The Clash over State and Collective Property: The Making of the Rangeland Law

China Quarterly

Volumn 161, Issue , 2000, Pages 240-263

  Ho, Peter ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

LAND TENURE; LEGISLATION; PROPERTY RIGHTS; RANGELAND;

CHINA;

EID: 0034097558     PISSN: 03057410     EISSN: 14682648     Source Type: Journal    
DOI: 10.1017/S030574100000401X     Document Type: Article

References (76)

1. Yutang Li, Caoye: fuguo qiangmin de xinxing chanye (Pastoralism: The Newly Established Industry to Strengthen the People and Enrich the Country) (Yinchuan: Ningxia renmin chubanshe, 1994), p. 29.
2. For a detailed overview of the Chinese debate on the “rule of law,” see Ronald C. Keith, China's Struggle for the Rule of Law (Basingstoke: Macmillan, 1994), pp. 8–38.
3. The following percentages of contracted rangeland in China have been mentioned: 90% for Gansu, 80% for Sichuan, 70% for Inner Mongolia, 79% forQinghai, 69% forNingxia, 26% for Heilongjiang, 30% for Xinjiang, 37% for Jilin and 30% for Liaoning. See Yutang Li, Pastoralism, p. 101.
4. See also: Peter Ho, “Ownership and control in Chinese rangeland management: a case study of the free-rider problem in pastoral areas in Ningxia, China,” in Eduard B. Vermeer, Frank Pieke and Woei Lien Chong (eds.), Cooperative and Collective in China's Rural Development: Between State and Private Interests (Armonk, NY: M.E. Sharpe, 1998)
5. Robin Mearns, “Community, collective action and common grazing: the case of post-socialist Mongolia,” The Journal of Development Studies, Vol. 32, No. 3 (February 1996), pp. 304–305
6. Caoyuanchu and Caoyuan jianli zhan (ed.), “ ‘Caoyuan fa’ zhishi jiangzuo” (“Intellectual discussion about the Rangeland Law”), Xinjiang xumuye: zengkan (Animal Husbandry in Xinjiang: Supplementary Issue) (1995), p. 40
7. Dee Mack Williams, “The barbed walls of China: a contemporary grassland drama,” The Journal of Asian Studies, Vol. 55, No. 3 (August 1996), pp. 665–691.
8. In their extensive study of animal husbandry in Inner Mongolia, Gansu and Xinjiang, John Longworth and Gregory Williamson note the following: “Another serious source of uncertainty surrounding pasture use contracts in some areas is that while the contract specifies the area assigned to the household, it does not designate the precise location of this pasture land. These “partial” contracts obviously encourage grazing-in-common practices and discourage investments in pasture conservation and improvement by individual households.” See John W. Longworth, and Gregory J. Williamson, China's Pastoral Region: Sheep and Wool, Minority Nationalities, Rangeland Degradation and Sustainable Development (Wallingford: CAB International, 1993), p. 321.
9. Longworth and Williamson, China's Pastoral Region, p. 322. In this context Albert Chen writes: “the question of legal efficacy, or the gap between the law as stated in the statute book and actual behaviour on the part of officials and citizens, presents probably the most serious obstacle … of the Chinese legal system.” He cites the example of a study in Heilongjiang province where only 10% of all existing laws were being effectively implemented or enforced.
10. See Albert Hung-yee Chen, An Introduction to the Legal System of the People's Republic of China (Hong Kong: Butterworths Asia, 1992), p. 92.
11. See Dee Mack Williams, “The barbed walls of China: a contemporary grassland drama,” The Journal of Asian Studies, Vol. 55, No. 3 (August 1996), p. 687.
12. With his research on the Norwegian 1948 Housemaid Law, Vilhelm Aubert opened up a new area of research on “symbol laws” in the sociology of law. See also: Vilhelm Aubert, “Some social functions of legislation,” Acta Sociologica, Vol. 10, Nos. 1–2 (1966), pp. 98–121.
13. Marius Aalders, Industrie, Milieu en Wetgeving: De Hinderwet tussen Symboliek en Effectiviteit (Industry, Environment and Legislation: The Nuisance Act between Symbolism and Effectivity), Ph.D. thesis (Amsterdam: Kobra, 1984), p. 13.
14. See Peter Ho, “China's rangelands under stress: a comparative study of pasture commons in Ningxia, P.R. China,” Development and Change, Vol. 31, No. 2 (March 2000).
15. Xin Zhongzhi (oral communication, 1996).
