When Do Chinese National Ministries Make Law?
20 Pages Posted: 23 Oct 2019 Last revised: 8 Nov 2019
Date Written: October 10, 2019
This paper documents some basic empirical facts about the issuance of formal regulations (FRs) and informal policy directives (IPDs) by China’s national ministries and agencies from 2000 to 2014. Prior scholarship (e.g. Cui 2011, Howson 2012) depicts specific instances of Chinese national agencies announcing substantive new policies (many ultra vires by statutory standards) through IPDs. I use FR and IPD quantities as measures of the agencies’ propensity to resort to legal as opposed to non-legal, merely bureaucratic mechanisms for announcing policy. I find significant variations across agencies in the quantities of FRs issued, both in absolute terms and relative to the quantities of IPDs. The variations often contradict conventional perceptions about different agencies’ attitudes about law. Budget fluctuations do not predict FR or IPD issuance, nor does a minister’s tenure in office. Overall, formal rulemaking has been on the decline in China, accentuating the importance of the question: Why do Chinese bureaucrats bother with rulemaking at all? I suggest a preliminary set of considerations relevant to answering this question. The study sheds new light on the different approaches taken by actors in the Chinese government to establishing basic “rule by law”.
Keywords: Chinese law, rulemaking, guidance documents, executive lawmaking
JEL Classification: H11, H83, K20, K23, K40
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