what_is

What Is Law?

Bo LI

The more corrupt the Republic, the more the laws. ---Tacitus

Recently, there has been a good deal of discussion on establishing the rule of law in China. In this short essay, I want to argue that to establish the rule of law in China, we should not only look at our courts; we should also reform our legislative practices. To understand my argument, it is important to understand the nature of law.

In the last twenty years, China has enacted thousands of laws. In some areas, there has been a tendency to over-legislate. For example, in administrative law, a large number of ineffective laws with narrow focuses have been, or will soon be, enacted. These laws include the Administrative Litigation Law (1989), the State Compensation Law (1993), the Administrative Punishment Law (1996), the Administrative Redress Law (1999), the Legislation (Law-Making) Law (2000), the Administrative Coercion Law (being drafted), the Permit Law (being drafted), the Administrative Procedure Law (under consideration), the Government Procurement Law (under consideration), etc. Worse yet, these general laws overlap with tens of hundreds of central, provincial and local legislative and administrative enactments, often creating confusion and uncertainties, and some of the laws use narrowly tailored language and can easily be evaded. A large number of these laws are poorly drafted and are of low quality, and many of them are not enforced and therefore are disregarded by officials and ordinary citizens. This situation contributes to the general lack of respect for laws in China. Many of these laws are the results of the "cure head when head is in trouble, and cure foot when foot is in trouble" mentality. This practice of over-legislating and narrow-legislating has to be changed if we want to establish the rule of law in China. Enacting thousands of laws does not necessarily establish the rule of law. What we need is not to legislate whenever it is convenient to do so, but to legislate under the framework of the rule of law.

Fundamentally, over-legislation is based on an incorrect conception on the nature of law. What is law? To answer this question, it is useful to conduct a thought experiment. Imagine in the Lockean state of nature, there was no state, no government, and no human society. Does this mean that there was no law in the state of nature? The answer is no. There were still laws in the state of nature: people still knew what was wrong and what was right. We can call these laws natural laws or moral laws. The problems were that, first, there was not an impartial tribunal to enforce the laws; second, different people might have different understanding of the laws (although after careful and rational public deliberation and discussion people could agree on the basic laws). These two problems, in turn, created several more direct problems for human life. First, there was no order but too much confusion. Second, there was no justice because those physically strong and powerful oppressed those physically weak and powerless. Third, there was no justice in another sense: like cases were not treated alike. Finally, there was no economic efficiency because there was too much uncertainty for efficient economic activities.

In order to solve these problems, a state based on social contracts, and a positive legal order that included written laws (legislation) and an impartial tribunal, were created. Since the state and particularly the positive legal order were meant to solve the problems in the state of nature, they must have the following properties. First, legislation must be based on natural law or moral law; that is, legislation must either be derived from the natural/moral law or not be inconsistent with the natural/moral law. Second, legislated laws, together with their judicial interpretations, must be simple enough so that people know what laws are and how to comply with them. Third, legislation cannot be changed frequently, otherwise there will be too much uncertainty and the problem of uncertainty in the state of nature will only be replaced by a host of new uncertainties. Fourth, since one purpose of creating a state and a positive legal order is to prevent oppressions, the positive legal order must contain credible constraints on the power of the state in order to prevent state oppressions and the abuse of state power. Fifth, the positive legal order must be rational in the sense that like cases must be treated alike, so that there is at least the appearance of justice. When all five properties are satisfied, we can say that the positive legal order is "just." These five properties together imply three principles of the rule of law that were discussed in an earlier article of mine: rule of law as a constraint on the power of the government, rule of law as equality before law, and rule of law as procedural and formal justice (see Bo Li, "What Is Rule of Law," in Perspectives, Vol. 1, No. 5).

