Competing stakeholder discourses in constructing cultural heritage: The legal case of the house at No. 98 Hai’er Lane, China

Heritage as a discursive construction

Discourse can be understood as a form of social interaction and meanwhile as “the expression and reproduction of social cognition” (Van Dijk, 2014: 12). Discourse analysis has developed into an essential area of specialty in modern academia. In practice, discourses are primarily constrained by power relations within a social order that play a decisive role in legitimating social knowledge. Thus, discourse analysis from a critical perspective tends to challenge the generally accepted ideas or practices and clarify how dominant discourses marginalize or oppress the truth. Heritage is intimately associated with discourse and discursive practices (Wu and Hou, 2015). Informed by Smith (2006) who claimed that “heritage is a discourse” (p. 272), we hold that the process of heritagization is a discursive practice.

Heritage does not merely point to unique and precious objects or resources, such as historical monuments and cultural traditions that are directly identified and acknowledged, but those whose significance is embedded in various configurations where they arise. Intertwined with ideology and power relations, heritage needs to be approached by considering situational knowledge beyond language in the sense that discourse is context-dependent (Bloor and Bloor, 2013). Tunbridge and Ashworth (1996) stressed that “the present selects an inheritance from an imagined past for current use and decides what should be passed on to an imagined future” (p.6). Now that heritage is a meaningless entity outside the discourse (Hall, 2011), people should place it under the scrutiny of the present. However, the present is a relative concept that cannot be exempt from the far-reaching influences of the past. Exploring heritage-related issues from a dynamic perspective is thus essential to better comprehend the discursive logic behind the realities. Moreover, discourse has the power to construct the episteme or structure of knowledge. Multiple scholars (Lowenthal, 1998; Cameron and Kenderdine, 2007; Waterton and Watson, 2010) have examined heritage discursive constructions by investigating how social groups’ divergent interests and ideologies shape heritage in ways that reflect power relations. People construct a discourse for their own sake, whereas they may be shaped by such discourse simultaneously, as pointed out by Cheng and Sin (2007). For practitioners of Critical Discourse Analysis (CDA), conflicts arising from heritage conservation should be meticulously addressed to unpack the meaning-making process and the power relations involved.

Authorized Heritage Discourse (AHD): a critical perspective to heritage studies

Based on an in-depth analysis of multiple cases from Australia, New Zealand, and so on, Smith (2006) summarized the use of heritage around the globe and developed the well-known concept of Authorized Heritage Discourse (AHD) based on a core set of principles of CDA; simply put, AHD delves into the process of negotiation that relates to social power in heritage discourse. For this reason, the knowledge of heritage is defined by key actors in the AHD community, e.g., heritage professionals and government authorities that identify, define, conserve, and utilize the heritage. This is traced back to the Western aesthetic philosophy that privileges material entities from the past. As such, AHD seeks to approach heritage “mainly for its static representation of aesthetics and monumentality” (Yan, 2015:66), while degrading the values of intangible cultural heritage, e.g., oral traditions, performing arts, rituals, knowledge, and skills to produce traditional crafts.

During the top-down hegemonic process through UNESCO and other international organizations like ICOMOS and ICCROM, the idea of AHD has gradually merged into global conservation practices. The institutional power is implemented through official documents, such as conventions, laws, declarations, treaties, charters, and agreements that exert both legal and moral force on participating parties to elucidate what heritage is and how it should be safeguarded. In other words, AHD generates a series of principles, norms, and standards to regulate social behaviors of the majority, including non-westerners, indigenous communities and peoples, etc. It is a handful of experts who have the final say in making or influencing decisions on heritage issues. Bouvier and Wu (2021) maintained that the meaning-making of UNESCO legal instruments is a sociosemiotic operation that can be understood based on contextualized information and also a process of “social dialogue and power negotiation” (Cheng and Cheng, 2012: 446; Zhao et al. 2021; Si and Liu, 2022).

Heritage protection in the legal framework

Cultural heritage protection operates within the framework of international and domestic legal systems. As a cultural legacy of humankind, heritage is in itself susceptible to extensive damage or destruction (Gomez-Heras and McCabe, 2015), denoting a necessity to undertake adequate protective measures for safeguarding historic buildings, monuments, or artifacts of cultural significance. The 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict is the first comprehensive and systematic legal instrument that specifically addresses the protection of cultural property in armed conflicts. Along with the 1954 and 1999 protocols, the Convention has clarified a diverse range of obligations on state parties to negotiate competing discourses of various countries for heritage safeguarding and protection during hostilities. In the peacetime, conflicts of interest regarding heritage protection and management can be commonly observed within local discourse communities. By analyzing the dissonant heritage, Tunbridge and Ashworth (1996) claimed that the cultural, political and economic uses of heritage are linked with conflicts among stakeholders, which originate from the emphasis on producers (e.g., governments, cultural agencies, etc.) rather than consumers (e.g., local inhabitants, tourists, etc.). Herein, stakeholders refer to individuals, groups or organizations with an interest in the activity that can impact or be impacted by a decision or action (McGrath and Whitty, 2017).

