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Seminar 1: gTowards a comparison of ownership.h
Institute of Oriental Culture, The University of Tokyo
Saturday June 26, 1999

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1. Overview of the purpose of the Comparative Study Group (MIURA Toru, Ochanomizu University)

There is no need to confine ourselves to a single comparative methodology. Methodological theory can be left until later; after interesting issues have been identified, we can discuss them without preparing the theory beforehand.

1-1 Comparison at a fundamental level

This study group aims at comparison from a fundamental level (see gthe Aimh by KISHIMOTO Mio below). We hope to discover axes of coordination transcending region by returning to that which is inherent to a region (inherent logic) and to principles common to human behaviour, such as law, ownership, and exchange.

1-2 No presuppositions about regional particularities

The study group looks specifically at the three areas of China, South-East Asia and the Islamic Middle East. The selected regions are treated flexibly according to theme and indeed the aim is to reconstruct the regional set-up itself.

1-3 Islamic factors

Though this is a study group within the Islamic Area Studies project, it is not restrained by the concept of gIslam.h It does not begin from any definition about what Islamic factors are, but attempts to work towards a rethinking, at a more universal level, of what is thought of as Islamic elements, by also taking up regions and subjects where Islamic elements do not exist (including Japan and Europe). It is thought that Islam should be the ginvisible inkh which can be read

in the circumstances outside.

1-4 Historicity

We consider that what is termed comparative ghistoryh does not mean a comparison based on historical phenomena or a time framework; rather we would like to enjoy making free comparisons, not limited by time or place, and including the present. We would like it clearly understood that our standpoint is not essentialism; we wish rather to present a stance that attaches importance to the ghistorical entanglementsh (see Sugishimafs report below) of culture.

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2. The aim of the gOwnershiph seminar (KISHIMOTO Mio, The University of Tokyo)

Comparison at a fundamental level

This study group looks at gthe potentials of comparative studyh by moving forward from traditional comparative theory, which has the tendency to stop at the level of gdiscovering similarities and differences among phenomena of the target region and emphasizing the regionfs particularities,h with the aim of gdiscovering new analytical concepts and models through a consideration of the origins of those similarities and differences at a more fundamental level (cultural and social systems).h What do we mean by gfundamental levelh? It certainly does not mean attempting to explain something by presupposing the existence of gprinciplesh peculiar to a certain cultural sphere and then making everything go back to them.

It is not sufficient just to list up in a phenomenological way the various points observed in each region, or to characterize them using external indicators. Rather we must try to understand them formatively and in an integrated way, placing them within the unique context of their cultural sphere. There is no doubt that such approach, which places importance on the logical connections between the peculiarities of the cultural sphere, can contribute greatly to relativizing the culturo-centric frameworks held by researchers. However, inevitably there is also a natural fear that adhesion to such an approach might give rise to new problems concerning what could be called gthe absolutization of cultural relativism,h that is to say, the formalization of the framework of the gcultural sphereh and the overvaluation of completedness and integratedness of meaningful systems occurring within each such sphere.

In this study group we aim to relocate the meaningful systems which have grown up in the various regions in the course of world history and the process of the historical change that has come about through mutual contact, placing them in a universal framework. We feel that this is a task attended by a certain risk and hesitation, like erecting a building aware of the precariousness of the scaffolding. For example, let us take up the concept of gownershiph as one of the basic concepts of society, like gnation,h glawh and gperson.h When we decide to compare how gownershiph works in various cultural spheres, there is no guarantee that there will even be a word in other cultural spheres correctly corresponding to gownership,h the very word which will decide the comparative framework. We must not stimulate discussion about it on the premise of the simple conviction that gownershiph itself is self-evidently a universal idea, and there are only various particularities in how it works. Nevertheless, we feel that there is something common throughout the various cultural spheres approximating words such as gownership.h Furthermore, it is conceivable that we will not even be able to draw near other cultures unless we undertake the labour of gtranslationh and ginterpretationh to mediate this commonness. In fact, it is by undertaking such approximate translations (which might be gmistakenh) that the people of various regions reinterpret and change their own societies.

