1996] CHINA:DEVELOPMENT LEGISLATION 11 would provide them a model they could copy.53 Like drafters else- where,54 absent a methodology or a legislative theory,too often Chi- nese drafters ineluctably fell back on either the law of some developed'country,or an idealized,eclectic model drawn from other countries'laws. An adequate legislative theory must begin with an adequate ex- planation of why people behave as they do in the face of a rule of law. Plainly,they do so by choosing among the constraints and resources thrown up by their own country-specific environments-of which the rule of law and its threats and promises constitute but one among many.55 These include,not only their objective circumstances,but also their own subjective interests,values and ideologies shaped by their country-specific circumstances.Figure 1 captures that proposition.56 53.That most foreign consultants adopted this approach appears in the scanty memoranda with which they accompanied the bills they drafted for other countries Frequently these hardly more than restated the bills'contents in narrative form. They seldom reported research as to the factors likely to influence the behaviors of the laws'addresses in those countries'specific circumstances.See,e.g.,the justifications given for the bills concerning petroleum extraction drafted by the University of Hous- ton Project,supra n.1;or the memoranda that accompanied the bills drafted for the Lao PDR under the World Bank's 1990-1994 legislative drafting project(available in the Lao PDR Ministry of Justice library,Vientiane,Lao P.D.R.).The CEELI project, supra n.1,sent draft bills from Eastern European countries for comment to American practitioners,judges and academics,many of whom apparently critiqued them with- out ever having visited the countries concerned. 54.Some examples:(1)Advised by French consultants,the Lao P.D.R.enacted a company law that required a notary public's signature at various points.In 1994, since Lao PDR had no law establishing the office of notary public,the government enacted such a law.Nevertheless,the Lao PDR still had no notaries (authors'inter- views with Lao PDR Ministry of Justice officials,Jan.,1995).(2)In Belize,to protect new roads,a drafter in the Solicitor General's office copied a law from Jamaica that prohibited trucks weighing more than 20,000 pounds from driving on its highways. Belize had no weighbridge,so the law remained unimplemented (reported at work- shop of Belize government officials,Belmopan,Belize,Jan.22-27,1995).In 1972 Lesotho copied South Africa's highway traffic act,also containing a weight limitation. Like Belize,Lesotho had no weighbridge;that law,too,remains unimplemented.R.B. Seidman,supra n.9,at 34.(3)The penal laws of colonial Anglophonic Africa all con- tained a provision,modelled after the eighteenth-century British Black Acts,aimed at poachers,making it a crime to wander about at night with an intent to commit a felony with one's face blackened.Read,"Criminal Law in Africa of Today and To- morrow,5.Afr.L.213(1963). 55.Cf.Frederik Barth,"Models of Social Organization"(Royal Anthropological Institute Occasional Paper 23 [Glasgow:University Press]1966);Seidman Seid- man,n.9,Ch.6. 56.As does legal realism,the model focusses on behavior in the face of a rule of law (the realists spoke of the systematic difference between the law-in-the-books'and the-law-in-action').See Llewellyn,"Some Realism about Realism,"44 Harv.L.Rev. 1222(1931).The contemporary analytical positivist perception of the universe com- prised bifurcated rules directed to both primary actors and implementing agencies [Hans Kelsen,General Theory of Law and State (1949);H.L.A.Hart,The Concept of Law(1962)].The model folds into this perception the sociological and anthropological notion of action as choices within a range of constraints and resources thrown up by the actor's milieu-not always rational choice,but choice nevertheless.See Barth. supra n.55.It leaves open the question,what constitute the principal constraints and This content downloaded by the authorized user from 192.168.82 207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions
1996] CHINA: DEVELOPMENT LEGISLATION 11 would provide them a model they could copy.53 Like drafters elsewhere,54 absent a methodology or a legislative theory, too often Chinese drafters ineluctably fell back on either the law of some 'developed' country, or an idealized, eclectic model drawn from other countries' laws. An adequate legislative theory must begin with an adequate explanation of why people behave as they do in the face of a rule of law. Plainly, they do so by choosing among the constraints and resources thrown up by their own country-specific environments - of which the rule of law and its threats and promises constitute but one among many.55 These include, not only their objective circumstances, but also their own subjective interests, values and ideologies shaped by their country-specific circumstances. Figure 1 captures that proposition.56 53. That most foreign consultants adopted this approach appears in the scanty memoranda with which they accompanied the bills they drafted for other countries. Frequently these hardly more than restated the bills' contents in narrative form. They seldom reported research as to the factors likely to influence the behaviors of the laws' addresses in those countries' specific circumstances. See, e.g., the justifications given for the bills concerning petroleum extraction drafted by the University of Houston Project, supra n. 1; or the memoranda that accompanied the bills drafted for the Lao PDR under the World Bank's 1990-1994 legislative drafting project (available in the Lao PDR Ministry of Justice library, Vientiane, Lao P.D.R.). The CEELI project, supra n. 1, sent draft bills from Eastern European countries for comment to American practitioners, judges and academics, many of whom apparently critiqued them without ever having visited the countries concerned. 54. Some examples: (1) Advised by French consultants, the Lao P.D.R. enacted a company law that required a notary public's signature at various points. In 1994, since Lao PDR had no law establishing the office of notary public, the government enacted such a law. Nevertheless, the Lao PDR still had no notaries (authors' interviews with Lao PDR Ministry of Justice officials, Jan., 1995). (2) In Belize, to protect new roads, a drafter in the Solicitor General's office copied a law from Jamaica that prohibited trucks weighing more than 20,000 pounds from driving on its highways. Belize had no weighbridge, so the law remained unimplemented (reported at workshop of Belize government officials, Belmopan, Belize, Jan. 22-27, 1995). In 1972, Lesotho copied South Africa's highway traffic act, also containing a weight limitation. Like Belize, Lesotho had no weighbridge; that law, too, remains unimplemented. R.B. Seidman, supra n. 9, at 34. (3) The penal laws of colonial Anglophonic Africa all contained a provision, modelled after the eighteenth-century British Black Acts, aimed at poachers, making it a crime to wander about at night with an intent to commit a felony with one's face blackened. Read, "Criminal Law in Africa of Today and Tomorrow," 5 J. Afr. L. 213 (1963). 55. Cf. Frederik Barth, "Models of Social Organization" (Royal Anthropological Institute Occasional Paper 23 [Glasgow: University Press] 1966); Seidman & Seidman, n. 9, Ch. 6. 56. As does legal realism, the model focusses on behavior in the face of a rule of law (the realists spoke of the systematic difference between the 'law-in-the-books' and 'the-law-in-action'). See Llewellyn, "Some Realism about Realism," 44 Harv. L. Rev. 1222 (1931). The contemporary analytical positivist perception of the universe comprised bifurcated rules directed to both primary actors and implementing agencies [Hans Kelsen, General Theory of Law and State (1949); H.L.A. Hart, The Concept of Law (1962)]. The model folds into this perception the sociological and anthropological notion of action as choices within a range of constraints and resources thrown up by the actor's milieu - not always rational choice, but choice nevertheless. See Barth, supra n. 55. It leaves open the question, what constitute the principal constraints and This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions
12 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.44 Range of Constraints and Resources (=“Arena of Choice" Law-Making Institutions Feedback Rule Rule Feedback Law-Implementing Sanctions Institutions Role-Occupant Arena of Feedback- Choice Arena of Choice It follows that a law or a presumed 'international standard'can only induce in its new home the same behaviors as in its original one if both the implementing agency in the new country,and all the other relevant factors in the addressees'social surround closely resemble those of the law's addressees in its place of origin.57 To change the existing behaviors of their addressees("role occupants,"58)therefore, a drafter must take into account,not only the existing rules,but also the relevant factors in the country-specific circumstances within which role-occupants act.59 Like those of every other country, China's circumstances,of course,remain unique.Laws that seem to work'elsewhere,therefore,will only serendipitously produce the resources in the milieu that a role-occupant will consider.See text following infra n. 109. 57.This proposition constitutes the 'Law of Non-Transferability of Law'.See R.B. Seidman,supra n.9. 58.Following the sociological vocabulary,the model uses the term 'role occupant' to denote the class of persons whom a rule addresses.Role occupants may consist of every member of society ("Thou shalt not commit murder"),a defined class of non- officials("No director of a corporation may use insider knowledge for private benefit"), or government officials("The Public Utilities Commission shall prescribe fair and rea- sonable rules for the generation and distribution of electricity"). 59.Seidman,"Justifying Legislation:A Pragmatic,Institutionalist Approach to the Memorandum of Law,Legislative Theory and Practical Reason,"29 Harv.J.Leg. 1(1992). This content downloaded by the authorized user from 192.168.82207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions
12 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44 \\ //~~~~~~~~~~ Range of Constraints and Resources / "Arena of Choice") Law-Making Institutions Feedback Rule Rule Feedback Law-Implementing Sanctions > R upan Institutions_ / Arena of Feedback / Choice Choic Fedakr Arena of \Choice It follows that a law or a presumed 'international standard' can only induce in its new home the same behaviors as in its original one if both the implementing agency in the new country, and all the other relevant factors in the addressees' social surround closely resemble those of the law's addressees in its place of origin.57 To change the existing behaviors of their addressees ("role occupants,"58) therefore, a drafter must take into account, not only the existing rules, but also the relevant factors in the country-specific circumstances within which role-occupants act.59 Like those of every other country, China's circumstances, of course, remain unique. Laws that seem to 'work' elsewhere, therefore, will only serendipitously produce the resources in the milieu that a role-occupant will consider. See text following infra n. 109. 57. This proposition constitutes the 'Law of Non-Transferability of Law'. See R.B. Seidman, supra n. 9. 58. Following the sociological vocabulary, the model uses the term 'role occupant' to denote the class of persons whom a rule addresses. Role occupants may consist of every member of society ("Thou shalt not commit murder"), a defined class of nonofficials ('No director of a corporation may use insider knowledge for private benefit"), or government officials ('The Public Utilities Commission shall prescribe fair and reasonable rules for the generation and distribution of electricity"). 59. Seidman, "Justifying Legislation: A Pragmatic, Institutionalist Approach to the Memorandum of Law, Legislative Theory and Practical Reason," 29 Harv. J. Leg. 1 (1992). This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions
1996] CHINA:DEVELOPMENT LEGISLATION 13 same results in China.China could not safely copy foreign law.60 Without an adequate understanding of how law works,the study of comparative law can yield little useful knowledge.61 2.The crude Marxist metaphor.Some Chinese drafters adopted a crude version of a Marxist metaphor to describe the relationship between law and society:The mode of production,the basis,'deter- mines the superstructure,that is,ideology,religion,institutions,the State,civil society,and law.62 This assumes causality goes only one way:The mode of production determines the law.63 Since rapid change and widespread uncertainty characterized China's mode of production during the Reforms,this approach persuaded drafters that they could not draft adequate laws until economic conditions settled down.' 3.Law as 'declaring rights and duties.Other drafters expressed a contrary view that resonated with the 19th Century British analyti- cal positivist notion that a law represents the 'command of the sover- eign'.64 That view reflected the notion that society and especially markets function best without state intervention,and that law's cen- tral function consists in guiding courts in the resolution of disputes.65 Consciously or unconsciously adopting that stance,these drafters ap- parently assumed that laws primarily should establish 'rights and duties'to facilitate dispute-settlement. Neither the Marxist nor the positivist view could guide drafters in writing bills likely to induce change in either China's economic or other institutions. Both views denied law's role in social engineer- 60.That does not mean at all that China could not learn a great deal from foreign law and experience-mainly,what mistakes to avoid.(For a Chinese drafter en- gaged with writing a new banking law,of course the study of United States law and experience becomes essential.What better preceptor could the drafter have than learning how to avoid duplicating our Savings and Loan disaster?)See text at infra n. 156. 