While the Law of the People’s Republic of China on the Protection of Cultural Relics (1982), the Law of the People’s Republic of China on the Protection of Intangible Cultural Heritage (2011), and a series of rules and regulations at the local and national levels are legally effective, the legal system for cultural heritage in China still needs further improvement due to a lack of refinement and timely update. This has attracted the attention of relevant scholars and heritage practitioners. One of their concerns is the problem of public interest, as the laws or judicial interpretations do not explicitly provide for the measurement of public interest. Besides, Maags (2018) explored how non-state stakeholders in China compete for a sense of identity to local heritage by actively engaging in the implementation of intangible cultural heritage policy, showing the public’s increasing awareness about cultural identity. Zhu’s (2018) study contributed to the knowledge about the contested nature of heritage in the urban landscape of Xi’an, China, where individuals respond to the official discourse through adaptation, unintended participation, commemoration, and resistance. Moreover, Svensson and Maags (2018) believed that the AHD in China has undergone changes due to divergent ideological thinking and socio-economic progress. Ordinary residents, local communities, and marginalized groups could make their voices heard by adapting, negotiating, or even contesting the AHD, especially during urbanization where stakeholders diverge on the values and meaning of heritage.

In recent decades, a shift has occurred in heritage management, transitioning from a predominantly “material-centric” approach to one that is “human-focused”. The shift underscores a profound realignment of mankind and nature, as posited by Ma and Cheng (2019). The present study seeks to contribute some thoughts to the academic field by examining how different discourses are negotiated through contestations, particularly focusing on the legal case pertaining to the house located at No. 98, Hai’er Lane, Hangzhou, China.

Case briefing: Qian v. Shaoshan Middle School

The case study approach enables people to obtain a comprehensive and in-depth understanding of sophisticated issues from real life. Therefore, it is widely adopted in heritage studies (see Christie, 2021; Munawar and Symonds, 2022). The reasons for analyzing the case of the house at No. 98, Hai’er Lane are illustrated below. First, the house was a historic building inhabited by local residents but yet to be designated as the cultural relic protection site. It escaped from being destroyed owing to constant efforts of local residents, making it one of the successful exemplary cases of challenging the AHD in China.^{Footnote 1} Second, multiple stakeholders were involved in the conflict over its cultural identity, which can shed light on how competing discourses are properly addressed. Third, this legal dispute has noteworthy social influences on heritage protection across the nation, e.g., promoting the revision and refinement of relevant heritage laws and regulations.^{Footnote 2} Below is a thorough description of the case, which relates to legal controversies worth discussing.

Hai’er Lane is situated at the center of Hangzhou, China, connecting Wulin Road and North Zhongshan Road. As one of the historical remains, its fame is primarily attributed to Lu You (A.D. 1125–1209), a renowned patriotic poet in the Southern Song Dynasty. According to relevant records, he once resided in Hai’er Lane during several trips to Lin’an (presently Hangzhou), where one of his representative poems, Clearing up after Spring Rain at Lin’an, was conceived. However, the building at No. 98, Hai’er Lane could have vanished without the unremitting efforts of Xiyao Qian, the owner of the ancient house, who proposed to the authorities that it was the former residence of Lu You, shortly after the government’s authorization of the expansion of Shaoshan Middle School (now known as Fengqi Middle School) through the demolition of adjacent structures in 1999. While the Hangzhou Municipal Bureau of Gardening and Cultural Relics found that the house did not exactly match the location described in the literature, it was identified as a relic of the late Qing Dynasty and the early Republic of China with a particular reservation value, as evidenced by the proof of Zhejiang Provincial Bureau of Cultural Relics (see [2001] No. 147 Reply). Considering this, the Hangzhou Urban and Rural Construction Committee temporarily kept the building intact and made appropriate repairs. But local households were still required to resettle in other places in compliance with urban planning. Two years passed before the debate over whether to tear down the house had been resolved.

