Introduction
China has tried to curb arable land loss and pollution at places like Lake Dianchi by creating a framework of natural resource protection legislation to protect arable land, water and air. This framework was first established during the 1980s and has been revised in the second half of the 1990s. The original legislation was not stringent, rather vague and lacked detail. Consequently, the earlier legislation had little impact and economic growth continued to adversely pressure natural resources.1 Proponents of stronger
natural resource protection hoped that by amending legislation and introducing stricter and more specific norms, natural resource deterioration could be decreased.2 Thus, in the second half of the 1990s these
environmental stakeholders attempted to amend the existing laws and introduce new pieces of legislation. At first, their attempts to introduce stricter norms for the 1995 Air Pollution Prevention and Control Law largely failed at the bargaining table. However, since 1996, environmental stakeholders became more successful and were able to introduce stricter and more specific norms in the 1996 Water Pollution Prevention and Control Law 1998 Land Management Act, the 2000 Air Pollution and Prevention Control and the 2002 Environmental Impact Assessment Law.
The present study analyzes the effect such legislative changes have had on compliance behavior. This part of the book (Part I) first analyses how such changes have come about and how they have affected the quality of the legislation. For this analysis, the study uses an analytical framework about the process of lawmaking, focusing on the level of participation and the types of rationality and their effects on the content of the legislation made. Second, it analyses to what extent changes made in these laws—in combination with existing local norms—can in theory be expected to affect compliance behavior and enforcement processes and final goal attainment (in other
1 Li, "China's Compliance with WTO Requirements Will Improve the Efficiency and
Effective Implementation of Environmental Laws in China." Alford and Shen, "Limits of the Law in Addressing China's Environmental Dilemma.", Orts, "Environmental Law With Chinese Characteristics."
2 See for instance NPC-SC Legal Affairs Office, ed., Zhonghua Renmin Gongheguo Tudi Guanlifa
Shiyi (Commentary on the PRC Land Management Act). NPC Legal Committee, "Guanyu Zhonghua Renmin Gongheguo Daqi Wuran Fangzhi Fa Xiuding Caoan Shenyi Jieguo de Baogao (Report on the Results of Review of the the Draft Amendment to the PRC Air Pollution Prevention and Control Law)."
words how does it affect the law’s “implementability”3). For this analysis, the
study uses an analytical framework, which comprises of a set of characteristics of “implementable” legislation including the law’s adequacy, legal certainty, feasibility and adaptability.
The present chapter introduces these frameworks and provides a short overview of how laws are made in China and how this has affected their quality.
The Process of Lawmaking: Participation and Rationality
How the law is made influences what is in the law, and thus affects the quality of legislation and its implementability.4 In the legal and even the
socio-legal literature, the study of the process of lawmaking has received little more attention than in the “how a bill becomes a law” kind of introductions detailing how on paper the lawmaking process should work. Although there are case studies about how the lawmaking processes of certain laws took place such as Berman’s famous study of the US lawmaking process of civil rights legislation,5 theorizing analyses of how the process of lawmaking
actually works are quite rare.6 Seidman et al.’s socio-legal observations on
different drafting processes are an important example.7 Another example is
Otto et al.’s work on lawmaking in a context of development, theorizing about the process of lawmaking by comparing lawmaking with policymaking, about which process there exists a blossoming field of study.8 Here we
further expand on their work and we introduce theories about the process of lawmaking by combining socio-legal insights with insights from public administration and political science about policymaking. 9
3 As state application of law, even though it is an important part of implementation and also
affects compliance, has not been part of this study it will not be further discussed in this chapter.
4 C.J.M. Schuyt, Tussen Macht en Moraal, Over de Plaats Van het Recht in Verzorgingsstaat en
Democratie (Between Power and Morality, on the Place of Law in the Welfare State and Democracy)
(Alphen a/d Rijn: Samson, 1983). 174
5 D. Berman, M., A Bill Becomes a Law, Congress Enacts Civil Rights Legislation (New York:
Macmillan Company, 1966 (Second Edition)).
