Despite the shifting political, economic and legal winds discussed in the previous chapter, the use of contracts during Imperial China grew steadily from the seventh century C.E. to the advent of the Peoples Republic of China (PRC) in 1949.1 Their variety also increased as they became evidence of title (or of lesser rights) to land conveyed or mortgaged and as they were relied upon as evidence of the parties’ intent in a continuously growing number of lawsuits.2
As early as the Tang dynasty (618–906 C.E.), contracts were being used for sales, rentals and exchanges of land, livestock, commodities, slaves, concubines, money and even children.3 Their users varied from the educated gentry who knew how to draft their own contracts with exquisite calligraphy to the uneducated poor who hired the ubiquitous scribes as draftsmen. As a measure of the enormous amount of contractual activity in late imperial China and early modern period, Colorado University Professor Carol H. Shiue quotes an estimate of “upwards of ten million land deeds and contracts….”4
By the sixteenth century C.E., it was clear that China’s rural land was being exploited not merely for agricultural subsistence, but commercially by landlords as well as by their tenants. Consider, for example, the following extract of a contract from circa 1500 during the reign of Emperor Hongzhi:
Hu Sheng, a resident of the fifth du, now rents two clumps of land, paddy field and dry land, of the Hong (family)…. Their location is at the place called ‘Atop the Pond and Below the Raised Plot.’ Each year (Hu) agrees to pay back four cheng and ten jin of grain, and each year on the day of the autumn harvest he will allow his master to check the harvest. If there is 666additional land to be opened up, [the family will] allow Hu Sheng to open it and work at it….
Signed (in the year) of Hongzhi 13.11.13 (1500.11.13)
The person who sets up the contract Hu Sheng,
scribed by Rao Yongshan5
In his lucid description of customary and legal practices on sales, rentals and borrowing of rural land in Imperial and Republican China, Professor Philip C. Huang of UCLA refers to a conveyance practice during the early days of the Ming Dynasty (1368–1644) to illustrate how a certain oceanfront land could be sold subject to two different prices:
[T]he original “purchase value,” or maijia, and the “cultivation value,” or (chengjia) [i.e., the value of the tenant’s improvements]. The two [sets of rights] could be bought and sold separately. Generally, the landlord could claim only the maijia; the chengjia belonged to the tenant. It was an early instance of what amounted to the two-tiered ownership of land.6
This contractual practice shows that Chinese agriculture was vital enough to create rights in the land and its products, rights that could be sold or mortgaged to third parties interested in them because of the land’s potential to yield reliable streams of income. Having land or crops that others would consider valuable, then, is the first component of what I understand by the commercialization of land rights. The other component is legal in nature and I will address it shortly.
The first of the two transactions discussed above was entered into in the same Huizhou country which, as described in the preceding chapter, was the hub of the commercial transactions of the Huizhou clan.7 Huizhou landowners relied on “free” and “servile” tenants for the exploitation of their land.8 And while the legal status of servile tenants was “intermediate between commoners and household slaves,”9 the status of free tenants was quite close to that of landowners.10
Having read Marc Bloch’s “La Société Féodale,”11 it appeared that Ming Chinese landlords and free tenants had more rights to convey than did their European 667counterparts. As I will discuss shortly, Chinese free tenants had the right to exploit the “surface of [the] land (Tian Pi, 田皮)”12 and this right could be sold or assigned to others.13 In fact, the sale of free tenancy rights was standard and was referred to in the Huizhou documents as a “sale of land surface.”14 Further, if the landowner wanted to change free tenants, he had to pay the former free tenant an agreed upon sum to redeem his reversionary right. In addition, as a right in rem, the right to exploit the surface of land could also be mortgaged. And if the free tenant of forest land planted trees during his lease, once the trees had grown he had a right to the so-called “Portion of [his] Labour” which allowed him to sell the trees as his property.15
The appearance of more rights was confirmed by the provisions on usufruct of the Code Civil. Indeed, as defined by Article 578 of the Code Civil the usufruct “is the right to enjoy things of which another has ownership in the same manner as the owner himself, but on condition that their substance be preserved.”16 Noticeably absent among the rights of the holder of a usufruct is that of its sale or transfer, for since Roman times the usufruct was deemed a right personal to the usufructuary who could not transfer or sell it.17
With such ostensibly valuable rights to the fruits of the land, one could easily have envisaged the emergence of an agile and safe market for the acquisition and financing of free tenancy rights by third parties in imperial China. Yet, this was not the case. Many if not most of the purchasers, renters, assignees or mortgagees did not acquire rights better or at least safer than those held by their sellers, lessors, assignors or mortgagors. Their rights as well as those of their predecessors in interest were subject to pre-existing claims by members of the family unit or household that conveyed the land and at times even by neighbors or members of the same community. Why? This brings us to the legal components of the commercialization of land and its products.
The most important legal component in the commercialization of land and its products is the nature of the rights obtained by those who buy, exchange, rent or mortgage land or its products. How enforceable are they? By whom? Against whom? Are “third party” rights protected? Do the rights of third parties differ from those of the parties to the original contracts?
In an earlier chapter, while discussing the emergence of a market for negotiable government bonds in Great Britain and Germany,18 I called attention to the ability to sell and negotiate negotiable bonds in these countries and the inability to do so under the Code Civil and its progeny. At the root of this inability was the Code Civil’s 668requirement that only those promises that had a valid causa could be enforced.19 A valid cause was nothing more portentous than the reasons for entering into the original contract.20 Yet, under the Code Civil regime, the party claiming the enforcement of the contract had to allege and prove (if challenged) that the contract or promise had a valid cause. Thus, if “A” leased premises to “B” and the latter used them to run a brothel (a contractual activity considered to be immoral) the rental payments made by B to A by means of drafts or bills of exchange were voidable even if that draft or bill of exchange was in the hands of “C,” a banker unaware of the cause of the underlying lease.21 Needless to say, one could hardly be a protected third party if one became subject to defenses, equities or claims that one was totally unaware of when purchasing real property or lending on its security.
In contrast to the Code Civil-inspired law, neither English nor German contractual and negotiable instruments’ promises required a valid cause to be enforceable. This meant that if A sold B his rights to the surface of land “X” and B sold the same right or pledged it as security with C, as long as the right was incorporated into an independent or abstract promise, C was immune to most claims or equities invoked by A against B or by A’s kin or neighbors, regardless of the causes upon which these claims or equities were based. It should not be too difficult to see why the absence of causa in independent or abstract promises of payment was responsible for the emergence of important commercial credit markets, national and international in England and Germany, for these were typically markets of “third parties” or contractual strangers.22
As an additional point of terminology—generally only “unconditional” promises can become abstract or independent. Take for example, the promise made by the landlord in the contract transcribed above:23 “If there is additional land to be opened up, [the family will] allow Hu Sheng to open it and work at it …”
Hu Sheng will not be able to claim any additional land for tilling purposes unless the land the landlord referred to as “additional” becomes available. This made the conditional promise become even more uncertain because it was up to the landlord to decide what he meant by “additional” land. Now, if Hu Sheng were to decide to sell that promise to a third party, it would still be a causal, and thus a not very valuable, promise. In contrast, if the landlord had stated: “Today, I irrevocably promise that one day … I will rent the following described land to Hu Sheng or whoever he designates in writing. The rental owed will be … and this rent will remain the same until the date of the expiration of this lease.”
A condition could still be implied in this promise such as the payment of the stipulated rent; nonetheless, the fulfillment of this condition could be easily and objectively verified by the third party. Hence the above-described promise of payment closely approximates the wording of an abstract or independent promise. Abstraction, then, is legal shorthand for lack of conditions or of other stipulations that could render 669uncertain the enforcement of the promise. Please keep this point in mind as we examine shortly the causality of Chinese conditional sales of land.
Abstract or independent promises made it possible for third party intermediaries to provide credit to producers, distributors and consumers of agricultural products, among many others. Take the case, for example, of the seventeenth century financial intermediaries who made agricultural and commercial credit available at reasonable rates of interest to farmers, first in Germany and thereafter in Eastern Europe and Scandinavia. Eventually, this credit helped finance large scale cultivation and land, the building of industrial and commercial facilities, and eventually of public housing.24 In many instances, much of the cash needed to extend this credit was obtained by the sale to the public at large of abstract or independent promises of payment in the form of mortgage bonds or certificates secured by the land, crops and other valuable assets of the borrowers. Following is a discussion of the nature of the rights being conveyed by typical land contracts in imperial China.