The Hangzhou Municipal Government issued a similar statement for the second time in September, 2001, claiming that the house at No. 98, Hai’er Lane was neither the former residence of Lu You (a famous poet) nor a cultural preservation site, and agreed to expedite the relocation of the building (see [2001] No. 213 Reply). Xiyao Qian felt strongly reluctant to leave because of his strong emotional attachment. In March 2002, the Shaoshan Middle School sued him in the Xiacheng District People’s Court, which ruled that Qian vacated the house within ten days and handed it over to the Shaoshan Middle School for demolition. Feeling an ethical pressure, Qian immediately appealed the court’s decision (see No. 298 Civil Judgment).^{Footnote 3} Some of the testimony delivered by his lawyer during the second trial is shown below.^{Footnote 4}

The appellant’s purpose of filing the lawsuit is in no way to obtain additional personal benefits but to protect the national cultural heritage through legal settlement. As we all know, if the ancient house is demolished, the appellant will not suffer direct economic loss. Instead, he will substitute the old house with a new one through government compensation, enhancing the quality of life accordingly. However, as a law-abiding citizen (the 34^th generation descendant of King Wusu Qian), he understands his historical responsibility and legal obligations.

In the meantime, Professor Yisan Ruan, Director of the Research Center for National Historical and Cultural Cities at Tongji University, conducted an on-site appraisal of the old house after hearing the news and concluded that it was a building in the middle and late Qing Dynasty, renovated and repaired continuously on the original site. As a historical landmark in Hangzhou, it was worth preserving no matter whether it was Lu You’s former residence. Many professors at Zhejiang University also advocated that the building was an ancient living museum. As such, the Zhejiang Provincial Bureau of Cultural Relics made a special request to preserve the building. That being the case, Guoping Wang, the then Secretary of the Hangzhou Municipal Party Committee of CPC, gave instructions to amend the Historic Cultural City Conservation Plan as soon as possible, demanding that all the approved old city renovation projects should be thoroughly examined and reviewed, whereas unapproved projects be suspended until revisions are completed. Hangzhou Municipal Intermediate People’s Court rejected the Shaoshan Middle School’s litigation request as a final judgement in September, 2002.^{Footnote 5}

Since 2007, the house has been renovated several times. The exterior door demolished during the urban renewal project was rebuilt and the bluestone octagonal well excavated in the Ming Dynasty was covered with an iron cage for conservation purposes (cf. Fig. 1).^{Footnote 6} It was selected as one of the first batch of historical buildings to be protected in Hangzhou’s main urban area by Hangzhou Municipal People’s Government in 2004 and started to be maintained by Xiacheng District Cultural Protection Office of Hangzhou in 2005. The cultural tourist attraction is now open to the general public for free. The first half of the ancient building is made into the “Lu You’s Memorial Hall”, exhibiting the poet’s life experience and literary works, while the second half is used as the “Xiacheng Cultural and Historical Museum”, displaying historical stories and cultural relics relating to Xiacheng District (presently Gongshu District, cf. Fig. 2).^{Footnote 7}

a The house has become a declared monument of Hangzhou historical and cultural building; b The bluestone octagonal well located at site was excavated in the Ming Dynasty.

a The monument to Xiacheng district cultural and historical museum is found at the entrance; b The house is currently used as Lu You’s Memorial Hall.

Competing stakeholder discourses: multiple narratives of local inhabitants, various courts, and government agencies

Based on legal judgments, interview transcripts, and field visits, we have identified three categories of narratives revolving around the prospects of the house at No. 98, Hai’er Lane during the urban planning, i.e., the local community, lower and higher courts, and the government, respectively. Voices across participating actors are interwoven, indicating the contested nature of heritage discourses under discussion.

Conflicting interests at the community level

Hai’er Lane is located in the prime area of Hangzhou, and the house price nearby had already climbed up to a record high of around 6000 RMB per square meter back then. In pursuit of better financial returns, the housing authority was eager to reconstruct old blocks and provided local residents with preferential policies for demolition and relocation. Unlike Qian, all the other households along Hai’er Lane moved out straight away in line with the government requirements, mainly because these dilapidated houses were not suitable for living anymore (e.g., it is sweltering in summer and frigid in winter). Local inhabitants were more concerned about their living comfort than the historical significance of the residential area. Some even tried to persuade Qian to succumb to the government order by considering the lucrative compensation plan. But Qian insisted that his ancestors bought the house for the reason of Lu You. Holding such a strong belief, he filed a lawsuit against the Shaoshan Middle School that claimed to have the official right to occupy the land.

