Chinese Lawmaking: From Non-communicative to Communicative

196 Pages·2013·3.58 MB·English

by  Peng He

Understanding China
Peng He
Chinese
Lawmaking:
From Non-
communicative
to Communicative
Understanding China
Series Editors
Emmie Yang
Business, Economics China, Springer-Verlag Asia
Beijing, China, People’s Republic
Niels Peter Thomas
Heidelberg, Germany
For further volumes:
http://www.springer.com/series/11772

Peng He
Chinese Lawmaking:
From Non-communicative
to Communicative
Peng He
Law School
Zhongnan University of Economics
and Law
Wuhan , People’s Republic, China
ISSN 2196-3134 ISSN 2196-3142 (electronic)
ISBN 978-3-642-39506-2 ISBN 978-3-642-39507-9 (eBook)
DOI 10.1007/978-3-642-39507-9
Springer Heidelberg New York Dordrecht London
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Foreword
Much work in legal theory has been concerned with law and its operation, its
connection with morality and the interpretation of the law through the courts and
the judges. Law as a process of legislation has not been touched upon much. There
is now a developing literature in the Western world on the theory of legislation and
the process of lawmaking. This tries both to recover what Waldron has called ‘the
dignity of legislation’ and what has more generically been termed ‘legisprudence’.
What is important here is the study of the philosophy and context of good legisla-
tion. Rather than concentrating on legal reasoning by the judges, the emphasis is on
the protocols of lawmaking and the reasoning necessary for good legislators and
legislation.
Dr. Peng He in her book addresses some of these issues drawing on Western and
Chinese sources for her argument for a ‘communicative’ theory of lawmaking. This
book is timely and important in the Chinese context. Her argument depends upon
the insight that what is important in societies is not just representative democracy
but ‘voice’ – the ability of other actors to be heard and of bringing their input into
offi cial systems. She shows how law can be seen not just as the one offi cial system,
but rather as a system in interaction with many systems of rules outside of it. This
helps to facilitate the many voices that exist outside of the offi cial legal system in
society, and can do so without subverting it. This for Dr. He counters the ‘top-down’
view that too many think of as the most appropriate way of lawmaking. Moreover,
she argues that this can also take further the idea of living under the rules as some-
thing that is not to be seen as a narrow legalism but as something more akin to living
‘righteously’ – a view which is resonant with some parts of Chinese legal thought.
This book is important in the present Chinese context in yet another way. The
developing economy necessitates substantial legal reform. But the application of
Western models to China can often be naive and not fully fulfi l their intended
purpose. Peng He’s work addresses this by looking at the process of legislation in
connection with law reform. It is grounded in a sound theoretical refl ection of
both the process of legal transplantation and the process of lawmaking and looks
both at Western and Chinese sources. Such an approach needs to draw from several
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vi Foreword
intellectual traditions, and it is this interdisciplinary, foundational research that is
the task Dr. He has set herself in her project. Her theory will provide an abstract
theoretical framework that is more sensitive to local conditions, while at the same
time incorporating insights from a broad range of disciplines on law reform.
Her research is of direct practical relevance for reforming the legislative process
in China.
On a personal note, the thesis upon which this book is based was completed at
Edinburgh University where I was a supervisor. It was for me a fruitful experience,
and I am pleased to see the culmination of Dr. He’s work in published form.
I learnt a lot concerning Chinese legal thought during her time with us, which
perhaps contributed to subverting my prejudice of the top-down hegemony of
Western legal theory!
Edinburgh, UK Zenon Bańkowski
28 February 2013
Abst ract
In this book, I will discuss and criticize different legitimation for lawmaking, including
ancient and contemporary Chinese theories, and Western representative perspec-
tives on lawmaking. I will disclose the disadvantages of the Chinese lawmaking
system. As a new research project of Chinese law, I argue that both the traditional
and contemporary Chinese lawmaking lacked elements of communication. The top-
down lawmaking mode was the reality as well as the dominant theoretical justifi ca-
tions of legislation in China. I believe that the top-down lawmaking mode in China
was insuffi cient in its justifi cations for legitimacy, neither was it benefi cial for
increasing the degree of individual freedom and rights. Therefore, it is better to
absorb positive Western lawmaking elements, especially taking a shift from a non-
communicative mode to a more interactive and cooperative mode.
Western theories of lawmaking could contribute to Chinese future legal reform.
Theories of communication have positive contributions to this proposed change.
After my introduction and analysis of Western theories, I have attempted to escape
from pure theoretical discussion about law and legality and tried to provide a practi-
cal application of communicative lawmaking in China. Relying on the contributions
of Western lawmaking theories, but at the same time realizing the diffi culties in
their application in Chinese contexts, I believe that Confucianism, a Chinese phi-
losophy of love and law, could contribute to a discourse theory of lawmaking. The
core of Confucianism, R en (loving people, humanism), provided a possible theoreti-
cal background for a discourse theory. Professor Bankowski’s argument for the
interplay of law and love, the inside and the outside systems, also initiated a debate
for the communicative decision-making and is, thus, employed to solve the diffi -
culty of applying Western theories into Chinese contexts.
The ‘appropriate’ lawmaking in this book refers to a communicative lawmaking
mode, in contrast to the non-communicative mode that is defended by Chinese
legalism and contemporary justifi cations of lawmaking. I attempt to introduce this
interactive and cooperative lawmaking structure to balance individual rights and
state interests. This structure would go against the grain of the traditional top-down
legislation. In this new structure, individuals’ voice would be heard and paid atten-
tion to, which is a way of achieving R en (humanism).
vii

Acknowledgement
This book is based on my doctoral thesis that was supervised by Professor Zenon
Bankowski at the University of Edinburgh. I would like to thank him for carrying
the weight of a long-lasting supervision. It was very kind of him to introduce
to me Professor Neil MacCormick and Professor Luc J Wintgens, from whom
I derived inspiring ideas. With their encouragement, I overcame the diffi culties
I faced in research. Their research on legislature was a useful resource I got
access to through Professor Bankowski. I also express my gratitude to Professor
Bankowski who prayed for my mother during diffi cult times, which means a lot to
me and my family.
Professor Bankowski also offered me ideas from his books and papers to structure
the whole thesis. The brief introduction on Habermas was also added under his sug-
gestions. He helped me to develop my analysis and criticisms on my chosen Western
theories. Understanding my limits of expression, he even wrote down for me the
ways to use quotes and to lead and assist readers to understand my thinking. He was
a very strict supervisor. Sometimes when I could not understand his criticism, I spent
time watching the Big Bang Theory in which Jim Parsons plays the character of
Sheldon Cooper, because I thought my supervisor was also much like Sheldon in the
series, who was a smart person but could hardly understand less talented persons.
I had to exert my utmost efforts to write this thesis. Sometimes I had to struggle to
extend my limits, but my supervisor ‘kicked’ me to go further. With his strict ways,
he helped me to grow up, to fi nd my place in the academic world and to form a strong
but humble character. I could not imagine how diffi cult it was for him to bear with
a stubborn and emotional student like me until I became a teacher myself, which
is when I started to understand why a teacher would be so strict with a student: It is
because the teacher thinks the student can do better.
I also thank my Chinese teachers Professor Handong Wu, Professor Zhongxin Fan
and Professor Jingliang Chen. My colleagues and friends Dr. Chunxia Gong, Dr. Jian
Huang and Dr. Jian Yang have been in contact with me and offered me inspiration
and information on comparisons of Chinese history and English legal history. Thanks
to the inspiring discussion with them, my comparative study Chinese legalism and
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