Thursday, November 16, 2006

Law Reform, Administrative Authoritarianism and Power in China

I was rereading Stanley Lubman’s article, “Bird in a Cage: Chinese Law Reform After Twenty Years,” 20 NW. J. INT'L L. & BUS. 383 (2000). For Lubman, a foundational source of China’s difficulties with the creation of law and legal systems, of course, is the fundamental problem of the Communist Party and the place of the CCP within the state apparatus. See, e.g., id., at 405. I do not deal with that here, but have suggested an alternative approach elsewhere. Larry Catá Backer, “The Rule of Law, the Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the 'Three Represents'), Socialist Rule of Law, and Modern Chinese, Journal of Transnational Law and Contemporary Problems,” Vol. 16, No. 1, 2006 .

Still, Lubman makes a point in that article the consequences of which are worth developing. He reminds us that “To give concrete form to economic reforms, the Chinese state has generated an extraordinary amount of legislation. . . . As a result of this energetic legislative activity, which has been but sketched here, China now has a large body of legal rules.” Id., at 386. But, Lubman suggested, lots of rules do not necessarily make a legal system. Among the several factors contributing to what he calls Chinese legal fragmentation (Id., at 390), one is particularly interesting for my purposes here:

“The language and phrasing of Chinese legislation and rules create wide scope for administrative discretion in interpretation because a major goal of Chinese legislative drafting is "flexibility." As a result, at all levels Chinese legislation is intentionally drafted in "broad, indeterminate language," which will allow administrators to vary the specific meaning of legislative language with circumstances. Standard drafting techniques include the use of general principles, undefined terms, broadly worded discretion, omissions, and general catch-all phrases.” Id., at 391.

There is a small but interesting insight here that is buried but worth extracting. The rapidity of changes to Chinese law (the Company Law, the securities laws, anti-takeover legislation, for example, and related economic regulation) has two effects. The first is the intuitively straight forward, well expressed by Lubman—the attempt to create a system of laws that might propel China closer to conformity with a least minimal Western or global expectations of rule of law systems). The second is intimated by Lubman’s observation of the effect of Chinese legislative “flexibility.” Lubman is right that this flexibility gives bureaucrats a certain degree of power. But the power to which Lubman refers is merely that given in any current statute.

I would posit that the extent of bureaucratic power is actually far greater. Administrative power is not merely a function of the ambiguity in any given statute, it is also a function of the rate at which these rules are themselves amended. Rapid rule amendment tends to shift power to those who create and administer the rules and away from those who must change their behavior to conform with the rules. The more quickly rules change, the more dependent the target population is on administrators for guidance. As well, the less effective the non-governmental sectors are in defending people against administrative determinations. As a result, the population remains more dependant on the state and its apparatus. While a formal rule based system is created, there are lots of rules, the state retains a monopoly of knowledge about the workings of those rules. Without a stable law system, outside lawyers and other elements of the non-state sector cannot build the necessary expertise to adequately defend clients in proceedings, or to effectively use the law for the benefit of their clients.

A moral worth some thought—sometimes rapid legal change can be as destabilizing as no change at all. Sometimes great changes can work to perpetuate an authoritarian political structure more effectively than a stubborn refusal to enact a complex formal system of law. Sometimes, even a formally adequate legal system can, by appropriate control of the rate and nature of changes in its content, can reduce the value of that system to insignificance. Chinese experience suggests the continued value of Aristotle’s insight of the danger of legislative changes, a danger much augmented by a great increase in the rate and extent of change: “For the law derives all its strength from custom, and this requires long time to establish; so that, to make it an easy matter to pass from the established laws to other new ones, is to weaken the power of laws.” Aristitle, Politics, Bk II, ch. VIII (A web translation of Aristotle’s Politics may be found by clicking on this link).

Rapidly changing law loses its substantive effect, becoming a shadow of itself. The production of a swiftly changing set of legal codes may generate no legal system at all. Worse, it may produce a certain instability. On the one hand, the system vests great power in those who control the production of legal rules and the formal sites of their administration—the courts and the bureaucracy. On the other hand, the system risks losing authority as people avoid the arbitrariness of the new and changing patterns of compelled behavior, through the development of alternative private or informal systems. Aristotle decribes this tension as a balancing act of sorts: “for the alternations will not be of so much service as a habit of disobeying the magistrates will be of disservice.” Aristotle, id. Luhman intimates this result. Other commentators have demonstrated this tension and the resulting reality in the decade after Luham wrote. See Symposium: China: Law, Finance, Security, Journal of Transnational Law and Contemporary Problems,” Vol. 16, No. 1, 2006.

Beneath the formal and official system of laws, then, what remains is a very real and powerful system of custom and habit. In China this traditional system, like the formal system weaved in the legislative looms of Beijing, and the system for the enforcement of those norms, remain in the hands of the governmental class with the authority or power to impose it. The consequence is a continuation of what, to Western eyes looks like an authoritarian administrative state in which legal alterations may have little effect. But unbderstand also, that the custom and habit of which I refer is not merely the usual reference to the old Confucian mandarinate system or the socio/legal culture which it sustains. I refer, instead, inthe first instance, to the customs and patterns of institutonal behavior forged over the course of the last half century under the Chinese Communist Party. Those networks of relationships, power diffusion, and habits of decision making cannot easily be overcome by "paper" statutes or "paper" rules. The reality of the socio/legal culture of China, and especially of the continued existence of multiple power apparatus (State and Party), complicates any attempts at Western style positivist legal reform (that is, of legal reform through the expediant of enacting pretty words on clean paper by a formally constituted legislature for the outside world to see and approve). Larry Catá Backer, “The Rule of Law, the Chinese Communist Party, supra. I do not mean to suggest that rule of law is impossible in China. I also do not suggest that harmonization of economic regulatory standards is impossible. I do suggest that pressuring China to conform to Western forms of rule of law society is playing a fool's game--a game that the Chinese will be more than happy to play for its own advantage. Frankly, were I in the Chinese leadership I would do the same. But this strategy poses a great danger for China in the long run. The danger for China is that, while its legislative organs are busy producing framework legislation satisfying to the West (and of dubious internal effect, especially given the penchant for less Western oriented implementing regulatory systems, the point that Lubman is at some pains to correctly stress (“Bird in a Cage: Chinese Law Reform After Twenty Years,” 20 NW. J. INT'L L. & BUS. 383 (2000)), the Chinese leadership will lose sight of the critical necessaity of shaping their own indigenous rule of law socio-political culture. Recent Party ideological campaigns point in the right direction, but it is unclear whether there is the will to follow through. Fifty years of Party insttutionalization provides at least the normative foundation for order beyond individual will. Is there a sustained courage among Party leaders to implement these norms effectively in a way that is sensitive to individuals, the collective, and effective political organization?

Aristotle reminds us that formal legal structures have definitive limits, and may actually further objectives inimical to their forms. Thus, he tells us, authoritarian states “where the supreme power is in the laws, may not be democratic, and yet in consequence of the established manners and customs of the people, may be governed as if it were.” Id., Bk. IV, ch. V (A web translation of Aristotle’s Politics ). But states that appear to adopt a more law based system may instead produce an inclination to what Aristotle describes as oligarchy, “for the people do not easily change, but love their own ancient customs; and it is by small degrees only that one thing takes the place of another; so that the ancient laws will remain, while the power will be in the hands of those who have brought about a revolution in the state.” Id (A web translation of Aristotle’s Politics). Using conformity to Western legal standards as a veil behind which to entrench limitless individual discretion and the will of factions will do more to undermine recent efforts at socialist market ecopnomy and democratic authoritarianism centered in the Party than any concerted efforts by the West to undermine the current system of Chinese governance.

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