Due to the existence of dissonant voices in local community, three households including Qian were given the title of “Nail Household”, a Chinese term used to refer to people who are reluctant to move out of the private property to make room for the real estate development. Qian became a single-handed elderly man struggling for over four years to gain recognition for the house, which shows the limited power of individuals in protecting a heritage site. Ordinary people are oftentimes disempowered in the process of heritage identification and conservation (Yan, 2015), though their inclusive participation in the formulation and implementation of policies may affect the well-being as well as facilitate the transfer of knowledge from older to younger generations. What is more, heritage conservation and urban planning/development do not necessarily conflict with each other (Mubaideen and Al Kurdi, 2017). But lack of public awareness of heritage conservation is the immediate cause of cognitive dissonance in the host community. The dispute does not only relate to discrepancies within the group of local residents but to those between local residents and other social groups, e.g., the Shaoshan Middle School, driven by divergent interests and needs.

Conflicting interests at the court level

Since Qian could not reach a consensus with the Shaoshan Middle School over whether to demolish the house, the dispute evolved into a civil case that had to be handled by the court. But law failed to protect the role and rights of affected groups. In March 2002, the school filed a lawsuit against Qian for refusing to sign the house demolition and resettlement agreement. On June 14, the Xiacheng District People’s Court of Hangzhou ruled in favor of the school by identifying with the government decision, as illustrated below (Ju, 2018; Dundon, 2024).

The dilapidated building is neither a former residence of Lu You nor a cultural protection site. There are numerous cracks in the mud walls up to 4 meters, and termites have seriously eroded the wooden structure so it runs a high risk of collapse in bad weather… Considering the above, the municipal government has decided to demolish the building on July 4^th, 2001. The cultural administration department will collect some of its pieces.

Based on his cognitive appraisal, Ruan realized that the power of heritage professionals and mass media was not enough to turn around the court’s decision, so he solicited support and solidarity of senior leaders within government authorities (Sarangi and Slembrouck, 1996). Hangzhou Municipal Intermediate People’s Court later enforced an opposite adjudication decision that abrogated the first-instance judgment (No. 298 Civil Judgment) of the Xiacheng District People’s Court, following the normative order. Consequently, the lawsuit process involves not only the conflicting interests between the plaintiff, i.e., the Shaoshan Middle School, and the defendant, i.e., Xiyao Qian, but also those between the lower court and the higher court, among which the government played a mediating role in reconciling two distinct perceptions and judgments. This corroborates the claim that “Tensions between expert and non-expert perspectives are manifest in the different values, interests, and identities expressed in heritage identification and decision-making processes” (Avrami and Mason, 2019: 20–21). Our analysis also shows that law, as an ideological product of the time, is shaped by the dominant AHD, which lays out what is considered acceptable and reasonable in a discursive context (Jessup and Rubenstein, 2012).

Conflicting interests at the government level

As a result of the centralized and profit-driven decision-making system, cultural heritage identification and protection could easily evolve into a top-down practice that excludes local communities (Li et al. 2020; Verdini et al. 2017). When implementing the revenue-generating urban renewal project, the municipal government did not assess an inhabited area systematically and comprehensively in terms of its social, economic, historical, and cultural influences. On February 12, 1999, the Hangzhou Cultural Preservation Institute refuted that the house was the former residence of Lu You; instead, it was designated as an architecture built between the late Qing Dynasty and the early Ming Dynasty without much conservation value. This directly caused part of the building to be bulldozed. As the house at No. 98, Hai’er Lane attracted widespread public attention, government officials began to reflect on whether it was rational to demolish the house with discretion by weighing up potential damage. In June, the Bureau of Gardening and Cultural Relics gathered opinions from all sides and affirmed that the building should be protected based on its historical significance.

However, the demolition plan was restarted in 2001 to answer the call of the school for expansion, which shows there exist conflicts between the housing management department and the cultural affairs department over the resolution. Moreover, even the same government departments may adopt contradictory attitudes towards the heritage site before and after the dispute. This provides a window into the irreplaceable role of higher-ranking authorities in turning it around, which is the most dominant and influential discourse in heritage management practices. Essentially, the uneven distribution of power within the hierarchy leads to divergent behavioral manifestations, as each department used power to ensure the benefits of an organization in their own way. It stands to reason that “the particular use each group makes of the AHD to take meaning from the landscape often clashes with the aspirations and needs of other groups” (Smith 2006:173). But the government should be regarded as a vital stakeholder holistically because the consistency of interest is ultimately made possible through the hierarchical structure as it is.