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

  • Peter Ho
Extract

“Do you have some material about rangeland laws and regulations in the West? It does not matter from which country, we urgently need some material to give us new ideas about rangeland management,” asked Li Derong, the highest ranking official responsible for rangeland policy formulation in China. His question illustrates three points. First, it shows that on the way to becoming a market economy, after more than two decades China is still very much constructing, amending and reconstructing a viable and solid system for grassland management. Secondly, it is indicative of the growing awareness within the Chinese Ministry of Agriculture that rangeland policy as it emerged after the demise of the people's communes in the 1980s is ripe for revision. Finally, it suggests an interest in examining and learning from the experience of other countries, particularly in the West.

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1. Section Head of the Grassland Section of the Department of Animal Husbandry and Veterinary Science (oral communication, 1996).

2. By policy is meant the body of aims and means, of which laws are a part. I will talk about “rangeland policy” when the whole body of rangeland policy measures, laws and regulations is meant. However, in the Chinese setting, the distinction between policy and law is often blurred. For example, the Rangeland Law (caoyuan fa) is frequently equated with rangeland policy (caoyuan zhengce).

3. Li, Yutang, 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.

4. For a detailed overview of the Chinese debate on the “rule of law,” see Keith, Ronald C., China's Struggle for the Rule of Law (Basingstoke: Macmillan, 1994), pp. 838.

5. The Rangeland Law does not specify as such the period of contracting, but in practice the maximum period is presently 30 years.

6. The following percentages of contracted rangeland in China have been mentioned: 90% for Gansu, 80% for Sichuan, 70% for Inner Mongolia, 79% for Qinghai, 69% for Ningxia, 26% for Heilongjiang, 30% for Xinjiang, 37% for Jilin and 30% for Liaoning. See Li, Yutang, Pastoralism, p. 101.

7. See also: Ho, Peter, “Ownership and control in Chinese rangeland management: a case study of the free-rider problem in pastoral areas in Ningxia, China,” in Vermeer, Eduard B., Pieke, Frank and Chong, Woei Lien (eds.), Cooperative and Collective in China's Rural Development: Between State and Private Interests (Armonk, NY: M.E. Sharpe, 1998); Mearns, Robin, “Community, collective action and common grazing: the case of post-socialist Mongolia,” The Journal of Development Studies, Vol. 32, No. 3 (02 1996), pp. 304305; Caoyuanchu, and zhan, Caoyuan jianli (ed.), “‘Caoyuan fa’ zhishi jiangzuo” (“Intellectual discussion about the Rangeland Law”), Xinjiang xumuye: zengkan (Animal Husbandry in Xinjiang: Supplementary Issue) (1995), p. 40; and Williams, Dee Mack, “The barbed walls of China: a contemporary grassland drama,” The Journal of Asian Studies, Vol. 55, No. 3 (08 1996), pp. 665691. 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 Longworth, John W., and Williamson, Gregory J., China's Pastoral Region: Sheep and Wool, Minority Nationalities, Rangeland Degradation and Sustainable Development (Wallingford: CAB International, 1993), p. 321.

8. Statement by Su Chunguo, former deputy head of the Ningxia Autonomous Region Department of Animal Husbandry and professor in rangeland management (oral communication, 1996).

9. Longworth, and Williamson, , China's Pastoral Region, p. 322. In this coniext 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. See Chen, Albert Hung-yee, An introduction to the Legal System of the People's Republic of China (Hong Kong: Butterworths Asia, 1992), p. 92.

10. Dee Mack Williams argued that the discourse around the achievements and successes of national rangeland policy expresses “the environmental preferences and cultural biases of the Han Chinese” as opposed to nomadic, herders. According to him, “the status quo (of rangeland policy, P.H.) serves powerful political interests by reproducing a national discourse concerning the frontier that affirms fundamental assumptions about the accomplishments of the reform era, the benevolence of the Chinese state, and the superiority of Han civilization.” Williams has rightly drawn more attention to the role of the discourse in shaping Foucaultian power relations between Han Chinese and nomadic pastoralists. However, the formulation and implementation of rangeland policy is not a static but rather a dynamic arena in which various forces contend with each other over maintaining or changing the status quo. Moreover, as I will demonstrate, the legal and institutional context is an even greater factor in shaping the discourse of rangeland policy, apart from cultural, spatial and ecological preferences of Han Chinese. See Williams, Dee Mack, “The barbed walls of China: a contemporary grassland drama,” The Journal of Asian Studies, Vol. 55, No. 3 (08 1996), p. 687.

