《中国宪法学 Chinese Constitutional Law》课程教学资源（学术文献）Drafting Legislation for Development：Lessons from a Chinese Project

ANN SEIDMAN ROBERT B.SEIDMAN Drafting Legislation for Development:Lessons from a Chinese Project The world around,in recent years many governments tried to use the state and the legal order radically to alter their economies:In Eastern Europe and in China,from centrally planned to more or less market economies;in the Third World,from dependent colonial to independent economies;in South Africa,from apartheid to a color- blind system to meet all its people's needs.A variety of aid organiza- tions jumped in to assist.1 Lawyers and legal academics,mostly from the United States,jetted hither and yon on drafting missions, their briefcases like pigskin treasure chests,bulging with draft bills.2 This article reports on a five-year,United Nations Development Programme-financed project to assist China in drafting 22 priority laws,and in the process,to strengthen the capacity of Chinese draft- ers (the Project').3 The Project's experience may shed light on some of the theoretical and methodological debates scratched up by these wide-ranging attempts at social transformation through law.For example: ANN SEIDMAN is Adjunct Professor,Boston University School of Law and Interna- tional Development and Social Change Programme,Clark University. ROBERT B.SEIDMAN is Professor,Emeritus,Boston University School of Law. For critique,we are indebted to Professors Joseph Brodley,David Lempert and Eric Gouvin for very useful critiques,and generally to the participants in the Boston University School of Law's Thursday Seminar;mistakes are,of course,ours. 1.These included the United Nations Development Programme,which sup- ported programs in China,Laos,Vietnam and elsewhere;USAID,supporting various programs in Africa and in Eastern Europe;the World Bank,with programs in forty different countries;numerous bilateral aid agencies-for example,the Swedish aid agency,SIDA,NORSTAD (Norway),France and Australia;private NGOs (notably, the Ford Foundation,which supported law-related projects all over the world);the Asia Foundation(Cambodia and the Mekong Delta states);the American Bar Associa- tion,whose Central and East European Law Initiative project (CEELI)helped draft laws all over Eastern Europe;and even universities (e.g.,see "Symposium:The Rus- sian Petroleum Legislation Project at the University of Houston Law Center,"15 U. Houston Int'L.L.J.633 (1993)[hereinafter,"Symposium"]). 2.In some countries,their efforts seemed likely to create a dependency on for- eign aid in drafting.Cf.the Cargo Cult(During World War II,some Melanesians reportedly viewed airlifted food packages from the Allies as presents from an other- worldly being).See John G.Strelan,Search for Salvation:Studies in the History and Theology of Cargo Cults(1977);Peter Worsley,The Trumpet Shall Sound:A Study of Cargo'Cults in Melanesia(1968);Glynn Cochrane,Big Men and Cargo Cults(1970) 3. We served as Chief Technical Advisors to the Project from its inception.This paper rests on our personal experience in connection with the project. This content downloaded by the authorized user from 192.168.82207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions

ANN SEIDMAN & ROBERT B. SEIDMAN Drafting Legislation for Development: Lessons from a Chinese Project The world around, in recent years many governments tried to use the state and the legal order radically to alter their economies: In Eastern Europe and in China, from centrally planned to more or less market economies; in the Third World, from dependent colonial to independent economies; in South Africa, from apartheid to a color￾blind system to meet all its people's needs. A variety of aid organiza￾tions jumped in to assist.' Lawyers and legal academics, mostly from the United States, jetted hither and yon on drafting missions, their briefcases like pigskin treasure chests, bulging with draft bills.2 This article reports on a five-year, United Nations Development Programme-financed project to assist China in drafting 22 priority laws, and in the process, to strengthen the capacity of Chinese draft￾ers ('the Project').3 The Project's experience may shed light on some of the theoretical and methodological debates scratched up by these wide-ranging attempts at social transformation through law. For example: ANN SEIDMAN is Adjunct Professor, Boston University School of Law and Interna￾tional Development and Social Change Programme, Clark University. ROBERT B. SEIDMAN is Professor, Emeritus, Boston University School of Law. For critique, we are indebted to Professors Joseph Brodley, David Lempert and Eric Gouvin for very useful critiques, and generally to the participants in the Boston University School of Law's Thursday Seminar; mistakes are, of course, ours. 1. These