The administrative law regime: reining in an
Because the essence of rule of law is the ability of law to impose meaningful limits on the state and individual members of the ruling elite, an effective administrative law regime that limits the arbitrary acts of government is essential to rule of law. Yet despite broad agreement as to the importance of administrative law, administrative law is one area where there is tremendous variation among legal systems around the world. Simply put, there is no single correct way to deal with common administrative problems, a fact often overlooked by China's critics. 1 Thus, while all states rely on generally applicable laws to one degree or another to provide predictability and certainty, and attempt to limit abuses of discretion, they may differ with respect to how much administrative discretion is desirable. East Asian development states tend to favor a larger, more flexible role for the executive in managing the economy than Western liberal states. 2 Administrative officials in China also enjoy considerable discretion, in part because the rapidly changing economic environment requires flexibility.
In light of the diversity among administrative law regimes, the lack of a single blueprint for success, and a distinctive set of institutional, cultural, economic, and political constraints, the development of China's administrative law regime inevitably will be determined primarily by its own contingent, context-specific conditions, including which version of rule of law prevails. 3 Legal reformers will choose from the various items on the administrative law reform menu the ones that most suit China's particular circumstances, including perhaps some homegrown options.
On the other hand, although the menu of options with respect to goals, institutions, mechanisms for controlling administrative discretion, and legal doctrines is expansive and potentially unlimited, modern states with well-developed legal systems and functioning administrative law regimes have tended to converge on a range of favored choices. 4 Not