《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

6 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.44 able successes.As the decade of the 1990s began,the World Bank suggested that China might become another Asian miracle.28 Today,nearly everyone agrees that a market requires an appro- priate legal structure.29 Obviously,investors need laws to ensure the stability and predictability they require to risk their capital3o mainly,the laws some label private'law (principally contract and property law in all their multitudinous varieties).As the list of 22 priority laws and other laws now in draft indicate,31 China's govern- ment recognized the necessity of additional laws to structure the market's institutional infrastructure;for example,the social security regulations,an agricultural extension law,environmental legislation, and an education law.32 Just as markets take many different forms,so the laws that cre- ate,change or buttress the institutions markets need to function take many different forms.33 The kinds of rules a government enacts help to shape the kind of markets that will develop.34 All law prescribes repetitive patterns of behavior for its address- ees.35 By definition,patterns of repetitive behaviours comprise 'insti- 28.World Bank,supra n.18;but cf.Chantornvong,"Toqueville's Democracy in America and the Third World,"in Vincent Ostrom,Rethinking Institutional Analysis and Development 69 (1993);SeidmanSeidman,supra n.9,at 47-50.The Bank really defines an 'economic miracle'as a country with a high growth rate;it pays relatively little attention to distribution issues. 29.See,e.g.,Richard A.Posner,The Economic Analysis of Law (3rd ed.1986); Reich,"Of Markets and Myths,"83 Commentary 38(1987). 30.Weber,supra n.24. 31. See supra n.16. 32.Cf.Zhou Zhiyang (sometime General Secretary,Communist Party of China, and later,until 1989,Prime Minister),in Keith,supra n.17,at 22("We must attend to legislation and to economic development and reform at the same time....on the one hand,we should improve legislation and the procedures for law enforcement,en- able the judicial organs to exercise independent authority,as prescribed by law,and enhance citizens'awareness of law;on the other hand we should see to it that legisla- tion guarantees good order in economic development. We should try to define,in terms of laws and rules,what should be encouraged and what should be rejected. Only in this way can we bring about a new standard for political,economic and social activities....In short,through reform we should gradually establish a legal frame- work for our socialist democracy and institutionalize it.This is a fundamental guar- antee against a recurrence of the 'cultural revolution'and for lasting political stability in our country.") 33.Consider,for example,that bane of the first year law student,the 'majority' and 'minority'versions of practically any rule one chooses for contract and property laws. 34.Reich,supra n.29,at 38("The idea of a market somehow separate from law is a fantasy.The market was not created by divine will.It is a human artifact....What is mine?What is yours?What is ours?And how do we deal with actions that threaten these borders-theft,force,fraud,extortion or carelessness?What should we trade,and what should we not?(Drugs?Sex?Votes?Babies?)How should we enforce these decisions and what penalties apply to transgressions?As a culture ac- cumulates answers to these questions,it creates its version of the market.") 35.This holds whatever the form of law.A law may in terms declare rights and duties;in fact,it embodies rules concerning behavior.The law's statement that A has title to her wrist watch says only that A has a right to possession,to sell,to lease,to 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

6 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44 able successes. As the decade of the 1990s began, the World Bank suggested that China might become another Asian miracle.28 Today, nearly everyone agrees that a market requires an appro￾priate legal structure.29 Obviously, investors need laws to ensure the stability and predictability they require to risk their capital30 mainly, the laws some label 'private' law (principally contract and property law in all their multitudinous varieties). As the list of 22 priority laws and other laws now in draft indicate,3' China's govern￾ment recognized the necessity of additional laws to structure the market's institutional infrastructure; for example, the social security regulations, an agricultural extension law, environmental legislation, and an education law.32 Just as markets take many different forms, so the laws that cre￾ate, change or buttress the institutions markets need to function take many different forms.33 The kinds of rules a government enacts help to shape the kind of markets that will develop.34 All law prescribes repetitive patterns of behavior for its address￾ees.35 By definition, patterns of repetitive behaviours comprise 'insti- 28. World Bank, supra n. 18; but cf. Chantornvong, "Toqueville's Democracy in America and the Third World," in Vincent Ostrom, Rethinking Institutional Analysis and Development 69 (1993); Seidman & Seidman, supra n. 9, at 47-50. The Bank really defines an 'economic miracle' as a country with a high growth rate; it pays relatively little attention to distribution issues. 