included the United Nations Development Programme, which sup￾ported programs in China, Laos, Vietnam and elsewhere; USAID, supporting various programs in Africa and in Eastern Europe; the World Bank, with programs in forty different countries; numerous bilateral aid agencies - for example, the Swedish aid agency, SIDA, NORSTAD (Norway), France and Australia; private NGOs (notably, the Ford Foundation, which supported law-related projects all over the world); the Asia Foundation (Cambodia and the Mekong Delta states); the American Bar Associa￾tion, whose Central and East European Law Initiative project (CEELI) helped draft laws all over Eastern Europe; and even universities (e.g., see "Symposilum: The Rus￾sian Petroleum Legislation Project at the University of Houston Law Center," 15 U. Houston IntL. L. J. 633 (1993) [hereinafter, 'Symposium"]). 2. In some countries, their efforts seemed likely to create a dependency on for￾eign aid in drafting. Cf. the Cargo Cult (During World War II, some Melanesians reportedly viewed airlifted food packages from the Allies as presents from an other￾worldly being). See John G. Strelan, Search for Salvation: Studies in the History and Theology of Cargo Cults (1977); Peter Worsley, The Trumpet Shall Sound:A Study of 'Cargo' Cults in Melanesia (1968); Glynn Cochrane, Big Men and Cargo Cults (1970). 3. We served as Chief Technical Advisors to the Project from its inception. This paper rests on our personal experience in connection with the project. 1 This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions

2 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.44 1.Many neo-classical economists treated a society's eco- nomic and other institutions as a black box;4 institutional economists instead identified institutions as the principal variable in economic analysis.5 2.Some neo-classical economists recommended a big bang,instantaneous transition from centrally planned to market economies;6 other theorists proposed a step-by-step transition.? 3.Some consultants urged their client countries to copy laws from other countries;8 others argued that a country must tailor its laws to its own circumstances.9 4.Some held that legislative outcomes depend only on the relative power of affected interest groups;10 others,that legislators can ground good law on practical reason,11 that is,on reason informed by experience.12 5.Some foreign assistance programs employed foreign consultants to draft laws for the host country,and some- 4.See,e.g.,Paul Samuelson,Economics:An Introductory Analysis (13th ed. 1989 5.See,e.g.,John R.Commons,Institutional Economics:Its Place in Political Economy (1934);Thorstein Veblen,The Theory of the Leisure Class:An Economic Study of Institutions (1957);William M.Dugger,Radical Institutionalism (1989); Geoffrey M.Hodgson,Economics and Institutions(1988);Louise G.White,Imple- menting Policy Reforms in LDCS:A Strategy for Designing and Effecting Change 6-7 (1990).Within orthodox neo-classical economics itself,a new institutionalism has re- cently become a significant movement.See,e.g.,Douglass C.North,Structure and Change in Economic History (1981);Oliver E.Williamson,Markets and Hierarchies: Analysis and Anti-trust Implications (1975);for useful comment,see Granovetter, "Economic Action and Social Structure:the Problem of Embededness,"91 Am.J.Soc. 481(1985). 6.See,e.g.,Jeffrey Sachs,Poland's Jump to the Market Economy (1993);The Transition in Eastern Europe (Olivier Jean Blanchard,Kenneth A.Frost Jeffrey Sachs,eds.1994). 7.See,e.g.,Peter Murrell,Conservative Political Philosophy and Strategy of Economic Transition (1991);Milor,"Changing Political Economies:An Introduction," in Changing Political Economies:Privatization in Post-Communist States and Re forming Communist States 1 (Vidat Milor,ed.1994). 8.See,e.g.,Galanter,"The Modernization of Law,"in Modernization:The Dy- namics of Growth 153(Myron Weiner,ed.1966);cf.Brun-Otto Bryde,The Politics and Sociology of African Legal Development (1976). 9.Robert B.Seidman,State,Law and Development Ch.2(1978);Ann Seidman Robert B.Seidman,State and Law in the Development Process:Institutions and Problem Solving in the Third World Ch.2(1994). 10.See Martin Carnoy,The State and Political Theory 9(1984);text at n.86 11.S-Sunstein,"Beyond the Republican Revival,"97 Yale L.JJ.1539 1544 (1988);Farber Frickey,"Practical Reason and the First Amendment,"34 UCLA L. Rev.1615,1645-46(19-Kronman,"Alexander Bickel's Philosophy of Prudence,"94 Yale L.1567,1605-06(1985);cf.Llewellyn,"Remarks on the Theory of Appellate Decision,"3 Vand.L.Rev.395,397(1950)(judges decide trouble cases involving deci- sions on what the law ought to be by reliance on 'situation sense'). 12.Seidman Seidman,supra n.9,at 64. This content downloaded by the authorized user from 192.168.82 207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions

2 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44 1. Many neo-classical economists treated a society's eco￾nomic and other institutions as a black box;4 institutional economists instead identified institutions as the principal variable in economic analysis.5 2. Some neo-classical economists recommended a 'big bang', instantaneous transition from centrally planned to market economies;6 other theorists proposed a step-by-step transition.7 3. Some consultants urged their client countries to copy laws from other countries;8 others argued that a country must tailor its laws to its own circumstances.9 4. Some held that legislative outcomes depend only on the relative power of affected interest groups;10 others, that legislators can ground good law on practical reason,11 that is, on reason informed by experience.12 5. Some foreign assistance programs employed foreign consultants to draft laws for the host country, and some- 4. See, e.g., Paul Samuelson, Economics: An Introductory Analysis (13th ed. 1989). 5. See, e.g., John R. Commons, Institutional Economics: Its Place in Political Economy (1934); Thorstein Veblen, The Theory of the Leisure Class: An Economic Study of Institutions (1957); William M. Dugger, Radical Institutionalism (1989); Geoffrey M. Hodgson, Economics and Institutions (1988); Louise G. White, Imple￾menting Policy Reforms in LDCS: A Strategy for Designing and Effecting Change 6-7 (1990). Within orthodox neo-classical economics itself, a new institutionalism has re￾cently become a significant movement. See, e.g., Douglass C. North, Structure and Change in Economic History (1981); Oliver E. Williamson, Markets and Hierarchies: Analysis and Anti-trust Implications (1975); for useful comment, see Granovetter, "Economic Action and Social Structure: the Problem of Embededness," 91 Am. J. Soc. 481 (1985). 6. See, e.g., Jeffrey Sachs, Poland's Jump to the Market Economy (1993); The Transition in Eastern Europe (Olivier Jean Blanchard, Kenneth A. Frost & Jeffrey Sachs, eds. 1994). 7. See, e.g., Peter Murrell, Conservative Political Philosophy and Strategy of Economic Transition (1991); Milor, "Changing Political Economies: An Introduction," in Changing Political Economies: Privatization in Post-Communist States and Re￾forming Communist States 1 (Vidat Milor, ed. 1994). 8. See, e.g., Galanter, "The Modernization of Law," in Modernization: The Dy￾namics of Growth 153 (Myron Weiner, ed. 1966); cf. Brun-Otto Bryde, The Politics and Sociology of African Legal Development (1976). 9. Robert B. Seidman, State, Law and Development Ch. 2 (1978); Ann Seidman & Robert B. Seidman, State and Law in the Development Process: Institutions and Problem Solving in the Third World Ch. 2 (1994). 10. See Martin Carnoy, The State and Political Theory 9 (1984); text at n. 86. 11. See Sunstein, "Beyond the Republican Revival," 97 Yale L. J. 1539 1544 (1988); Farber & Frickey, "Practical Reason and the First Amendment," 34 UCLA L. Rev. 1615, 1645-46 (1987); Kronman, "Alexander Bickel's Philosophy of Prudence," 94 Yale L. J. 1567, 1605-06 (1985); cf. Llewellyn, "Remarks on the Theory of Appellate Decision," 3 Vand. L. Rev. 395, 397 (1950) (judges decide trouble cases involving deci￾sions on what the law ought to be by reliance on 'situation sense'). 12. Seidman & Seidman, supra n. 9, at 64. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions

1996] CHINA:DEVELOPMENT LEGISLATION 3 times even to determine what laws to draft.13 Others (in- cluding the Project)used consultants not to draft the laws, but to counsel on drafts written by locals,in effect using the consultants as resource persons on foreign law and experience. To shed some light on these debates,this article: 1)describes the difficulties that led to China's request for assistance,in particular,prolonged delays in drafting bills, and the enactment of laws that failed to accomplish their purpose; 2)analyzes the causes of those difficulties:Principally,the drafters'inappropriate conceptualizations of their task;their lack of knowledge about how to use foreign law and experi- ence in drafting Chinese legislation;the inadequacy of their social science research skills;and their insufficient knowl- edge of drafting techniques; 3)explains how the Project proposed to solve these difficul- ties by improving the capacity of Chinese drafters in the course of engaging them in completing the 22 priority bills; and 4)summarizes some hypotheses as to the possible lessons the Project experience suggests relating to drafting for development. I.THE DIFFICULTIES THAT EXCITED THE PROJECT China's leaders rejected the argument that a government could transform a centrally-planned to a market economy in a "Big Bang,"14 an argument pinned on faith in market forces'capacity to forge the appropriate institutions ex nihilo.15 Their 1989 Five Year 13.That apparently was the case in a program in Laos,1991-94,and in Vietnam. 