Rule of Rules: An Inquiry intoAdministrative Rules in China''s Rule of Law Context
王锡锌
【全文】
Introduction
In every societyin which the ideas of Rule of Law prevail, an enduring question remains to bewhat kind of law should govern the society. Aristotle once defined the corecomponents of the Rule of Law as (1) all laws must be obeyed by a society, and(2) laws that are observed by the society must be good.1Into the core of this idea stands the concept of what Lon. Fuller had termed as“the morality of law.”2Legal philosophers have been debating over this issue for thousands of yearswith no agreement shared by different cultures. And that’s one reason whycandid and open dialogues are critically needed between different societies inunderstanding ideas of the Rule of Law and the acceptance of them.
Beyond thedebate over the “morality of law”, we must consider yet another phenomenon inmodern Rule of Law states. Common people, legal scholars and governmentofficials are seeing in modern society that the family of law is surprisinglyexpanding as result of numerous agency made rules come into play in every legalsystem. Today, in China, like in every country sticking to the Rule of Law,agency rules comprise a huge part of family of law, through which individuallife is regulated, and government power exercised. It is in this means that wemust recognize that the Rule of Law in modern society is in reality “Rule ofRules”.
In China, likein any other countries, when we say that individuals are regulated “from thecradle to the grave”, we perceive a reality that so much of our life has cometo be supervised by administrative rules. Accordingto statistics from the Legal Affairs Office of the State Council, till 1998, thelegal system features some 7,000 rules made by Ministries and some 18,000 bylocal governments. The number, however, is not so surprising. Actually, in somecountries, such as the United States, the figure is even bigger. 3Itis common today that agency-made rules completely dwarf laws enacted bylegislature, either in the West or the East.
Rule-makingpower is an outstanding feature of the modern administrative state andagencies. In present century, agency rule-making powers are the rule ratherthan, as they once were, the exception. When Bentham inveighed againstjudge-made laws, he claimed that law-making power was only for the electedrepresentatives of the people. This theory had its heyday in the 19thCentury, when the enacted law was for the most part produced directly by thelegislature. However, when the twentieth-century administrative state arrived,the legislature itself could not directly perform its vast tasks of regulationand guardianship. Rule making came into its own as a potent weapon in thegovernmental arsenal.
Being confrontedwith the reality that agency rules are served as legal norms inevitablyaffecting individuals rights and the way government exercises its power, wehave good reasons to believe that the success of the Rule of Law to a largeextent depends upon whether and to what degree can we resolve those troubles ofagency rules, as will be sketched out later, which are plaguing agency rulesand the whole legal system today in China.
Administrative RulesDefined: A Constitutional Background
Administrativerule(xingzheng guizhang) as a legalterm in administrative law in China receives its name from the Constitution of1982 with a narrower definition than in some other countries, such as theUnited States. According to the Constitution of 1982, “administrative rule” isone source of law. The family of law in China comprises (1)“basic laws”(jiben falu) made by National People’sCongress(the NPC); (2)laws(falu) madeby the NPC Standing committee; (3)administrative regulations(xingzhong fagui) made by State Council;(4)local regulations(difangxing fagui)made by some authorized People’s Congresses at local levels; (4)administrativerules(xingzhong guizhang) made byMinistries of the State Council and by some authorized local governments. Whenwe use the term “law” in a broad sense, we refer to all these legal norms. And,in the 15th amendment of the Constitution that reads “governing thecountry according to law, and construct the Rule of Law state”, “law” asmentioned thereof undoubtedly includes administrative rules.
Thus defined,administrative rule specifically includes only rules made by thoseconstitutionally authorized ministries and local governments. Rules made by theState Council is not administrative rules but administrative regulations, andrules made by agencies other than those ministries and local governments aretermed as “normative documents”(guifangxingwenjian), which in theory do not bear binding force(But in practice,normative documents very often sever as agency’s “secret weapon” in regulatingsociety, which will be discussed below).