The above thought experiment tells us one important principle: law, in its original meaning, is not the same as legislation. Law existed in the state of nature, while legislation exists only in a (man-made) positive legal order. Law does not have to be written. In its original meaning, law "is the story of how things work... Man can know, through the use of his reason, what is in accord with his nature and therefore good" (Rice, 1999, p. 30). The Latin words 'ius' (law) and 'iustum' (justice) are intimately connected. Law, therefore, necessarily embodies justice, which is rooted in nature and knowable through reason. As Aristotle puts it, "there is in nature a common principle of the just and unjust that all people in some way divine [discern], even if they have no association or commerce with each other" (Aristotle, 1991, p. 102). Marcus Tullius Cicero defines "Law" as "the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite.... What is right and true is also eternal, and does not begin or end with written statutes.... It may thus be clear that in the very definition of the term 'Law' there inheres the idea and principle of choosing what is just and true" (Cicero, 1959, pp. 44-51). Ultimately, the rules that we want for governing human society are rules based on our nature and our basic sense of justice. These rules are natural or moral laws. In other words, in its original meaning, "law" means the natural or moral law, which are in accord with our basic sense of justice. In contrast, legislation (positive law) is man-made law, which can either be just or unjust.

The differences between law (i.e., the natural/moral law) and legislation (i.e., the positive law) should not be surprising to believers of liberal democratic principles. There are two well-established principles of liberal democracy founded on the rule of law. First, there is the principle of supremacy of the law. Second, there is the principle of limited legislative power. Together, these two principles imply that in a liberal democracy some laws are not written by the legislature. Instead, some laws are found by judges. The justification for this arrangement is that, for reasons discussed below, there is no guarantee that the legislature will find the natural/moral law that should rule human society. In fact, if anything, highly educated and specially trained judges are better positioned and more likely to find the natural/moral law. This is why there is judicial review in a liberal democracy.

Judges find law based on precedents, history, custom and reason, one ultimate source of which is the natural/moral law. In fact, the idea of natural/moral law is probably one of the best arguments for judicial review. As Justice Clarence Thomas of the U.S. Supreme Court puts it, "natural rights and higher law arguments are the best defense of liberty and of limited government. Moreover, without recourse to higher law, we abandon our best defense of judicial review - a judiciary active in defending the Constitution, but judicious in its restraint and moderation. Rather than being a justification of the worst type of judicial activism, higher law is the only alternative to the willfulness of both run-amok majorities and run-amok judges" (Thomas, 1989, pp. 63-64).

The differences between law (natural/moral law) and legislation (positive law) are important. Legal positivism, in postulating that the written, legislated laws are the ultimate and supreme source of justice (i.e., law, or justice, is regarded as the will of the lawmaker), could be very harmful, or even disastrous. An example of legal positivism could be found in Nazi Germany, where inhuman wrongs were committed under the guise of written laws. After World War II, German judges repudiated legal positivism, recognized "the necessity of universal higher standards of objectively valid suprapositive principles for the lawmaker," and relied on the natural/moral law in punishing actions that were legal under the Nazi regime (Rice, 1999, p. 26). In rejecting the defense of accused physicians that they killed prisoners in medical experiments under the authorization of the laws of the Third Reich, a German judge concluded that "law must be defined as an ordinance or precept devised in the service of justice. Whenever the conflict between an enacted law and true justice reaches unendurable proportions, the enacted law must yield to justice, and be considered a 'lawless law.' The accused may not justify his conduct by appealing to an existing law if this law offended against certain self-evident principles of the natural law" (2 Sueddeutsche Juristen Zeitschrift 521 (1947), as cited in Rice, 1999, p. 27).