One of the most popular sales of rural land in China involved the so-called “redeemable-by-the seller” or “conditional sales.” A 1730 “sub-statute” added to the Qing Code defined these redeemable or conditional sales as: “ ‘contracts (of the property sale) do not contain words like irrevocable sale, or [which] specify the period of redemption [of the seller’s rights in the land], then (the properties) may all be redeemed.’ ”25
This sale was inspired by an ancient custom known as “dian” (典) which allowed the redemption of family land that had to be sold because of the family’s economic necessity and which could be redeemed by paying what the family unit owed to the buyer of the land as his purchase price. The above sub-statute limited the right of redemption to sales that the parties had not labeled “irrevocable” or which specified their conditionality by inserting a date for redemption. The two immediate parties to the dian agreement were its “maker” or seller of the land and its “holder” or renter or buyer of the land. As insightfully pointed out by Professor Huang:
The Custom of dian, or conditional sales of land, encompassed both a precommercial logic inherited from an earlier day and a market logic of the increasingly commercialized peasant economy of the late imperial period…. On the one hand, it gave special consideration to those who could no longer eke out a living from their land, allowing them indefinite time periods in which to try to redeem it, in accordance with a precommercial ideal of permanence…. On the other hand, it allowed the buying and selling of the acquired dian titles themselves, and even of just the increments of gains from price appreciation, in accordance with a market logic.26
The reader first encountered references to this pre-commercial logic in an earlier chapter.27 I then referred to the doctrine of “economic necessity” of Hindu law. Please compare this Hindu law doctrine to the Chinese right of redemption to the Code Civil’s causa. Recall that the Hindu law doctrine enables the heirs or “co-parceners” of an estate whose executor sells land to third parties to satisfy his own “frivolous purposes” (throwing licentious parties or supporting a mistress) to rescind that sale and retrieve the land or buildings sold. In this respect, it would seem to have the similar effect of a rescission of a contract governed by the Code Civil’s causa even if a third party purchaser could prove that he was unaware of the reasons or causes of such a sale. What about the Chinese right of redemption? In another writing, I referred to the logic of the Hindu law doctrine of necessity as characteristic of agricultural subsistence or survival societies, in which the family was always the “historical” owner and “once an owner, always an owner.”28 Would the same logic apply to the Code Civil’s causa and to the Chinese “conditional” sales?
As with the conditional sales, the sale of surface rights or the “topsoil” had its origin in the contracting customs of the Chinese imperial agricultural subsistence economy. As described by Professor Huang:
[A] tenant who contributed markedly to the value of a piece of land through his labor or other investments gained special claims over it. The most common example is the reclaiming of wetlands. The owners of these open lands would rent them out at low cost to tenants, who would make the necessary improvements (in dredging, embanking, irrigating, fertilizing, and so on) to bring them to “ripeness” …. In return for their contributions, tenants would gain the prerogative of permanent tenure or even topsoil ownership of the plots. Those rights could be threatened only if the tenants failed to pay their rents. In that event, the landlord could take back the land, but only if he compensated the tenant for his contributions.29
Please recall the above-transcribed extract of a contract, from circa 1500, in which a Hu Sheng rented two “clumps” of land. This rental agreement illustrates the grant of a right to exploit the surface of land or the topsoil. Similar contracts enabled the tenant to sell or mortgage his right to the surface of the land. Please recall also the commentary to this agreement: If the free tenant of forest land planted trees during his lease, once the trees had grown he had a right to the so-called “Portion of [his] Labour” which allowed him to sell the trees as his property. All of these features indicate that the first component of the commercialization of land, i.e., having something of value to convey, was present in the conveyances of both conditional and topsoil ownership. Yet, what about the bona fide purchaser or secured lender on the strength of the rights acquired under a conditional sale topsoil rental or ownership?
The judicial decisions on conditional sales examined by Professor Huang showed that many sales contracts did not specify whether they were irrevocable or redeemable. In accordance with the above transcribed sub-statute of 1730, a descendant of the necessitous seller (dian-maker) could invoke his right of redemption many generations after the dian-holder’s family had come into possession of the land.30 This invocation trumped the rights of third parties as well as that of the original dian-holders. To cure this uncertainty, the Qing Code responded in 1753 by specifying that if the sale was made less than thirty years earlier and did not contain the term “irrevocable,” it could be redeemed. The Code added a warning: “Those who muddle things up and argue in court will be punished for violating the code.”31
The same judicial records indicated that many conditional sale contracts did not make clear the amount that had to be paid by the dian-maker to redeem the land from the dian-holder: Was it enough to repay the amount originally paid by the buyer-renter (dian-holder) regardless of the time that transpired between the sale and its redemption and the amount in which the property had increased in value? What if the market value had significantly increased since the time of the purchase? Professor Huang notes that the above-transcribed Qing sub-statute of 1730 required the dian holder to pay the difference between the original sale price and what the land was worth at the time of the redemption claim by the dian maker, and this payment could be interpreted as a contemporary quit claim deed (zhaotie) by the latter that “he was now selling outright the land…. [And the dian holder] meaning that he was purchasing the residual title.”32
Yet, the customs that shaped conditional sale transactions proved too protean for code or statutory law to catch up with. Since a dian title conveyed not only possessory, but also conditional, ownership rights in the land and its products, they were valuable and were actively traded either as outright or as conditional sales and these transactions were known as sub-dians33 Professor Huang conjectures that the reason why these transactions lacked regulation was either because they did not cause enough disputes or because the “lawmakers held persistently to a precommercial logic in preference to the market logic….”34 With infinitely less authority to back up my choice of an explanation, I am inclined to believe that it was the latter. The reason is that the market Huang was referring to was still essentially a familistic market comprised of members of the same families, lineages and clans as discussed in the preceding chapter with respect to Huizhou transactions. In sum, the rights and duties of the parties to a conditional sale were highly uncertain especially where the rights of third parties were concerned. If the sale was revocable or redeemable, the sword of Damocles of the dian-maker could come down at any time within the first thirty years of the original conveyance regardless of whether the dian-holder was an original or a third party. Similarly, the exact amount that the redeemer was supposed to pay was 672not entirely clear, nor were the rights acquired by the third parties who purchased the land from the dian-holders or who lent to them on the security of the land.
As noted when describing the rights of tenants of surface land (topsoil), it was their improvement of the land they rented plus their payment of the rents that gained them the right to a permanent tenure of the land they used. The main condition that weighed upon these rights was the continuous payment of the stipulated rent.35 As with the rights that arose from conditional sales, the rights of the tenants or owners of the surface land or topsoil also had much market appeal. Their rights could be sold conditionally or outright, pledged as security for loans or left to their heirs.36 One fact that added to the popularity of these conveyances was that payment of transfer taxes could be avoided. Professor Huang quotes another scholar’s description of a standard transaction:
[O]ne peasant who had owned and cultivated land abandoned during the Taiping wars…. decided to sell off the subsoil rights and pay regular rent to an absentee owner living in town, who then became responsible for the taxes. The topsoil ownership remained all the while in the original owner’s family, passed down from generation to generation, as the subsoil ownership changed hands three times.37
Clearly in this and many other cases of abandoned or reclaimed land, the rights to the topsoil that resulted from the improvements were more valuable than the rights to the sub-soil, yet the only officially recorded rights on the land in question (in the land-tax registry) were those of the owner of the subsoil. Further, as best as I could determine from the case records discussed by Professor Huang, the priority between recorded subsoil rights and unrecorded topsoil rights does not appear to have been elucidated by legislators or judges. In fact, as concluded by Professor Huang, in the case of top soil ownership, code and custom rights were “pitted against the other.”38 That being the case, what would prevent the priority of a recorded ownership right in the subsoil over unrecorded rights in the topsoil? It is for this reason that third parties buying from or lending to the family or families who possessed or owned unrecorded rights would be hard put to enforce their rights, except by resorting to the forgery or chicanery of earlier recorded titles.
As was discussed in the preceding chapter, Chinese families acted as legal and economic units; this meant that under imperial law, ownership of land and its products belonged to the household and not to the individual members of the family unit, until and unless the land and the accompanying budgets were formally divided or partitioned among them, in which case a new family legal and economic unit was 673created.39 Columbia University’s Professor Myron Cohen calls attention to the interaction between contracting families and community ties: “[C]ommunity ties help protect contractual understandings…. The witnesses present at the signing committed themselves to becoming involved if the contract was violated. Sensitive contracts at times involved 20 or 25 witnesses … and if the contract was breached the guilty party faced ostracization and social uproar….”40
The large number of witnesses reflected the interest of the community in real property contracts in which they themselves could participate as likely future owners or creditors of family-owned lands. The familistic and community roots of contractual and property rights explains much of the legal uncertainty including the role of family rituals that at first glance appear to be mystifying. Consider, for example, the references to contracts customarily placed in the purchaser’s tomb.41 Yale University Professor Valerie Hansen explains that the reason for this practice was “to give the dead title to their grave plots as well as to prevent them from being sued in the courts of the underworld.”42 This fear of lawsuits over burial sites, even in the courts of the underworld, indicated how much these sites meant to families and their rituals for an honorable passage of life.
Having discussed the meaning of causality and abstraction or independence of contract and property rights, it is time to discuss how the various causal clauses interact in a typical sale of land agreement. The first agreement selected for discussion was executed in 1894. It was translated by Professor Cohen.43 After describing how the seller obtained the sold land, from whom, as well as its location in detail reminiscent of the “metes and bounds” descriptions found in contemporary Anglo-American and civil law countries, the scribe provides a number of causal statements. (I have added brackets and numbers to facilitate the following discussion):
The executor of this contract for the [(1)] irrevocable sale of dry field land … in the past obtained from his father through succession…. [(2)] Now, because my mother needs money [(3)] and after having thoroughly inquired among those closest agnates who are my paternal uncles, each and every one of whom is unable to make the purchase, [(4)] I have relied on a middleman for an introduction to my senior maternal cousin, Zhong Youhe, who is from this village and has come forward to contract [this] purchase. On the same day, through the middleman, the three parties [(5)] [buyer, seller and middleman] have agreed on the basis of market value to a land sale price of 674twenty silver dollars … and on that day money and contract have been straightforwardly exchanged, with no shortchanging and without such thing as use of this property to set off debts…. [(6)] Also, should original ownership rights be unclear, this is not something the buyer need be concerned with; it is the seller who is fully responsible. [(7)] Hereafter, the seller is not to dare speak of redeeming the land or of gift-money. Upon sale, the seller will immediately settle any possible claims so as to end forever whatever complications there may have been.44
The date of this contract (1894) should help the reader appreciate the longevity of rural customary practices in imperial China. Please contrast its clause (2) with the preamble-clause in a 1234 C.E. defension clause contract discussed later:45 you will find the wording to be much the same. An additional reason for its selection is its helpful mix of standard causal stipulations.