1993 to the present.In the University of Houston program,the University created drafting committees for the major bills at issue containing one or two Russian draft- ers,a University of Houston law professor,and several lawyers nominated by U.S.oil companies,Symposium,supra n.1. 14. Sachs,supra n.6. 15.An economy consists of a great number of interrelated institutions;if one fails, so do others that depend upon it.(If farmers does not produce enough rice,the rice mill goes on short time).In a developed economy,absent a single institution,usually market forces will forge the missing link.(If a complete farm-to-market system for rice exists,saving only transport for some farmers'produce to the rice mill,building a feeder road may suffice as the state's input;private enterprise likely will supply trucks to carry the rice.)Not so,however,where many necessary institutions do not exist.(If nothing exists between farmers in the hinterland growing rice and consum- ers in cities needing it,to expect market forces all at once to create the interdependent institutions necessary for a rice marketing system-rice mill,banks,wholesalers retailers,and transport between all of these and the farmer and the consumer- whistles with the shrimp.)No industrialized,market-driven economy developed en- tirely through market forces,except incrementally.The tiny handful of successful forced-draft industrializations that the world knows-for example,Japan and Korea This content downloaded by the authorized user from 192.168.82 207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions

1996] CHINA: DEVELOPMENT LEGISLATION 3 times even to determine what laws to draft.13 Others (in￾cluding the Project) used consultants not to draft the laws, but to counsel on drafts written by locals, in effect using the consultants as resource persons on foreign law and experience. To shed some light on these debates, this article: 1) describes the difficulties that led to China's request for assistance, in particular, prolonged delays in drafting bills, and the enactment of laws that failed to accomplish their purpose; 2) analyzes the causes of those difficulties: Principally, the drafters' inappropriate conceptualizations of their task; their lack of knowledge about how to use foreign law and experi￾ence in drafting Chinese legislation; the inadequacy of their social science research skills; and their insufficient knowl￾edge of drafting techniques; 3) explains how the Project proposed to solve these difficul￾ties by improving the capacity of Chinese drafters in the course of engaging them in completing the 22 priority bills; and 4) summarizes some hypotheses as to the possible lessons the Project experience suggests relating to drafting for development. I. THE DIFFICULTIES THAT EXCITED THE PROJECT China's leaders rejected the argument that a government could transform a centrally-planned to a market economy in a "Big Bang,"14 an argument pinned on faith in market forces' capacity to forge the appropriate institutions ex nihilo.15 Their 1989 Five Year 13. That apparently was the case in a program in Laos, 1991-94, and in Vietnam, 1993 to the present. In the University of Houston program, the University created drafting committees for the major bills at issue containing one or two Russian draft￾ers, a University of Houston law professor, and several lawyers nominated by U. S. oil companies, Symposium, supra n. 1. 14. Sachs, supra n. 6. 15. An economy consists of a great number of interrelated institutions; if one fails, so do others that depend upon it. (If farmers does not produce enough rice, the rice mill goes on short time). In a developed economy, absent a single institution, usually market forces will forge the missing link. (If a complete farm-to-market system for rice exists, saving only transport for some farmers' produce to the rice mill, building a feeder road may suffice as the state's input; private enterprise likely will supply trucks to carry the rice.) Not so, however, where many necessary institutions do not exist. (If nothing exists between farmers in the hinterland growing rice and consum￾ers in cities needing it, to expect market forces all at once to create the interdependent institutions necessary for a rice marketing system - rice mill, banks, wholesalers, retailers, and transport between all of these and the farmer and the consumer￾whistles with the shrimp.) No industrialized, market-driven economy developed en￾tirely through market forces, except incrementally. The tiny handful of successful, forced-draft industrializations that the world knows - for example, Japan and Korea This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions

4 THE AMERICAN JOURNAL OF COMPARATIVE LAW Vol.44 Plan's proposal to draft 22 priority laws16 reflected a recognition that law comprised government's primary tool to make the massive insti- tutional changes required to implement their proposed move towards what they called a "socialist"market economy.17 China's existing drafting system,however,seemed unable to produce rapidly the high-quality legislation urgently needed. In the 1980s,China introduced its Reforms and Open Policy.A World Bank study asserted18 that China had"created,on the whole, an extraordinarily equal society;it enjoyed a relatively high indus- trial growth rate1s and,compared to other third world countries,a relatively good quality of life for its average citizen.20 Nevertheless, developed through massive State interventions.See World Bank,East Asian Mir- acle-Economic Growth and Public Policy (1993).On the big bang/incrementalism dichotomies,see Murrell,supra n.7;Makgetla,Seidman Seidman,"Big Bangs and Decision-making:What Went Wrong?,"B.U.Int?L.J.(forthcoming,1995). 16.The Project addressed the following bills: (1)Planning Law(concerning economic planning) (2)Budget Law (3)Banking Law(central banking) (4)Domestic Investment Law (5)Enterprises Group Regulations (to govern operations of large enterprise groups) (6) Securities Law (7) Fair Competition Law (8) Consumers'Rights Protection Law (9)Auction Law(mainly concerning the sale of government property) (10)Agricultural Technology Extension Law (11)Agriculture Investment Law(to encourage capital investment in agriculture) (12)Foreign Trade Law (13)Regulations on Clearing Accounts of Foreign Investment Enterprises (ad- dressing insolvencies in companies with private foreign investment) (14) International Arbitration Regulations (15) Nature Protection Zones Regulations (16) Environment Protection in Mining Areas Regulations (17) Groundwater Utilization and Protection Regulations (18) Wild Plants Protection Regulations (19)Regulations Relating to Foreign Mining Investment (20)Education Law (21) Revised Provisional Regulation on Procedures for Enactment of Administra- tive Regulations (22)Rules for Drafting and Reviewing Bills and Regulations. In addition,the Ministry of Labor added four bills to the list:Old age and disabil- ity pensions;industrial accident compensation;unemployment insurance;and health care delivery. 17.Communique of the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China(December 22,1978);see,generally,Domestic Law Reforms in Post-Mao China (Pitman B.Potter,ed.1994);Deng Xiao Ping,quoted in Ronald C.Keith,China's Struggle for the Rule of Law 20(1994)("...law is better than no law,faster [law-making]is better than slower llaw-making]). 18.World Bank,China-Long Term Development Issues and Options:A World Bank Country Economic Report 29(1985). 19.Gene Tidrick Chen Jiynan,China's Industrial Reform ix (1987);see also World Bank,id.,at 110. 20.Most Chinese enjoyed higher real living standards than people in other simi- larly low-income countries.Agricultural collectivization had prevented the emer- gence of an impoverished class of landless laborers.The state guaranteed the This content downloaded by the authorized user from 192.168.82 207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions

4 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44 Plan's proposal to draft 22 priority laws16 reflected a recognition that law comprised government's primary tool to make the massive insti￾tutional changes required to implement their proposed move towards what they called a "socialist" market economy.17 China's existing drafting system, however, seemed unable to produce rapidly the high-quality legislation urgently needed. In the 1980s, China introduced its Reforms and Open Policy. A World Bank study asserted18 that China had "created, on the whole, an extraordinarily equal society;" it enjoyed a relatively high indus￾trial growth rate19 and, compared to other third world countries, a relatively good quality of life for its average citizen.20 Nevertheless, - developed through massive State interventions. See World Bank, East Asian Mir￾acle-Economic Growth and Public Policy (1993). On the big bang/incrementalism dichotomies, see Murrell, supra n. 7; Makgetla, Seidman & Seidman, "Big Bangs and Decision-making: What Went Wrong?," B. U. Int'l L. J. (forthcoming, 1995). 