16. In the translation “owned by the people” has been consistently translated as “state-owned,” while “fixed” for guding has been left out of the translation. See: Nongyebu zhengce tigai faguisi (NZTFS) (ed.), Nongyefa quanshu (A Complete Edition of Agricultural Laws) (Beijing: Zhongguo nongye chubanshe, 1994), p. 685.
17. See Tu Ba and Lin Tai, Zhongguo caoyuan xumuye jingji fazhan gailun (General Discussion of China's Economic Development of Animal Husbandry and Pastoralism) (Beijing: Minzu chubanshe, 1993), p. 45.
18. Richard Madsen, “The countryside under communism,” in Roderick MacFarquhar and John K. Fairbank (eds.), Cambridge History of China, The People's Republic, Part 2: Revolutions within the Chinese Revolution 1966–1982 (Cambridge: Cambridge University Press, 1991), p. 624
19. Ningxia nongye hezuo jingji shiliao bianxiezu (NNHJSBZ) (ed.), Ningxia nongye hezuo jingji shiliao (Historical Material of the Co-operative Agricultural Economy of Ningxia), Vol. I (Yinchuan: Ningxia renmin chubanshe, 1988), pp. 50 and 98–101.
20. In 1948, Wu Lanfu, at the time still provincial governor of Inner Mongolia (he would in later years rise to the central leadership), had declared that in all banners and leagues the herders had free grazing rights. This became the official policy for the pastoral regions in China. See Tu Ba and Lin Tai, General Discussion of Animal Husbandry, p. 48.
21. See Wenzheng Shi, Caoyuan yu caoye de fazhi jianshe yanjiu (Research of the Construction of a Judicial System for Rangeland and Pastoralism) (Hohhot: Neimenggu daxue chubanshe, 1996), pp. 37–38.
22. NNHJSBZ, Co-operative Agricultural Economy of Ningxia, p. 205.
23. I have chosen to translate huangdi as “wasteland” and huangtan as “sandy waste” instead of “unreclaimed land” and “beaches” as in the official translation by the Institute of Chinese Law. The term “unreclaimed land” does not account for the fact that much wasteland is actually illegally under cultivation, or has been reclaimed in the past and left fallow again. The term “beach” has a connotation with the sea, whereas huangtan in Chinese refers to pockets of desert in steppe or grassland. For the official English translation, see Institute of Chinese Law (ed.), Statutes and Regulations of the People's Republic of China, Vol. IV (Hong Kong: Institute of Chinese Law Publishers, 1989), p. 2.
24. For the original Chinese text, see Article 9 of the 1982 Constitution, NZTFS, Complete Edition of Agricultural Laws, p. 3.
25. See Wenzheng Shi, Research for a Judicial System for Rangeland, p. 45.
26. See Difangxing fagui xuanbian bianxiezu (DFXB) (ed.), Difangxing fagui xuanbian (A Compilation of Local Laws and Regulations) (Beijing: Zhongguo jingji chubanshe, 1991), pp. 493–98, 702–704, 877–881, 1019–22, 3578–82, 3699–3702, 3892–98
27. NZTFS, Complete Edition of Agricultural Laws, p. 685.
28. See Madsen, “Countryside under communism,” pp. 640–44.
29. Zhongguo renmin jiefangjun guofang daxue dangshi yanjiushi (ZRJGDDY) (ed.), Zhonggong dangshi jiaoxue cankao ziliao (Reference and Teaching Material for the History of the Chinese Communist Party), Vol. 23 (Beijing: Guofang daxue chubanshe, 1986), p. 454.
30. Note that the version of the Work Regulations published by the Chinese Nationalist Government is incorrect both as regards the date (March 1961 instead of June), and the title (the draft not the revised draft). See Gong fei “nongcun renmin gongshe gongzuo tiaoli” xiuzheng cao ‘an (Revised Draft of “The Work Regulations for the Rural People's Communes ” by the Communist Bandits) (Taipei: unpublished, 1965), Article 17.
31. See ZRJGDDY, Reference Material for History of Chinese Communist Party, Vol. 24, pp. 137–38 and 141–42
32. Jiyuan Chen (ed.), Zhongguo nongcun shehui jingji bianqian: 1949–1989 (Socio-economic Change in China's Countryside: 1949–1989) (Taiyuan: Shanxi jingji chubanshe, 1993), pp. 333–37
33. Qibin Ma and Wenbin Chen (eds.), Zhongguo gongchandang zhizheng sishi nian (Forty Years of Chinese Communist Party Rule) (Beijing: Zhonggong dangshi chubanshe, 1989), pp. 190, 197 and 220.
34. See Wenzheng Shi, Research for a Judicial System for Rangeland, p. 48.
35. See NZTFS, Complete Edition of Agricultural Laws, p. 685.