6 B.Z. Tamanaha, "A Pragmatic Approach to Legislative Theory for Developing Countries,"
in Making Development Work, Legislative Reform for Institutional Transformation and Good Governance, ed. A Seidman, R B Seidman, and T W Wälde (The Hague: Kluwer Law International, 1999).
7 A. Seidman, R.B. Seidman, and N. Abeyesekere, Legislative Drafting for Democratic Social Change,
a manual for drafters (The Hague: Kluwer Law International, 2001).
8 J.M. Otto, S. Stoter, and J. Arnscheidt, "Using Legislative Theory to Improve Law and
Development Projects," Regelmaat 2004, no. 4 (2004).
9 Although there have been some studies on lawmaking, for most information we must
borrow from public administration. This field has made an in-depth analysis of how governments make policy that is to a large extent applicable to law making. From here onwards we will use policy-making theory to describe lawmaking without referring to policy every time.
The Lawmaking Process
The lawmaking process involves several stages and different actors. Most lawmaking processes start with the identification of a legislative need, often in the form of the identification of a social problem that is to be addressed in legislation. Such identification may come in the form of a policy decision, made by bureaucrats or politicians, however it may also come from interest groups who then try to involve politicians or bureaucrats. Once the legislative need has been identified, its proponents will try to get drafters involved.
In general, there are two types of drafters, specialists working as bureaucrats in the bureaucracy most closely related to the policy area involved, or general legal specialists working in a general legal department such as the Ministry of Justice or a parliamentary committee.10 Once a draft
has been made, it will be submitted to the formal legislative procedure and will be decided upon by the relevant politicians and other stakeholders involved, depending on the political system. Thus, the lawmaking process involves a whole range of different “legislators”: drafters, politicians, bureaucrats, and stakeholders. Second, the lawmaking process consists of communications between such legislators in which complex social issues are translated into policy and then into legislative norms.
Lawmaking is a political process, of which the present study focuses in particular on its participation and rationality. Understanding the process of lawmaking involves understanding the manner in which the various actors involved are included or excluded in the process and second how the complexity of the social problem and their communication about regulating such problem influences the final legal text.
Participation
The type of participation defines power relations in lawmaking and has a large impact on the lawmaking process and the resulting type of legislation.11
In the participation approaches to lawmaking there are two main ideas. Following Dahl, the first is the ideal-typical situation of pluralistic participation, meaning that the lawmaking process is the result of a fully open participation in which all stakeholders are heard whether powerful or not.12 In the ideal-typical full participation setting, participation is reflected in
10 For this difference in drafters and differences between the French and the British system
see Seidman, Seidman, and Abeyesekere, Legislative Drafting for Democratic Social Change, a manual for drafters.
11 For this paragraph and the next we have been influenced by Otto, Stoter, and Arnscheidt,
"Using Legislative Theory to Improve Law and Development Projects."
12 This idea is best represented in R.A. Dahl, Who Governs? Democracy and Power in an American
the final legislation and leads to a representation of a variety of interests. Participation can take place at the various stages of the lawmaking process: during the policy formulation, during the drafting itself or during the formal deliberation on the draft. Under this ideal type of public decision-making, lawmaking is bottom-up.
Baldwin has noted that the problem with truly pluralistic legislation is that the larger the legal system and the scope of application of the law in question, the more stakeholders will participate and in general,13 the more
watered down and less stringent and more abstract the law will become if it is to fully represent all interests.14 Such legislative process will therefore be
well equipped to reflect as many different interests as possible in the law. However, participation leads to a negotiated law, which is watered down and may have weak and vague norms that are less well equipped to attain the goals that the law was originally intended for.