29. See, e.g., Richard A. Posner, The Economic Analysis of Law (3rd ed. 1986); Reich, 'Of Markets and Myths," 83 Commentary 38 (1987). 30. Weber, supra n. 24. 31. See supra n. 16. 32. Cf. Zhou Zhiyang (sometime General Secretary, Communist Party of China, and later, until 1989, Prime Minister), in Keith, supra n. 17, at 22 ("We must attend to legislation and to economic development and reform at the same time... .on the one hand, we should improve legislation and the procedures for law enforcement, en￾able the judicial organs to exercise independent authority, as prescribed by law, and enhance citizens' awareness of law; on the other hand we should see to it that legisla￾tion guarantees good order in economic development... .We should try to define, in terms of laws and rules, what should be encouraged and what should be rejected. Only in this way can we bring about a new standard for political, economic and social activities... In short, through reform we should gradually establish a legal frame￾work for our socialist democracy and institutionalize it. This is a fundamental guar￾antee against a recurrence of the 'cultural revolution' and for lasting political stability in our country.") 33. Consider, for example, that bane of the first year law student, the 'majority' and 'minority' versions of practically any rule one chooses for contract and property laws. 34. Reich, supra n. 29, at 38 ("The idea of a market somehow separate from law is a fantasy. The market was not created by divine will. It is a human artifact... What is mine? What is yours? What is ours? And how do we deal with actions that threaten these borders - theft, force, fraud, extortion or carelessness? What should we trade, and what should we not? (Drugs? Sex? Votes? Babies?) How should we enforce these decisions and what penalties apply to transgressions? As a culture ac￾cumulates answers to these questions, it creates its version of the market.") 35. This holds whatever the form of law. A law may in terms declare rights and duties; in fact, it embodies rules concerning behavior. The law's statement that A has title to her wrist watch says only that A has a right to possession, to sell, to lease, to 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 7 tutions.'36 New law therefore always prescribes institutional change.When China's 1990 Five Year Plan called for a new banking law,a new education law,a new budget law,and new drafting regu- lations,it called for new social behaviours on the part of the actors who,collectively,comprised its banking,educational,budget and drafting institutions.To draft these new laws,China's drafters had to learn how to use the legal order to change those social behaviors. Most capitalist countries'institutional structures and their asso- ciated legal orders acquired their particular market-oriented cast in- crementally over centuries.37 To implement its market reforms, China needed a whole bookcase of new laws,and a whole forest of new institutions-instanter.To produce these,China had to make deep-seated changes in its legislative drafting institutions. China's leaders did take important strides to reform the coun- try's legal order.They changed the Constitution;they enacted some laws relating to the market economy;and they restructured the insti- tutions that created law.They created and progressively strength- ened the Bureau of Legislative Affairs(BLA)as the State Council's legal advisors.By 1990,the national BLA employed 260 personnel, including 164 legislative drafters.38 In every province and in the larger and even medium-sized cities,it established loosely-affiliated branch offices to assist and supervise local law-making and law-im- plementing activities.39 In addition,every central government minis- try and department established a Department of Legal Affairs(DLA) to draft laws and regulations to implement its policies and programs. Averaging about twenty lawyer and non-lawyer professionals(mainly social scientists and,in appropriate ministries,engineers),the na- tional DLAs employed about 1,200 professionals. pledge,and do manifold other things with it,and that others may not tamper with it. Even the law that enacts the national budget has no meaning apart from its implied injunctions for behavior by officials dealing with governmental money matters.See Seidman Seidman,supra n.9,at 35. 36.George Casper Homans,The Nature of Social Science (1967). 37.See.e.g.,Morton J.Horwitz,The Transformation of American Law,1780-1860 (1977). 38.In China,both lawyers and non-lawyer professionals,especially economists and other experts in fields relevant to particular bills,serve on drafting teams.BLA's 160 professionals had diverse backgrounds.Many came from peasant parents;many had parents who themselves were cadre,i.e.,Party or government functionaries.They mostly entered government on the basis of outstanding academic records.We as- sumed they all held Party membership,as(so far as we understand)do practically all government officials.Most seemed between their late '20s and early 40s,i.e.,mid- career,upwardly mobile bureaucrats.One of the joys of the Project lay in the very high level of intelligence of the drafters with whom we dealt.The trainers,especially, seemed outstanding,veritable teachers'dream students. 