36. In Bairin Right Banner and Ar Horqin Banner, Inner Mongolia, the administrative village is the owner, while the township supervises. The same counts for Sunan county, Gansu. See Longworth and Williamson, China's Pastoral Region, pp. 183, 231, 259–261.
37. Chen, Introduction to Legal System of China, p. 198.
38. NZTFS, Complete Edition of Agricultural Laws, p. 562.
39. Complete Edition of Agricultural Laws, p. 7.
40. Inner Mongolia Rangeland Regulations, Article 9
41. Ningxia Provisional Rangeland Regulations, Article 3
42. Liaoning Rangeland Regulations, Article 5
43. Jilin Rangeland Regulations, Article 9
44. Heilongjiang Rangeland Regulations, Article 6
45. Xinjiang Rangeland Regulations, Article 12.
46. See DFXB, A Compilation of Local Laws and Regulations, pp. 494, 703, 877, 1020, 3893
47. “Ningxia Huizu zizhiqu caoyuan guanli tiaoli” (“Rangeland management regulations of the Ningxia Hui Autonomous Region), Article 10, Ningxia ribao (Ningxia Daily), 29 December 1994, p. 3.
48. Su Chen, “Tudi chengbao jingying wuquanhua yu nongdi shiyongquan zhidu de queli” (“Changing the contract right to land into a real right and the establishment of a system for agricultural land use rights”), Zhongguo faxue (Chinese Law), Vol. 3 (1996), p. 89.
49. Wenzheng Shi, Research for a Judicial System for Rangeland, pp. 190–91.
50. Albert Chen notes “the system of mediation of disputes by people's mediation committees has always been stressed as an important feature of the Chinese legal system.” People's mediation committees are established under village committees or resident committees (urban areas). Also the judicial assistants at the county and township people's governments and county courts may help in the settlement of disputes through mediation. Chen gives figures for 1989, stating that there were more than 1 million mediation committees, that successfully handled over 7.34 million civil cases. Chen, Introduction to Legal System of China, pp. 150–51.
51. Wenzheng Shi, Research for a Judicial System for Rangeland, p. 94.
52. Roy Behnke, Ian Scoones and other scientists have written extensively on the misconceptions of rangeland ecology and rangeland degradation. See Roy H. Behnke, Ian Scoones and Carol Kerven (eds.), Range Ecology at Disequilibrium: New Models of Natural Variability and Pastoral Adaptation in African Savannas (London: Overseas Development Institute, 1993).
53. In another article, I have used the theoretical underpinnings proposed by Behnke and Scoones to examine the claim of rangeland degradation by Chinese officials and scholars. See Peter Ho, “Rangeland degradation in northern China - a myth? A statistical analysis to validate non-equilibrium range ecology” (forthcoming).
54. For a historical description of the shifting frontier between Mongols and Han Chinese see for example Eduard B. Vermeer, “Checks without balances: Manchu state building and Chinese agricultural expansion on the Inner Mongolian frontier,” in James Reardon-Anderson (ed.), Continuities and Changes on the Mongolian Steppe: Implications for Land Use (forthcoming)
55. Thomas J. Barfield, The Perilous Frontier: Nomadic Empires and China (Oxford: Basil Blackwell, 1989).
56. See Pieter W. Germeraad, The Mongolian Landscape Tradition: A Key to Progress-Nomadic Traditions and their Contemporary Role in Landscape Planning and Management in Mongolia (Rhoon: Pieter Germeraad and Zandangin Enebisch, 1996), pp. 51–54.
57. The name Tuxietuhan Woqilai (as the clanname comes first in Mongol, like in Chinese) would in modern Mongol transcription most likely be “Tüsiyetü Ochir.” The term Tüsiyetü (literally: “providing support to the ruler”), is an honorific title, in former times equal to a counsellor to a monarch. However, in the 18th century it could also have been the clanname of the person or even the name of a place. Ochir comes closest to the Chinese transcription, but leaves the ending “-ai” unsolved, which could be a genitive case here. Nugteren (oral communication, 1997).
58. Su Chen, “Changing the contract right to land,” p. 17
59. Tu Ba and Lin Tai, General Discussion of Animal Husbandry, pp. 48–49.
