLPH & JIANBO, supra note 180, at 72.
188
Lei Chen, The New Chinese Property Code: A Giant Step Forward? 11.2 ELECTRONIC J. OF COMP. L. 1, 4
(September 2007), available at http://www.ejcl.org/112/art112-2.pdf [hereinafter Li Chen].
189
RANDOLPH & JIANBO, supra note 180, at 59.
190
Id. at 74, 85 (2000).
183
27
conceptions of property under the Chinese legal system.191 In post-Mao Communist China, the
concept of individual or corporate property rights “regained some definition, both legally and in
practice.”192 This occurred first with the 1988 amendments to the Constitution, which declared for the
first time that the state allows the existence and development of a private economy within the
limitation of law.193 However, the amendments did not allow private property ownership as conceived
by Western legal systems, but rather permitted the creation of “granted land use rights,” which are
created by the state for general use and which are transferrable.194 Moreover, Deng's administration
allowed certain property rights to be legally enforced, which then attracted foreign investment and
encouraged the government to expand its policies.195
These reforms in the conception of property continue today. In order to sustain China’s
energetic entry on the international market, President Jiang Zemin's government recognized the
importance of further defining property rights to include individual property rights.196 Among these
recent revisions to property rights were two constitutional amendments, passed in March 2004, which
were truly revolutionary in scope:197 the amendments effectively made private property a
constitutionally protected right and formally elevated private property to equal legal footing with stateowned property.198 The amendments entrenched individual private property rights by stating that
citizens’ legally obtained private property not be violated.199 Additionally, and most pertinent to the
Margo Rosato-Stevens, Peasant Land Tenure Security in China’s Transitional Economy 26 B.U. INT'L L.J. 97, 99
(Spring 2008).
192
Theresa H. Wang, Trading the People’s Homes for the People’s Olympics: The Property Regime in China, 15 PAC.
RIM L. & POL'Y 599, 603 (2006).
193
XIAN FA, 1988 Amendment to Article 10 (1982) (P.R.C.), translated at P.R.C. National People's Congress website,
http://www.npc.gov.cn/zgrdw/english/constitution/constLink.jsp; see also RANDOLPH & JIANBO, supra note 180, at
60.
194
RANDOLPH & JIANBO, supra note 180, at 125-126.
195
Wang, supra note 192, at 604.
196
Id.
197
Id. at 603.
198
XIAN FA art.13, 21, 24 (2004) (P.R.C.), supra note 193.
199
Id. at art.13(1).
191
28
subject of this paper, the amendments make clear that when private property is expropriated, the
government must provide compensation.200
Scholars have noted the importance of these changes to an overall evolution in the conception
of property in the Chinese legal system. These Constitutional amendments have been described as
“directional, in that they acknowledge the status of the right to private property as a fundamental
freedom. This is a symbolic milestone that also serves as a constitutional signpost for the enactment of
further laws relating to property.” 201 Thus, private property appears to be reemerging as a concept in
the Chinese legal system, at least on paper.
200
201
Id. at art.13(3).
Lei Chen, supra note 188, at 5.
29
ii. Expropriation of Land within the Chinese Legal System’s Conception of
Property
The 2004 amendment to the Chinese Constitution is not the first time the concept of
expropriation has come to the forefront in the Chinese legal system. State seizure of land has played a
primary role China since the communist revolution in the early twentieth century. The Chinese
Communist Party regularly reacquired privately owned property for the state from 1949 to 1976,202
and accomplished this through various different methods. Confiscation was the “most important
source of the State land ownership in the early 1950s” and occurred largely by confiscating the land of
anyone who was determined to be a foe of the new Communist government, including foreign
countries, bureaucratic capitalists, war criminals, and counter-revolutionaries.203 Similarly, the state
used nationalization, whereby it simply declared that it owned certain land, without providing
compensation to prior private owners.204 Another method of acquiring privately owned land that was
similar to formal expropriation included “state trusteeship,” the main method by which the communist
government took over real property owned by private real estate agents and privately owned
commercial real estate.205 Under state trusteeship, the state became the owner of the property,
operated the trust property, and paid to the former owners approximately 20-40% of the rent that the
owners used to receive before establishment of the trusteeship.206 Finally, some acquisition of
productive assets from private capitalist entrepreneurs was theoretically accomplished through
expropriation, or the transfer and possession of title from an individual to the state in return for
payment of compensation.207 In theory, the government paid an annual return to the former owner of
202
Wang, supra note 192, at 603.
RANDOLPH & JIANBO, supra note 180, at 70.
204
Id. at 72.
205
Id. at 71.
206
Id. at 71-72.
207
Id. at 9.
203
30
the property, but “this payment system died out quickly as the owners ‘voluntarily surrendered’ their
claims for further payments.”208
The most extreme seizure of property occurred during the Cultural Revolution, between 1966
and 1976.209 During that period, “any semblance of an orderly comprehensive real estate management
system was either abandoned or distorted,” and as a result thousands of privately-owned houses were
illegally confiscated or seized.210 Thus, the majority of state reacquisition of land during the transition
to a Communist government and the Cultural Revolution in the mid-twentieth century occurred not by
proper expropriatorial means, but through arbitrary state seizure of land.
As noted above, the first real guarantee of the right against the arbitrary seizure of private
property since the communist revolution occurred in 2004, when constitutional amendments granted
Chinese citizens the right of compensation for state seizure of land.211 To implement these
constitutional changes, Chinese legislators were tasked with drafting a new comprehensive law on
property rights which came into force on October 1, 2007.212 With respect to expropriation of real
property, the Property Code provides that immovable property can be expropriated “for public
purposes or in the public interest” and that the expropriated land “to the full extent of the loss suffered
subject to law….”213
Although the new provisions on expropriation appear on their face to be another step in the
direction of protecting private property in China, they provide a classic example of the shallow and
superficial nature of revisions to Chinese law, both substantively and procedurally. The expropriation
clause in the Code, which is meant to provide the procedures to implement the law, is lacking
208
Id. at 60.
Id. at 17.
210
Id.
211
XIAN FA art.13(3) (2004) (P.R.C.), supra note 193.
212
Margo Rosato-Stevens, supra note 191, at 100.
213
Chinese Property Code (promulgated by 5th Sess. 10th NPC, 16 Mar. 2007) art. 42, translated by John Jiang,
Babel.com (Mar. 2007) available at www.cclaw.net.
209
31
significant details and definitions that will guide the Chinese government in executing the law. 214 For
example, the Code does not define “public purpose” and contains no yardstick to determine the
reasonableness of compensation.215 As one scholar noted, “without a clear definition of public
interest, the state essentially has unrestricted power to expropriate and requisition property.” 216 Even
more perplexingly, the Code does not mention or specify who has the authority to expropriate property
from collectives and individuals for a public purpose or in the public interest.217 Moreover, although
the official regulations provide avenues for disputing the amount of compensation offered to the
evictee, as well as a right to file civil suit for inadequate settlements at adjudication, “[t]he level of
enforcement by the Chinese judiciary… leaves much to be desired.”218 As a result, the discretion and
“[t]he amorphousness of this situation leads to potential abuse of the power to expropriate.”219
Unfortunately it appears that there has been a significant gap between statutory authority and
the political reality of property rights enforcement since the 2004 constitutional amendments and the
passage of the Property Code. Continued state seizure of property has been widely reported, especially
in preparation for the 2008 Olympic Games in China. In Beijing alone, the government has evicted
about 300,000 residents from their homes each year, sometimes forcefully, and reportedly without
notice, minimal or no compensation, and little legal recourse.220 Thus, while the law of expropriation
in China has evolved from not even allowing private property ownership toward a formal recognition
of individual private property ownership that may not be taken by the state without compensation, it
appears that these new legal measures may be largely facial, and that the law in China remains, in
practice, that the state may indiscriminately seize property without remedy.
C. Does Expropriation Law Reflect the Underlying Social Order?
214
Lei Chen, supra note 188, at 12.
Id.
216
Rosato-Stevens, supra note 191, at 133.
217
Lei Chen, supra note 188, at 12
218
Wang, supra note 192, at 601.
219
Lei Chen, supra note 188, at 12.
220
Wang, supra note 192, at 600.
215
32
Because of the disconnect between the current law on expropriation in China and its practice, it
is difficult to begin the analysis as to whether the law reflects the underlying social order; this
necessarily requires the philosophical question, “which is the law?” This question will be examined in
more depth in Part IV, but one way to answer this question is to examine what the traditional Chinese
legal system looks to as its sources of law.
As mentioned above, an underlying value in the traditional Chinese legal system is the idea
that formal law should not have to be resorted to; there are other things to control behavior, and was
demonstrated most forcefully in the historical triumph of Confucianism over Legalism.221 Although
the transition to communism and later market-based socialism significantly changed the formal
Chinese law, scholars have noted that the basic precepts of traditional Chinese legal thought still
prevail in large part.222 Thus, to be consistent with traditional Chinese legal thought as well as the
values underlying the modern Chinese legal system, this paper will assume that the “law” is that which
is practiced in society, rather than the formal law which is written into the Chinese codes. When
comparing social thought with the law of expropriation, this section will assume that the profuse
seizure of land for the benefit of the state or the collective is the policy.
An expropriation law that subsumes the individual into the state and allows the state to acquire
individual property at its will would seem to be consistent with social thought that stresses the
collective. Such focus on the good of the group has long been the model of Chinese social thought. In
explaining this highly communal focus, scholars point to the centrality of the Chinese village since the
beginning of Chinese history.223 The Chinese were an agricultural people from the dawn of their
history in the eight century B.C., and thus the agricultural village life was the original “archetype of
221
See supra, Part III.A.
ZIMMERMAN, supra note 158, at 31, 34.
223
BECKER & BARNES, supra note 51, at 44.
222
33
social organization through which the Chinese viewed the cosmos.”224 The village was the center of
social and cultural life, comprising about twenty-five families.225 From the village, “a family and
kinship solidarity developed which has no parallels in any part of the world.”226
These ideas were perpetuated through Confucianism, which provided the basis of much of
Chinese behavior until the rise of the Communist party in the twentieth century. 227 Although his ideas
greatly influenced the law, Confucius was primarily a synthesizer, preserver, and teacher of Chinese
social and moral thought.228 To Confucius, society is merely an extended family and “like a family is
bound together by ties and values of respect, sincerity, loyalty, trust, and mutual responsibility.” 229
Thus, while society exists for the sake of the individual, the individual must learn, respect, and abide
by the conventions and traditions of society.230 Even the individual’s rights and duties were
conceptualized in relation to others because no individual ever stood alone and no relationship could
be abstract; therefore “nothing could be reduced to the alleged rights and duties of a single abstract
person standing alone.”231
China underwent a social upheaval during the Maoist Great Proletariat Communist Revolution
of 1966-1969.232 Scholars have noted, however, the link between traditional Chinese social thought
and communism: the traditional social thought of China likely made it fertile grounds for a Communist
Revolution. The Communist party was likely able to capitalize on the pre-existing “instinctive or
socially determined, and by now traditional, communalism of the peasant household; its elevation of
the family or the village over and above the individual; its rejection, indeed, of the very concept of an
224
GEORGE A. KOURVETARIS, SOCIAL THOUGHT 38 (1994).
BECKER & BARNES, supra note 51, at 45.
226
KOURVETARIS, supra note 223, at 38 (1994).
227
CHEN, supra note 156, at 9.
228
KOURVETARIS, supra note 223, at 42-43.
229
Id. at 44 (1994).
230
Id.
231
Eugene Kamenka & Alice Erh-Soon Tay, ‘Community’ and ‘Commune’ in the USSR and China 114 in
COMMUNITY AS A SOCIAL IDEAL (Eugene Kamenka ed., 1982) [hereinafter Kamenka & Tay].
232
Id. at 112.
225
34
isolated and self-sufficient individual; its tradition of sharing, as a community, both labour and its
rewards.”233 Some scholars have gone so far as to say that Chinese Communism is merely
“Confucianism ‘corrected’ and transformed by Marxism-Leninism.”234 Thus, the traditional
conception of the Chinese village and the Confucian morality that elevates the community over the
individual appears to be very consistent with modern Chinese communism.
