Kuan-ting Chen (Cornell University – Law School; National Chengchi University (NCCU) – College of Law) has posted Historical Injustice in the Property Law Domain: A Theoretical Examination on Taiwan’s Indigenous Reserved Land Policy on SSRN. Here is the abstract:
This essay provides a normative evaluation of Taiwan’s Indigenous Reserved Land policy, a singular affirmative action regime characterized by the gratuitous transfer of nationalized land and stringent alienability restrictions. While contemporary property law predominantly prioritizes market flexibility and the finality of titles, Taiwan’s approach offers a provocative counter-model for redressing historical dispossession. Utilizing Jeremy Waldron’s influential “supersession thesis” as a primary analytical lens, this essay interrogates whether such preferential land entitlements can be theoretically sustained in a modern liberal-democratic state. By synthesizing a detailed legalhistorical account of land expropriation across the Qing, Japanese, and KMT regimes with empirical socioeconomic data, I argue that the policy transcends mere retrospective compensation. Instead, it constitutes a morally defensible response to ongoing structural injustice. Specifically, the analysis demonstrates that the policy satisfies Waldron’s criteria for forward-looking justice by stabilizing the livelihoods of structurally vulnerable communities without generating disproportionate new harms. The essay concludes that the reservation of land serves not only as a redistributive tool but as a crucial carrier of communal dignity and cultural identity, thereby justifying its departure from standard property norms.