60. The Chinese Constitution stipulates that national laws should not conflict with the Constitution, administrative regulations (promulgated by the State Council) should not conflict with the Constitution and laws, and local regulations (proclaimed by the people's governments of provinces and autonomous regions) should not conflict with the Constitution, laws and administrative regulations. A legal system has been established for invalidating norms at lower echelons, which are inconsistent with norms at higher levels. However, Albert Chen notes that up to 1992 the system has not yet become operational. See Chen, Introduction to Legal System of China, pp. 90 and 92.
61. Murray Scot Tanner has given a detailed description of the five different phases in the Chinese national procedure for law formulation: agenda-setting, which consists of getting a particular draft law on the agenda of major state lawmaking agencies; inter-agency review, referring to the period of consensus-building about the draft law among major state agencies; top leadership approval of a draft “in principle”; review, debate and passage by the National People's Congress; implementation of the law. Murray Scot Tanner, “How a bill becomes a law in China: stages and processes in lawmaking,” in Stanley B. Lubman (ed.), China's Legal Reforms (Oxford: Oxford University Press, 1996), p. 45.
62. China's Legal Reforms, p. 48.
63. Deng Xiaoping, “Emancipate the mind, seek truth from facts and unite as one in looking to the future,” in Editorial Committee for Party Literature (ed.), Selected Works of Deng Xiaoping (1975–1982) (Beijing: Foreign Languages Press, 1984), p. 158. The translation in the edition of the Foreign Languages Press is corrupt in the last sentence, as it speaks of “laws concerning … grasslands,” while the original text talks about “a rangeland law.” It has been corrected here.
64. Niu Futing (oral communication, 1997). Niu Futing is a present member of the Amendment and Drafting Group for the revised Rangeland Law.
65. See NZTFS, Complete Edition of Agricultural Laws, pp. 555–56.
66. Complete Edition of Agricultural Laws, pp. 594 and 686.
67. Section Head of the Land Pricing Section, Ningxia Land Administration (oral communication, 1996).
68. See Wang Kuilong, Shang Lisheng and Zhang Xiuzhi (eds.), Heilongjiang sheng shishi “Zhonghua renmin gongheguo caoyuanfa ” tiaoli yiyi (An Interpretation of the Rangeland Regulations of Heilongjiang Province according to the “National Rangeland Law ”) (Harbin: Heilongjiang renda nonglin bangongshi, internal publication, 1994), p. 14.
69. For a description of tasks and mission of the Environmental Protection Commission and Agency, see: B.J. Sinkule and Leonard Ortolano, Implementing Environmental Policy in China (Westport: Praeger Publications, 1995), pp. 1–23.
70. Niu Futing, oral communication, 1997.
71. See Wenzheng Shi, Research for a Judicial System for Rangeland, pp. 220–21.
72. For the Chinese standard sheep equivalent conversion see Longworth and Williamson, China's Pastoral Region, p. 112.
73. Niu Futing (oral communication, 1996). In order to avoid the ambiguity around the term “collective,” Chinese jurists propose that the revised version of the Rangeland Law should follow the provisions in article 8 of the Land Management Law. “Land owned by the collective that is owned by the collective of the people of the village according to law, shall be managed by the village agricultural production co-operative, such as the agricultural collective economic organization (further referred to as the economic co-operative) or the village committee. The [land] that is already owned by the township (town) shall be owned by the collective of the people of the township (town). Land owned by the people of the village, which is owned by more than two economic co-operatives within the village, shall be collectively owned by the peasants of the forementioned economic co-operatives.” Terms in “[]” added by author.
74. See NZTFS, Complete Edition of Agricultural Laws, p. 556
75. Zhonghua renmin gongheguo falü shiyi quanshu (Complete Edition of the Interpretation of Laws of the PRC) (Beijing: Zhongguo yanshi chubanshe, 1997), Vol. 3, pp. 1929, 1932.
76. The term “street-level bureaucrat” was first introduced by Michael Lipsky. See Michael Lipsky, “Street-level bureaucracy: the critical role of street-level bureaucrats,” in Jay Shafritz and Albert Hyde (eds.), Classics of Public Administration (Belmont: Wadsworth Publishing Company, 1992).