Decentralizing Legislation in China’s Law on Legislation Amendment
Hong Kong Law Journal, Issue 49:2, 665-696 (2019)
24 Pages Posted: 7 May 2019 Last revised: 23 Sep 2019
Date Written: January 1, 2019
We present a novel account of China’s recent move to decentralize legislation through amending the Law on Legislation (LL). Conventional wisdom pervading both Chinese political discourse and social scientific scholarship on China portrays law as incompatible with experimentation and as only suitable for codifying policies adopted after experimentation. Moreover, the value of legislatures is viewed as lying in their independence from the executive branch. We highlight rationales offered by the Chinese Communist Party for the LL amendment that repudiate these assumptions: the Party proclaimed the intention to promote lawmaking as a central instrument of policy experimentation; moreover, the Party’s intervention in legislative processes may rescue legislatures from their irrelevance. We trace this new position regarding the role of lawmaking through the amended LL’s legislative history and initial implementation. We further show how this new official ideology clashed with the views of legislative officials, for whom “constraining government” has become a central preoccupation—both as a consequence of, and reinforcing, legislation’s political irrelevance. We argue that, to understand the political calculus underlying Xi’s approach to law, one does well to acknowledge the coherence and appeal of initiatives such as the LL amendment.
Keywords: Law on Legislation, decentralization, rule of Law, legislatures in China, legislative processes, 4th Plenum, lawmaking
JEL Classification: H11, H41, H70, H77, H80, K20
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