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Article 72 Ifa matter falls within the scope of authority of two or more agenciesunder the State Council, the relevant agencies shall request the State Councilto enact an administrative regulation or the relevant agencies under the StateCouncil shall jointly enact an administrative rule.
Article 73 ThePeople''s Government of a province, autonomous region, municipality directlyunder the central government or a major city may enact local rules inaccordance with national law, administrative regulations and local regulationsof the province, autonomous region, or municipality directly under the centralgovernment.
A local rule may provide for the following matters:
(i)Mattersfor which enactment of local rules is necessary in order to implement anational law, administrative regulation or local regulation;
(ii) Matters thatare within the regulatory scope of the local jurisdiction.
Note the key term " within the scopeof authority" in Article 71 and 72, which may be used as base forMinistries and committees to exercise rule-making power. However, "thescope of authority" of a ministry or a committee has never been defined bythe Constitution, the Organic Law of State Council or any national laws orregulations. What''s worse, the "scope of authority" of a ministry mayvary from time to time depending upon changes of party policy and otherpolitical needs. This presents a large room of flexibility for a ministry toclaim that a matter "falls into its scope of authority". That''s whystruggle for rule-making authority among Ministries and committees so common, and"departmental protectionism" much serious.
As far as local rules are concerned, theprovisions in Article 73 simply repeats the Constitutional vague-worded term as"within the local regulatory scope of the local jurisdiction", which hasalready been proved as the source of power struggle between the central andlocal government in legislative context. As a practical matter, the centralgovernment, through its ministries and committees, usually exercise power to regulateaffairs that locales would claim to be "local affairs". The ambivalenceof such key issue in the Constitution and the Legislation Law will inevitablyinvite power struggles that are already serious in rule-making context.
Conclusion
In anadministrative state where administrative rules play a major part in a legalsystem, the Rule of Law is in practice rule of rules. If this is the cases, weshould modify the enduring question “what is a good law”, which has beenfrequently asked by legal philosophers, to that “what is a good rule”. Thequest for answers to this question is of great importance; it may perhaps wakeus up from a dream about an ideal Rule of Law blue painting, and cautions usabout hurdles in the way toward the Rule of Law.
In reforming therule-making system in order to obtain the legality, reasonableness, andconsistency of agency rules, one solution might be to introduce the system ofjudicial review over administrative rules into China''s legal system. Unlike thesupervision mechanisms already provided by the Constitution and the LegislationLaw, judicial review may institutionalize the supervision over agency rules andthus might be more effective.
【注释】1 Aristotle, Politics,1286a. See also Sir Ernest Barker, ThePolitical Thought of Plato and Aristotle(Dover, 1959).
2 Lon Fuller, The Morality ofLaw, 2nd ed., New Haven: Yale University Press, 1969.
3 “ For some time now, the sheer amount of Congress madelaw……-----the substantive rules that regulate private conduct……------made bythe agencies has far outunmbered the lawmaking engaged in by Congress throughthe traditional process.” See INS v. Chadha, 462 U. S. 919, 985-86(1983). Forexample, the Federal Register for 1989 contained 53,482 pages, and the Code ofFederal Regulations, with 196 paperback volumes, contains 122,090 pages, 60million words-----about seventy times as many as in the Bible. See B. Schwartz,Administrative Law(1991), p168.
4 Constitution, Article 58.
5 Constitution, Article 89and 90.
6 The proposed Legislation Law, which has submitted to the NPCStanding Committee for final consideration in October 1999, partly adopts thispoint.
7 Luo Haocai(ed.), AdministrativeLaw, Peking University Press, 1998.
8 Constitution, Article 90.
9 The Organic Law of LocalPeople’s Congresses and Local Governments(1986), Article 58.
10 Luo Haocai, AdministrativeLaw, Peking University Press (1998), pp. 122-25.
11 The ALL, Article 5 and54.
12 The ALL, Article 12(2).
13 Constitution, Article89(13).
14 Constitution, Article89(14).
15 The Legislation Law, enacted by the Ninth People''s Congress onMarch 15, 2000, also provides some procedural schemes for the State Council tomake administrative regulations. See Article 55, 56, 57,58, 59 and 60 ofLegislation Law. However, these provisions are very general, and are the sameas what have been provided in the Notice of 1987.
16 Murry Scot Tanner, “ Organizations and Politics in China’s Post-MaoLaw-making System”, in Pitman B. Potter(ed.), Domestic Law Reforms in Post-Mao China”, M. E. Sharpe(1993), p.69.
17 Constitution, Article 88(2).
18 Constitution, Article 86.
19 Constitution, Article 88(1).
20 See, e. g., LiBuyun,“lun yifa zhiguo”(On theConception of Rule of Law), in Wang Jiafu (ed.), yifa zhiguo jianshe shehui zhuyi fazhi guojia(Ruling the CountryAccording to the Law So As to Establish the Socialist Rule of Law), The LawPublishing House (1997), pp.132-45.
21 A social psychological study based on empirical analyses ofprocedural justice repeals that participation of parties in a legal processfunctions as a mechanism to meet the psychological need of justice. See, Latour, Houlden, Walker, andThibaut, Procedure: TransnationalPerspective and Preferences, 86 Yale L. J.258 (1976), and Houlden, Latour,Walker, and Thibaut, Preference forModels of Dispute Resolution as a Function of Process and Decision control,14 J. Experimental Soc. Psych. 13 (1978).
22 With slight modifications, the draft proposal, now the LegislationLaw,was enacted by the NinthNational People''s Congress at it 3rd session on March 15, 2000, andwill be effective as of July 1, 2000.
23 Flores v. Bowen, 790 F. 2d 740(9th Cir. 1986).
24 Water Quality Assn. v. United States, 795 F. 2d. 1303, 1305(7thCir. 1986).
25 Smith v. shakopee, 97 F. 974(8th Cir. 1899).
26 See B. Schwartz, AdministrativeLaw, Little, Brown and Company(3rd ed. 1991), pp.185-86.
27 The ALL, Article 53.
28 The ALL, Article 53.
29 Constitution, Article 5.
30 The Organic Law of LocalPeople’s Congresses and Local Governments, Article 59.
31 The AdministrativeReconsideration Regulation(1990), Article 41.
32 The AdministrativeReconsideration Law(1999), Article42.
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