16. The Project addressed the following bills: (1) Planning Law (concerning economic planning) (2) Budget Law (3) Banking Law (central banking) (4) Domestic Investment Law (5) Enterprises Group Regulations (to govern operations of large enterprise groups) (6) Securities Law (7) Fair Competition Law (8) Consumers' Rights Protection Law (9) Auction Law (mainly concerning the sale of government property) (10) Agricultural Technology Extension Law (11) Agriculture Investment Law (to encourage capital investment in agriculture) (12) Foreign Trade Law (13) Regulations on Clearing Accounts of Foreign Investment Enterprises (ad￾dressing insolvencies in companies with private foreign investment) (14) International Arbitration Regulations (15) Nature Protection Zones Regulations (16) Environment Protection in Mining Areas Regulations (17) Groundwater Utilization and Protection Regulations (18) Wild Plants Protection Regulations (19) Regulations Relating to Foreign Mining Investment (20) Education Law (21) Revised Provisional Regulation on Procedures for Enactment of Administra￾tive Regulations (22) Rules for Drafting and Reviewing Bills and Regulations. In addition, the Ministry of Labor added four bills to the list: Old age and disabil￾ity pensions; industrial accident compensation; unemployment insurance; and health care delivery. 17. Communique of the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China (December 22, 1978); see, generally, Domestic Law Reforms in Post-Mao China (Pitman B. Potter, ed. 1994); Deng Xiao Ping, quoted in Ronald C. Keith, China's Struggle for the Rule of Law 20 (1994)(". . .law is better than no law, faster [law-making] is better than slower [law-making]"). 18. World Bank, China - Long Term Development Issues and Options: A World Bank Country Economic Report 29 (1985). 19. Gene Tidrick & Chen Jiynan, China's Industrial Reform ix (1987); see also World Bank, id., at 110. 20. Most Chinese enjoyed higher real living standards than people in other simi￾larly low-income countries. Agricultural collectivization had prevented the emer￾gence of an impoverished class of landless laborers. The state guaranteed the This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions

1996] CHINA:DEVELOPMENT LEGISLATION 5 by the early 1980s,it still had a mixed bag of technologies:Perhaps 5%,late 20th century(mainly in the military and military produc- tion);about half,a decade or more out of date;the rest,far behind the first world.21 China's farmers fed 22%of the world's population on 7%of world's arable soil,22 but to do so employed 40%of its popula- tion.23 The government concluded that,to accelerate its economic growth,it must introduce fundamental economic reforms24 and open its economy to the outside world. China's leaders moved rapidly.In 1979,they first largely de-col- lectivized agriculture.25 Increasingly,in as many sectors of the econ- omy as feasible,they sought to submit investment decisions to market forces'guidance.26 Simultaneously,they aimed to attract for- eign private investment,managerial skills,know how'and access to international markets.27 Their new strategy produced some remark- minimum necessary food supply.Primary school enrollment was high.Most people had access to basic medical care and family services.In 1985,life expectancy,"proba- bly the best single indicator of the extent of real poverty,"averaged 67 years -well above the Third World median.World Bank,supra n.18. 21.World Bank,supra n.18. 22.Stavis,"People's Communes and Rural Development in China,"in 2 Rural Development and Local Organization in Asia 13 (Norman Uphoff,ed.1982). 23.By contrast,less than 2%of the United States's population not only fed its population,but produced substantial food surpluses for export.U.S.Bureau of the Census,U.S.Statistical Abstract (114th ed.1994). 24.Described in a series of documents:E.g.,Communique,supra n.17;Decision of the Central Committee of the Communist Party of China on Reform of the Eco- nomic Structure,adopted at the 12th Central Committee of the Communist Party of China at its Third Plenary Session,October 20,1984.These documents make it clear that China's leaders at the time believed that they could maintain legitimacy only by providing a rising standard of living for the mass of the population.Max Weber of- fered two propositions that may help to explain why the Chinese initiatives towards establishing a legal order emerged at this time in Chinese history.He held that,to create a framework of predictability of state action,market actors require adherence to law and legal-rational thought.'(But see below,text at infra n.126).Further,he suggested that all revolutionary regimes achieve their initial legitimacy because of the 'charisma'of a great leader-George Washington,Lenin,Ghandi.Charisma has no real content;literally,it means a gift of God.Weber used the term to mean that indefinable something that great leaders have.With the death of the great leader,the successor rulers have little choice save to search for legal-rational legitimacy.Max Weber,The Theory of Social and Economic Organization(A.M.Henderson Talcott Parsons,tr.;Talcott Parsons,ed.1947);Max Weber,Economy and Society (G.Roth C.Wittich,eds.1978).Legal-rational legitimacy implies the rule of law.China's search for a rational legal framework for government seems to exemplify both Weber's propositions. 