The Economic Rationale in the EcologicalCustomary Law of Ethnic Minorities

Yu Guizhong　 Xu Yanfei

DOI：10.3969/j.issn.1674-9391.2020.04.003Abstract：This paper attempts to sort out the economic rationale of ethnic minority ecological customary law from the perspective of law and economics， explore the evolution and development of the rules of the ethnic minority system of ecological customary law under the commonality of economic rationale and ethnic cultural traits. And， by doing so， broaden and innovate the research scope and methodology of ethnic minority ecological customary law.

I.Theoretical basis： the hypothesis of the “ecological-economic-person”

The basic hypothesis of the “ecological-economic-person”， as the basis of the research paradigm of law and economics， is an important premise to explain. It is also important to verify the evolutionary process and internal logic of the ecological customary law system of ethnic minorities， which plays an important role in the derivation of the internal logic of law and economics theory.  People in the ecological economic system benefit not only from both the economic system and the ecosystem， but also from the coordination of the two. The ecologicaleconomicperson not only pursues the ecological rational value of harmony and symbiosis between humans and nature， but also pursues the economic rationality of maximizing economic benefits（Yao， 2016）. The ethnic minorities， who are known as ecologicaleconomic persons， pay attention to the ecological and economic and rational value of their behavioral norms， advocate the organic unity of protecting both the ecological environment and productive forces， and seek a balance between ecological environmental protection and social and economic development. As a phenomenon of consciousness， the economic rationale of the ecological customary law of ethnic minorities is the embodiment of the rational consciousness of the national collective economy， and the common behavioral choices of collective economic rationale made by the economic and psychological accumulation of ethnic groups in the face of the application of rules and norms. The formation of a collective economic rational consciousness is not the simple addition of individual economic rational consciousness， but the process of the accumulation of rational choices by ecological economic conditions. The order of the traditional ecological environment of ethnic minorities， including ecological customary law， is an external treatment because of the economic rationale of individual consciousness and social consciousness of ethnic minorities， which serves the ecological environment and economic protection and social development of ethnic minorities.

II.Legal analysis： the interpretation of institutional economics

As an informal system， the ecological customary law of ethnic minorities is composed of a series of ecological customs， ecological taboos， ecological knowledge，local village rules and regulations，  religious beliefs and other ecological norms. The ecological customary law of ethnic minorities exhibits the characteristics of locality， extensiveness and persistence. In the ecological environmental protection of ethnic minority areas， to some extent， ecological customary law is more important and practical than the environmental protection law of the national government. In addition， institutional economics reveals the influence of customs， laws， ways of thinking and other systems on economic development， emphasizing that the emergence and development of legal systems are restricted by the economic base. Therefore， the formation， operation and development of the ecological customary law of ethnic minorities are also restricted by the economic base. The economic rationale formed by the continuous accretion of the ecological customary law system of many ethnic minorities can be explored and we can see it has certain patterns. The economic rational model of ecological customary law derives from the “cultural soil” and the local legal culture environment of the ethnic minorities. It reflects the rational choices of the ethnic minority itself， and the crystallization of their ecological wisdom. The natural economic rational law formed within traditional ecological customary law culture is adapted to the local legal “cultural soil” of the ethnic minorities.

III.Analysis and argument： the behavioral logic of economic rationality

Firstly， there is the dilemma of national judicial communication. Since ancient times， within the social legal norms of Chinese society， there have been laws not only to regulate the relationship between the protection of ecological environment and resources but there have also been a large number of folk rules， such as the ecological customary law of ethnic minorities. Moreover， the ecological customary law of ethnic minorities plays an important role in the protection of ecological environment resources within the legal system. Its unique modern value and proper functioning is an important supplement and expansion to the disadvantages of “main stream” environmental law. The dilemma of the ecological rule of law， such as the national environmental judicial communication dilemma and the scarcity of such law， is an important reason for the large number of informal legal systems， such as the ecological customary law of ethnic minorities in society and their continuation  the present. The intervention of civil authority organizations is an important link and a major characteristic of the formation of ecological customary law. The intervention of civil authority organizations can effectively make up for the deficiencies in the national environmental legal system. It plays an important role in guiding， educating， evaluating and predicting the social and economic order of ecological resources among ethnic regions， thus improving the efficiency of the national ecological rule of law， and saving the cost of national rule of law. In the practice of the rule of law in the modern environment， the ecological customary law of ethnic minorities actually plays the role of replacing， compensating， or specifying， or extending the national law to maintain the local social order. Its value is reflected in the indirect legal source of environmental legislation， the adaptive rules of environmental management， and the new mechanism of multiple environmental disputes resolution （Guo，2013）. The dilemma of judicial communication and the assumption of there being a scarcity of legal resources are the external factors and economic essence of ecological customary law. Systems， as an important variable， determine people's behavioral choices under the rules of the system. In practice， people consciously abide by and recognize the legal system， which must conform to the rational choices of legal subjects and the legal system of maximizing benefits.