Clause (1) refers to an “irrevocable” sale. By now, you should know why it was essential to specify that the sale was not conditional and thus not subject to redemption. Because of the unsettling effects of this practice, especially where third parties are concerned, notice how two clauses of this contract (Clause (1) and the first part of clause (7)) attempt to reassure the buyer that it will not be used against him. How does this redemption differ from contemporary United States “conditional sale” practices? A conditional sale is a “secured transaction” (now part of U.C.C. Article 9) in which the seller who sold his goods on a credit basis is assumed to have retained title to the goods sold. In the event of non-payment, he is entitled to repossess the goods without, in most cases, having to claim them in a judicial procedure. Notice that what triggers the right to repossess the goods sold is the buyer-debtor’s default in making the payments he owes to the seller. How does this contrast with the conditional sale discussed earlier in this chapter? If you find a difference, what is it, and which of the two transactions, the contemporary conditional sale and the Chinese imperial conditional sale is of a commercial nature and why? Also contrast the latter transaction to the United States real estate practice in which “A,” a former owner of a building, signs a “sale and lease back agreement” which entitles him to lease “X,” the same building he sold to “B” for a certain amount and within a certain time. Why is a “sale and lease back” not regarded as a dangerous and uncertain agreement by builders, developers, lenders and users in the United States real estate marketplace?
Variants of Clause (2) are found in deeds of conveyance of land in agricultural survival societies not only in thirteenth century China, but also in India, where they are referred to as the “necessity clauses” that gave rise to the “necessity doctrine” of Hindu law, discussed in an earlier section.46 Recall that this doctrine enables the heirs or “co-parceners” of an estate whose executor sells land to third parties to satisfy his own “frivolous purposes” (throwing licentious parties or supporting a mistress) to retrieve the land or buildings sold. Recall also that this would be true even if the third party purchaser can prove that he was unaware of the cause of such a sale.47
Clause (3) refers to the pre-emptive right of relatives (in some other instances also by the neighboring community) to acquire the land offered for sale to third parties. Yet, 675even after an extensive consultation, it would still be possible for one such a relative to show up after the sale to the third party and claim he was not consulted and exercise his pre-emptive right. Can you visualize the consequences of these pre-emptive causal rights upon the acquisition of rural property by third parties unaware of such a claim or right?
Clause (4) refers to the buyer’s status and familial capacity to purchase in this contract as that of a “senior maternal cousin.” What if he is not such a cousin and someone validly challenges that status together with his authority to purchase the land? Clause (5) refers to the fact that there was “no shortchanging and without such thing as use of this property to set off debts….” What if a family member of the selling unit can prove that in fact there was shortchanging or that the property was used to set off debts? Clause (6) contains a so-called “defension” clause which dates back to biblical days and whose replica in this section dates back to 1234.48 In this contract, the statement used by the scribe was: “this is something the buyer need not be concerned with; it is the seller who is responsible.” What would happen to this responsibility when the seller dies? As you will recall from an earlier chapter,49 this “pre-commercial” clause was pre-commercial precisely because it imposed an unlimited and unending liability upon the heirs of the conveying member of the family or of the family unit.
Under the heading of “Limitations Imposed by Custom on Private Agreements,” Professor Madeleine Zelin of Columbia University makes the following observations:
In addition to vesting property in the household, the Chinese family system imposed certain limitations on the alienability of property. Unlike inheritance and succession practices, which were incorporated in the imperial code, customs designed to prevent the dissipation of the household or lineage estate existed strictly in the private realm….50
In light of the longevity of these customs, some of which were millenary, how powerful do you believe the Chinese “private realm” referred to by Professor Zelin to have been, and if very powerful, why so? Recall Professor Huang’s reference to the “pre-commercial” logic of these customs which he contrasted to the market logic. Why would the prevention of the dissipation of the household or lineage estate not be part of the imperial code, as were the succession practices?
The following 1234 C.E. extract translated by Professor Hansen51 is among the oldest relevant texts I was able to find. Despite its age, it contains two clauses that were found in documents that were executed late in the nineteenth century.
Wu Junfu … needs money to use and otherwise has no means of raising it, so he puts up [for sale] one plot registered under his name in the southwest part of the Song Family-Estate Village. The plot has a footpath running north to south and totals twenty-five sixth-acres …
He draws up a contract to sell the above plot with its four borders to the Great Teacher Feng of the Longxiang Daoist monastery … who will be the owner of the plot permanently. The two sides have discussed and agreed on a price of twenty-five ounces … If afterward there is any obstacle to the sale or anyone encroaches on the land, the seller of the land Wu Junfu must resolve the problem alone without going to court. Once this is agreed, no one can change his mind about the transaction. Whoever does so first must pay a fine of 10 ounces of silver. For fear that people will not believe this, we accordingly draw [this contract] …52
Please note the same reference to an economic need or necessity to sell as in the preceding 1894 agreement. Why do you think this clause appears both in a 1234 and in a 1894 agreement? In fact, it did appear in many of the agreements translated by the various Chinese scholars used in this chapter. For example, one of the contracts collected and translated by Professor Hansen (entered into in 1315 C.E.) reads in relevant part:
Today, because I am short of money, I willingly have applied to the authorities for a receipt, to draw up a contract for the fields and hills within the above four boundaries and for the cedars, big and small, on the hills, to be sold in full to my fellow sector resident … As evaluated and discussed by three sides, the price is paper money from the Zhongtong reign (1260–1264) with a face value of thirteen ingots …53
Professor Hansen points out that “lack of money” (the reason given by the seller for his having to sell) occurs in most Huizhou contracts.54 In addition, note the insertion of another familistic clause in which the seller or his family assume the obligation to defend the conveyed title (or “defension” clause). In this agreement, the defension clause is formulated as a seller’s agreement to “resolve the problem” of an obstacle to the sale or an encroachment on the land.55 Is there a counterpart to this clause in the 1894 agreement and if so what is the reason for this clause being used seven centuries apart?
Professor Thomas Buoye of the University of Tulsa’s research on the violence engendered by sales of land that contain (what I have described in this chapter as “familistic clauses”) focused on the eighteenth century, a period of considerable population growth in China (it more than doubled during this century surpassing 300 million inhabitants by its end).56 The value of land increased and so did the incentives for a more rigorous enforcement of property rights. And while the economic activity was growing, familistic notions of property of land were being eroded: “… the evolving 677concept of land as an alienable commodity increasingly challenged the long-standing notion of land as inviolable [family] patrimony.”57
The effects referred to by Professor Bouye were apparent in the widespread instances of violence and homicides. A report by one eighteenth century Chinese governor general complained of “endless lawsuits” and violence that sometimes resulted in homicide; another identified conditional sales and “ ‘evil tenants’ who sold land conditionally and continued to till the land….”58 as the main culprits of this violence. The latter report also states that “the centuries-old practice of conditional land sales had become a source of social unrest … [including] demands for supplemental payments, grandsons making claims on land sold by their grandfathers, threats to commit suicide to implicate individuals who refused to accept redemptions….” and so on.59
Professor Buoye researched thousands of homicide reports and selected 630 for detailed analysis. Of these, the causes that lead to the fatal disputes were: 1) rent default (135); 2) eviction (74); 3) exercise of the right of redemption (134); 4) boundary disputes (140); and 5) water rights (147).60 Since the disputes over rights of redemption as well as over boundary and water rights were typically causal clauses more than fifty percent of the homicides were attributable to familistic-causal disputes. Considering what was as stake for China’s rural families, such a statistical finding is not surprising. As stated by a peasant who faced eviction: “If you demand that I return this land now is it not the same as killing my family?”61
What effect, then, did the wide use of enforceable commercial contracts have upon imperial China’s economic growth? Professor Carol Shiue among other comparative economists underscores the importance of this question:
While many economists are now convinced that “good institutions”—common law [type] property rights … are deep determinants of economic growth, it has been difficult to identify how exactly specific institutions generate long-run growth. Relating existing notions of good institutions to the different forms that these institutions might take in other societies allows us to get a better view of what is inside the institutional black box.62
As also noted by Professor Shuie, in the 1960s, some of the most respected experts on Chinese imperial law assumed that property rights in imperial China were weak and that the frequent expropriation of land by the state was an obstacle to China’s economic development.63 A dissenting view was expressed in a group of essays 678authored and edited by Professors Madeleine Zelin, Johnathan Ocko and Robert Gardella in a helpful collection titled “Contract and Property in Early Modern China,” which covers real estate transactions during the Qing Dynasty (1664–1912) and the early years of the Republican Era (1912–1949).64
Professor Zelin points to the widely held assumption that the disappearance of state owned land in the late Imperial period also prompted “a laissez-faire attitude toward private transactions”65 which in turn resulted in the emergence of customary practices in the countryside. The state was regarded as having deferred to these practices, thereby:
[E]ncouraging disputants to seek justice elsewhere, particularly through guild, lineage or village mediation…. [Thus] it would be difficult to speak of rights of property except as a highly localized phenomenon. Such a fragmented and fickle property regime could hardly form the basis of a large-scale commercial economy, much less encourage industrial investment.66
Yet, she added, once it became possible “to examine property rights in action … [mostly] though the [records of] lawsuits … in the late Qing [dynasty] and early Republic,”67 one could not conclude that the state was of marginal importance when establishing property rights:
Whether the state assumed the role of adjudicator by choice or had that role thrust upon it, county magistrates everywhere were inundated with litigation of an economic nature. That this large body of case law was not collected as precedent for judicial decision making does not mean that the state did not play a role in the establishment of the economic rules of the game and in their enforcement.68
Later she adds: “The most powerful evidence for the existence of strong rights of property lies in the imperial statutes relating to theft.”69
Professor Zelin’s view on the developmental importance of state enforced “strong rights of property” was quite popular among development economists until empirical evidence supposedly linking the presence of these strong rights of property to economic growth was disproven. Peruvian economist Hernando de Soto obtained the support of various governments and international aid institutions for wide distributions of titles 679and other rights to real property in developing nations thereby hoping to bring about sustainable economic growth.70 These efforts failed for two good reasons.71
The first reason for failure was that the distribution of title to land assumed that credit to micro and small businesses is invariably made possible by the lender’s reliance on the borrower’s title to land or to personal property as the collateral for his loan. This is not the case in the commercial lending world. What is of greatest interest to commercial lenders is not having a title to the borrower’s place of business or even to his inventory or equipment, but to be able to repay themselves from the borrower’s sale or productive use of his business assets (“asset-based lending”). As long as the borrower’s “streams” of business income can be reliably accessed by the commercial lender, “title to [the] collateral is [immaterial]” in the words of the U.C.C., the most effective enactment in support of commercial credit in the financial world.72 This rationale applies equally to the lending to agri-business.
