The Politics of Lawmaking in Post-Mao China: Institutions, Processes, and Democratic Prospects (review)

In The Politics of Lawmaking in Post-Mao China, Professor Murray Scot Tanner describes and documents behind-the-scenes political maneuvering in China's system of lawmaking and, by so doing, clarifies and explains the process. He asserts that his findings show that China may be making an "inadvertent transition towards democratization," undermining the commonly held Western observation that China's system of lawmaking falls neatly into the Chinese Communist Party (CCP)-directed "command model." At the same time, his findings may have inadvertently exposed other Western misconceptions about China's legal system regarding the ever-improving transparency of that system, the increasing use of and reliance on the legal system to accomplish national goals, and the lack of consistent "command-influence" by the CCP on non-legislative, law-related decision-making processes.¹

While the author's empirical research seems to have ended by the mid-1990s, his documented observations about the rising "voice" and role of the National People's Congress (NPC), its Standing Committee, and their law-related committees are supported by other legal researchers.² The strength of the book, as is its stated intention, is to chronicle and explain the political dimensions of the lawmaking processes, primarily in the NPC and its Standing Committee and, to a lesser degree, the State Council and its Office of Legal Affairs (OLA). He leaves to others the ultimate legal demarcations of the ever-shifting jurisdictional lines of authority between the NPC and its Committee on Legal Affairs (CLA) and the State Council and its OLA, and the detailed descriptions of other sources of law, including ministry rules, Opinions of the Supreme People's Court, and the "quirky" central-local government lawmaking (and implementing) relationship, filled with "Chinese characteristics."³

The book is divided into four parts: (1) Theoretical Considerations, (2) Lawmaking Institutions, (3) Case Studies in Lawmaking, and (4) Conclusions.

In the first part Professor Tanner develops the theme that the NPC should no longer be thought of as a "rubber stamp" of the Communist Party and that Westerners need to understand the profound process changes that are taking place within the legal institutions. He asserts that the current literature discusses Chinese law and Chinese policy-making processes but has largely ignored and failed to provide a comprehensive English-language study of the Chinese lawmaking system and its processes (p. 7). He adds, "The book begins and ends with some considerations about what impact the growth of China's lawmaking system, and especially the growing influence of the NPC, might have on China's prospects for initiating a genuine democratic transition" (p. 8). He seeks to focus on two areas (p. 10): (1) what are the "politics" of the lawmaking process in post-Mao China, and (2) how reliable are the assumptions on this topic as made by Western sinologists? His study is expressly limited to the "explication" stages of lawmaking and does not continue through the final stage of "implementation" of the laws.⁴

Continuing on theoretical considerations, Tanner in chapter 2 seeks to provide some new "theoretical images of the lawmaking process" to provide insight into the prospects for system transformation in China. He begins by describing the traditional models (Command, Leadership Struggle, Organizational, and "Garbage Can") and showing their weaknesses as applied to the "realpolitik." Tanner opines that "many scholars, and even more journalists have been genuinely reluctant to acknowledge increasingly undeniable evidence that the lawmaking institutions, especially the NPC, were growing in importance as policy-making bureaucracies and arenas of political conflict" (p. 12).

This study, it is argued, shows that the pressures for change "come less from the laws themselves than from the growth of the institutional structures which were built to draft, interpret and implement them" (p. 37). He claims that there is important evidence that "just as the economic...