Secondly， the promotion of property rights. The traditional social and economic structure of ethnic minority areas with regard to property rights promotes an economic rational formation and development of the ecological customary law of ethnic minorities. Most of the social and economic relationships in ethnic minority areas revolve around families or ethnic groups， and their dependence is based on the longterm “defacto private ownership” of the land system. The key to the existence of ecological customary law is that it can protect property right relationships， thus， providing the best mechanism for maintaining resources and using investment mechanisms to reduce transaction costs. The relationship between the traditional farming economic model and property rights system and the credit system of a society in which everyone knows each other （a “facetoface society”）  that is found in ethnic minority areas is the cornerstone of the ecological customary law of ethnic minorities. This makes it possible to consolidate economic rationale， and economic rationale is also the inevitable rational choice of minority groups under specific legal conditions.

Thirdly，there is the rational choice between cost and benefit. The key to the existence of minority ecological customary law is that it can save on transaction costs. Transaction costs play an important role in the arrangement of legal systems， legal behavior and dispute resolution procedures of rational choice and games of benefit.. It also explains the evolutionary process of the ecological customary law system and the important category of internal logic （Feng，2001）. Ecological customary law， after all， is a set of systems ranging from organization to behavior， from static to dynamic， aimed at reducing transaction costs and protecting the ecological environment， and promoting the development of social ecological economy. The ecological customary law of ethnic minorities ensures effective environmental protection in a specific area because of the cohesive effect of their group association， the shaping function of traditional culture， the strengthening effect of religious factors and the guarantee of collective sanctions. The ultimate goal of the rules in the ecological environment is to save costs and expenses， improve efficiency， optimize the allocation of resources， and build a beautiful China.

Fourthly，there is the incentive mechanism of punitive damages for ecological damage. The ecological customary law of ethnic minorities is based on traditional agricultural economics， which is used to regulate the behavioral norms and economic and social legal relationships for protecting the ecological resources of various ethnic groups， and to safeguard and reconcile the ecological and economic interests of ethnic minorities. Punitive damages for ecological damage are part of an ecological customary law system designed to overcome and alleviate the deficiencies of ecological liability caused by “performance error”. The purpose is to make the level of compensation for ecological damage equal to the external social cost caused by the damaging behavior， and then to provide incentives to encourage the lawabiding behavior of the perpetrators. The ecological customary law of ethnic minorities is carried out with several villages as the basic unit， in which both the individual and the subgroup share both weal and woe， and belong to a destined community.Punitive damages of its ecological damage emphasize a system of collective mutual aid organizations-a joint liability  which is based on identity， trust，  blood relationships and region， and can be said to be an effective ecological governance model for social governance in minority areas.  The ecological customary law of ethnic minorities uses the incentive mechanism of ecological damage punishment compensation of joint liability to protect the overall environmental rights and interests of the ethnic groups and the common ecological interests. The main purpose is to maintain the good operation of the ecosystem on which the national society depends for its survival， and to realize the organic unity of ecology and survival， thus ensuring the harmonious and sustainable development of social groups.

Key Words： ethnic minority;ecological customary law;economic rationality;law and economics

References：

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Guo Wu.huanjing xiguanfa ji qi xiandai jiazhi zhankai （A Research on Environmental Customary Law and Its Modern Value）. In Gansu Social Sciences， 2013，（6）.

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