The Comrades Discover Private Property. With a Bang.

One of the major stories to come out of China in recent years has been the comrades’ rediscovery of private property as a good thing. The Chinese constitution was amended a few years ago to extend protection to it. But that, of course, still leaves open the problem of eminent domain which inherently pits private property against government needs. Predictably, this has been, well, a problem, particularly in China which is still an autocratic society  where those who mess with the government can find themselves harshly dealt with — a society that historically lacks a tradition of a rule of law that binds the government vis a vis the citizen.

Ah, but it turns out that messing is a two-way street. It turns out that people who get a taste of the advantages of property ownership and all that this implies for personal freedom and wellbeing are not about to have these things taken away without proper compensation. Or without a fight.

The Asian Economic News (Villagers Clash With Police in S. China Over Land Dispute, October 18, 2010, available on LEXIS) reports a violent confrontation between Chinese villagers in the Guangxi Zhuang Autonomous Region and the government that sought to take some 400 hectares of their land for development of a tourist facility, evidently without paying the full measure of compensation required by Chinese law. Sound familiar? It’s a small world, isn’t it folks?

But in this case things turned out to be very different than over here because those Chinese farmers, unlike our folks weren’t about to go along meekly with their government’s confiscatory policy.

“The Southern Metropolis Daily said that on Tuesday, the villagers stopped workers who had been sent to begin construction on the expropriated land. Subsequently, six villagers were injured and six others detained by police,. . .” Which turned out to be a mistake on the part of Chinese authorities. What followed was that

“On Wednesday, hundreds of villagers rallied and their confrontation with police and local officials spiraled out of control after an official allegedly threatened them with police dogs, prompting them to respond with rocks, sticks and Molotov cocktails, …

“The newspaper said numerous police officers were injured, wih one ‘possibly blinded,’ and two police dogs were killed before police managed to control the crowd by firing tear gas, after the crowd had grown to about a thousand including bystanders.”

According to the protesters, the bone of contention was that the authorities had failed to follow the Chinese compensation law providing that “land compensation fee should be six to 10 times the average output value in the three years preceding the requisition of the cultivated land.”

Fortunately, we haven’t had to contend with problems of large-scale violence over land takings over here, although some years ago there was a sizable physical confrontation between the state police and farmers in Minnesota, over the taking of land for a power line. We seem to recall that the Minnesota public radio folks even had videos of that melee, that they posted on line.  And, suggestions have been made that some of the urban riots in the 1960s were partially motivated by urban redevelopment displacing inner city populations.

The moral of it all seems to be that people are territorial creatures, and they take a dim view of others messing with their turf. For a good discussion of that phenomenon; see Michael M. Berger, To Regulate, or Not To Regulate — Is That the Question? 8 Loyola of L.A. Law Review 253, 263-267 (1975).

Our law justifies what would otherwise be lawless, trespassory government conduct by requiring public use and public necessity for takings of private property, as well as payment of just compensation. That’s the theory. Unfortunately the necessity part is pretty much all theory, ecept perhaps in Florida where condemnees can get a decent degree of judicial review of the asserted necessity for eminent domain takings. Otherwise, courts claim that they lack the power to “second guess” condemnors, that the determination of necessity is a do-it-yourself determination by condemnors, and that therefore judicial review of necessity is minimal, or as we like to put it, sub-minimal. This judicial justification, of course, is at best dubious because courts experience no problems “second guessing” the judgment of government scientists, engineers, and planners when it comes to environmental review. So how does it happen that they lose their reviewing powers when it comes to eminent domain?

But, be all that as it may, the U.S. Supreme court held back in 1912, in Bragg v. Weaver that necessity is not a part of federal law of eminent domain. In California, the supreme court held in People v. Chevalier, that the statutory requirement of necessity for eminent domain takings is not subject to any judicial review, that it is altogether nonjusticiable even when the resolution of necessity has been procured through fraud, bad faith or abuse of discretion. Honest. That’s what the court said. Fortunately, in 1976, the California legislature modified that extremist ruling, and now a California condemnor’s determination of necessity is subject to judicial review in cases of “gross abuse of discretion” and bribery.

What concerns us is not only the injustice of it all, but more importantly, the concern that when people come to believe that legitimate legal remedies are  unavailable to redress what they perceive as legal wrongs, they may turn to illegitimate ones, like those Chinese farmers. So we hope that this sort of stuff never comes to pass over here. That would be  a tragedy.

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