Finally, although this analysis has assumed that the law is that which is practiced by society,
not what is written, the recent expansion of private property and expropriation rights may still be
reconciled with Chinese social theory stressing the group over the individual. Some scholars of the
revolution in property rights claim that these rights were not granted in “the interest of creating vested
rights in the citizenry at large” but rather “to protect the interests of investors, with the hope of
catalyzing the economy.”235 Thus, if one ascribes to this view, the new individual property rights are
not truly meant for the Chinese people; the Chinese people are meant to stay within the confines of
communal property law. Even the formal law is consistent with social thought, then – at least for
citizens of China.
The general parallelism of expropriation law and social thought is not surprising, given the
influence of Confucianism and Legalism in the law, both of which were primarily concerned with
social order.236 Thus, although the law on expropriation in China may appear to be inconsistent with
traditional social thought, they can be largely reconciled.
233
Id. at 100.
Id. at 115.
235
Wang, supra note 192, at 604.
236
CHEN, supra note 156, at 15.
234
35
IV.
COMPARATIVE TREATMENT OF EXPROPRIATION OF LAND ACROSS LEGAL
SYSTEMS
A. Character of Law: Embodiment of Ideals versus Manifestation of Reality
The ideas of state or community expropriation of property provide fascinating models through
which societies or legal systems demonstrate their social thought. However, the law of expropriation
seems to reflect a different stage of social thought in each system. Put in another way, it does not
appear that the law of expropriation is always reflecting thought on social order as it is, but also
functions in some legal systems to reflect thought on social order as it should be.
This becomes clear when looking at whether the law of expropriation was found to be
consistent with the predominant social thought in each legal system. Although this paper largely
found parallels between each system and its social thought, a closer look shows that some found
consistency with the ideal, tradition social order of the society, while others found consistency with the
actual social order over time. In Chile, for example, the law of expropriation evolved, as did the social
thought. However, law and philosophy remained in line with each other. This occurred because the
law was changed as new political parties came to power, and the new political parties came to power
because social thought had changed in Chile. One of Chile’s presidents, Frei, made this as much as
explicit in criticizing the legal system as “utterly out of date in relation to new social, economic and
political developments” and calling for a “complete overhaul of the legal system” as a result. 237
Allende similarly complained of inheriting a legal system where there were contradictions “between
the legal system and the reality it pretends to govern” and announced that thus the legal system “must
237
GARDNER, supra note 83, at 150-51 (quoting Eduardo Frei Montalva, The Progress in Chile 1965-1968 (excerpts
from the Fourth Presidential Message to the National Congress), at 60 (1968).
36
be modified.”238 Thus, Chilean law of expropriation appears to reflect the reality of the social thought,
not just the ideals that society hopes to achieve.
In China, however, the law of expropriation as it was practiced was found to be in line with the
traditional ideals of society. This is unsurprising, because the Confucian teachings in China “generally
represent an ideal order rather than a practical stipulation… the incorporation of some of the
Confucian teachings into law might be intended to be more for symbolic purposes than to have any
practical use.”239 Thus, even though property law has been alleged to be a driving force for economic
change, in practice it is still driving the Chinese toward traditional, communitarian ideals.
B. Role of Law: Encouraging Change versus Preserving the Status Quo
Another larger theme that this study of the law of expropriation seems to exhibit is the
different role of law in legal systems. In some of the legal systems reviewed in this paper,
expropriation of property is used to control undesirable social behavior and therefore preserve the
social status quo. This particularly seems to be the role of expropriation in chthonic legal systems.
Because the chief is able to take away land use rights only after the individual has violated social
norms, the threat of having land use rights expropriated back to the community acts as a “powerful
incentive to conformity to the wishes of the local community and the will of the chief.”240 This legal
doctrine thus serves to maintain control and to mold the ideal community.
In China, on the other hand, the law on expropriation has been used to effect change, consistent
with communist ideology that the law and government are the primary means of transforming China
into a utopian society.241 Scholars have been very united in their view that recent revisions to Chinese
property law, in general, and the law on expropriation, specifically, have been implemented in order to
238
Id. at 151 (quoting REGIS DEBRAY, THE CHILEAN REVOLUTION: CONVERSATIONS WITH ALLENDE 178 (New York,
1971).