39.Provincial and local BLAs informed provinces and localities about the re- quirements of new laws and otherwise served provincial state councils in a way analo- gous to the relationship between BLA and the State Council at the national level. 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 7 tutions.'36 New law therefore always prescribes institutional change. When China's 1990 Five Year Plan called for a new banking law, a new education law, a new budget law, and new drafting regu￾lations, it called for new social behaviours on the part of the actors who, collectively, comprised its banking, educational, budget and drafting institutions. To draft these new laws, China's drafters had to learn how to use the legal order to change those social behaviors. Most capitalist countries' institutional structures and their asso￾ciated legal orders acquired their particular market-oriented cast in￾crementally over centuries.37 To implement its market reforms, China needed a whole bookcase of new laws, and a whole forest of new institutions - instanter. To produce these, China had to make deep-seated changes in its legislative drafting institutions. China's leaders did take important strides to reform the coun￾try's legal order. They changed the Constitution; they enacted some laws relating to the market economy; and they restructured the insti￾tutions that created law. They created and progressively strength￾ened the Bureau of Legislative Affairs (BLA) as the State Council's legal advisors. By 1990, the national BLA employed 260 personnel, including 164 legislative drafters.38 In every province and in the larger and even medium-sized cities, it established loosely-affiliated branch offices to assist and supervise local law-making and law-im￾plementing activities.39 In addition, every central government minis￾try and department established a Department of Legal Affairs (DLA) to draft laws and regulations to implement its policies and programs. Averaging about twenty lawyer and non-lawyer professionals (mainly social scientists and, in appropriate ministries, engineers), the na￾tional DLAs employed about 1,200 professionals. pledge, and do manifold other things with it, and that others may not tamper with it. Even the law that enacts the national budget has no meaning apart from its implied injunctions for behavior by officials dealing with governmental money matters. See Seidman & Seidman, supra n. 9, at 35. 36. George Casper Homans, The Nature of Social Science (1967). 37. See. e.g., Morton J. Horwitz, The Thansformation ofAmerican Law, 1780-1860 (1977). 38. In China, both lawyers and non-lawyer professionals, especially economists and other experts in fields relevant to particular bills, serve on drafting teams. BLA's 160 professionals had diverse backgrounds. Many came from peasant parents; many had parents who themselves were cadre, i.e., Party or government functionaries. They mostly entered government on the basis of outstanding academic records. We as￾sumed they all held Party membership, as (so far as we understand) do practically all government officials. Most seemed between their late '20s and early '40s, i.e., mid￾career, upwardly mobile bureaucrats. One of the joys of the Project lay in the very high level of intelligence of the drafters with whom we dealt. The trainers, especially, seemed outstanding, veritable teachers' dream students. 39. Provincial and local BLAs informed provinces and localities about the re￾quirements of new laws and otherwise served provincial state councils in a way analo￾gous to the relationship between BLA and the State Council at the national level. 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

8 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.44 China's drafting institutions plainly lodged with the officials they called 'drafters'responsibilities not only for the law's form,but also for its substantive content.Implicitly,that rejected the British- American myth that drafters merely put legislators'policy decisions into the law's abstruse language.40 In China,the National People's Congress(NPC)has almost al- ways approved bills submitted to it by its Standing Committee or the State Council.41 Only rarely did the State Council reject drafts sub- mitted by the BLA;only rarely did the Standing Committee reject drafts forwarded to it by the State Council.42 Furthermore,the draft- ers'nominal political superiors gave them few instructions,typically only identifying the difficulty the proposed law should address.(In a few cases,they merely gave the desired law its name.)In practice, therefore,the officials whom China denoted as drafters had to deal, not merely with issues of form,but issues of substance.43 In addition, 40.See Robert Luce,Legislative Procedures:Parliamentary Practices and the Course of Business in the Framing of Statutes 547(1922),quoting Charles McCarthy The Wisconsin Idea(1922).That this constitutes a myth,see Purdy,"Professional Responsibility for Legislative Drafters:Suggested Guidelines and Discussions of Eth- ics and Role Problems,"11 Seton Hall Legis.J.67,80("The typical view of the drafter as mere translator',zealously serving the legislator-client's wishes. .assumes the legislator has a clear conception of the law he or she wants drafted.Reality fre- quently differs.The legislator may have no more than a vague idea of a problem,or a simplistic complaint from a constituent.In such cases,the drafter often may end up defining,formulating,or even instilling such ideas in the legislator,then drafting them.");Jack Davies,Legislative Law and Process in a Nutshell 139-40(2d ed.1986). 41.This is typical of parliamentary systems everywhere,and almost all presiden- tial systems as well.See generally,Do Institutions Matter?Government Capabilities in the United States and Abroad (R.Kent Weaner Bert A.Rockman.eds.1992):and infra n.153. 42.The NPC's Standing Committee has its own drafting capability.In the past several years,BLA has drafted about 80%of the laws and regulations promulgated by the State Council or enacted by the NPC,and the Standing Committee,20%.The Constitution,of course,lodges law-making power with the NPC.The NPC Standing Committee,however,has delegated to the State Council (in very vague terms)power to make regulations with the force of law on all matters relating to the Reforms.In practice,the State Council in turn delegates much of this power to BLA.For example, BLA in fact formulated the list of 22 priority laws that formed the core of the Project; see supra n.16. 43.In the world of practice rather than myth,in every system the civil service (including the legislative drafters)resolves substantive issues.For example,in the British drafting process,ministerial civil servants devise the legislative program,em- bodied in a memorandum,or sometimes in a layman's draft'of the bill.After ap- proval by the Cabinet Committee on Legislation,that goes to parliamentary Counsel for drafting.Inevitably,the drafters must devise the details for inclusion in the final bill-and policy secretes itself in the details.That draft bill goes back to the civil servants for review,and for comment by 'interested parties'selected by the civil ser- vants.Kean,"Drafting a Bill in Britain,"5 Harv.JJ.Leg.253(1968).Although the British and Chinese adopted different notions of what the word 'drafting'subsumes, in practice their respective systems constitute functional equivalents.The explana- tion for the involvement of putatively 'technician'drafters in matters of policy in each case also seems the same.As in China,so in Britain:The parliamentary system guarantees a built-in automatic government majority.In Britain,except in very rare instances,government bills come to Parliament with an assurance of enactment by the majority party MPs.See,generally,Weaner Rockman,supra n.41.Before 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

8 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44 China's drafting institutions plainly lodged with the officials they called 'drafters' responsibilities not only for the law's form, but also for its substantive content. Implicitly, that rejected the British￾American myth that drafters merely put legislators' policy decisions into the law's abstruse language.40 In China, the National People's Congress (NPC) has almost al￾ways approved bills submitted to it by its Standing Committee or the State Council.4' Only rarely did the State Council reject drafts sub￾mitted by the BLA; only rarely did the Standing Committee reject drafts forwarded to it by the State Council.42 Furthermore, the draft￾ers' nominal political superiors gave them few instructions, typically only identifying the difficulty the proposed law should address. (In a few cases, they merely gave the desired law its name.) In practice, therefore, the officials whom China denoted as drafters had to deal, not merely with issues of form, but issues of substance.43 In addition, 40. See Robert Luce, Legislative Procedures: Parliamentary Practices and the Course of Business in the Framing of Statutes 547 (1922), quoting Charles McCarthy, The Wisconsin Idea (1922). That this constitutes a myth, see Purdy, "Professional Responsibility for Legislative Drafters: Suggested Guidelines and Discussions of Eth￾ics and Role Problems," 11 Seton Hall Legis. J. 67, 80 ("The typical view of the drafter as mere 'translator', zealously serving the legislator-client's wishes .... assumes the legislator has a clear conception of the law he or she wants drafted. Reality fre￾quently differs. The legislator may have no more than a vague idea of a problem, or a simplistic complaint from a constituent. In such cases, the drafter often may end up defining, formulating, or even instilling such ideas in the legislator, then drafting them."); Jack Davies, Legislative Law and Process in a Nutshell 139-40 (2d ed. 1986). 