61.See Seidman,Book Review,"Watson,Legal Transplants:An Approach to Comparative Law',"55 Boston U.L.Rev.682(1975). 62.Marx,"Preface to a Contribution to the Critique of Political Economy,"in Karl Marx,Early Writings 424(Colletti,L.,ed.1975);see,generally,Bob Jessop,The Capi- talist State:Marxist Theories and Methods(1982);Hugh Collins,Marxism and Law (1982)77et8eq. 63.See,e.g.,Williams,"The Authoritarianism of African Legal Orders:A Review and Critique of Robert B.Seidman's The State,Law and Development,"5 Contempo- rary Crises 255(1980).A more sophisticated version emphasized the dialectical rela- tionship between basis and superstructure,thus holding out the possibility of using law (as part of the superstructure)to affect the basis.Cf.Engels,"Letter to C. Schmidt,27 October 1890,"in Karl Marx and Friedrich Engels.The Marx-Engels Reader,(Robert C.Tucker ed.,2d.ed.1978). 64.John Austin,The Province of Jurisprudence Determined:And the Uses of the Study of Jurisprudence(1954,First edition 1834). 65.That law constitutes the sovereign's command may offer a guide to judges about where to find the law that controls disputes before them(i.e.,in a law library); it offers no guide to a drafter who must write the law.A definition of law addressed only to dispute settlement minimizes state intervention through law.Seidman& Seidman,supra n.9,at 133-34. This content downloaded by the authorized user from 192.168.82 207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions
1996] CHINA: DEVELOPMENT LEGISLATION 13 same results in China. China could not safely copy foreign law.60 Without an adequate understanding of how law works, the study of comparative law can yield little useful knowledge.61 2. The crude Marxist metaphor. Some Chinese drafters adopted a crude version of a Marxist metaphor to describe the relationship between law and society: The mode of production, the 'basis,' determines the superstructure, that is, ideology, religion, institutions, the State, civil society, and law.62 This assumes causality goes only one way: The mode of production determines the law.63 Since rapid change and widespread uncertainty characterized China's mode of production during the Reforms, this approach persuaded drafters that they could not draft adequate laws until economic conditions 'settled down.' 3. Law as 'declaring rights and duties'. Other drafters expressed a contrary view that resonated with the 19th Century British analytical positivist notion that a law represents the 'command of the sovereign'.64 That view reflected the notion that society and especially markets function best without state intervention, and that law's central function consists in guiding courts in the resolution of disputes.65 Consciously or unconsciously adopting that stance, these drafters apparently assumed that laws primarily should establish 'rights and duties' to facilitate dispute-settlement. Neither the Marxist nor the positivist view could guide drafters in writing bills likely to induce change in either China's economic or other institutions. Both views denied law's role in social engineer- 60. That does not mean at all that China could not learn a great deal from foreign law and experience - mainly, what mistakes to avoid. (For a Chinese drafter engaged with writing a new banking law, of course the study of United States law and experience becomes essential. What better preceptor could the drafter have than learning how to avoid duplicating our Savings and Loan disaster?) See text at infra n. 156. 61. See Seidman, Book Review, "Watson, 'Legal Transplants: An Approach to Comparative Law'," 55 Boston U. L. Rev. 682 (1975). 62. Marx, "Preface to a Contribution to the Critique of Political Economy," in Karl Marx, Early Writings 424 (Colletti, L., ed. 1975); see, generally, Bob Jessop, The Capitalist State: Marxist Theories and Methods (1982); Hugh Collins, Marxism and Law (1982) 77 et seq.. 63. See, e.g., Williams, "The Authoritarianism of African Legal Orders: A Review and Critique of Robert B. Seidman's The State, Law and Development," 5 Contemporary Crises 255 (1980). A more sophisticated version emphasized the dialectical relationship between basis and superstructure, thus holding out the possibility of using law (as part of the superstructure) to affect the basis. Cf. Engels, "Letter to C. Schmidt, 27 October 1890," in Karl Marx and Friedrich Engels. The Marx-Engels Reader, (Robert C. Tucker ed., 2d. ed. 1978). 64. John Austin, The Province of Jurisprudence Determined: And the Uses of the Study of Jurisprudence (1954, First edition 1834). 65. That law constitutes the sovereign's command may offer a guide to judges about where to find the law that controls disputes before them (i.e., in a law library); it offers no guide to a drafter who must write the law. A definition of law addressed only to dispute settlement minimizes state intervention through law. Seidman & Seidman, supra n. 9, at 133-34. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions
14 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.44 ing.66 In the face of massive demands for new laws to restructure institutions,these ideologies,combined with a relatively weak draft- ing capacity,tended to immobilize Chinese drafters. B.The Drafters'Capacities Chinese drafters needed the legal skills and the relatively nar- row linguistic and writing techniques that constituted the core of An- glo-American drafting instruction,67 and more:They needed as well social science research skills and a legislative theory. 1.LEGISLATIVE TECHNIQUES.Anglo-American drafting training finds its principal nourishment in a set of techniques:For example, for making amendments,for drafting the titles of bills,for organizing bills,and above all for using the English language in ways likely to avoid ambiguity and confusion.68 Chinese drafters had none of these skills.69 How could they,given the very brief history of legislative drafting in modern China?Today,China has not a single analogue to the drafting textbooks of which English has at least a baker's dozen. 2.SOCIAL SCIENCE RESEARCH SKILLS.As Figure 1 teaches,to ex- plain problematic behaviors in the face of a rule of law requires that drafters understand the role occupants'country-specific circum- stances.Capturing data concerning those circumstances calls for so- cial science research skills.For that,few BLA drafters had any 66.Roscoe Pound,Social Control Through Law (1942).Social engineering through law means a conscious effort to change institutions through the use of the legal order.Obviously,social engineering through law may become either highly ma- nipulative and authoritarian,or participatory and democratic.Those who reject it because of its authoritarian potential [e.g.,Peter Fitzpatrick,The Mythology of Mod- ern Law(1992);cf.Forer,"The Imposed Wardship of American Indian Tribes,"in The Imposition of Law 89 (Sandra B.Burman Barbara E.Harell-Bond,eds.1979); Tamanaha,"Book Review,"89 Am.J.Int'L.470(1995)]throw out the baby with the bathwater.Except by using law and state power to restructure institutions,how can the most democratic and participatory of polities bring about social change in favor of the mass of its population?China tried an alternative route during the Great Prole- tarian Cultural Revolution.So did Cambodia's Khmer Rouge.Neither recommend themselves 67.See,e.g.,Reed Dickerson,Legislative Drafting (2d ed.1986);Elmer A. Dreidger,The Composition of Legislation(2d ed.1983);Courtnay Ilbert,The Mechan- ics of Law Making (1914);Sir Alison Russell,Legislative Drafting and Forms(4th ed. 1938);G.C.Thornton,Legislative Drafting (3d ed.1987);Henry Thring,Practical Leg- islation(1902).The Project did include funds for preparation of a handbook on draft- ing rules and regulations,including rules for drafting in Chinese (none presently exists).The Project participant assigned to the task read as many legislative draft- ing handbooks in English as he could find,and discussed the issues with experts from the U.S.,Denmark and England. 68.See supra n.67. 69. Almost all BLA and DLA drafters had degrees from universities,where many had majored in (typically compartmentalized)social sciences,especially in economics, or in history,the physical sciences,or,after the universities reopened their law schools in 1986,in law.Among 164 BLA drafters,about 40 had graduate degrees in various disciplines.Aside from a brief BLA-run course,however,none had any for- mal legislative drafting training. This content downloaded by the authorized user from 192.168.82 207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions
14 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 44 ing.66 In the face of massive demands for new laws to restructure institutions, these ideologies, combined with a relatively weak drafting capacity, tended to immobilize Chinese drafters. B. The Drafters' Capacities Chinese drafters needed the legal skills and the relatively narrow linguistic and writing techniques that constituted the core of Anglo-American drafting instruction,67 and more: They needed as well social science research skills and a legislative theory. 