Q&A with Profs. Jacques deLisle and Lin Yan on the future of administrative law in China
On Wednesday, October 24 Penn Law hosted leading administrative law scholars from China and the United States for a symposium on “The Future of Chinese Administrative Law.” Featuring paper presentations by the Chinese participants, invited to visit the U.S. by the American Bar Association’s Section of Administrative Law & Regulatory Practice, and commentary from distinguished American scholars of administrative law and Chinese law, the symposium took stock of the development of Chinese administrative law over the past 30 years and explore the prospects for reform today.
The symposium is co-sponsored by the Penn’s Center for the Study of Contemporary China, the Center for East Asian Studies, the Penn Program on Regulation, and the Cardozo Law School’s Floersheimer Center for Constitutional Democracy, in conjunction with the American Bar Association’s Section of Administrative Law & Regulatory Practice and with financial support from the U.S. Chamber of Commerce.
Two conference participants, Professor Jacques deLisle of Penn Law, and Penn Law visiting scholar Professor Lin Yan of Shanghai Jiaotong University Law School, spoke with Penn Law’s Office of Communications prior to the event about the symposium and the evolution and importance of administrative law in China.
Penn Law (PL): What will the conference entail, and what will be covered?
Jacques deLisle (JDL): It’s a full day on Chinese Administrative Law and the Future of Chinese Administrative Law. It will bring to Penn some of the top people in the field from China, from the generation that’s now in its 40s and 50s, who have been involved in the creation of Chinese administrative law which, in its current form, only goes back to the late 1980s. Joining them are leading members of the younger generation of scholars, including Professor Lin, who are doing strong work in the increasingly complex field of Chinese administrative law and who are joining their senior colleagues in shaping its future. So, we have the founding, and still very active, generation and the rising stars coming here to present papers on their sub-specialties and to assess developments in the law and practices of the administrative state in China and the prospects for future reform.
As commentators, we have the preeminent American scholars of Chinese law whose interests include administrative law issues. We also have several of the leading American scholars specializing in administrative law who will offer a comparative perspective. The principal conference papers will be published by Penn Law’s East Asia Law Review. Much of the credit for putting this extraordinarily rich day together goes to Neysun Mahboubi, the most promising young American scholar working on Chinese administrative law. He’s a Research Fellow at the University of Connecticut School of Law who is visiting now at the Center for the Study of Contemporary China here at Penn.
PL: What is administrative law in the Chinese context?
JDL: Administrative law in China, like anywhere else, is the process by which the government makes its rules and enforces its rules. It operates generally at a sub-statutory level. It is concerned also with providing opportunities for citizens to participate in making public rules that govern much social and economic behavior and to challenge the application of those rules, and sometimes the rules themselves. In addition, administrative law includes questions about how to regulate better, how to make rules in a way that do better what policymakers want them to do in regulating healthcare or pollution or product safety or whatever else.
In terms how these administrative law functions work in China, Chinese law includes several, mostly statutory mechanisms. It started in the late 1980s with the Administrative Litigation Law, which allows citizens to sue for redress when they believed that a government rule was applied to them incorrectly or unfairly. In more recent years, other pieces of a conventional structure of administrative law have been added, including the Administrative Compensation Law, which allows victims to seek recompense from the state for its improper actions against them, and the Administrative Reconsideration Law, which provides a formal means to seek to have the public authorities reconsider a decision or a rule.
The big item that has remained unfulfilled on the agenda for a long time has been a full-fledged Administrative Procedure Law that would govern the process by which sub-statutory regulations and rules are adopted in China. Much progress has been made at provincial levels, but a national administrative procedure law has yet to be adopted.
Some key issue of administrative law loom especially large in China, particularly questions of transparency and public input. Because China is not a liberal electoral democracy, administrative law matters especially much in addressing such questions as: what kind of public accountability and what kind of public input should there be, and can there be, in the process of making the vast array of state rules that govern people’s lives?
PL: How important is Chinese administrative law in the bigger picture?