41. This is typical of parliamentary systems everywhere, and almost all presiden￾tial systems as well. See generally, Do Institutions Matter? Government Capabilities in the United States and Abroad (R. Kent Weaner & Bert A. Rockman, eds. 1992); and infra n. 153. 42. The NPC's Standing Committee has its own drafting capability. In the past several years, BLA has drafted about 80% of the laws and regulations promulgated by the State Council or enacted by the NPC, and the Standing Committee, 20%. The Constitution, of course, lodges law-making power with the NPC. The NPC Standing Committee, however, has delegated to the State Council (in very vague terms) power to make regulations with the force of law on all matters relating to the Reforms. In practice, the State Council in turn delegates much of this power to BLA. For example, BLA in fact formulated the list of 22 priority laws that formed the core of the Project; see supra n. 16. 43. In the world of practice rather than myth, in every system the civil service (including the legislative drafters) resolves substantive issues. For example, in the British drafting process, ministerial civil servants devise the legislative program, em￾bodied in a memorandum, or sometimes in a 'layman's draft' of the bill. After ap￾proval by the Cabinet Committee on Legislation, that goes to Parliamentary Counsel for drafting. Inevitably, the drafters must devise the details for inclusion in the final bill - and policy secretes itself in the details. That draft bill goes back to the civil servants for review, and for comment by 'interested parties' selected by the civil ser￾vants. Kean, "Drafting a Bill in Britain," 5 Harv. J. Leg. 253 (1968). Although the British and Chinese adopted different notions of what the word 'drafting' subsumes, in practice their respective systems constitute functional equivalents. The explana￾tion for the involvement of putatively 'technician' drafters in matters of policy in each case also seems the same. As in China, so in Britain: The parliamentary system guarantees a built-in automatic government majority. In Britain, except in very rare instances, government bills come to Parliament with an assurance of enactment by the majority party MPs. See, generally, Weaner & Rockman, supra n. 41. Before 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 9 they often had to resolve arguments over turf,interest group conflict, overlapping or contradictory ministerial missions-all the disputes that in other systems,at least notionally,legislators and ministers resolve. In 1989,when China first incorporated priority laws in its cur- rent Five Year Plan,three serious deficiencies still characterized the drafting system.44 First,the drafting process seemed intolerably slow.Almost all the Project's 22 bills and regulations had gestated for years,many for a decade and more.In the decade after 1979,the NPC and its Standing Committee adopted an average of eight laws per year.The State Council adopted forty regulations a year.In a period of forced-draft institutional reforms for China's 125 or so min- istries and departments,governing almost a quarter of the world's population,this legislative output seemed paltry. Second,the drafting system often produced unimplementable laws.A visitor often heard a Chinese version of a world-wide lament: "We have good laws,but they are badly implemented."Two exam- ples:(1)A stroller in Beijing,with one of the world's most polluted atmospheres,might learn with surprise that China had a swingeing air pollution statute.45(2)In the 1980s,in response to inflationary tendencies,year after year China's political leaders directed banks to reduce loans for undesirable capital expenditures;year after year those expenditures rose.46 arriving in Parliament,the bill's authors must resolve issues of substance and con- flicts of power and interest,at least as they appear within the government and its constituency. 44.In addition to gaps in its coverage,China's substantive law lacked three fea- tures essential for any type of market economy to function well:(1)Cognoscibility, that is,widespread publication.As Lon Fuller emphasized,secret rules do not merit even the name of law.Lon Fuller,The Morality of Law (1969).As yet,many of China's regulations remain unavailable to the public.(2)Coherence (i.e.,at least compilation,and preferably codification,and indexing).China's relatively few laws and vast number of administrative regulations remained scattered in innumerable decrees,many lost in ministerial files.This frequently rendered it difficult if not im- possible for citizens to discover their complete contents.As part of its task,the Pro- ject created data-bases of all Chinese law.See n.75.(3)Not infrequently,Chinese laws contained vague terms.This further undermined the substance of the cognosci- bility requirement.(For example,typically a criminal law will define the difference between a violation that merits one sentence or another as the difference between a violation and a 'serious'or 'especially serious'violation.See,e.g.,the Decision of the Standing Committee of the National People's Congress Regarding the Severe Punish- ment of Criminals who Seriously Damage the Economy,adopted at the 22nd meeting of the Standing Committee of the Fifth National People's Congress,March 8,1982, art.