The example of Nazi Germany is a telling one. When law is equated with legislation, the "pure will" conception of law gradually replaces the "limitations" conception of law, and the rule of person eventually replaces the rule of law. The following quote from Sartori (1987) is illuminating:

"It seems to us perfectly normal to identify law with legislation. But at the time when Savigny published his monumental System of Actual Roman Law (1840-49), this identification was still unacceptable to the chief exponent of the historical school of law. And we can appreciate its far-reaching implications today very much more than was possible a century ago. When law is reduced to state lawmaking, a 'will conception' or a 'command theory' of law gradually replaces the common-law idea of law, that is, the idea of an incremental lawmaking process derived from custom (the lex terrae) and defined by the law finding of judicial decisions." (Sartori, 1987, p. 324)

Interestingly, the legislative conception of law is not unique to countries attempting to establish the rule of law. When Sartori wrote the above passage, he was referring to the over-legislation problem in the United States and other developed countries with the rule of law. Similarly, Professor Harold Berman wrote:

"Only in the past two generations, in my lifetime, has the public philosophy of America shifted radically from a religious to a secular theory of law, from a moral to a political or instrumental theory, and from a historical to a pragmatic theory.... The triumph of the positive theory of law - that law is the will of the lawmaker - and the decline of rival theories - the moral theory that law is reason and conscience, and the historical theory that law is an ongoing tradition - have contributed to the bewilderment of legal education. Skepticism and relativism are widespread." (Berman, 1985, 348)

Sartori (1987) identifies several specific problems with the legislative conception of law. First, the legislative conception of law results in over-legislation or "a fearful inflation of law," which is both "unnecessary" and "counterproductive." In fact, "the inflation of laws in itself discredits the law," and it "confuse[s] governing with lawmaking, and thus is a misconception of both." Secondly, over-legislation lowers the quality of law. This is because "legislative bodies are generally indifferent to, or even ignorant of, the basic forms and consistencies of the legal pattern. They impose their will through muddled rules that cannot be applied in general terms; they seek sectional advantage in special rules that destroy the nature of law itself" (Adam, 1956, p. 176). Thirdly, over-legislation results in frequent changes in law and therefore creates legal uncertainties that run against the spirit of the rule of law. Lastly, "the theory and practice of 'legislated law' . . . accustom us to accept any and all commands of the state, that is, to accept any iussum (command) as ius (law)" (Sartori, 1987, p. 326). These problems, together with the gory memory of Nazi Germany, show the necessity of preserving judicial review and law finding by specially trained judges; they also show the desirability of natural/moral conceptions of law which postulate certain universal higher principles.

Ideally, as higher law, the natural/moral law should be the basis of all political and legal activities of any just state. The problem, however, is that the natural/moral law is not written and different people might have different interpretations of the natural/moral law. Three questions then arise. First, who decides what is the natural/moral law? What if there are disagreements? Secondly, how do we become informed about the natural/moral law that commands everybody's obedience? Thirdly, how is the natural/moral law enforced? On the first two questions, some people would argue that the natural law makes no sense without God as its author, and that the most authoritative revelation of the natural law is the Ten Commandments. But is natural/moral law a purely theological concept? The answer is no. "The natural law has been around a long time. It is neither a Catholic dogma nor even a Christian invention" (Rice, 1999, p. 33). After all, neither Aristotle nor Cicero based their theories on religious principles. The principles of the natural/moral law are rooted in the nature and knowable through reason. To be sure, religion is a good aid to natural law jurisprudence, but the modern separation between church and state means that we cannot look to theology to determine how our government is organized and how it works.

But if God does not decide, who should decide the contents of the natural/moral law? The contents of the natural/moral law should be fleshed out, under a liberal constitutional framework, through gradual and dynamic interactions between the democratically accountable electorate and legislature, on the one hand, and the specially trained and independent judges, on the other. In other words, the natural/moral law should be found, under a liberal constitutional framework, through incremental and dynamic interactions between written statutes enacted by the legislature, on the one hand, and the case law (common law) as developed by highly educated, specially trained and independent judges. A liberal constitutional framework (with separation of power and independent judicial review), as such, is the key to the dominance of the natural/moral law.