The second reason concerns the “undifferentiated” approach to the certainty of contract and property rights. Assume that “A,” a member of family “B” sells land “X” to “C” who intends to develop it for agri-business purposes. A also mortgages lot “Y” to banker “D” who will extend a loan that will facilitate A’s agri-business plans. A believes that lots X and Y are part of his allotment in a division of the land made by his father “E.” E disagrees and believes that lots X and Y were retained by family B under his control. Assume that the division of B’s land was not recorded in a registry nor in any other public record, or if registered, the recording cannot be found by anyone interested in buying or obtaining a mortgage in B’s land. Assume finally that relying on customary family law or a statutory law, a municipal magistrate decides that the family rights invoked by A and E trump the third party rights of invoked by C and D.
From an economic development standpoint, it makes a difference if the rights of E and family B are deemed superior to those of the third party purchaser-investor and lenders. Following such a decision, third parties such as bankers, mortgagees or bona fide purchasers of A’s land would not want to buy X or Y or rely on them as collateral. E and family B would be forced to seek development capital among family, lineage or clan members who only proved a good source of capital when they monopolized the business or sector, as was the case with the Huizhou.73 The frustrated buyers or lenders, in turn, may wish to resort to costly, and in the end, uncertain procedures such as bribery or forgery of deeds and so on. These procedures are invariably costly and uncertain because usually they are subject to reversal by a higher or more powerful bidder. Thus, distributing millions of land titles in developing nations without paying attention to commercial credit requirements and without matching the priority of rights granted by these titles with developmental goals cannot help but fail to produce any discernible measure of economic growth.74
Finally, I disagree with Professor Zelin’s assumption that the “customary practices of the Chinese countryside” had to result in a “fragmented and fickle” property regime. If a customary practice is cost effective and fair in the eyes of those who regularly participate in such transactions, it has as the potential of becoming a widely, indeed universally, observed rule of law, more effective and growth-promoting than any state enacted commercial statute, particularly in our time.75 The following sections will examine some of the most common causal clauses in land conveying practices in late Imperial Chinese customary law and their effect upon financial certainty. But first the reader must appreciate the all encompassing role of family and community in the sale of rural land.
Professor Hansen’s research indicates that the history of legal troubles with customary familistic sales clauses and attempts to cure them was in some cases millenary. She points to a 969 C.E. Song dynasty stamp tax that had to be paid within two months of the signing of a land transfer or mortgage contract.76 This period of time was intended to provide ample time for the exercise of the right of first refusal by the seller’s kin and neighbors; thus a customary contract rule emerged by which: “Those who are going to mortgage or sell things should first ask their neighbors if any of them wishes to mortgage or buy the land by writing the inquiry on a placard and waiting for the reply. After two months the contract can be approved and stamped.”77
Yet realizing that this right of first refusal enlarged the potential number of bidders and of possible transactions involving land or real property, the imperial government enacted a tax and a waiting period for the completion of the conveyance(s). Thus, the initial two months were extended to six or more months to encourage more bids and transactions. Meanwhile, the title to the family land and to related family law duties remained uncertain and subject to endless lawsuits. Still, by the end of the eleventh century, the “process for selling land had become too cumbersome, and the right of [first] refusal was limited to kin unless the neighbors had graves on the plot[s].”78
What does this seemingly endless attempt by legalistic rules to cope with familistic causal clauses in China’s customary law reveal or at least suggest? One conclusion is apparent—up until the advent of the PRC in 1949, China, despite official policy oscillations, continued to be a deeply familistic and rural society. Yet, it was also a society that had been evolving for centuries in a highly commercial and industrial direction. The research of Professor Zelin provides a vivid illustration of the clash between familistic causal contracting and the need for abstract financial relationships of a growing commercial and industrial society.
She found property rights that “facilitated agreements that extended far beyond face-to-face relationships.”79 She illustrates this finding with the development of industrial and commercial credit facilities, such as that of industrial Zigong (自贡) in 6811896, whose financial needs were well “beyond the capacity of traditional pawnshops … and remittance banks.”80 The credit facilities that were put together by native businessmen were made possible by “a series of interlocking contracts governing repayment procedures, management structures, and reallocation of assets.”81
In contrast, she also found that “the Chinese property rights regime … operated within a complex of institutions that included patrilineal inheritance, weak inheritance rights for women, ownership vested in the household and not the individual….”82
She then concluded that:
In the long run, however, China’s property rights regime could also interfere with the economic efficiency of firms … in an environment like that of Zigong, such a property rights regime could result in serious difficulties for investors who were developing large vertically and horizontally integrated industrial and commercial firms. Most of these problems emerged as poorly defined rights and, along with conditional sale and debt, accounted for a large proportion of the property-related suits filed in nineteenth- and twentieth-century Chinese courts.83
Apparently, the same problem has continued even in a “socialist market” economy, as confirmed by Pei Chunliang, a Chinese legislator who addressed a national congressional session in 2009 and provided dramatic figures on the contemporary volume of Chinese land disputes: “China’s land contract management system faces problems that constrain rural development and affect stability. More than 50,000 land dispute cases arose in 224 cities and counties across the country from 2003 to March 2008.”84
Litigation over agreements for the sale of land was widespread in China from the time of the Song dynasty (1127–1279 C.E.).85 As popular sayings had it: “Officials have government law and commoners have private contracts”; or “Officials have government law (zhengfa) and do not accept private agreements as conclusive.”86 I believe that the above translation captured only part of their meaning. An Anglo-American lawyer is likely to deduce from it that in Imperial China there were two sources of the law of contracts, with one (the private law) being subordinated to the other (the governmental or public law).
Yet, after reading the cases and background materials provided by Professors Valerie Hansen and Harriet Zurndorfer, there was more to these sayings than a ranking of sources.
As just discussed, the familistic way of doing business was having serious difficulties in adjusting to a marketplace increasingly populated by strangers. However, please recall from the preceding chapter that legalistic rulers often shared in the profits of the familistic businesses as official or silent partners or as recipients of bribes. Against this background, it was not surprising that both familistic drafters of contracts and pleadings and their counterparties employed every possible trick to evade, twist or turn legalistic rules and prohibitions to their respective advantage.
Professor Hansen quotes from the initial paragraph in a judicial decision where the judge listed some of the most common contractual forgeries or tricks: “Some use ink that is too heavy or too light. Some use handwriting that is different or the same. Some disguise the amount of land. Some change the name of the plot. Some omit or alter the area or borders. All of these types are difficult to list fully …”87
To which unidentified judges quoted in the compilation of litigation chronicles, Qingming ji (清明集), added:
Some forgers used old paper with new ink. Or they pasted on emendations in a different handwriting. Or they wrote their personal mark, usually an abbreviated character (huaya), on top of a stamp, when the mark should have been underneath the seal. Or they paid the stamp tax on a forgery after the alleged sale had taken place and the case was already in court … [despite the fact that] it was illegal to forge official documents, and the punishment was one hundred strokes.88
This resort to forgery and chicanery in the judicial process should not be surprising in light of the endless uncertainties that resulted from the clashes between or among familistic clauses or methods of doing business, legalistic statutes or directives, and what Professor Huang refers to as “market logic” as well as official and private corruption. The authors of many of the above-described forgeries and chicanery were known as litigation “assistants” or “masters,” a class of people who earned a living by helping others draw up contracts, complaints and evidence for lawsuits. According to Professor Hansen, they were called “those who encourage [law]suits (jiansong)’ or, more picturesquely, ‘those with brushes inserted in their hats’ (erbi), terms which vividly capture their readiness to draft documents.”89
The adjudicators were mostly local magistrates acting as judges, described in the Qingming ji as “enlightened, rational, compassionate bureaucrats … [in contrast] with an endless stream of quarrels arising among ignorant and recalcitrant locals.”90 Yet at least during the Song dynasty, only a few of these bureaucrats had professional legal training.91 Some of their decisions reflected a distinct Confucian-moralistic rationale, 683at times strong enough to deny enforcement of otherwise valid contracts,92 while others, rendered as tax collectors, reflected a legalistic bent.
