Portal de Periódicos da CAPES

Land, property rights, and planning in Japan: institutional design and institutional change in land management

2010; Taylor & Francis; Volume: 25; Issue: 3 Linguagem: Inglês

10.1080/02665433.2010.481178

1466-4518

André Sørensen,

Land Rights and Reforms

Abstract Although clearly a key institutional framework that structures planning systems, there has been remarkably little attention by planning historians to the comparative study of institutions of property rights in land as a factor shaping approaches to urban planning. Conversely, planning has clearly functioned as a key site of institutional innovation shaping the evolution of property rights. This relationship between planning and property rights deserves greater attention. Although property rights are often entrenched in written constitutions as is the case in both Japan and the USA, and do exhibit considerable continuity over time, they are in fact seldom static, being subject to evolving interpretations and constraints. This paper employs a historical institutionalist approach in the examination of the evolution of institutions of property rights in Japan during the modern period, from just before the Meiji Revolution of 1867–1868 to the early twenty‐first century. The paper shows that the strong protection of landed property rights in Japan is a product of the Meiji period, not the post‐Second World War occupation, and argues that institutional choices in framing landed property rights have multiple and varied long‐term impacts that may have little to do with the original policy goals. Keywords: property rightsinstitutional changeinnovationland reform Notes 1. A. Sutcliffe, Towards the Planned City: Germany, Britain, the United States and France, 1780–1914 (Oxford: Basil Blackwell, 1981); P. Hall, Cities of Tomorrow (Oxford: Blackwell, 1988); S.V. Ward, Planning the Twentieth‐Century City: The Advanced Capitalist World (Chichester: Wiley, 2002). 2. See especially P. Booth, Controlling Development: Certainty, Discretion in Europe, the USA and Hong Kong (London: UCL Press, 1996); B. Needham, Planning Law and Economics: An Investigation of the Rules We Make for Using Land (London/New York: Routledge, 2006); D.W. Bromley, Environment and Economy: Property Rights and Public Policy (Oxford/Cambridge, MA: Blackwell, 1991). 3. K. Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (New York: Farrar and Rinehart, 1944); B. Moore, Social Origins of Dictatorship and Democracy: Lord and Peasant in the Making of the Modern World (Boston, MA: Beacon Press, 1966); D.C. North, Institutions, Institutional Change, and Economic Performance (Cambridge/New York: Cambridge University Press, 1990). 4. P. Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton, NJ: Princeton University Press, 2004). 5. The core ideas behind this policy approach can be found in H. de Soto, The Mystery of Capital: Why Captitalism Triumphs in the West and Fails Everywhere Else (New York: Basic Books, 2000); K. Deininger and H. Binswanger, ‘The Evolution of the World Bank’s Land Policy: Principles, Experience and Future Challenges’, The World Bank Research Observer 14, no. 2 (1999): 247–76, while critical approaches are well represented by S.J. Borras, ‘Questioning Market‐led Agrarian Reform: Experiences from Brazil, Colombia and South Africa’, Journal of Agrarian Change 3, no. 3 (2003): 367–94; E. Fortin, ‘Reforming Land Rights: The World Bank and the Globalization of Agriculture’, Social & Legal Studies 14, no. 2 (2005): 147–77; W. Wolford, ‘Land Reform in the Time of Neoliberalism: A Many‐Splendored Thing’, Antipode 39 (2007): 550–70. 6. See, for example, J.R. Ferguson, ‘The Expanses of Sustainability and the Limits of Privatarianism’, Canadian Journal of Political Science [Revue canadienne de science politique] 30, no. 2 (1997): 285–306; S. Owens and R. Cowell, Land and Limits: Interpreting Sustainability in the Planning Process (London: Routledge, 2002); several issues particular to the Japanese case are discussed in A. Sorensen, ‘Major Issues of Land Management for More Sustainable Urban Regions in Japan’, in Towards Sustainable Cities: East Asian, North American and European Perspectives, ed. A. Sorensen, P.J. Marcotullio, and J. Grant (Aldershot: Ashgate, 2004), 197–216. 7. P.A. Hall, Governing the Economy: The Politics of State Intervention in Britain and France (New York: Oxford University Press, 1986), 19; also cited in: K.A. Thelen and S. Steinmo, ‘Historical Institutionalism in Comparative Analysis’, in Structuring Politics: Historical Institutionalism in Comparative Analysis, ed. S. Steinmo, K.A. Thelen, and F. Longstreth (Cambridge/New York: Cambridge University Press, 1992), 1–32, 2. 8. K. Thelen, ‘Historical Institutionalism in Comparative Politics’, Annual Review of Political Science 2 (1999): 369–404, 387. 