11. 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: Aubert, Vilhelm, “Some social functions of legislation,” Acta Sociologica, Vol. 10, Nos. 1–2 (1966), pp. 98121.

12. Aalders, Marius, 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.

13. In this article, I have used fixed designations for departments and offices at a given administrative level. I have used the term “department” (si/ju/ting) for any government body at the state and provincial level, while “section” (chu) corresponds to a state organ at the county level, and “bureau” (ke) is reserved for the township level.

14. See Ho, Peter, “China's rangelands under stress: a comparative study of pasture commons in Ningxia, P.R. China'sDevelopment and Change, Vol. 31, No. 2 (03 2000).

15. Zhongzhi, Xin (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 Ba, Tu and Tai, Lin, 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. Madsen, Richard, “The countryside under communism,” in MacFarquhar, Roderick and Fairbank, John K. (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; and 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 98101.

19. 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 Ba, Tu and Tai, Lin, General Discussion of Animal Husbandry, p. 48.

20. See Shi, Wenzheng, 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. 3738.

21. NNHJSBZ, Co-operative Agricultural Economy of Ningxia, p. 205.

22. 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. For the original Chinese text, see Article 9 of the 1982 Constitution, NZTFS, Complete Edition of Agricultural Laws, p. 3.

23. See Shi, Wenzheng, Research for a Judicial System for Rangeland, p. 45.

24. 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, 702704, 877881, 1019–22, 3578–82, 36993702, 3892–98; and NZTFS, Complete Edition of Agricultural Laws, p. 685.

25. See Madsen, , “Countryside under communism,” pp. 640–44.

26. Zhongguo renmin jiefangjun guofang daxue dangshi yanjiushi (ZRJGDDY) (ed.), Zhonggong dangshi jiaoxue cankao zitiao (Reference and Teaching Material for the History of the Chinese Communist Party), Vol. 23 (Beijing: Guofang daxue chubanshe, 1986), p. 454. 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 gongzua 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.

27. See ZRJGDDY, Reference Material for History of Chinese Communist Party, Vol. 24, pp. 137–38 and 141–42; Chen, Jiyuan (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; Ma, Qibin and Chen, Wenbin (eds.), Zhongguo gongchandang zhizheng sishi nian (Forty Years of Chinese Communist Party Rule) (Beijing: Zhonggong dangshi chubanshe, 1989), pp. 190, 197 and 220.

28. See Shi, Wenzheng, Research for a Judicial System for Rangeland, p. 48.

29. See NZTFS, Complete Edition of Agricultural Laws, p. 685.

30. In Inner Mongolia the equivalent for the prefecture, county, township and administrative village are respectively: meng (league), qi (banner), sumu (township) and gacha (administrative village).

31. 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, 259261.

32. Chen, , Introduction to Legal System of China, p. 198.

33. NZTFS, Complete Edition of Agricultural Laws, p. 562.

34. Ibid. p. 7.

35. Inner Mongolia Rangeland Regulations, Article 9; Ningxia Provisional Rangeland Regulations, Article 3; Liaoning Rangeland Regulations, Article 5; Juin Rangeland Regulations, Article 9; Heilongjiang Rangeland Regulations, Article 6; Xinjiang Rangeland Regulations, Article 12. See DFXB, A Compilation of Local Laws and Regulations, pp. 494, 703, 877, 1020, 3893; “Ningxia Huizu zizhiqu caoyuan guanli tiaoli” (“Rangeland management regulations of the Ningxia Hui Autonomous Region), Article 10, Ningxia ribao (Ningxia Daily), 29 12 1994, p. 3.

36. Chen, Su, “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.

37. Shi, Wenzheng, Research for a Judicial System for Rangeland, pp. 190–91.

38. 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.