Dr. Zurndorfer rejects polar views of the system of adjudication as the product of either an authoritarian and “confiscatory state” or of a “weak indifferent dynastic regime.”93 She agrees with Professor Huang that the adjudication of contract disputes was neither the exclusive product of an autocratic official law nor “of community or kin mediation.”94 It was a system in which magistrates functioned more as mediators than as adjudicators.95 This meant that very frequently they failed to decide cases either because of lack of evidence or the invocation of legalistic grounds by defendant-debtors, such as statutes of limitations.
I would add to the list of missing elements in the adjudication of land disputes the practices of the province or region. Why are there no references to these practices in the vast number of decisions collected by Professors Huang, Cohen, Chihue, Hansen, Zelin, Zurndorfer and others? One possible answer, which is discussed in detail in Ch. 24 infra, is the quality of the practices. In other words practices, certainly must have existed, but were they of the type whose “nuclei” were formed by the right measures of selfishness and altruism, good faith and reasonableness including concern for the rights of innocent third parties? If they were not of this type, if the practice involved was mostly a result of chicanery or of exploitation of a party’s political or legalistic power, chances are that they would not be viable. Mutatis mutandis, if the official records of land transactions were chaotic and unreliable how could a claim even by a lineal, male heir of family property succeed in court?
The following extract of a magistrate’s decision issued in 1194 C.E.96 illustrates the need for clearly drafted and reliable official documents or their functional (albeit not always truthful) equivalents.
A plot of land had changed hands five times since 1194. The plaintiff who claimed title to this land brought his claim fifty years after that chain of transfers and alleged that the plot was rightfully his because his grandfather had originally mortgaged and not sold it. T he judge cited the statute of limitations and rejected the plaintiff’s argument because he had offered as proof of his claim a contract for a different plot.
The magistrate concluded that: “If he says the land was inherited, he [the plaintiff] should have had a land register or a will that can be consulted. If he says it 684actually was mortgaged by his ancestors, he must have a contract or a mortgage agreement … But he has nothing.”97
A chronicle of disputes during the Qing dynasty, the Qingming ji, added that the plaintiff did not know the selling price, the broker’s name or the original buyer’s name, presumably facts that would have given at least an appearance of the existence of a mortgage. The importance attributed to a sale document as proof of title is emphasized by another judicial statement in another land dispute reported in the Qingming ji:98
Today when people take their clothes to the pawnshop to borrow 10 or 100 coins, they use a ticket to redeem their clothes. According to this principle that one cannot redeem clothes if the ticket is lost, how can one redeem land or a house with no proof of ownership?99
It is worth noting that the requirement of a written contract by analogy to a pawnshop ticket was a legalistic formality that persuaded this judge and perhaps others as well. However, the problem with the registry of rural land is that it was largely dysfunctional during China’s Imperial period and beyond, as will be discussed in a the following chapter.100
In a market that attempts to be commercial and encouraging to third parties acting as purchasers, investors and secured lenders, the root cause of the widespread legal uncertainty is a custom that partakes of the worst among familistic customs and legalistic (including judicial) procedures, especially once they became prey to forgery, chicanery and bribery. Familistic clauses were dysfunctional as uncooperative commercial customs, i.e., they were neither cost effective nor fair, especially when failing to protect the crucial third party buyers, investors and lenders. Conditional or redeemable sales, dual tiers of subsoil and topsoil rights, preemptive rights of kin or neighbors, defension and other familistic clauses were unsuited for a growing commercial and industrial society in which third parties had to play a crucial role. Accordingly, familistic clauses and corrupt legalistic procedures were the principal source of legal invertebration in Imperial contract law.
This is why attempts to adjust or accommodate these customs with the “logic of the market” failed. As we know, this logic requires that market participants treat each other in a manner that would satisfy reasonable expectations of, among others, profitability and certainty of outcome.101 In contrast, the familistic logic cares about the welfare and sustainability of the family unit, regardless of its effects upon third parties. Thus, they are irreconcilable forms of doing business and of regulation. This is also why effective commercial customs could not be found in Imperial China as they were found among late medieval and Renaissance European merchants. Because of familism and Confucianism, Chinese merchants did not draft fair and cost effective 685commercial customs; by and large they were content with drafting exquisite rules of etiquette and courtesy.102
According to the Encyclopedia Britannica, “looking at the whole period from the foundation of the Communist Party in 1921 to Mao’s death in 1976, on can fairly regard Mao Zedong as the principal architect of the new China.”103 This statement was made in 1974 and remained true until Mao’s death in September 1976; presently, under “socialist market” conditions it may well have to be qualified.
Unlike Lenin, Mao was from peasant extraction, and also unlike Lenin, he spent at least six months in 1911 soldiering as part of a revolutionary army in Hunan; however, as with Lenin in the USSR, he rose to be both the leading theoretician and practitioner of the dogma of the Chinese communist revolution. When imperial China gave way to the Chinese Republic in 1912, Mao continued searching for his intellectual moorings in institutions as varied as schools of police, business and law while continuing his readings of the “classical works of the Western liberal tradition.”104 In 1918, he became an assistant to the librarian of China’s most renowned university, Peking University.105 That was the time when Peking University Marxist-Leninist intellectuals populated the “May Fourth Movement of 1919, which was to a considerable extent the fountainhead of all of the changes that were to take place in China in the ensuing half century.”106
In 1920, Mao returned to his native province a primary school principal and started his career as an organizer of small units of the Communist party; a year later he helped to found the national Chinese Communist Party [CCP].107 At the same time, and as was the case with other of his communist colleagues, he joined the nationalist Kuomintang Party (KMT) coalition led by Sun Yat-sen, widely regarded as the founding father of Republican China, later replaced by Chiang Kai-shek. During his membership in the KMT, Mao edited its principal periodical and served at the Peasant Movement Training Institute.108 The KMT ruled much of China from 1928 until 1949 when a Mao-led army forced it to leave mainland China and settle in Taiwan.
Mao’s reliance on the Chinese peasantry as the principal engine of the communist revolution was a major departure from Marx’s Law of Motion of Modern Society. While the Comintern advisers continued to insist on a proletarian-led revolution, the Chinese proletarians failed to conquer even one single major city.109 And when the Central 686Committee of the CCP was forced to settle in the rural province of Jiangxi (Ụ), Mao emerged as a political and eventually, military leader. As stated by Fairbank and Goldman:
From this time on the personality and mind of Mao became a central factor in the CCP revolution. [He exceeded] his colleagues in achieving a unity of theory and practice, a major motif of Confucian philosophy…. [As director of the Peasant Movement Training Institute, his] program seems to have stressed an analysis of peasant problems plus an analysis of class structure in the countryside.110
It was during 1934–1935 that Mao led the famous “Long March” whose purpose it was to find a place for the CCP in “the periphery of Nationalist [KMT] power.”111 This march started with approximately 100,000 peasants and wound up with almost eight times that many. The CCP had thus found an area it could control and use as its base of operations for future actions against its nationalist and international (mostly Japanese) enemies. It took continuous intra-party struggle for Mao to emerge in 1945 as the “chairman” of the CCP—a position he retained until his death in 1976. After the CCP’s victory in 1949 in its civil war with the KMT, the CCP founded the People’s Republic of China (PRC) with Mao as its chairman.
As had been done by Lenin, Mao authored a number of writings especially during the period of 1936–1940. Some were inspired by Soviet writers and some by his own experiences including his account of dialectical materialism such as “On Practice” and “On Contradiction” and on subjects more mundane such as on the organization of peasant action groups or on the overall strategy of the revolutionary war.112 On the whole, Mao’s writings were closer to the realities of the Chinese countryside than anything Lenin had ever written about the Russian peasantry. As described by Fairbank and Goldman:
[U]sing an intensely practical tactic of identifying those classes with whom to work and those classes to work against…. [suggesting that] the role of the party worker in the village must be one of a guide and catalyst rather than a know-it-all. He must closely examine the villagers’ needs and complaints, hopes and fears; [and] only then could he articulate the peasantry’s demands and follow the tactic of uniting with the largest possible number to attack the smallest possible target….113
Despite Mao’s early inclination to formulate “bottom up” policies, he and his triumphant CCP colleagues fully practiced Lenin’s “know it all wisdom” once in power. This attitude led Mao (as it had done to Lenin) to continuous shifts and turns of policy and actions which affected the lives of millions. For example, when the PRC was founded in 1949, he stressed total obedience to the CCP only to turn against the CCP’s ruling establishment during the so called “Cultural Revolution” in 1966–1969. Similarly, the same Mao who stressed the need for large strides in agricultural production in 1949 switched to a sweeping industrial policy in the largely failed “Leap 687Forward” of 1957–1958.114 In the exercise of this autocratic know-it-all attitude, he also shared with Lenin and Stalin a callous disregard for the human costs of his policies. As will be discussed shortly, his collectivization and commune policies were responsible for thirty million deaths in the Chinese countryside. And as recalled by a human rights academic website: “Starting in the mid-1950s, Mao repeatedly affirmed his willingness to sacrifice up to a third of the Chinese population in a nuclear war so long as this would help bring about the downfall of world capitalism.”115 Prior to examining Mao’s rural land policies and laws, a short detour is necessary on the PRC’s initial land reform and its eventual replacement by the values of Mao’s “New Socialist Man.”116
In 1950, Mao enacted an Agrarian Reform Law which distributed land, animals and machinery large masses of hungry and dispossessed peasants; concomitantly, “evil landowners” were found guilty of exploitation and as many as one million were executed between 1949 and 1953.117 Accordingly the PRC distributed more than half of its arable land to:
[M]ore than sixty percent of its rural population—on an equitable, per capita basis. Land titles or certificates were issued to farmers as well. This “land to the tiller” campaign lifted hundreds of millions of poor Chinese out of destitution and hunger. Annual crop production increased seventy percent from 113.2 million tons to 192.7 million tons between 1949 and 1956. Similarly, total farm income rose eighty-five percent during the same period.118
After Mao took control of mainland China, all the laws and regulations in force during the tenure of the Nationalist government were repealed.119 As was the case in the USSR, private farming, industrial manufacturing and distribution and marketing became state assets and as such governed by the central planning system including the 688five yearly economic plans. In 1950, the Financial and Economic Committee of the State Council promulgated Provisional Measures for Contracts between or among administrative agencies, state enterprises and cooperatives and in the same year, other state ministries issued decrees regulating the contracts that came under their jurisdiction such as international and local trade and commerce, railways and others.120
Also, as in the USSR, disputes among the agencies and third parties were resolved through administrative institutions, including arbitral tribunals. Meanwhile, a wide range of “civil,” i.e., non-commercial disputes between individual parties, were adjudicated by local committees of the CCP; they included claims on subjects as varied as housing, funerals, petty quarrels and divorces and often involved the sale, exchange or rental of property that was described earlier as “personal.”121 There was no written or official source of law to govern such controversies except Mao’s writings in which he tried to capture the spirit of the revolution as exemplified in what he often referred to as the New Socialist Man (社会主义新人; hereinafter NSM).