If we recognize this fact, surely we will not become mired in the proper, if negative, argument that we cannot directly apply our concept of gownershiph to other cultures. What is it that we want to express, and compare, by using the word gownershiph? To do so, what kind of vocabulary should we use to carry on most easily a fair dialogue? If we want to raise a subject that is common among many human societies using the word gownership,h how broad theoretically will the possible form of gownershiph be that is used in answer? How great have the differences in the band of usage been in the course of history of the various actual concepts of gownership,h and how have these differences been distributed?

This concern supposes a kind of universal axis disposed over the various ways that "ownership" occurs. Of course, looking just from a single example discussing the use of a specific word, it is probably an illusion that we should think we can establish perfectly fair axes. However, surely it is not impossible that our very approach to other cultures, at however a small degree, will act to mediate such common axes. I think therefore we should aim positively at becoming aware of and refining these axes. The "fundamental level" I mentioned above is the basis of an approach which seeks to consider the potentials of comparison as fundamentally as possible.

The relationship between the self, the other and things
gOwnership,h gmarkets,h gcontractsh and so on are themes which we intend to cover in this study group. They have all been set up as comparatively neutral expressions of what may be thought of as common issues intersecting the various cultural spheres. However, they themselves cannot be said to be completely neutral, and we would like to discover their significance in the sense of incompatibility that different people may feel regarding them as themes.

The word gownershiph is extremely ambiguous. Here we would, to the best of our ability, like to consider it as part of a broader question, how human beings consciously organize the connections between the self, others, and things. If people lived completely isolated from one another, there would be little need to talk about ownership, but because most people preserve order through a competitive society, some form of the idea is necessarily held in common to some extent that there is a range within which certain people and groups are able to act in relation to the self, others and things according to their will. That is, there is some kind of line drawn between gsomeoneh and gsomethingh, that gsomeoneh can do gsomethingh as he wishes.

In traditional historiography, the problem of gownership,h particularly regarding land, has been studied either in terms of a developmental framework (state [or community] or individual ownership? landlord or cultivator ownership?) or a conceptual understanding of the particularities of a region (e.g. China) regarding land ownership. However, if we look at the question in the terms outlined above, the range covered by gownershiph is not confined to land ownership.

If we understand gownershiph broadly as an issue concerning the articulation of the world, then above all, it corresponds directly to the concept of how we understand humanity. For example, of what does the subject of ownership (the gwhoh) consist? What is the gpersonh who owns things? If, on the premise of our commonly accepted ideas about ownership we postulate Lockean theory, which regards our own bodies and their labour as fundamental possessions of the self, how broadly can we consider the concept of gself ownershiph to extend? How have types of behaviour relating to personal decisions, such as gselling the self,h gselling sexh and gcommitting suicide,h been considered in the various cultural spheres? Again, ownership from a human perspective has been continuously connected with issues about control and status. In what way is control over onefs wife and children, bondservants and slaves, related to the concept of ownership? What is good or bad behaviour on the part of the master regarding his wife, children and slaves? In what way are selling a person and selling labour distinguished? And what are the conceptual divisions between buying people as slaves and buying their labour?

Further, how is the legitimacy of ownership explained? For example, there is the idea that people who existed in a scattered fashion before the advent of the nation originally gownedh something through their own strength and that they went on to create order to protect their gpossessions.h Alternatively, there is the idea that the theoretical starting point was when people formed groups and inherited through mutual agreement the gportionh allocated from the whole. What is the explanation offered in the various cultural spheres? Such questions are directly related both to the theory of the formation of the nation (the political order) and to issues of justice regarding ownership, the basis of the principle of impartiality, like procedural justice and justice of allotment.

I have listed the above ideas at random, but issues regarding ownership do not stop there and such a broad topic cannot be dealt with adequately in a single study meeting. I would like to finish with a prediction that gownershiph might very well be able to act as a medium in the study from a new angle of other closely connected issues, such as the nation, status, contracts, the view of a human being and production.