1. LEGISLATIVE TECHNIQUES. Anglo-American drafting training finds its principal nourishment in a set of techniques: For example, for making amendments, for drafting the titles of bills, for organizing bills, and above all for using the English language in ways likely to avoid ambiguity and confusion.68 Chinese drafters had none of these skills.69 How could they, given the very brief history of legislative drafting in modern China? Today, China has not a single analogue to the drafting textbooks of which English has at least a baker's dozen. 2. SOCLAL SCIENCE RESEARCH SKILLS. As Figure 1 teaches, to explain problematic behaviors in the face of a rule of law requires that drafters understand the role occupants' country-specific circumstances. Capturing data concerning those circumstances calls for social science research skills. For that, few BLA drafters had any 66. Roscoe Pound, Social Control Through Law (1942). 'Social engineering' through law means a conscious effort to change institutions through the use of the legal order. Obviously, social engineering through law may become either highly manipulative and authoritarian, or participatory and democratic. Those who reject it because of its authoritarian potential [e.g., Peter Fitzpatrick, The Mythology of Modern Law (1992); cf. Forer, "The Imposed Wardship of American Indian Tribes," in The Imposition of Law 89 (Sandra B. Burman & Barbara E. Harell-Bond, eds. 1979); Tamanaha, "Book Review," 89 Am. J. Int'L. 470 (1995)] throw out the baby with the bathwater. Except by using law and state power to restructure institutions, how can the most democratic and participatory of polities bring about social change in favor of the mass of its population? China tried an alternative route during the Great Proletarian Cultural Revolution. So did Cambodia's Khmer Rouge. Neither recommend themselves. 67. See, e.g., Reed Dickerson, Legislative Drafting (2d ed. 1986); Elmer A. Dreidger, The Composition of Legislation (2d ed. 1983); Courtnay Ilbert, The Mechanics of Law Making (1914); Sir Alison Russell, Legislative Drafting and Forms (4th ed. 1938); G.C. Thornton, Legislative Drafting (3d ed. 1987); Henry Thring, Practical Legislation (1902). The Project did include funds for preparation of a handbook on drafting rules and regulations, including rules for drafting in Chinese (none presently exists). The Project participant assigned to the task read as many legislative drafting handbooks in English as he could find, and discussed the issues with experts from the U.S., Denmark and England. 68. See supra n. 67. 69. Almost all BLA and DLA drafters had degrees from universities, where many had majored in (typically compartmentalized) social sciences, especially in economics, or in history, the physical sciences, or, after the universities reopened their law schools in 1986, in law. Among 164 BLA drafters, about 40 had graduate degrees in various disciplines. Aside from a brief BLA-run course, however, none had any formal legislative drafting training. This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions
1996] CHINA:DEVELOPMENT LEGISLATION 15 training or capacity.Ministerial officials had extensive knowledge of the facts of the substantive issues their bills addressed,but little knowledge about the causes of the behaviors that led to those per- verse resource allocations.The foreign consultant for the under ground water bill,for example,reported that the drafting team's members seemingly could provide detailed information about every cubic meter of underground water in China.They had few hypothe- ses and less evidence,however,as to why Chinese peasants or indus- trial firm personnel overused or polluted it.Reflecting the general state of Chinese higher education,70 few had the skills required to investigate those causes.Worse:They lacked any theory that told them they ought to investigate (let alone how to investigate)those kinds of social facts. 3.LACK OF AN ADEQUATE LEGISLATIVE THEORY.Asked by political superiors to devise legislation to resolve a perceived social problem, how ought a drafter proceed?They need a legislative theory that provides them an adequate guide. As Figure 1 suggests,role occupants decide how to behave,not only in terms of the law,but also in light of their non-legal circum- stances.Nobody,however,can do research about all aspects of a role occupant's milieu.Nobody ever has enough research resources to ex- amine more than a tiny part of realty's endless mazes.Researchers require a map of the relevant circumstances to advise them where lie fertile fields,and where the arid deserts.An adequate legislative theory should provide that guide.71 Without that guide,drafters too often abandon efforts to draft on the basis of reason informed by experience.Instead,they either copy foreign law,or substitute for the real world their imagined realities: ideal-typical competitive markets,72 or people with mythical charac- teristics (innately "conservative"peasants,73 or women who work only for“pin money”and whose“innate characteristics”suited them for usually low-paid jobs.)74 Without a theory,drafters have no way 70.William P.Alford Fang Liufang,assisted by Lu Zhifang,Legal Training and Education in the 1990s:An Overview and Assessment of China's Needs (MS) (World Bank 1994). 