In non-Western contexts, where democracy and participation have been limited, the pluralist approach to lawmaking has remained more of an ideal than in most Western countries. However, there also participation can lead to watered down legislation. Brazil’s law no. 9605, the Crimes Against the Environment Act, is an illustration. As Benjamin writes, “the draft lost several of its original provisions thanks to pressures from an extremely powerful lobby that rallied together industrialists, mining concerns, timber companies and ranchers.”15
On the other end of the spectrum is the elite model under which the legislation is the result of decision making by a single individual or a small group of powerful persons.16 Elite lawmaking mostly influences the policy
formulation and the draft deliberation phases of the lawmaking process and will have less impact on the drafting itself, which requires legal experts. Low participation and a top-down approach characterize elite law making. Because such lawmaking does not have to consider a large amount of interests, it can directly reflect the goals the elite wishes to achieve. Similar to the elitist model is the corporatist model, under which a select group of powerful stakeholders negotiate over the draft legislation until an agreement
Public Policy, An Introduction to the Theory and Practice of Policy Analysis (Cheltenham, UK Lyme, US: Edward Elgar, 1995 (reprinted in 1997)). 134
13 Pluralistic lawmaking does not necessarily lead to more abstract legislation. The exception is
the specific compromise between different interest groups. For example about fines for pollution, after extensive bargaining the height of the fines may change but this does not affect the level of abstraction.
14 R. Baldwin, Rules and Government (Oxford: Clarendon Press, 1995). 167
15 A.H.V. Benjamin, Criminal Law and the Protection of the Environment in Brazil (INECE, 1998
[cited); available from http://www.inece.org/5thvol1/5thTOC.htm. 229
16 Parsons, Public Policy, An Introduction to the Theory and Practice of Policy Analysis. 248-9 Allott,
is struck.17 Just as elite lawmaking, corporate lawmaking is top-down, as a
small group of actors makes rules for society. Especially in non-Western contexts, with the prevalent influence of strong family ties and traditional forms of authorities, elites or corporatist groups may dominate lawmaking institutions, even when they such institutions formally adhere to pluralist principles.18 While elitist—and to a lesser extent corporatist—laws may be
highly goal oriented, drafted as closely to the goals the legislators want attained, and thus may seem to be effective on paper, the lack of participation may mean that the law may lack support from relevant interests groups and second that there is a lower chance that it fits actual circumstances on the ground. This may mean that there will be less compliance and that enforcement becomes more difficult.
Rationality
The process of lawmaking is also defined by the level of rationality of the legislative decision making process.19 Rationality approaches differ in terms
of how well planned and rational legislation can be made. In the ideal-typical situation, as found in Weber’s work, legislation is the product of a well- prepared rational process that incorporates all relevant information and makes legislation based on such information.20 The more information is
processed in the policy formulation and preparation of lawmaking, the better the balance between the goals of the law and the various interests in society.
An example of how such rational lawmaking should work ideally is Seidman et al.’s work on legislative drafting, made especially for drafters from developing countries. This work proposes that the drafters who are to translate a policy decision into legislation should study both legislative techniques as well as social science research methods.21 Second, Seidman and
Seidman propose that within the preparation of legislation, research about compliance behavior of the regulated actor (or “role occupant” as they call it)
17 Otto, Stoter, and Arnscheidt, "Using Legislative Theory to Improve Law and Development
Projects.", P.C. Schmitter, "Still the century of corporatism?" Review of Politics 36 (1974). 93-4
18 Riggs has described how this happens, when there are overlapping traditional and modern
structures causing a normative heterogeneity in institutions, causing formalism, a gap between the formal processes and the actual workings of the institution. See F.W. Riggs, Administration in Developing Countries, The Theory of the Prismatic Society (Boston: Houghton Mifflin Company, 1964).
19 Here we have also been influenced by Public Administration. See Parsons, Public Policy, An
Introduction to the Theory and Practice of Policy Analysis. For an overview of the literature on policy making models related to rationality.