More specifically, for a state to behave according to the natural/moral law and therefore to be just, there must be a Constitution that satisfies the following conditions. First, the Constitution must be consistent with the natural/moral law, which also includes the idea that laws enacted in accordance with the Constitution must be consistent with, or at least not in conflict with, the natural/moral law. Secondly, over the long term, the Constitution must enjoy the support of an overwhelming majority of the population. Thirdly, the Constitution must not be easily and frequently changeable by any person or any group of persons. Stringent and onerous procedural conditions must be met before the Constitution can be changed. Fourthly, the Constitution must establish credible and effective enforcement mechanisms that together ensure the supremacy of the Constitution. The mechanisms include separation between legislative/executive power and judicial power, independent judiciary consisting of specially trained judges, and judicial review with the Constitution as the ultimate source of authority. Finally, the Constitution must contemplate, or accommodate, the establishment or preservation of some elements of the common law system of justice. As discussed in another essay of mine, these conditions are basically the elements of liberal constitutionalism (see Bo Li, "What Is Constitutionalism," in Perspectives, Vol. 1, No.6).

Note that, in a liberal constitutional state, the Constitution itself is the product of the interactions between the general electorate and the legislature, on the one hand, and the independent judges, on the other. For example, in the United States, the Constitution includes not only the written text; it also includes voluminous constitutional cases as decided by the judges. These cases form the constitutional law as found by the judges. For another example, in the United Kingdom, there is no written Constitution. For the British, the Constitution includes a small number of written statutes enacted by the Parliament and also a large number of constitutional cases as decided by the judges.

In a liberal constitutional state such as the United States or the United Kingdom, the Constitution serves as the "higher law" that is essential for the maintenance of a just positive legal order (i.e., a positive legal order that satisfies the five properties which we discussed in our thought experiment above). In essence, the Constitution takes the place of the natural/moral law in a liberal constitutional state. As the higher law, the Constitution limits what the general electorate and the legislature can do. It gives independent and well-trained judges the power, proper incentive and fortitude to find laws based on fundamental principles written in the Constitution, the common law principles and precedents, history, logic and reason.

A reader might ask: What about the civil law countries in continental Europe? They do not seem to have a common law system of justice, but don't they have a constitutional state? As a casual observation, it should be noted that, other things being equal, the common law system (together with a constitutional state) generally seems to perform better in the long run than the civil law system (together with a constitutional state) in terms of being more just and, as a consequence, economically and politically more successful. A casual comparison between the common law countries with a constitutional state (the United States and the United Kingdom) and the civil law countries with a constitutional state (Germany, France and Spain) should give us some hint. In a civil law system, written statutes are emphasized and judges are not supposed to find laws. As such, the legislative conception of law frequently finds its home in civil law countries, and the injustices committed in the French Revolution and more recently in Nazi Germany (both France and Germany are civil law countries) are vivid examples of disasters that could be caused by such a conception of law. It should not be surprising, therefore, that in recent years a number of civil law countries are starting to adopt certain elements of the common law system. An example of such adoption is the establishment of Constitutional Courts in several civil law countries.

Traditionally, law finding is a peculiar feature of the common law system. Under a common law system, judges find laws by deciding cases. Letting judges find laws has several desirable properties required by the natural and moral conceptions of law. First, judges are highly educated and specially trained, and they are familiar with the forms and consistencies of laws. Thus judge-found laws are of high quality and therefore are highly regarded by people. Secondly, in a common law system, judges find laws in a gradual and incremental fashion because they have to follow precedents and strict rules of legal interpretation, and they have to wait for cases to come to court. Judge-made laws, therefore, are not made or changed easily or frequently, and there is not inflation of law, nor are there too many legal uncertainties. And finally, the common law system of law finding rejects the "pure will" and "command" theories of law and accepts the existence of certain higher laws. As such, it should not be surprising, other things being equal, that a common law system generally seems to perform better vis-�-vis the civil law system.