71.Graham Allison,Essence of Decision:Explaining the Cuban Missile Crisis (1962)(theory a net whose mesh determines what facts one catches);Seidman Seid- man,supra n.9,at 54.The use of theory as guide contrasts sharply with the use of theory as metaphor.See text at n.149.On the inappropriateness of the various sorts of interest group theory for drafters,see generally Seidman Seidman,"The Present State of Legislative Theory and a Proposal for Remedying its Sad Condition,"[1995] Journal of Legislation Research [Korea Legislation Research Institute]219.See text below at infra n.84. 72.See,e.g.,Posner,"The Regulation of the Market in Adoptions,"67 Boston U. L.Rew.559(1987). 73.See Stephen A.Quick,"Bureaucracy and Rural Socialism:The Zambian Expe- rience,"(Stanford:Ph.D.Thesis,Stanford University,1975). 74.Cf.June Nash Maria Patricia Fernandez Kelly,Women,Men and the Inter. national Division of Labor(1983). This content downloaded by the authorized user from 192.168.82 207 on Thu,15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions
1996] CHINA: DEVELOPMENT LEGISLATION 15 training or capacity. Ministerial officials had extensive knowledge of the facts of the substantive issues their bills addressed, but little knowledge about the causes of the behaviors that led to those perverse resource allocations. The foreign consultant for the underground water bill, for example, reported that the drafting team's members seemingly could provide detailed information about every cubic meter of underground water in China. They had few hypotheses and less evidence, however, as to why Chinese peasants or industrial firm personnel overused or polluted it. Reflecting the general state of Chinese higher education,70 few had the skills required to investigate those causes. Worse: They lacked any theory that told them they ought to investigate (let alone how to investigate) those kinds of social facts. 3. LACK OF AN ADEQUATE LEGISLATIVE THEORY. Asked by political superiors to devise legislation to resolve a perceived social problem, how ought a drafter proceed? They need a legislative theory that provides them an adequate guide. As Figure 1 suggests, role occupants decide how to behave, not only in terms of the law, but also in light of their non-legal circumstances. Nobody, however, can do research about all aspects of a role occupant's milieu. Nobody ever has enough research resources to examine more than a tiny part of realty's endless mazes. Researchers require a map of the relevant circumstances to advise them where lie fertile fields, and where the arid deserts. An adequate legislative theory should provide that guide.7' Without that guide, drafters too often abandon efforts to draft on the basis of reason informed by experience. Instead, they either copy foreign law, or substitute for the real world their imagined realities: ideal-typical competitive markets,72 or people with mythical characteristics (innately "conservative" peasants,73 or women who work only for "pin money" and whose "innate characteristics" suited them for usually low-paid jobs.)74 Without a theory, drafters have no way 70. William P. Alford & Fang Liufang, assisted by Lu Zhifang, Legal Training and Education in the 1990s: An Overview and Assessment of China's Needs (MS) (World Bank 1994). 71. Graham Allison, Essence of Decision: Explaining the Cuban Missile Crisis (1962) (theory a net whose mesh determines what facts one catches); Seidman & Seidman, supra n. 9, at 54. The use of theory as guide contrasts sharply with the use of theory as metaphor. See text at n. 149. On the inappropriateness of the various sorts of interest group theory for drafters, see generally Seidman & Seidman, 'The Present State of Legislative Theory and a Proposal for Remedying its Sad Condition," [1995] Journal of Legislation Research [Korea Legislation Research Institute] 219. See text below at infra n. 84. 72. See, e.g., Posner, "The Regulation of the Market in Adoptions," 67 Boston U. L. Rev. 559 (1987). 73. See Stephen A. Quick, "Bureaucracy and Rural Socialism: The Zambian Experience," (Stanford: Ph.D. Thesis, Stanford University, 1975). 74. Cf. June Nash & Maria Patricia Fernandez Kelly, Women, Men and the International Division of Labor (1983). This content downloaded by the authorized user from 192.168.82.207 on Thu, 15 Nov 2012 12:37:41 PM All use subject to JSTOR Terms and Conditions