I first heard about Mao’s NSM from the then dean of a Shanghai law school during his visit to the University of Arizona College of Law in 1980. He spoke of the “hundreds of thousands Chinese law students” who needed a full exposure to commercial law and especially international commercial law. He invited me to teach in Shanghai and asked for permission to translate some of my writings on the law of documentary letters of credit. Thinking about an authoritative and widely observed set of letters of credit customs known as The Uniform Customs and Practices for Documentary Credits of the International Chamber of Commerce (UCP), I asked him whether he considered this source as the “living law” of China’s documentary letters of credit or whether international customary law would not qualify as living law in China. He suggested that during Mao’s “cultural revolution,” China’s supreme living law was the NSM; there were multiple references to his virtues in Mao’s “Little Red Book” (the Book of Quotations from Chairman Mao).122 No judge or administrator could ignore Mao’s views on the behavior of a NSM. I then asked the dean whether exposing those hundreds of thousands of students to a private (commercial) law whose function was to maximize profit-making was not inconsistent with Mao’s NSM or the Little Red Book’s “selfless communist man.”123 He tersely assured me that neither I nor my Chinese students would have to worry about any discouragement in Mao’s Little Red Book; although it was quite influential in the past, it was not any more.
In his essay on the NSM, Professor Theodore H.E. Chen of the University of Southern California points out that the new society sought by Mao’s revolution 689entailed bringing about a new form of life with “new minds, new ideas, new emotions, and new attitudes.”124 If the old society bred individualists and selfish persons who thought only of their personal benefits and ambitions, the NSM had to be a collectivist, completely selfless and ever mindful of his duties to the revolution and party.125 If the masses did not show enthusiasm for work unless it gave them material benefits and rewards, Mao’s directive was to educate the NSM so “that he will not expect personal benefits but will find reward in the increase of production, the fulfillment of state plans, and the success of the proletarian revolution.”126 Accordingly, the CCP started selecting models from different economic sectors and professions, including laborers, peasants, women, and so on.127 Model laborers, peasants, women and youth were constantly being selected and paraded as examples for the entire population to emulate. Significantly, no model merchants were selected.
“From the virtues extolled in indoctrination and propaganda and from the various ‘models’ selected to publicize desired behavior,”128 the key features of the model man envisioned by the Communist planners were: 1) Absolute selflessness, the NSM must also always be ready to sacrifice his own interests for the good of the revolutionary cause;129 2) Obedience to the CCP, no matter what the Party or state wants, the NSM must be ready to comply;130 3) Class Consciousness, or a willingness to engage in class struggle against landlords and the “bureaucratic bourgeoisie”;131 4) Labor and Production, the NSM loves labor for its ideological value and contribution to the nation’s production. There is no distinction between manual and mental labor and no place for “white collar” persons who disdain to soil their hands in “rough” labor;132 and 5) Versatility, The NSM must be able to serve in varied capacities, from one productive activity to another in response to the changing needs of the Party-state. Obviously, Mao’s selfless man could never engage in hiring another or others for private endeavors for he would be guilty of the same Marxist sin committed in Soviet Russia by those whose income was “unearned.”
During most of the 1950s, Mao’s policies for “building socialism” followed those of the Stalinist USSR: centralized planning with special emphasis on building capital intensive “heavy” industries. In the countryside too, the stages of land reform, followed in the course of collectivization which were similar to those of the Soviet Union, though the details were somewhat different.133
The details of the implementation of the Soviet-inspired economic growth policies in Mao’s China deserve close attention because they reveal a similar pattern of what happened in the USSR. Mao’s collectivization policies and China’s agricultural crisis of 1959–1961 were insightfully examined by Professor Justin Yifu Lin of Peking University (presently on leave of absence as the World Bank’s Chief Economist and Senior Vice President for Development Economics).134
Professor Yifu Lin traced China’s severe agricultural crisis during 1959–1961 to Mao’s collectivization policies—thirty million deaths and enormous material losses were largely attributable to these policies.135 Prior to this crisis, many economists thought that the collectivization movement in China “had avoided the devastating consequences associated with the Soviet Union’s collectivization in 1929 and that China provided a model of agricultural development for underdeveloped, densely populated economies.”136 This appraisal had to be discarded as China’s agricultural production plunged drastically for the three consecutive years with the above-mentioned catastrophic deaths and material losses.
Professor Yifu Lin describes the economy inherited by Mao’s socialist government in 1949 as a war-torn economy “in which 89.4 percent of the population lived in rural areas and industry accounted for only 12.6 percent of national income.”137 Mao’s policy of investing in a heavy industrial economy required a massive employment and redeployment of workers that resulted in a sharply increased demand for food and agricultural products. Yet the source of agricultural production continued to be the same independent family farm described in the preceding chapter,138 a production unit that was too small and fragmented to be able to respond to the large increase in demand. Further, the standard form of contract for land use was that of the free tenancy of the surface land or topsoil described in an earlier section of this chapter.139 Its rental payments, in kind or in currency, were as high as fifty percent of the output of the main crops which also discouraged productivity.140
The CCP had started a land reform program beginning in the 1940s in areas under its control by confiscating lands from the landlords and giving it to their tenants. This program was continued during the revolution until concluded in 1952.141 Thereafter, three new major forms of cooperatives were set in motion: 1) the “mutual-aid team” in which a handful of neighboring households pooled their labor, farm tools and draft animals for peak seasons or on a permanent basis, but production and income decisions remained with each household;142 2) the “elementary cooperative” that involved twenty to thirty neighboring households who combined their productive 691assets and shared their income either through dividend payments for the use of their respective parcels, animals and farm tools or by remunerating the work performed by each household; and 3) the “advanced cooperative,” which as in Stalin’s USSR, collectivized all the means of production and in exchange paid the participants solely based on their contribution of labor or “work points.” This type of cooperative started with thirty households and eventually encompassed all the households of a village or approximately 150 to 200 households.143 Please note that the values of the third type of cooperative closely resembled those that Mao expected from the NSM—selflessness and giving up comfort and rewards, compensation solely to make family subsistence possible, retention of class consciousness, especially when dealing with former landlords and maximum productivity and versatility.
At first, peasants were allowed to join the various forms of cooperatives on a voluntary basis; the “advanced cooperatives” were not among the most popular; by 1955, there were only 500 of them. By 1957, however, Mao’s encouragement brought up their number to 753,000 and the number of households to 119 million.144 As the scale of the industrial projects increased, so did the size and scale of agricultural projects; vast irrigation canals and dams that required the participation of dozens of collective farms were customary. Eventually, this approach led to the amalgamation of the 733,000 collective farms into 24,000 “communes” that comprised 120 million households “or over ninety-nine percent of the total rural households in China in 1958.”145 Consistent with the NSM values, “[r]emuneration in a commune was based mainly on the subsistence needs and only partly on the work performed by a peasant.”146
The negative effects of Mao’s policy were dramatically illustrated in the statistics on the output of grain in collectivized China. From 1958 to 1959, grain output fell by thirty million tons (from 200 to 170 million) and between 1959 and 1960 it fell by 26.5 million tons (from 170 to 143.5 million); meanwhile, a population that had grown from 1958 to 1959 by thirteen million thereafter dropped its number by approximately four million each year until about 1962.147 Professor Yifu Lin’s conclusion was that “the estimated thirty million excess deaths in this crisis were the direct result of the crop failures.”148
What were the causes of these crop failures? After examining various possible causes from bad weather to mismanagement, Yifu Lin came to the conclusion that the main cause was “the change of the nature of collectivization from a repeated to a one-time game in the fall of 1958.”149 At first, peasants had the right to decide whether or not to join a cooperative but in 1958, Mao promoted the people’s commune as “the institutional innovation for quickly realizing communism in rural China.”150 Yifu Lin’s analysis showed that when the freedom to quit the collective existed and members 692could decide what to do at the end of each productive period, productivity was higher. At the same time, since land holdings were highly fragmented and small and often insufficient to raise draft animals, it was possible to increase one’s income by pooling the land and farm tools of several households. Yet these gains could be offset by the difficulties and higher costs of supervising the production of the numerous units. Hence:
To make a collective an efficient institution, some effective substitute for supervision [of its units] is required. A self-enforcing agreement among collective members in which each one promises to provide as much effort as on the household farm is an effective alternative when supervision is too costly.151
He clarified the meaning of this agreement as follows:
A self-enforcing agreement does not require a third party to enforce the agreement, to determine whether there have been violations…. When the costs of third-party intervention are too high, a self-enforcing agreement is an effective substitute…. However, a self-enforcing agreement is sustainable only if the game is repeated….152
I would note that the gist of the individual household’s implied promise to the collective in a self enforcement collectivization agreement was to produce at least as much as it would have produced prior to joining the collective.
