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June 10, 2016


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John Mayer

Legal scholarship, welcome to economic anthropology/sociology. Another "innovative" interdisciplinary article that finds life in a student run law review that would never see the light of day elsewhere.


Yes, this comes across as an interesting essay in a particular area of comparative property, but one that has staked a claim to a radically new research agenda - cultural property - when this hardly seems a new paradigm. Though it can be agreed that economic approaches have been dominant in recent years, cultural factors are hardly a new or ground breaking consideration. But - more cynically - presumably the claim to break new ground makes it more publishable.

Al Brophy

John, I don't think that's quite fair to legal academics. Part of what legal academics do is to translate (or maybe import is a better word for it) insights from other disciplines into law. Legal history -- the law and field I know best (and well) -- often draws heavily upon mainstream history literature. But it also returns value. Legal history sources can be used to test theories from mainstream history. And legal history can help us understand themes in mainstream history better, too. One example of this comes from the recent literature on capitalism and slavery. While there's a huge, growing, and outstanding literature on slavery and capitalism, legal sources re-confirm and expand our realization that law supported the market and slavery. I'd like to say a lot more about this later this summer.

And on further reflection this morning, I want to add some more about Zhang's contribution in particular. He builds out the progressive property literature by emphasizing the non-economic functions of property. And he employs a comparative approach that joins English and Chinese property law.

I think there's a lot of room for expansion of progressive property literature and I think this is really helpful in building that out.

John Mayer

I will admit there is high quality legal history, though I am not sure it all aims/achieves to enrich legal scholarship as it does historical scholarship given what the legal historians I know tell me about the legal academy. Which makes it hard to include this piece as following a similarly dynamic. Your point would be more valid if there was any reference to these pre-existing literatures in this piece, not just a few people well known and who do not work in the economic subfields of their disciplines. There is citation to legal scholarship and some historical scholarship, through following a common pattern of generating huge generalizations over centuries.

The citation to Timur Kuran's work in instructive, as only legal scholars and economists, or pop writing, take these sorts of arguments seriously which try to explain vast complexity over time using single variables who persuasive force is only made possible by the relative lack of data about the past. The comparative argument here focuses on mortgage practices while providing almost no functional context, only formal law. The "dian" is presented as a self-executing law/norm with little no discussion about how clan economics (likely very different in parts of premodern "China") worked over this long stretch of history, and with citation to two legal publications establishing its aggressive claims. The case studies starting on page 34 are razor thin, and just pretext for discussions of norm internationalization that operate at a high level of abstraction over centuries in each example used. And a topic, again, at the core of anthro/soc work with zero citation.

If being provocative is enough, then fine. I am not familiar with progressive property, but I don't see this changing anything anyone who works on economic history/anthropology/sociology already knows. Though I am certain it will make property rights fetishists happy to hear that China did not industrialize because of restrains on alienation. It would seem strangely at odds with any "progressive" notion of property, but I could be wrong. Obviously, this type of work always rankles me. I am sure norms of collegiality and a different disciplinary positionality predispose you to see a potential contribution to debates I am unfamiliar with. I only see this likely as being read on Marginal Revolution as evidence that bad egalitarian property norms lead to lower growth, and reinforcing pre-existing beliefs about development...once we operationalize norm internalization, we can disabuse people of their inefficient cultural values. Given the history of "comparative property" ala terra nullius, I prioritize that risk highly.


John says quite artfully that which other commenters have said less artfully.

Dilettantism in the legal academy is a virtue, not a symptom of something deeply wrong with its current priorities.

Buzzwords (that are so loved in legal academia) are the icing on this cake: "progressive,", "social culture," and "sociopolitical status distribution"!

And, YALE!

Who could cast doubt the importance of this work, John, despite your well-reasoned and obviously astute analysis above?

Taisu Zhang

Many thanks, Al, for the plug and kind words. I was wondering why this was getting more downloads than my other pieces have tended to get at this stage...

Re: John Mayer: I suppose the criticism is fair, in that the case studies in this particular article are indeed "thin" summaries of longer pieces I've written. I never assumed that social scientists would be persuaded by only the content that is within the four corners of the article. For that, I have a book coming out next year on the comparative history of collateral lending in early modern China and England, which most certainly provides the functional context you find lacking here, and have also written a couple of in-depth articles that you can find on my ssrn page. The point of this particular piece is to engage with some legal theory that you likely don't hold in high regard, but which the legal academy does. The audience is not history/anthropology/sociology, it's property theory, as done by law professors. Moreover, there's only so much you can do in a law review article, and the thinking was that it's better to provide thin summaries of case studies than to have no case studies at all. For the other audiences, there's the book, or maybe the other articles. I'd be glad to hear what you think of them.

Now, you might wonder why anyone would care about a strand of legal theory that almost completely refuses to engage with cultural anthropology and sociology--so much that citing those literatures is simply ineffective as a argumentative strategy. There are discussions of this in the article, particularly on the methodological choices that property theorists have made in the past. I don't necessarily agree with the utilitarian methodology that property theory has chosen to take, but it has its value, and I generally find it better to engage and attempt to persuade, rather than to simply ignore and despise.

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