39. Shi, Wenzheng, Research for a Judicial System for Rangeland, p. 94.

40. Roy Behnke, Ian Scoones and other scientists have written extensively on the misconceptions of rangeland ecology and rangeland degradation. See Behnke, Roy H., Scoones, Ian and Kerven, Carol (eds.), Range Ecology at Disequilibrium: New Models of Natural Variability and Pastoral Adaptation in African Savannas (London: Overseas Development Institute, 1993). 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 Ho, Peter, “Rangeland degradation in northern China – a myth? A statistical analysis to validate non-equilibrium range ecology” (forthcoming).

41. For a historical description of the shifting frontier between Mongols and Han Chinese see for example Vermeer, Eduard B., “Checks without balances: Manchu state building and Chinese agricultural expansion on the Inner Mongolian frontier,” in Reardon-Anderson, James (ed.), Continuities and Changes on the Mongolian Steppe: Implications for Land Use (forthcoming); Barfield, Thomas J., The Perilous Frontier: Nomadic Empires and China (Oxford: Basil Blackwell, 1989).

42. See Germeraad, Pieter W., 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. 5154.

43. The name Tuxietuhan Woqilai (as the clanname comes first in Mongol, like in Chinese) would in modern Mongol transcription most likely be “Tüsiyetii 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).

44. Chen, Su, “Changing the contract right to land,” p. 17; and Ba, Tu and Tai, Lin, General Discussion of Animal Husbandry, pp. 4849.

45. 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.

46. 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. Tanner, Murray Scot, “How a bill becomes a law in China: stages and processes in lawmaking,” in Lubman, Stanley B. (ed.), China's Legal Reforms (Oxford: Oxford University Press, 1996), p. 45.

47. Ibid. p. 48.

48. Xiaoping, Deng, “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.

49. Futing, Niu (oral communication, 1997). Niu Futing is a present member of the Amendment and Drafting Group for the revised Rangeland Law.

50. See NZTFS, Complete Edition of Agricultural Laws, pp. 555–56.

51. Ibid. pp. 594 and 686.

52. Section Head of the Land Pricing Section, Ningxia Land Administration (oral communication, 1996).

53. See Kuilong, Wang, Lisheng, Shang and Xiuzhi, Zhang (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.

54. For a description of tasks and mission of the Environmental Protection Commission and Agency, see: Sinkule, B. J. and Ortolano, Leonard, Implementing Environmental Policy in China (Westport: Praeger Publications, 1995), pp. 123.

55. Futing, Niu, oral communication, 1997.

56. See Shi, Wenzheng, Research for a Judicial System for Rangeland, pp. 220–21. For the Chinese standard sheep equivalent conversion see Longworth, and Williamson, , China's Pastoral Region, p. 112.

57. Neither officials responsible for rangeland policy, nor literature about rangelands in China mention anything about the gap between the official statistics of contracted rangeland and the actual rate of implementation of the HCRS fov rangeland.

58. In order to solve the “Tragedy of the Commons,” the government attempts to imbue rangeland users with a sense of economic liability, in other words, the principle of “the user pays.” The idea is that if rangeland users have an appreciation of the notion that land as a resource and a factor of production is not a free good, they will have incentives to develop a sustainable range use.

59. Futing, Niu (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. See NZTFS, Complete Edition of Agricultural Laws, p. 556, and 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.

60. The term “street-level bureaucrat” was first introduced by Michael Lipsky. See Lipsky, Michael, “Street-level bureaucracy: the critical role of street-level bureaucrats,” in Shafritz, Jay and Hyde, Albert (eds.), Classics of Public Administration (Belmont: Wadsworth Publishing Company, 1992).

61. However ironical it may seem, the good thing about the Cultural Revolution is that it has formed this group of critical officials and scholars. At the time, many intellectuals were sent down to the pastoral areas to labour, or herd the sheep and goats. Quite a number of those working in research institutes that presently advise the Ministry of Agriculture on rangeland policy were once sent down to the countryside.

* This article would have never existed in its present form if it was not for a coincidence which brought me into contact with professor Shi Wenzheng, whom I owe my greatest debt of gratitude. I would also like to thank Eduard B. Vermeer, Mark Selden, Jan-Michiel Otto, Tony Saich, the participants of the seminar on Law and Administration in Developing Countries, Leiden University, May 1997, as well as Ni Dongfa and Ding Wenying. In order to protect informants' privacy, pseudonyms have been used for the names of certain officials.

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