A caveat is due here. It is probably risky to use the phrase "natural law" these days because people sometimes associate it with the ideas of pre-existing rights, static absolute truth and the desire to impose these ideas on other people. These ideas, I think, can be properly called "classical natural law." As Justice Oliver Wendell Holmes, Jr., one of the most famous critics of classical natural law, put it, classical natural law jurists postulate the existence of pre-existing rights and demand for the superlative (see, Holmes, 1918). But the term "natural law" is used differently in this essay. In this essay, the natural/moral law is viewed as a shield, not a sword. The natural/moral law is properly viewed as a limit on legal positivism, and in practice it is dynamic and relative. In a proper conception of law, I think, we don't need to assume pre-existing rights or demand the superlative. What we need to do is to agree that law is not the same as legislation, and that there are dynamic higher laws that can only be discovered through a gradual, incremental and interactive process. Nobody can have knowledge about, or proper incentive to abide by, all higher laws. As such, the division of lawmaking power under a system of checks and balances, with properly trained judges as important law finders, assures us that we are at least as close to the higher laws as we ever can.

For China, there are several important lessons that can be learned from the above discussion on the proper conception of law. First, the National People's Congress (the "NPC") should refrain from over-legislating. As some scholars have pointed out, one of the biggest problems of the new Legislation (Law-Making) Law is that it does not delineate the limits of legislation. Before this problem is fixed, the NPC should be encouraged to observe certain legislative limits voluntarily. For example, the NPC should legislate within the constitutional limits. No law should violate the constitutional rights of individuals. In addition, when legislating, the NPC should bear in mind the importance of high quality, certainty, predictability and people's respect for law. It is also a very good idea to study existing customs and generally accepted practices before legislating.

The second lesson for China is that judges must be trained and empowered to find laws. The system of the rule of law, and more generally the system of constitutionalism, are "not designed to have legislators replace jurists and jurisprudence" (Sartori, 1987, p. 325). As discussed above, when compared to legislators, judges should be better trained and better positioned to find laws through judicial decisions in an incremental fashion, in which process certainty and predictability are preserved, respect for law is earned, and the quality of law is high. In addition, only judges can prevent clever evasions of law by applying general principles of law instead of fruitlessly searching through thousands of narrowly worded statutes. The primary role of the legislature should be "epitomizing non-enacted law[s]" (including well established and generally accepted legal precedents, traditions and customs) and legitimizing general rules of law instead of focusing on specific legal scenarios or factual situations. For those new areas without existing precedents or traditions, the legislature should try to borrow general principles from other areas and from similar laws in other countries, and allow the judges to apply general legal principles to specific legal scenarios and factual situations in order to find laws. Of course, judges must have the proper training, fortitude and constraints in order to do a good job in finding laws. This again requires reforms of our system of training, selecting, promoting and constraining the judges.

Finally, in order to have a just legal order, China eventually needs to accept a proper conception of law and establish a constitutional state. A legislative conception of law, as discussed above, is harmful and potentially disastrous. We need to learn from previous tragedies in human history and take upon ourselves the responsibility of preventing similar tragedies from happening again. To that end, one of the things that we need to do is to accept a conception of law that includes higher laws (the natural law or moral law). Another thing China ought to do eventually is to establish a constitutional state, which is conducive to stability, properly curtailed state power, incremental and judicious law finding, and the supremacy of universal higher standards.

(The author is an attorney with the New York law firm of Davis Polk & Wardwell.)

References:

1. Adam, T.R., in L. Bryson et al., Aspects of Human Equality. New York, New York: Harper, 1956.

2. Aristotle. On Rhetoric, Book I, Chapter 13 (George A. Kennedy, translation). 1991.

3. Berman, Harold. "The Crisis of Legal Education in America." Boston College Law Review 26 (1985): 347.

4. Cicero, M. "Laws." In Great Legal Philosophers, ed. C. Morris, 1959.

5. Holmes, O.W. "Natural Law." Harvard Law Review 32 (1918): 40.

6. Rice, Charles. 50 Questions on the Natural Law: What It Is & Why We Need It. San Francisco, California: Ignatius Press, 1999.

7. Sartori, Giovanni. The Theory of Democracy Revisited. Chatham, New Jersey: Chatham House, 1987.

8. Thomas, Clarence. "The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment." Harvard Journal of Law & Public Policy 12 (1989): 63.