25.See,generally,William Hinton,The Great Reversal(1989);Potter,supra n. 17.While the state retained formal land ownership,the peasants contracted to use it for prolonged periods in exchange for fixed annual quotas of grain at a pre-set low price.They had the right to sell all their surplus output on the free market(where prices ranged significantly higher than the government's contract price).In effect, they leased the land from the state for a rent equal to the difference between what they received from the state and what they might have received by selling all their crop at the market price. 26.Potter,supra n.17. 27.World Bank,supra n.18;see also Potter,supra n.17. This content downloaded by the authorized user from 192.168.82 207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions

1996] CHINA: DEVELOPMENT LEGISLATION 5 by the early 1980s, it still had a mixed bag of technologies: Perhaps 5%, late 20th century (mainly in the military and military produc￾tion); about half, a decade or more out of date; the rest, far behind the first world.21 China's farmers fed 22% of the world's population on 7% of world's arable soil,22 but to do so employed 40% of its popula￾tion.23 The government concluded that, to accelerate its economic growth, it must introduce fundamental economic reforms24 and open its economy to the outside world. China's leaders moved rapidly. In 1979, they first largely de-col￾lectivized agriculture.25 Increasingly, in as many sectors of the econ￾omy as feasible, they sought to submit investment decisions to market forces' guidance.26 Simultaneously, they aimed to attract for￾eign private investment, managerial skills, 'know how' and access to international markets.27 Their new strategy produced some remark￾minimum necessary food supply. Primary school enrollment was high. Most people had access to basic medical care and family services. In 1985, life expectancy, "proba￾bly the best single indicator of the extent of real poverty," averaged 67 years - well above the Third World median. World Bank, supra n. 18. 21. World Bank, supra n. 18. 22. Stavis, "People's Communes and Rural Development in China," in 2 Rural Development and Local Organization in Asia 13 (Norman Uphoff, ed. 1982). 23. By contrast, less than 2% of the United States's population not only fed its population, but produced substantial food surpluses for export. U.S. Bureau of the Census, U.S. Statistical Abstract (114th ed. 1994). 24. Described in a series of documents: E.g., Communique, supra n. 17; Decision of the Central Committee of the Communist Party of China on Reform of the Eco￾nomic Structure, adopted at the 12th Central Committee of the Communist Party of China at its Third Plenary Session, October 20, 1984. These documents make it clear that China's leaders at the time believed that they could maintain legitimacy only by providing a rising standard of living for the mass of the population. Max Weber of￾fered two propositions that may help to explain why the Chinese initiatives towards establishing a legal order emerged at this time in Chinese history. He held that, to create a framework of predictability of state action, market actors require adherence to law and 'legal-rational thought.' (But see below, text at infra n. 126). Further, he suggested that all revolutionary regimes achieve their initial legitimacy because of the 'charisma' of a great leader - George Washington, Lenin, Ghandi. Charisma has no real content; literally, it means a gift of God. Weber used the term to mean that indefinable something that great leaders have. With the death of the great leader, the successor rulers have little choice save to search for legal-rational legitimacy. Max Weber, The Theory of Social and Economic Organization (A.M. Henderson & Talcott Parsons, tr.; Talcott Parsons, ed. 1947); Max Weber, Economy and Society (G. Roth & C. Wittich, eds. 1978). Legal-rational legitimacy implies the rule of law. China's search for a rational legal framework for government seems to exemplify both Weber's propositions. 25. See, generally, William Hinton, The Great Reversal (1989); Potter, supra n. 17. While the state retained formal land ownership, the peasants contracted to use it for prolonged periods in exchange for fixed annual quotas of grain at a pre-set low price. They had the right to sell all their surplus output on the free market (where prices ranged significantly higher than the government's contract price). In effect, they leased the land from the state for a rent equal to the difference between what they received from the state and what they might have received by selling all their crop at the market price. 26. Potter, supra n. 17. 27. World Bank, supra n. 18; see also Potter, supra n. 17. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions