BOOK REVIEWS

Jan Michiel Otto, Maurice V. Polak, Chen Jianfu et Li Yuwen eds., Law Making in the People’s Republic of China

This work is the outcome of an international conference held in Leiden in October 1998 the object of which was to draw a picture of the changes undergone by the legislative function in the China of the late 1990s. Divided into three parts (Overview and Review, Institutions and Actors, Case Studies), Law Making in the Peopleís Republic of China sets out to address the following questions: who are the legislators and what are the products of the legislative process in China; how does a law come into being; what meaning should we ascribe to these legislative products from the perspective of legal certainty; can we recognise a Chinese approach to or style of law-making; what technical legislative problems have Chinese jurists identified and what sort of solutions to them are being considered? (p. x). Following a successful introductory part examining the legislative function from an ideological angle through an illuminating analysis of terminology (Harro von Senger, pp. 41-54) and describing its historical evolution (Chen Jianfu more or less reproduces the analysis he developed in Chinese Law), the authors provide a rich and varied study of the Chinese institutions and actors engaged in the production of norms((1). At the core of the legislative process, the National Peopleís Congress (NPC) remains, together with the State Council, the pillar for the promulgation of legal texts. While the National Peopleís Congress and its Standing Committee are invested by the 1982 Constitution with legislative power nationally (the promulgation of laws or fal¸), the State Council has the power to adopt administrative measures (regulations or guiding, rules or tiaoli, directives or tongzhi, etc.). The key role of these two organs of power has, however, strong competition from the legislative functions bestowed upon the other State institutions. Far from being a unitary system as the Constitution would have it, the Chinese system is expressed through at least three different levels. These are the national laws (fal¸), the national administrative regulations (xingzheng fagui), and the local administrative regulations (difangxing fagui). This means that the Ministries and Commissions dependent upon the State Council can, for example, produce orders, directives and regulations in their sphere of competence and in accordance with the texts promulgated by the State Council. The local National Peopleís Congresses and their Standing Committees can also make laws, so long of course as they do not clash with the texts drawn up at the national level (see the case of Shanghai, pp. 117-129)((2). Finally, the Peopleís Congresses in the Autonomous regions (cf. Shi Wenzheng and Bu Xiaoli, pp. 131-140) have the power to adopt their own texts, as do the Special Economic Zones. It is of course quite understandable that this complex and anarchic entanglement of legislative authorities devoid of any real division of power has led to numerous clashes of laws. Indeed, the absence of any normative hierarchy poses the problem of the effectiveness of Chinese law. Confused, contradictory and not easily applicable in any uniform manner, Chinese law has very soon led to a sort of abrogation through lack of use, which serves by default to regulate the excesses of legislative inflation. The work concludes with two case studies. Pitman B. Potter has been able to bring out the interactions that exist between international law and Chinese domestic law based upon the new legislation on contract law, while Jean-Pierre Cabestan sets about tracking the changes undergone by administrative law. In the case of contract law, the Chinese legislator has largely drawn upon the norms in force internationally. This internationalisation should soon benefit administrative law through Chinaís joining the WTO, since the latter requires transparency and openness of its members. But what can be said of the Chinese legislative style? In this regard, we share the analysis of Jan Michel Otto, who sees in it a deliberately planned and controlled style that could be described as being engineered, development-oriented, eclectic, pragmatic and piecemeal (p. 232). The latest developments in economic law and more particularly in contract law by dint of the imperatives of growth and stability must not, however, let us forget the ideological character of Chinese law that remains profoundly marked by the Partyís political orientations. In this sense, one could see it as continuing to belong to the family of socialist legal systems identified by RenÈ David or to that of traditional legal systems, as Ugo Mattei has shown((3). Pragmaticónot to say utilitarianóand eclectic, through being influenced by both the civil and common law systems, contemporary Chinese law is in reality a still-evolving hybrid from which there is some expectation that, beyond any evolutionist or culturalist approach, it may henceforth fully conform to international norms. Nothing, however, not even Chinaís entry into the WTO and the necessary reforms that should follow from that, leads us to hope for such a profound transformation without major political change. Chen Jianfuís conclusions (cf. the appendix on the contribution of legislative law) speak volumes of this point of view. Chinese law is purportedly still no more than the institutionalised version of the policies and directives of the Party in terms of the incorporation within the constitution and henceforth within legislative law (lifafa) of the four fundamental principles((4), the most important of which remains the Partyís leadership, exercised in the name of the state((5). Creating law is in fact working for a certain type of society driven by moral and political imperatives. What state governed by the rule of law can we see being proposed in todayís China? Certainly not one where the principles of justice and human rights are universally respected. One of the many merits of Law Making is to have been able to highlight the paramount character of the legislative process in the construction of the rule of law in a reformist China. It is therefore worth hailing the efforts at systematisation and clarification (the glossary is highly useful in this regard) accomplished by the authors to make intelligible a highly complex but little known question. Nonetheless, it is regrettable that this quality work is not always up on the latest developments. The article by Li Buyun written in 1996 on the Law on Law-Making seems, for example, out-of-date, and only the appendix by Chen Jianfu enables one to really understand the highly original and unprecedented text adopted on March 15th 2000 in order to fill the gaps in the 1982 Constitution, but which one may think has merely ratified existing practices without ensuring that a real legislative, that is depoliticised, process be put into place. Nonetheless, despite being somewhat on the technical side and sometimes uneven, this work is immensely rich and unparalleled of great worth. It can therefore be recommended in particular to specialists or practitioners of Chinese law.

Translated from the French original by Peter Brown