(1)("when the circumstances are especially serious,the offender shall be sen- tenced to...death....")).As part of its efforts to build capacity,the Project taught drafters the necessity of precision and attention to detail. 45. See Environmental Law of the People's Republic of China(for trial implemen- tation)(1979). 46.World Bank,Macroeconomic Stability and Industrial Growth Under Decen- tralized Socialism-A World Bank Country Study Ch.2 (1990). 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 9 they often had to resolve arguments over turf, interest group conflict, overlapping or contradictory ministerial missions - all the disputes that in other systems, at least notionally, legislators and ministers resolve. In 1989, when China first incorporated priority laws in its cur￾rent Five Year Plan, three serious deficiencies still characterized the drafting system.44 First, the drafting process seemed intolerably slow. Almost all the Project's 22 bills and regulations had gestated for years, many for a decade and more. In the decade after 1979, the NPC and its Standing Committee adopted an average of eight laws per year. The State Council adopted forty regulations a year. In a period of forced-draft institutional reforms for China's 125 or so min￾istries and departments, governing almost a quarter of the world's population, this legislative output seemed paltry. Second, the drafting system often produced unimplementable laws. A visitor often heard a Chinese version of a world-wide lament: "We have good laws, but they are badly implemented." Two exam￾ples: (1) A stroller in Beijing, with one of the world's most polluted atmospheres, might learn with surprise that China had a swingeing air pollution statute.45 (2) In the 1980s, in response to inflationary tendencies, year after year China's political leaders directed banks to reduce loans for undesirable capital expenditures; year after year those expenditures rose.46 arriving in Parliament, the bill's authors must resolve issues of substance and con￾flicts of power and interest, at least as they appear within the government and its constituency. 44. In addition to gaps in its coverage, China's substantive law lacked three fea￾tures essential for any type of market economy to function well: (1) Cognoscibility, that is, widespread publication. As Lon Fuller emphasized, secret rules do not merit even the name of law. Lon Fuller, The Morality of Law (1969). As yet, many of China's regulations remain unavailable to the public. (2) Coherence (i.e., at least compilation, and preferably codification, and indexing). China's relatively few laws and vast number of administrative regulations remained scattered in innumerable decrees, many lost in ministerial files. This frequently rendered it difficult if not im￾possible for citizens to discover their complete contents. As part of its task, the Pro￾ject created data-bases of all Chinese law. See n. 75. (3) Not infrequently, Chinese laws contained vague terms. This further undermined the substance of the cognosci￾bility requirement. (For example, typically a criminal law will define the difference between a violation that merits one sentence or another as the difference between a violation and a 'serious' or 'especially serious' violation. See, e.g., the Decision of the Standing Committee of the National People's Congress Regarding the Severe Punish￾ment of Criminals who Seriously Damage the Economy, adopted at the 22nd meeting of the Standing Committee of the Fifth National People's Congress, March 8, 1982, art. (1) ("when the circumstances are especially serious, the offender shall be sen￾tenced to ...death. . . .")). As part of its efforts to build capacity, the Project taught drafters the necessity of precision and attention to detail. 45. See Environmental Law of the People's Republic of China (for trial implemen￾tation) (1979). 46. World Bank, Macroeconomic Stability and Industrial Growth Under Decen￾tralized Socialism - A World Bank Country Study Ch. 2 (1990). 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

10 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.44 Third,the system sometimes produced laws that had perverse consequences.For example,to stimulate enterprise vitality,the Gov- ernment introduced a two-tier pricing system,giving farms and en- terprises the power to sell goods produced over the contract-defined minimum at higher-than-plan prices.47 That provided an opening to corrupt enterprise managers to sell at high market prices inputs re- ceived at low plan prices,and pocket the differences.48 In short,China's leaders experienced difficulties in enacting the urgently-needed high-quality legislation required to implement their proposed step-by-step institutional transformations.Why their diffi- culties in getting the bills they needed? II.EXPLANATIONS FOR THE PERCEIVED DIFFICULTIES Unless a solution addresses a difficulty's causes,too easily it will but poultice symptoms.49 China's difficulties with drafting had three underlying explanations:50 The drafters misconceived the function of law and their corresponding drafting task;they had a relatively low drafting capacity,reflecting their lack of appropriate training in leg- islative techniques,social science research techniques,51 and legisla- tive theory and methodology;and the rules purporting to define the drafting process proved inadequate. A.Misconceptualization of the Drafting Task52 Reflecting their misconceptions of the function of law in China's situation,the drafters initially explicated three inconsistent ap- proaches to their task:The notion that they could copy foreign law;a crude Marxist model of law and society;and a belief that law merely declared rights and duties'. 1.Copying foreign law.Many drafters seemed convinced that someplace 'out there'lay an 'international standard'for every law re- lating to education,national parks,mining,whatever:Foreign law 47. Id.at 32. 48. Seidman Seidman,supra n.9,at 165. 49.The problem-solving methodology that underpinned the Project purports to address that issue;see text at infra n.101. 50.About a fourth cause,the project plainly could do nothing directly:China's budget constraints limited BLA and DLA staff members to a number that seemed far too small to draft all the legislation required for a quarter of the world's population. 51.This we did not recognize until well into the Project.We first offered a course in social science research methods to the third(and last)group of trainers who came to Boston University.The proposed Center(see supra n.134)will inter alia under- take instruction for drafters in appropriate social science methodologies. 52.In 1991,as UNDP consultants,before writing the proposal that eventuated in the Project,we spent ten days in group interviews with each of nine drafting teams assigned by BLA to draft the 22 priority laws,a total of about 80 drafters,drawn from BLA and the relevant ministerial DLAs.This section rests on information we learned in those interviews. 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

10 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44 Third, the system sometimes produced laws that had perverse consequences. For example, to stimulate enterprise vitality, the Gov￾ernment introduced a two-tier pricing system, giving farms and en￾terprises the power to sell goods produced over the contract-defined minimum at higher-than-plan prices.47 That provided an opening to corrupt enterprise managers to sell at high market prices inputs re￾ceived at low plan prices, and pocket the differences.48 In short, China's leaders experienced difficulties in enacting the urgently-needed high-quality legislation required to implement their proposed step-by-step institutional transformations. Why their diffi￾culties in getting the bills they needed? II. EXPLANATIONS FOR THE PERCEIVED DIFFICULTIES Unless a solution addresses a difficulty's causes, too easily it will but poultice symptoms.49 China's difficulties with drafting had three underlying explanations:50 The drafters misconceived the function of law and their corresponding drafting task; they had a relatively low drafting capacity, reflecting their lack of appropriate training in leg￾islative techniques, social science research techniques,51 and legisla￾tive theory and methodology; and the rules purporting to define the drafting process proved inadequate. A. Misconceptualization of the Drafting Task52 Reflecting their misconceptions of the function of law in China's situation, the drafters initially explicated three inconsistent ap￾proaches to their task: The notion that they could copy foreign law; a crude Marxist model of law and society; and a belief that law merely declared 'rights and duties'. 1. Copying foreign law. Many drafters seemed convinced that someplace 'out there' lay an 'international standard' for every law re￾lating to education, national parks, mining, whatever: Foreign law 47. Id. at 32. 48. Seidman & Seidman, supra n. 9, at 165. 49. The problem-solving methodology that underpinned the Project purports to address that issue; see text at infra n. 101. 50. About a fourth cause, the project plainly could do nothing directly: China's budget constraints limited BLA and DLA staff members to a number that seemed far too small to draft all the legislation required for a quarter of the world's population. 51. This we did not recognize until well into the Project. We first offered a course in social science research methods to the third (and last) group of trainers who came to Boston University. The proposed Center (see supra n. 134) will inter alia under￾take instruction for drafters in appropriate social science methodologies. 52. In 1991, as UNDP consultants, before writing the proposal that eventuated in the Project, we spent ten days in group interviews with each of nine drafting teams assigned by BLA to draft the 22 priority laws, a total of about 80 drafters, drawn from BLA and the relevant ministerial DLAs. This section rests on information we learned in those interviews. 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