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 Conditions8 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