In what Professor Yifu Lin calls a “repeated game”153 of collectivization, if at the end of a productive period the member feels that he can do better by himself he can withdraw from the collective. If he withdrew, the other members would have had to decide whether they stayed in the collective or withdrew themselves. Self enforcement came into play when the other members of the collective calculated that the losses that would result from the dissatisfied member(s)’ withdrawal were larger than the gains derived from staying and reaping the benefits of the collective’s economies of scale. If that was the result of their calculus, the collective would disband.
In Professor Yifu Lin’s words:
If the discounted present value of future losses is larger than the one-time gains … the member will honor the agreement. Therefore, it is the threat of a collective’s collapse that greatly reduces the incidence of shirking [one one’s duties or withdrawing from the cooperative]. This implicit threat also guarantees that the production in a voluntarily formed collective will be at least as good as the sum of production of a group of households working separately…. [Yet], when a collective [method of production] is imposed … [i]t becomes impossible to use withdrawal either as a way to protect oneself or as a means to check the possibility of shirking by the other members. Consequently, the self-enforcing agreement cannot be sustained in a one-time-game collective…. If supervision is ineffective and rewards are not 693closely related to each individual’s … contribution in production, the incentives [to stay] will be low…. A peasant will not work as hard as on the household farm. Therefore, the productivity level of a collective will be lower than the level reached on the individual household farm. The collective is [then] besieged by the “prisoner’s dilemma.”154
While Professor Yifu Lin used the concept of a self enforcing contract as a construct for his economic analysis, the calculus he describes is similar to that in everyday bilateral or multi-lateral commercial contracts. Elsewhere in this book,155 I discuss the reason why most commercial contracts are performed and comparatively very few are breached—it is not as much the fear of legal sanctions such as damages, fines or even imprisonment (as Justice Holmes’ Jr. would argue),156 as it is the calculus that contracting parties are better off in the long run by performing than by breaching their contracts. Unlike Professor Yifu Lin’s prisoner of Mao’s commune,157 commercial contracting parties are free to contract but the logic of their market contracts is usually guided by Jeremy Bentham’s “felicific calculus,” i.e., the balance that results from subtracting units of pain from units of pleasure.
It is important to recall the lesson learned in a previous chapter with respect to the crucial missing data in the USSR’s central planning:158 the market (and contract)-derived prices and costs. As with central planning, in self enforcing and commercial contracts, their periodic cost-benefit assessment requires the ability to rely on reasonable estimates of what would be the contracting party’s gain or loss as based upon actual market prices and costs of production, distribution, etc. Guesses by central economic planners as incorporated into administrative production quotas and non-market inspired prices are of no value to the household decision-maker. In fact, Professor Yifu Lin’s assumption that the repeated game scenario would have allowed enough time for the individual household to make a rational decision is, given the chronic absence of relevant data, unduly optimistic. In the final analysis then, the failure of Mao’s collectives and communes was caused by the failure to rely on freely-agreed-upon contracts between the households and the collectives.
In his studies on dispute resolution and mediation in contemporary China,159 Stanley B. Lubman draws attention to Maoism as “not simply a way of viewing the world, but a program for changing it.”160 Under Mao, CCP cadres were responsible, among other activities, for the mediation of disputes that arose at the most basic levels of interaction, such as in the streets, business offices, factories and so on. Depending upon the level and type of disputes, the mediators could be “residents committees” (staffed by activities rather than cadres), “security defense committees” and in an ascending ladder of political power “Young Communist Leagues,” “Women’s 694Associations” and so on.161 Some cities had “mediation sections” as part of the municipal governments and their task was to mediate the disputes of the urban population.162 I should emphasize that Maoist mediation efforts had a distinctive instructional purpose—to teach the correct behavior in accordance with Mao’s socialist dogma, even though, as pointed out by Lubman, this educational function often led to an inconclusive handling of disputes.163
Nonetheless, Professor Philip Huang found very few disputes concerning land conveyances during the revolutionary and Mao’s land reform period, including transactions between peasants, cooperatives, collectives and communes. During the confiscations of the Land Reform period, the disputes had to do with the resistance by “relatively well-to-do peasants” against the takeover of their land and on the rights and duties of “outsider[s] who had moved into the village.”164 As private land transactions were eliminated during the collective and commune system, so were the disputes “private property no longer figured much in people’s [sic] lives, and disputes over inheritance also became very rare.”165
The system of state-imposed mediation and imposition of decisions on rights in land was supposedly done away by the next phase of Chinese property rights law that was made part of the Socialist Market Economy. Yet was it? Or is there a greater continuity between the authoritarian state-owned property of the past and the contemporary private property ownership system? The reader should be able to arrive at his conclusions after reading the following chapter. From the standpoint of the Imperial substantive law of contracts, there can be little doubt that much of the invertebration of the law of land contracts during the span of many centuries was attributable to familistic clauses and their inter-action with legalistic rules and remedies. The reader should continue to watch for the fate of these clauses under present day Chinese law: Are they still operative, albeit clothed with a different garb and with a different beneficiary although perhaps with the same victims?
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1 See generally Contract and Property in Early Modern China: Rational Choice in Political Science 1–36 (Madeleine Zelin et al. eds., 2004).
2 Id. at 2.
3 Harriet T. Zurndorfer, Contracts, Litigation, and Economic Regulation in Imperial China: The Case of Tenant Disputation in Huizhou (Anhui) During the Sixteenth Century 1–2 (Paper for the Conference, “Law and Economic Development: A Historical Perspective”) (Utrecht Univ., Sept. 20–22, 2007) [hereinafter Zurndorfer, Contracts, Litigation and Economic Regulation].
4 Zelin et al., Contract & Property, supra note 1, at 1, reviewed by Carol H. Shuie (Economic History Services, 2004) at http://eh.net/book_reviews/contract-and-property-early-modern-china (last accessed October 17, 2013).
5 Zurndorfer, Contracts, Litigation and Economic Regulation, supra note 3, at 25. Zurndorfer cites her source for these contracts as Liu Hehui, “Mingdai Huizhou Hushi dianpu wenyue,” Anhui shixue 64 (1985).
6 Philip C. Huang, Code, Custom and Legal Practice in China: The Qing and the Republic Compared 100 (2001).
7 See supra § 17:5(A).
8 Zhang Xuehui, The Huizhou Documents: A Newly Found, Rich and Precious Source for the Study of Chinese History, Chinese Acad. Soc. Sci. 12 (Bureau of Int’l Cooperation, 2003) (discussing the recent finds of Huizhou documents and the types of contracts found), http://bic.cass.cn/English/InfoShow/Arcitle_Show_Forum2_Show.asp?ID=270&Title=The%20Humanities%20Study&strNavigation=Home-%3EForum-%3E History&BigClassID=4&SmallClassID=8 (on file with this author). The summaries of contractual clauses in the principal text are based upon summaries provided by this Chinese scholar.
9 Zurndorfer, Contracts, Litigation and Economic Regulation, supra note 3, at 17.
10 Id. The distinctions between language of acknowledgment and of bilateral obligations belong to this author and are based on the excerpts provided by Professor Zurndorfer and discussed in the principal text.
11 See Marc Bloch, La Société Féodale (2005) (1939), available at http://classiques.uqac.ca/classiques/bloch_marc/societe_feodale/societe_feodale.html, especially, part 2 (Deuxieme Partie: Les Liens D’Homme a Homme), section 3 (Livre troisième: Les liens de dépendance dans les classes inférieures), ch. 1 (Chapitre Premier: La seigneurie).
12 Xuehui, supra note 8, at 2. According to Zhang Xuehui, these contracts were also known as the “land of labour (Lifen Tian, 力分田)” or the “land of manure (Fen Cao Tian, 粪草田).”
13 Id.
14 Id.
15 Id.
16 LEGIFRANCE [C. Civ.] (Fr.) art. 578 (translation by author).
17 Berger, Encyclopedic Dictionary, at 755 (usus fructus).
18 See supra §§ 11:2(D)(2) & 11:4 (discussing the “Emergence of an International Bond Market”).
19 See C. Civ. (Fr.) art. 1131 (2008). Unless otherwise indicated, all the English translations of the Code Civil provisions belong to Legifrance (see Frequently Cited).
20 See C. Civ. (Fr.) art. 1108 (2008).
21 See supra § 11:4.
22 Id.
23 See supra § 18:1(A).
24 See supra § 11:2(F).
25 Huang, supra note 6, at 72 (emphasis added) (citation omitted).
26 Id. at 71 (emphasis added).
27 See supra § 3:6(B).
28 Kozolchyk, Transfer, at 1467.
29 Huang, supra note 6, at 99.
30 Id. at 73.
31 Id. at 74 (citation omitted).
32 Id. at 75.
33 Id. at 76.
34 Id.
35 Id. at 99.
36 Id. at 100.
37 Id. at 102 (citation omitted).
38 Id. at 99.
39 See supra § 17:2.
40 Kerstin Ahlgren, Interview with WEAI Director Myron Cohen, The Morningside Post (Feb. 26, 2008), http://www.themorningsidepost.com/2008/02/26/interview-with-weai-director-myron-cohen/.