9. I. Katznelson, ‘Periodization and Preferences: Reflections on Purposive Action in Comparative Historical Social Science’, in Comparative Historical Analysis in the Social Sciences, ed. J. Mahoney and D. Rueschemeyer (Cambridge: Cambridge University Press, 2003), 270–301, 277. 10. Ibid., 282. He also notes that even during such critical junctures, agency does not operate under conditions of its own making, and even at such moments the universe of conceivable alternatives is much smaller than the full range of hypothetical possibilities. 11. See, for example, G. Esping‐Andersen, The Three Worlds of Welfare Capitalism (Princeton, NJ: Princeton University Press, 1990); T. Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, MA: Belknap Press of Harvard University Press, 1992); Thelen, ‘Historical Institutionalism in Comparative Politics’, 369–404. 12. Thelen and Steinmo, ‘Historical Institutionalism in Comparative Analysis’, 9. 13. See, for example, North, Institutions, Institutional Change, and Economic Performance; R.B. Collier and D. Collier, Shaping the Political Arena (Princeton, NJ: Princeton University Press, 1991); Pierson, Politics in Time; W. Streeck and K. Thelen, eds. ‘Introduction: Institutional Change in Advanced Political Economies’, in Beyond Continuity: Institutional Change in Advanced Political Economies (Oxford: Oxford University Press, 2005), 1–39; J. Mahoney and K.A. Thelen Explaining Institutional Change: Ambiguity, Agency, and Power, (Cambridge/New York: Cambridge University Press, 2010). 14. Pierson, Politics in Time, 98. 15. Thelen, ‘Historical Institutionalism in Comparative Politics’, 369–404. 16. G. Roland, ‘Understanding Institutional Change: Fast‐Moving and Slow‐Moving Institutions’, Studies in Comparative International Development 38, no. 4 (2004): 109–31, 116. 17. There is a large and excellent literature on the Meiji period and the transformation from the earlier system; for an overview, see M.B. Jansen and G. Rozman, Japan in Transition: From Tokugawa to Meiji (Princeton, NJ: Princeton University Press, 1986). The processes of institutional borrowing and innovation during this critical juncture are detailed in D.E. Westney, Imitation and Innovation: The Transfer of Western Organisational Patterns to Meiji Japan (Cambridge, MA: Harvard University Press, 1987). 18. This section on the Meiji land reforms is based on K. Yamamura, ‘Pre‐Industrial Landholding Patterns in Japan and England’, in Japan: A Comparative View, ed. A.M. Craig (Princeton, NJ: Princeton University Press, 1979), 276–323; K. Yamamura, ‘The Meiji Land Tax Reform and its Effects’, in Japan in Transition: From Tokugawa to Meiji, ed. M.B. Jansen and G. Rozman (Princeton, NJ: Princeton University Press, 1986), 382–99; R.P. Dore, Land Reform in Japan (London: Athlone Press, 1959); J. Nakamura, Agricultural Production and the Economic Development of Japan, 1873–1922 (Princeton, NJ: Princeton University Press, 1966); J. Nakamura, ‘Meiji Land Reform, Redistribution of Income, and Saving from Agriculture’, Economic Development and Cultural Change 14, no. 4 (1966): 428–39; S. Vlastos, ‘Opposition Movements in Early Meiji, 1868–1885’, in The Cambridge History of Japan: The Nineteenth Century, ed. M.B. Jansen, vol. 5 (Cambridge: Cambridge University Press, 1989), 367–426; G.M. Beckmann, The Making of the Meiji Constitution: The Oligarchs and the Constitutional Development of Japan, 1868–1891 (Westport, CT: Greenwood Press, 1975). H. Ito and M. Ito, Commentaries on the Constitution of the Empire of Japan (Westport, CT: Greenwood Press, 1906/1978). 19. The lower estimate is cited in Nakamura, Agricultural Production, the higher one is in Dore, Land Reform in Japan, 12. 20. J. Nakamura, ‘Meiji Land Reform’, 432. In some parts of Japan, tenancy was the result of earlier large landholdings that had not been completely converted before and during the early years of the Tokugawa period to the new honbyakusho system of ‘listed’ cultivators working land owned by Daimyô. For a summary of land ownership transitions in the pre‐Tokugawa period, see K. Nagahara, ‘Land Ownership Under the Shoen‐Kokugaryo System’, Journal of Japanese Studies 1, no. 2 (1975): 269–96; Yamamura, ‘Pre‐Industrial Landholding Patterns’. 21. Vlastos, ‘Opposition Movements’, 368. 22. Ibid., 373. 23. Ibid.; Yamamura, ‘Meiji Land Tax Reform’, 14. 24. Ito and Ito, Commentaries on the Constitution, 57; Vlastos, ‘Opposition Movements’, 373. 25. Vlastos, ‘Opposition Movements’, 374; there were, however, many other protests that indicate just how important land rights were to those affected. Gluck describes one telling example of poor villagers in the Kiso valley in Nagano prefecture who fought for over two decades from 1881 to 1905 against the confiscation of their farmlands and village common lands for imperial forestland. Even during a period when the Emperor was worshipped as a god and when criticizing policies carried out in his name could be considered lèse majesté (a capital offense), villagers stubbornly refused to accept the government’s confiscation without compensation, eventually accepting a lump‐sum compensation in 1905. This case is also, of course, a strong indication of how completely Japanese landowners had accepted the logic and promises of the new system of property ownership. C. Gluck, Japan’s Modern Myths: Ideology in the Late Meiji Period (Princeton, NJ: Princeton University Press, 1987), 98. 