JIA Bin
Sessions
This panel aims to bridge the traditional socio-legal studies of the "living law" and the recent research of legal consciousness from 4 countries papers.
The concept of "living law," by Eugen Ehrlich, expressed the sense of justice among the ordinary people resisting the denial of their customary practice by state law. Relying on this concept, socio-legal surveys were conducted in various countries to defend customary rights, leading to landmark judicial decisions.
Living law's theory presupposed that such law existed prior to state law, was autonomous and robust, and that the law's community adhering to it was homogeneous. However, our empirical research reveals that in order for longstanding daily practices to be formulated as customary rights, they are often framed using legal categories derived from international human rights norms, state law, or regional legal frameworks. It becomes necessary, therefore, to understand living law as a form of translation of exogenous laws.
Moreover, the way in which such exogenous laws are translated and interpreted varies among local peoples and their supporters. Recent studies on legal consciousness, initiated by Patricia Ewick and Susan Silbey, emphasize the diversity in people’s understanding of law. They focus on how individuals justify and narrate their practices, thereby seeking to capture the plurality of legal consciousness. Relying on this perspective, this panel analyzes the processes through which exogenous law, customary rights, and daily practices are translated and interpreted.
Our topics include customary forests in Japan and Indonesia, farmland reallocation practices in China, and human rights advocacy in Myanmar.
In rural China, farmland is not privately owned but collectively owned by villages and contracted to individual households. Since the early 2000s, the Chinese state has strengthened legal protections for farmers’ land rights. The 2002 Rural Land Contract Law (RLCL) was a key milestone, guaranteeing that land contracts would remain stable for 30 years and prohibiting local authorities from adjusting land allocations without strong legal justification.
However, a traditional practice known as farmland reallocation still persists in many villages. In this system, village authorities periodically redistribute farmland based on household size—taking land from families with fewer members and giving it to those with more. This practice, rooted in the collective era before land reform, is officially illegal under the RLCL. Yet it continues to take place in ways that often appear legally ambiguous.
This paper investigates why such a clearly restricted practice continues. Prior research suggests that village elites—such as local cadres—sometimes use vague or exceptional legal clauses to justify the reallocation of land. But legal maneuvering alone is not enough; the practice also relies on the support or at least acquiescence of ordinary farmers. This raises an important question: does the persistence of farmland reallocation reflect a lack of awareness or understanding of legal rights among villagers?
Using original survey data from a rural township, the paper tests the hypothesis that weak legal knowledge among farmers contributes to the continuation of this practice. Although the hypothesis was not confirmed directly, the results reveal a deeper problem: for many villagers, state law is not part of their daily frame of reference. Legal rights feel distant, abstract, and disconnected from the realities of rural governance. As a result, village norms and collective decisions continue to shape land use more strongly than formal law.