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3. SUGISHIMA Takashi (National Museum of Ethnology; South-East Asian Social Anthropology)

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Historical entanglements regarding ownership: centring on land ownership in the Asia-Pacific region

The modern concept of ownership, the Lockean view that onefs body and labour, as well as their results, are exclusive possessions of the self, has become the indispensable presupposed condition for the exchange of goods, and the basis of capitalism. Connections between people and land that do not fall into this modern concept of ownership are called gthe land systemh and it is necessary to distinguish clearly between the two. Over and above this, we need to understand the process whereby land programmes are executed, transforming a multilayered, communal and ceremonial land system into a market relationship, not as a process where the cultures of regional societies are coloured by the rules of the core countries, but as ghistorical entanglement,h intertwining both sides.

4. YANAGIHASHI Hiroyuki (The University of Tokyo, Graduate School of Humanities and Sociology; The History of Islamic Law)

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The concept of rights of ownership in Islamic private law: the relationship between possession, ownership and protection

The basis of the concept of ownership as it exists in Islamic law is discussed through three topics. In Islamic law, there is:

a. no recognition of the customary practice of acquiring rights of ownership through possession, and

b. rights of ownership(milk) are divided into eayn (the thing itself) and manfaea (the value of its use). Various separate rights of ownership grew up. In conquered lands, rights of ownership of the land itself belonged to the Muslim community as a whole, but in actuality such rights became an empty concept, and the value of use (usufruct) was made the right of ownership in practice. Thus milk was not just the thing itself but incorporated the function causing the fruits of the thing (including the fruits of labour) to be included in the thing. Thus it was both a possession and a right of ownership. Ample attention should be paid to this.

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5. KISHIMOTO Mio (The University of Tokyo, Graduate School of Humanities and Sociology; History of China in the Ming and Qing Periods)

Selling land, selling people: the concept of gownershiph in China

5-1 In China, the possession of land was two-sided: while it was based on the totalitarian principle that it all belonged to the emperor (huangdi), in actual fact there was a laissez faire attitude towards the possession of land by the people (rights of occupation and use, buying and selling it, and leasing it). Thus, though the theoretical premise was that the whole belonged to the emperor, individual possession was recognized as issuing from that. Taking into account both the actual gauthorityh of ownership, which came about through buying and selling, and the social abuses that resulted, various land policies were developed seeking the optimum for each, from the point of view of the welfare of the whole.

5-2 Slaves were not possessions; rather they should be understood in terms of a status relationship with the master. This is close to how in a body the centre moves the extremities (or the sense that a father and child are one). It is different from the sense that the master utilizes and disposes as he wishes things which are external to him.

5-3 The totalitarian Chinese concept of ownership differs from the modern European theory of ownership, based on individual rights. In reality, though, it developed universal and practical themes nurtured from within, involving individual and communal complications and adjustments. Comparison is needed which takes into account both its originality and its universality.

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6. Summary and development of points at issue

The relationship in China between the principle that all land is the emperorfs and actual property (ye; usufruct) suggests a similarity in structure with the twofold system under Islamic law, the theory that all land is state owned (fayf), and the value of its use (manfaea). Also, if the reason that Islamic law allowing rights of individual ownership in manfaea is based on the idea that profits come about through exchange, there seems to be something in common, even in terms of its origin, with the modern Lockean concept of rights of ownership. If this is so, there exists not just the twofold division of a multilayered, communal and ceremonial land system and modern rights of land ownership suggested in Sugishimafs report but, as a third type, a circulation of private rights of ownership derived from the concept of totalitarian ownership.

However, further investigation on the following lines is necessary before we can say that the structure of ownership in China and under Islamic law is the gsameh or not: (1) the strength of private rights of ownership and the principles of their circulation (for example, it does not seem that there is anything in Islamic law relevant to huo mai, transactions which leave the rights of original ownership); (2) principles and methods to regulate profits of the whole, and private profits; and (3) the existence of a large difference between Islamic law and modern European law in that the former does not recognise an abstract legal person, and this influences issues of capital accumulation. Also, we can extend the range of ownership by looking at how rights of ownership work towards things that cannot be seen (like government posts, cultural objects and prestige) and by asking whether non-human beings (including God) can be the subjects of ownership, thus enabling us to investigate the issues in a more diverse way. In particular, subjects (1) and (2) will be taken up in the seminars later this year on contracts and markets.