26. Beckmann, Making of the Meiji Constitution, 24. 27. Vlastos, ‘Opposition Movements’, 377, suggests that the newly centralized government was better able to resist protests than the earlier, decentralized feudal regime in which Daimyô were closer to their people and more closely linked to their fortunes. 28. Nakamura, ‘Meiji Land Reform’, 435. The Daimyô’s income from domain tax revenue was commuted to long‐term bonds, and they were also given titles in the new aristocracy. See also Y. Inamoto, ‘The Problem of Land Use and Land Prices’, in The Political Economy of Japanese Society: Internationalization and Domestic Issues, ed. J. Banno, vol. 2 (Oxford: Oxford University Press, 1998), 229–64. 29. This discussion of the Meiji constitution is based primarily on J. Banno, The Establishment of the Japanese Constitutional System (London: Routledge, 1992); Beckmann, Making of the Meiji Constitution; K. Colegrove, ‘The Japanese Constitution’, The American Political Science Review 31, no. 6 (1937): 1027–49; Gluck, Japan’s Modern Myths; A. Gordon, A Modern History of Japan: From Tokugawa Times to the Present (Oxford: Oxford University Press, 2003); Ito and Ito, Commentaries on the Constitution. 30. See Gordon, A Modern History, 84. 31. Ibid., 92. 32. Gluck, Japan’s Modern Myths, 21. 33. Ibid., 25. 34. Ito and Ito, Commentaries on the Constitution, 57. 35. Ibid., 57–8. The stress on laws is significant, as laws can only be passed by parliament, while imperial ordinances could be passed by the government without parliamentary approval. See Colegrove, ‘The Japanese Constitution’, 1045, for a discussion of the Prussian influence on the property rights clause. 36. Gordon, A Modern History, 127. 37. Colegrove, ‘The Japanese Constitution’, 1045. 38. Pierson, Politics in Time, 111. 39. See Banno, Establishment of the Japanese Constitutional System. 40. Nakamura, ‘Meiji Land Reform’; P. Francks, Technology and Agricultural Development in Pre‐War Japan (New Haven, CT: Yale University Press, 1984). 41. Dore, Land Reform in Japan, 19. 42. Ibid., 145. 43. Francks, Technology and Agricultural Development, 153. 44. Moore, Social Origins of Dictatorship and Democracy, 286. 45. Ibid., 291. 46. Although it is important to note that serious questions have been raised about the applicability of Moore’s broader thesis to the Japanese case, for a review of these debates, see J. Mahoney, ‘Knowledge Accumulation in Comparative Historical Research: The Case of Democracy and Authoritarianism’, in Comparative Historical Analysis in the Social Sciences, ed. J. Mahoney and D. Rueschemeyer (Cambridge: Cambridge University Press, 2003), 131–74. 47. This discussion of the occupation reforms is based on G.D. Allinson, Japan’s Postwar History. (Ithaca, NY: Cornell University Press, 1997); J.W. Dower, Embracing Defeat. Japan in the Wake of World War II (New York: W.W. Norton, 1999); K. Inoue, MacArthur’s Japanese Constitution: A Linguistic and Cultural Study of its Making (Chicago, IL: University of Chicago Press, 1991); S. Tsuru, Japan’s Capitalism, Creative Defeat and Beyond (Cambridge: Cambridge University Press, 1993); N. Ukai and N.L. Nathanson, ‘Protection of Property Rights and Due Process of Law in the Japanese Constitution’, in The Constitution of Japan: Its First Twenty Years, 1947–67, ed. D.F. Henderson (Seattle: University of Washington Press, 1969), 239–55. 48. Inoue, MacArthur’s Japanese Constitution, 9. 49. Ibid., 12. 50. Ibid., 16. 51. Ibid., 19. 52. Ukai and Nathanson, ‘Protection of Property Rights’, 251. 53. S. Tsuru, The Political Economy of the Environment: The Case of Japan (London: Athlone Press, 1999), 27. 54. The English wording of the Meiji constitution is found in Ito and Ito, Commentaries on the Constitution, 54; the SCAP draft wording in Inoue, McArthur’s Japanese Constitution, 307; and the 1946 constitution wording in the same work, 281. The English language versions of both the Meiji constitution and the 1946 constitution are the officially adopted translations, while the SCAP draft was originally written in English. To date, no revisions have been made to the 1946 constitution, although the issue has seen heated debate several times during the last half century, and proposals for revision are currently being debated, although not to Clause 29. 55. Inoue, McArthur’s Japanese Constitution, 90. 56. See L. Wenar, ‘The Concept of Property and the Takings Clause’, Columbia Law Review 97, no. 6 (1997): 1923–46; R.A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1986). 57. Dore, Land Reform in Japan, 138. 58. 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