Debunking the Chinese unitary state via legal pluralism: Historical, indigenous and customary rights in China (1949–present)

Abstract

• Moots that states are inherently inconsistent, contradictory and legally pluralist. • Uses notions of legal pluralism and semi-autonomous field to debunk Chinese state. • Achieved by examining ownership over land during period of over 70 years. • Shows struggles of Chinese state over historical, indigenous and customary rights. • Finds Chinese state issuing rules at odds with law including upholding pre-revolutionary rights. In the literature on legal pluralism, there is minimal attention paid to the state – apart from being generally conceptualized as a unitary entity vis-à-vis an otherwise legally pluralist society. However, this perspective has been critiqued by a modest, yet growing, group of scholars. In furthering the debate, this article postulates that states are constituted by competing semi-autonomous fields and are thus, to varying degrees, inherently inconsistent, contradictory, and pluralist in nature despite the superficial conveyed imagery of unity. To substantiate this thesis, the article: 1) equally applies the concepts of legal pluralism as hitherto applied to issues such as historical rights, indigenous peoples, and customary law; 2) employs this exercise to deconstruct what is perhaps one of the world’s most archetypal unitary states: the Peoples’ Republic of China. As a strongly, centralist state governing a substantially socio-culturally and ethnically diversified society, China provides a noteworthy case of the workings of what is termed “state legal pluralism”. To demonstrate this, the article examines a critical right (ownership) around an equally critical resource (land). This is achieved with reference to different, coexisting legal orders that are considered highly sensitive and potentially explosive in China: historical, indigenous, and customary rights. The analysis is based on a comprehensive review of laws and policies, National People’s Congress reports, verdicts of the Supreme People’s Court, (local) regulations, and court cases. It covers a period exceeding 70 years from 1949 to 2020. The data analysis ascertains that the different organs of the Chinese state constitute competing semi-autonomous fields that, at times, put forward rules in flagrant contradiction with state law up to the point of upholding pre-revolutionary, private land ownership.