20 M. Rheinstein, Max Weber on Law in Economy and Society (New York: Simon and Schuster,
1954). xlii-iii
21 A. Seidman and R.B. Seidman, State and Law in the Development Process (New York: St.
is essential and should form the basis for the policy analysis, the draft made and the final norms legislated.22
In reality, lawmaking is never able to attain the ideal of full rationality. With his “bounded rationality” Simon demonstrated that human rationality is limited and human beings are not able to fully rationally process the complexity of contemporary society in a single rational decision making process.23 In response to Simon’s bounded rationality, Lindblom has shown
that administrative decision-making, and thus legislative decision-making, is incremental.24 Incremental decisions are made based on negotiation and trial
and error. When applied to lawmaking, this means that legislation cannot arise out of a coherent rationally well thought out plan. The first problem is that many of the social issues legislation tries to address are so complex that the causal relation between problem and cause, and especially cause and cure cannot be easily ascertained.25 Second, the translation of policy into legal
draft is not purely a technical translation, but will affect the social impact of the law, in ways unknown to the drafter.26 Most drafters lack sufficient
knowledge about the underlying policies and the effects they may have on society. Seidman and Seidman believe they can solve this problem by training drafters in social science methodology. The feasibility of this in practice is questionable, however. Tamanaha has argued that drafters lack time and capacity to be trained in such techniques and even if they are will not be able to use them directly in their work.27 This is especially an acute problem in
non-Western countries where there is a lack of institutional capacity, a lack of well trained lawyers and social scientists, and a wide gap between the two, where society itself is highly complex and heterogeneous, and where the
22 Seidman, Seidman, and Abeyesekere, Legislative Drafting for Democratic Social Change, a manual
for drafters.
23 H. Simon, Administrative Behavior (New York: Free Press, 1957). 79 Quoted through Parsons,
Public Policy, An Introduction to the Theory and Practice of Policy Analysis. 273-281
24 C. Lindblom, "The Science of Muddling Through," Public Administration Review 19 (1959).
Quoted through Parsons, Public Policy, An Introduction to the Theory and Practice of Policy Analysis. 284-287
25 Tamanaha, "A Pragmatic Approach to Legislative Theory for Developing Countries." M.
Edelman, "The Construction and Uses of Social Problems," University of Miami Law Review 42, no. September (1987). Bardach and Kagan, Going by the Book, The Problem of Regulatory Unreasonableness. 58-9, Schuyt, Tussen Macht en Moraal, Over de Plaats Van het Recht in Verzorgingsstaat en Democratie (Between Power and Morality, On the Place of Law in the Welfare State and Democracy).
26 Seidman, Seidman, and Abeyesekere, Legislative Drafting for Democratic Social Change, a manual
for drafters.
alternative of importing laws through legal transplantation28 is tempting and
often done.
Coincidence is dominant in another line of thought about the rationality of public decision-making coincidence. Proponents of this idea, the so-called “Garbage Can” model, have largely given up on rational decision making in policy and lawmaking. They do not believe that policymaking and lawmaking occur in chronological cycles involving the identification of problems, causes and solutions.29 They believe that
lawmaking is highly coincidental and that streams of problems find streams of solutions by accident.30 Berman’s analysis of the US Civil Rights Act
lawmaking processes in 1960 and 1964 shows for example how coincidences involving large race riots, the murder of Kennedy and Johnson’s own background in relation to race relations influenced Congress to enact a strong new Civil Rights Act in 1964, not yet possible in 1960.31
Finally, in the symbolic decision making perspective, policy makers, and thus also lawmakers, care about a different rationality than the rationality aimed at achieving an effective implementation. Scholars including Aubert, Edelman, Stone and Snelle, have argued that a political rationality may inform public decision-making and that such a rationality is based on the direct interests of the politicians involved rather than the effective solution to a certain policy problem for which the policy or in our case the legislation is made.32 In the same manner, Veerman has detailed how legislation, rather
than a mere instrumental function of solving a certain social issue33, can have
28 Y. Dezelay and B. Garth, "The Import and Export of Law and Legal Institutions:
International Strategies in National Palace Wars," in Adapting Legal Cultures, ed. D Nelken and J Feest (Oxford: Hart Publishing, 2001), Seidman and Seidman, State and Law in the Development Process, A. Watson, Legal Transplants: An Approach to Comparative Law (Athens & London: University of Georgia Press, 1993).
29 This point is most clearly made by Edelman. See Edelman, "The Construction and Uses of
Social Problems." M. Edelman, Constructing the Political Spectacle (Chicago: University of Chicago Press, 1988).
30 J. Kingdon, Agendas, Alternatives and Public Policies (Boston: Little, Brown, 1984). 119, 151,
174 M. Cohen, J. March, and J. Olsen, "A Garbage Can Model of Organizational Choice,"
Administrative Science Quarterly 17 (1972). quoted through Parsons, Public Policy, An Introduction to