The legitimacy of extralegal property: global perspectives and China’s experience

Binary thinking has been entrenched in property law, posing challenges to the protection of land tenure and land users who have no title to the land they cultivate. This paper critiques the state-law-centred approach to evaluating the legitimacy of property and defends extralegal property as legitimate claims to land and related natural resources that are not against the law, but that are not recognised by the law as formal property rights. It begins with an overview of how the legitimacy of property is conceived of at the global level, drawing upon several conceptual frameworks of property developed via global initiatives and soft law instruments. That being done, it moves to examine the legitimacy of extralegal property from the local perspective, looking at a case study of ‘minor rights property’ in China. It is argued that long-term usage of land supported by the prevalence of this practice and social consensus should be regarded as one of the major sources of the legitimacy of property. The paper concludes that the state-law-centred approach to evaluating the legitimacy of property overlooks a range of legitimate property claims and the plurality of norms governing property relations. In order to recognise the full spectrum of property, we should link global perspectives with local experiences.