The Law of Expropriation: A Reflection of the Underlying Social Thought of a Legal System?

Rebecca L. RomanExam Code: 1005589LAW380-01-F08 – Comparative LawFall 2008

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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).

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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

7 O. Lee Reed, What is “Property”?, 41 AM. BUS. L.J. 459, 484 (2004).8 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.

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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).16 Id. at 60-61.17 Id. at 69.18 Id. at 62.19 Id. at 63.

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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.21 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).

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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

colonizing forces, either during or after colonial presence.35 Instead, many countries with customary

27 Id.28 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.35 Guadagni, supra note 30, at 7.

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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.

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

36 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/cgi-bin/faolex.exe?rec_id=014626&database=FAOLEX&search_type=link&table=result&lang=eng&format_name=@ERALL. 41 PAYNE, supra note 26, at 15.

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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

further hardship due to their lack of land ownership through title.48 Their land rights are not

recognized and, often, seized.42 AYITTEY, supra note 3, at 91.43 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 14.48 Id. at 15.

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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

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

49 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.

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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

made to any prior law or commentary,63 thereby laying the ideological foundation for the supremacy

56 AYITTEY, supra note 3, at 24.57 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 6.63 Id. at 7.

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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 nation-state.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

direct manner.71 The influence of law and legal institutions were particularly strong because the 64 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 31-33.71 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

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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

codes, using them as a guide and adopting the major ideological provisions of the civil law system.81

& 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 71-72.81 Id. at 73.

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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

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

82 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.88 Id.89 See generally GARRETÓN, supra note 77.

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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

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

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 35.95 Alamiro de Avila Martel & Manuel Salvat Monguillot, Chile, in EXPROPRIATION IN THE AMERICAS 85 (Andreas F. Lowenfeld ed., 1971) [hereinafter Martel & Monguillot].

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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

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

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 85.103 Id.

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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

emphasize the needs of society.110 In the end, the 1925 Constitution restated the inviolability of private

104 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 87.110 Id. at 88.

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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)

of the Chilean Constitution once more.116 This law accomplished “a substantial change in the relation

111 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) (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).116 Law No. 16,640, Agrarian Reform Law of 1967.

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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

limits of the law.125 Although the government gave lip service to the legality of their reforms,

117 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 173.125 Id. at 172.

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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

focus on the rights of the individual. Although the government is still permitted to acquire private

126 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.

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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 1120.134 Id.135 Aristi & Imbernon, supra note 78, at 25.136 Martel & Monguillot, supra note 95, at 87 (emphasis added).

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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 93.138 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.

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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

mechanisms of self-regulation to increase efficiency and productivity.153 As would be expected, given

145 GARRETÓN, supra note 77, at 99.146 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 42.153 GARRETÓN, supra note 77, at 53-54.

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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

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.

154 BECKER & BARNES, supra note 51, at 1122.155 Id.156 JIANFU CHEN, CHINESE LAW: TOWARDS AN UNDERSTANDING OF CHINESE LAW, ITS NATURE AND DEVELOPMENT 3 (1999).

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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,

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

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 36.167 Id.

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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

modern legal system as a key element to ensure the institutionalization of economic reform, and to

168 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.

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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

themselves. Toward the end of the Dynasty in the mid-1800s, there was a major Peasants’ Revolt,

176 Id. at 49.177 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.

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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 5-6.183 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).

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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 state-

owned 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

191 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).

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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 Id. at art.13(3).201 Lei Chen, supra note 188, at 5.

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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 the property,

202 Wang, supra note 192, at 603.203 RANDOLPH & JIANBO, supra note 180, at 70.204 Id. at 72.205 Id. at 71.206 Id. at 71-72.207 Id. at 9.

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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 60.209 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.

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 12.215 Id.216 Rosato-Stevens, supra note 191, at 133.217 Lei Chen, supra note 188, at 12218 Wang, supra note 192, at 601.219 Lei Chen, supra note 188, at 12.220 Wang, supra note 192, at 600.

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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

social organization through which the Chinese viewed the cosmos.”224 The village was the center of

221 See supra, Part III.A.222 ZIMMERMAN, supra note 158, at 31, 34.223 BECKER & BARNES, supra note 51, at 44.224 GEORGE A. KOURVETARIS, SOCIAL THOUGHT 38 (1994).

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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

isolated and self-sufficient individual; its tradition of sharing, as a community, both labour and its

225 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.

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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 100.234 Id. at 115.235 Wang, supra note 192, at 604.236 CHEN, supra note 156, at 15.

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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

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.

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).238 Id. at 151 (quoting REGIS DEBRAY, THE CHILEAN REVOLUTION: CONVERSATIONS WITH ALLENDE 178 (New York, 1971).

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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

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

239CHEN, supra note 156, at 5.240 PAYNE, supra note 26, at 4.241 ZIMMERMAN, supra note 158, at 47.242 Rosato-Stevens, supra note 191, at 99.

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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.

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

243 Lei Chen, supra note 188, at 5.244 Id. at 9.245 HITE, supra note 85, at 31.246 Lei Chen, supra note 188, at 3.

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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

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

247 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).

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expropriation has proved to be a fascinating model through which we can compare and contrast legal

systems across the world.

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