239
CHEN, supra note 156, at 5.
240
PAYNE, supra note 26, at 4.
241
ZIMMERMAN, supra note 158, at 47.
37
promote economic change China. “[R]eadjusting and perfecting China's property system became part
of a fundamental policy strategy in China's effort to build and maintain economic growth and provide
for the rational use of agricultural land.”242 Thus, it is the role of “the formalisation of property
institutions [to] promote sustainable economic development for a thriving economy.” 243 Moreover,
these changes are viewed as part of a larger, overall plan for change: “[t]he property code is merely the
first part of a consolidation and modernisation process that could ultimately witness the development
of a real property market in China.”244 The contrast between the use of expropriation to ward off
social deviance in the chthonic system and to promote economic change in the China provide a prime
example of how starkly different the role of law can be in different systems.
C. Source of Law: People versus Elite
Another distinction that can be seen among different rules on expropriation is the source of the
law. While, in some legal systems, the law always drives and molds conformation with the ideal
society, in others it appears to be molded by changing ideals emanating from the grass-roots of society.
The evolution of Chilean law on expropriation runs a parallel course with the social upheavals
in Chile and the popularity of different social theories of the primacy of the state versus the individual
over time. It appears, however, that the law on expropriation followed suit with popular views on the
individual and the state’s role in society. As noted above, changes in the law were initiated by the
rulers, but were seen as needing to be changed because they were not reflective of the law of the
people. Moreover, this ideology was not merely that of the élites; it represented a “collective identity,
rooted in the struggles of Chilean working people.”245 Thus, the source of the law seemed to lie
closely in the ideals and desires of the people.
242
Rosato-Stevens, supra note 191, at 99.
Lei Chen, supra note 188, at 5.
244
Id. at 9.
245
HITE, supra note 85, at 31.
243
38
In stark contrast, however, recent changes in property law in China have been criticized as
being ignorant of the reality of the people and instead imposing change from the top. One scholar, for
example, described the new Chinese Property Code as “top-down legal modernization.”246 However,
such imposition of law from the top down is not always effective, especially in countries like China
where the “concept of immovable property ownership is still developing.”247 This, ironically, is highly
inconsistent with traditional Chinese conceptions of the source of the law. “Overall, the Rule of Law
(fazhi) in ancient China [was] characterized as a Rule of Man (renzhi), whereby the law was designed
for the benefit of those governing, rather than as an instrument of divine sanction or supreme
authority.”248 As scholars have pointed out, in China, “the creation of formal law is much easier than
its application, since informal legal traditions continue to dominate modern, formal ones.” 249
Chthonic legal systems seem to reflect a middle-point between that of Chile and China when it
comes to the source of the law. Although law emerges out of life itself, thus appearing to be very
organic to the people it governs, chthonic law is also imposed and controlled by the elites, such as the
chiefs and village elders. Thus, the initial law is very grass-roots, but once it is violated, the elites are
able to determine its distinct contours and scope by declaring what type of conduct is not tolerated.
CONCLUSION:
Comparative law scholar Ugo Mattei has noted that the law of expropriation is notable for its
similarity across legal systems: it “exhibits a general trend that may help comparativists in their task
‘to discover the forces that are permanently and universally at work in all systems of law.’” 250 This
paper sought to determine whether one particular force was universal across legal systems: that of the
246
Lei Chen, supra note 188, at 3.
Id. at 9.
248
ZIMMERMAN, supra note 158, at 36.
249
Glenn, supra note 15, at 304.
250
UGO MATTEI, COMPARATIVE LAW AND ECONOMICS 17 (1999).
247
39
underlying social order of the society around which legal systems are formed. It found that, with
respect to the chthonic law, civil law, and Chinese legal systems, underlying social order undoubtedly
plays a role in the shaping of the legal system. However, this paper has also found that the law of
expropriation can work as a tool to reveal subtle but distinct differences between legal systems, such as
differences in the nature of the law, the goals of the law, and the source of the law. Overall, the law of
expropriation has proved to be a fascinating model through which we can compare and contrast legal
systems across the world.
40