41 Valerie Hansen, Negotiating Daily Life in Traditional China: How Ordinary People Used Contracts 600–1400, 12–13 & 149–88 (1995) (for her chapter on tomb contracts).
42 Valerie Hansen—Professional Webpage, Yale University, http://history.yale.edu/people/valerie-hansen (last visited Oct. 1, 2013). See also Hansen, supra note 41, at 13 & 189–221 (on the courts of the underworld).
43 Myron L. Cohen, Writs of Passage in Late Imperial China, in Zelin et al., supra note 1, at 37, 41–42.
44 Id. at 41 (emphasis added).
45 See infra § 18:1(F)(3).
46 See supra § 3:6(B).
47 Id.
48 See supra § 3:6(C).
49 Id.
50 Zelin et al., supra note 1, at 26.
51 Hansen, supra note 41, at 115–16.
52 Id. at 115 (emphasis added)
53 Id. at 120.
54 Id. at 121.
55 See Kozolchyk, Roadmap, at 6, (discussing “defension” clauses in which the heirs of the seller remained liable, sine die, for any future disturbance of title).
56 See Thomas Buoye, Litigation, Legitimacy, and Lethal Violence, in Zelin et al., supra note 1, at 94.
57 Id.
58 Id. at 96.
59 Id. at 95–96.
60 Id. at 98.
61 Id. at 114.
62 Shuie, supra note 4, at 1.
63 Zelin et al., supra note 1, at 17 (quoting Derk Bodde & Clarence Morris); Derk Bodde & Clarence Morris, Law in Imperial China: exemplified by 190 Ch’ing Dynasty cases 4 (1967) (stressing the public law nature of Chinese law and especially its penal component: “The penal emphasis of this [Chinese] law, for example, meant that matters of a civil nature were either ignored by it entirely (for example, contract), or were given only limited treatment …” Id.).
64 Zelin et al., supra note 1.
65 Id. at 18.
66 Id.
67 Id.
68 Id. at 18–19 (citation omitted).
69 Id. at 20.
70 See Hernando de Soto, The Other Path: The Economic Answer to Terrorism (2002); & Hernando de Soto, The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (2000). See also Kozolchyk, Reduction of Poverty, at 737–38 (this author criticizing Hernando de Soto’s views).
71 Kozolchyk, Reduction of Poverty, at 737–38 n.37 & accompanying text (referencing studies on Hernando de Soto’s title distributions).
72 U.C.C. § 9–202 (2000).
73 See supra § 17:5(A).
74 Kozolchyk, Reduction of Poverty, at 737–38 n.37 & accompanying text (referencing studies on Hernando de Soto’s title distributions).
75 See infra §§ 24:6–24:8.
76 Hansen, supra note 42, at 79.
77 Id. (citation omitted).
78 Id. at 80.
79 Zelin et al., supra note 1, at 31.
80 Id.
81 Id.
82 Id. at 31–32.
83 Id. at 32.
84 National People’s Congress (NPC) of the People’s Republic of China, China’s legislature eyes stability with law on rural land disputes meditation, npc.gov (June 29, 2009), http://www.npc.gov.cn/english npc/news/Legislation/2009–06/29/content_1508642.htm.
85 Zurndorfer, Contracts, Litigation and Economic Regulation, supra note 3, at 8.
86 Hansen, supra note 42, at 81.
87 Id. at 98.
88 Id. at 97 (citations omitted).
89 Id.
90 Zurndorfer, Contracts, Litigation and Economic Regulation, supra note 3, at 9.
91 Hansen, supra note 42, at 93.
92 Id.
93 Zurndorfer, Contracts, Litigation and Economic Regulation, supra note 3, at 10. Emblematic of this system of adjudication were the “village elders” of the Song dynasty. In connection with this dynasty, Emperor Taizu (1368–1398) enacted laws intended to cause the moral renovation of the Chinese, including the village elder system for the adjudication of disputes avoiding the magistrates’ courts and taming the rampant litigiousness. This experiment with the “Daoist model of little elite of virtuous elders” did not last beyond Taizu’s death. Zurndorfer, Contracts, Litigation and Economic Regulation, supra note 3, at 13.
94 Id. at 10. (Citation omitted.)
95 Id. at 11.
96 Hansen, supra note 42, at 98. The following is my reconstruction of some of the relevant facts and reasoning from the text provided by Professor Hansen’s summaries, see Qingmingji 4: 111–112, 132–133 summary, cited in id.
97 Qingmingji 9:313–314, cited in id.
98 Qingmingji 5: 149, cited in id. at 99.
99 Id.
100 See infra ch. 19.
101 See Glossary, “Market Standard of Fairness.”
102 Richard John Lufrano, Honorable Merchants: Commerce and Self-Cultivation in Late Imperial China 54–55 (1997).
103 23 The New Encyclopaedia Britannica: Macropaedia: Knowledge in Depth 511 (15th ed. 1989); see also John King Fairbank & Merle Goldman, China: A New History, Second Enlarged Edition 301–11 (2006) (summarizing Mao Zedong’s rise and actions while in power).
104 Encyclopaedia Britannica, supra note 102, at 511.
105 Id.
106 Id.
107 Id. at 512.
108 Id.
109 See Benjamin Schwartz, The Essence of Marxism Revisited: A Response, 2 Modern China 461, 469–72 (1976).
110 Fairbank & Goldman, supra note 103, at 302–03.
111 Id. at 305.
112 Id. at 467.
113 Fairbank & Goldman, supra note 103, at 303 (emphasis added).
114 See Encyclopaedia Britannica, supra note 103, at 514.
115 Lorenz M. Lüthi, Biography, in 2 Genocide and Crimes Against Humanity (Dinah L. Shelton & Gale Cengage eds., 2005), available at http://www.enotes.com/genocide-encyclopedia/mao-zedong (on file with author).
116 See infra § 18:3(B).
117 Zhu Keliang & Roy Prosterman, Securing Land Rights for Chinese Farmers: A Leap Forward for Stability and Growth, Cato Development Policy Analysis 3–4 (Oct. 15, 2007). See China 1949 to 1953, History Learning Site, http://www.historylearningsite.co.uk/china_1949_to_1953.htm (last accessed Oct. 2, 2013) (summarizing Mao’s land reform which started during 1950).
118 Keliang & Prosterman, supra note 116, at 3 (citation omitted).
119 See Li Zhu, Introduction to Chinese Contract Law (2005) (unpublished substantial paper, University of Arizona) (on file with author) (providing, many of the materials in this research memorandum). This source explains:
Article 17 of the Common Program of the Chinese People’s Political Consultative Conference, also known as the Provisional Constitution of the newly founded People’s Republic of China in mainland China provided that it “shall do away with all the laws, decrees and judicial system of the Kuomintang (KMT) reactionary government, because they were oppressing the people, and shall enact laws and regulations which will protect the people, and establish a people’s legal system.”
Chunying Xin, Chinese Courts: History and Transition 3 (2003), cited in id. at 1 n.3 & accompanying text.
120 See id. at 3. See also Yanlong Han et al, A Legal History of the People’s Republic of China 296 (1998) & Dewu Zhou, Manual of Practical Knowledge of Economic Contracts 18, 19 (1988), both cited in id. at 2 nn.6–7 & accompanying text.
121 See supra § 18:1(I).
122 Quotations from Mao Tse Tung (David Quentin & Brian Baggins trans., 1996), available at http://www.marxists.org/reference/archive/mao/works/red-book/. See also Quotations From Mao Tse Tung: Chapter 28: Communists, Marxists.org (2000), http://www.marxists.org/reference/archive/mao/works/red-book/ch28. htm (referencing the virtue of the communist man’s selflessness: “At no time and in no circumstances should a Communist place his personal interests first; he should subordinate them to the interests of the nation and of the masses. Hence, selfishness, slacking, corruption, seeking the limelight, and so on, are most contemptible, while selflessness, working with all one’s energy, whole-hearted devotion to public duty, and quiet hard work will command respect.” Id.).
123 Id.
124 Theodore H.E. Chen, The New Socialist Man, 13 Comp. Educ. Rev. 88 (Feb. 1969).
125 Id.
126 Id.
127 Id.
128 Id. at 89.
129 Id.
130 Id. at 89–90.
131 Id. at 91.
132 Id. at 91–92.
133 Encyclopaedia Britannica, supra note 103, at 468.
134 Justin Yifu Lin, Collectivization and China’s Agricultural Crisis in 1959–1961, 98 J. Pol. Econ. 1228 (1990).
135 Id. at 1228–29.
136 Id. at 1229 (citations omitted).
137 Yifu Lin, supra note 134, at 1230.
138 See supra § 17:2.
139 See supra § 18:1(B)(1)(b).
140 Yifu Lin, supra note 134, at 1230.
141 Id. at 1231.
142 Id.
143 Id.
144 Id.
145 Id. at 1234.
146 Id.
147 Id. at 1233, (see Table 2: Population, Agricultural Output and Grain Output).
148 Id. at 1234 (citation omitted).
149 Id. at 1240.
150 Id. at 1241.
151 Id. (citation omitted) (emphasis added).
152 Id. at 1241 n.13.
153 Id. at 1241.
154 Id. at 1242 (citations omitted).
155 See supra § 14:1.
156 Id.
157 Yifu Lin, supra note 134, at 1242.
158 See supra § 15:4(E).
159 Stanley B. Lubman, Bird in a Cage: Legal Reform in China After Mao 40–70 (1999).
160 Id. at 41.
161 Id. at 46.
162 Id. at 47.
163 Id. at 53.
164 Philip C. C. Huang, Chinese Civil Justice, Past and Present 35 (2010).
165 Id.