JDL: Anything that is important in or for China is important globally. China is, obviously, a very large part of humanity facing and it is facing some daunting challenges of governance. A stable and prosperous China, or one that has more serious troubles, has profound implications for the U.S. and the wider world. Administrative law is potentially a very important tool for dealing with some of the challenges China faces.
Regulation in a vast, rapidly changing and developing country is tough. A policy or law adopted in Beijing can wind up looking very different by the time it gets down to the grassroots level. Creating mechanisms to govern more effectively and to have an administrative state that more nearly approaches international best practices as adapted to Chinese conditions, is a hugely ambitious and potentially important undertaking. To be sure, it’s a complicated issue.
“Better” administrative law might make for a more effectively repressive authoritarian state or a more accountable and benign one. Whatever its form, administrative law in China will significantly affect the U.S.-China relationship. This already has become the world’s most important bilateral relationship, and it’s becoming an increasingly dense one. One of the aspects that I think has lagged behind other areas– such as business relations and educational ties - is mutual understanding on issues and processes of public governance. Misperceptions abound on both sides about how our systems work and that’s not a great thing in terms of managing a relationship where the irritants can come from events that occur within the domestic political systems and government processes in each country.
I think our conference is attentive to this issue as well, bringing together scholars from both sides, who are expert in both systems. Also, as part of the Chinese delegation’s visit to the U.S., our Chinese guests will be meeting with American government officials, judges, and lawyers.
Lin Yan (LY): In China, administrative power, or executive power, has been the most active and dominant power for decades. It has a significant impact, both inside and outside China in terms of policy making and applications of rules governing people’s daily lives.
The importance of administrative law is to bring the powers from the legislature and also the judiciary together to make a reasonable check against the growing and unchecked power of the executive branch, and make the whole system of political powers more stable and sustainable. That not only helps to bring about a sustainable China and future for Chinese people, but also a stable power for the world. I think of this symposium as a very good chance for scholars from both the U.S. and China to communicate on that issue, and learn from each other’s experiences.
PL: For a reader of U.S. news media, it may seem like government responsiveness depends on your position in the government or Communist Party. How does this tie in to improving any weaknesses in that respect?
JDL: The promise of the administrative law system that we’ve been talking about is complex. Relatively longstanding aspects of Chinese administrative law give ordinary people a way to challenge oppressive, corrupt, or inappropriate actions by the government. More recent developments and the prospective law of an administrative procedure system that grows from the roots that are already there now would give citizens increased opportunity to participate, whether in public hearings or notice-and-comment-like processes as individuals or through interest groups that can articulate viewpoints and aggregate influence. A fair amount of this has started to happen in China already. In many quarters, the hope is that administrative law strengthens and institutionalizes such processes.
There are different perspectives from which administrative law could be appealing. For people who are feeling disempowered and have no way to challenge—or influence—rules or decisions, it opens up an avenue that has not otherwise been available. From the perspective of an authoritarian regime, the same face of administrative law has the appeal that it is a channel for public input that is far more appealing than people taking to the streets and burning down the party or government headquarters—a non-trivial concern in China.
Administrative law offers a more lawful and orderly channel for such expressions of discontent, views on law and policy and so on. For some advocates of more fundamental change in China, administrative law, and especially its “citizen input” and “freedom of information” aspects, look like the most promising and feasible route to move more toward a higher degree of liberalization and progress toward some form of democracy.
For some well-intentioned, if not necessarily democratically-minded, people in the government, in the party, administrative law and administrative law reform provide channels that allows them to learn what people are angry about and what people would like to see in their laws and rules, but it does so in a relatively non-threatening way.
LY: I would add two points. The first point is that yes, administrative law has been one of the central arenas for allowing the government and the people to have a dialogue. If you look at the evolution of administrative litigation in China, the pattern of cases demonstrate that such litigation has become a reflection of more general social conflicts. That is, in the early stages of Chinese administrative litigation, the largest numbers of cases involved citizens challenging local police because at that time police departments were very strong.
Then from the 1990s litigation moved to a focus on land disputes. Nowadays, with changes to the regulation on freedom of information, the law allows people to use administrative litigation to challenge various governmental powers for lack of transparency. This is a very important instrument for people to communicate with the government and to improve public administration.