Murray Scot Tanner
A key aspect of the legal reforms in post-Mao China involved changes in the legislative process. Legislative institutions were reorganized to permit a more diverse range of organizations to participate in the law-making process. No longer did the CCP exercise unfettered domination over legislative activities.
Law making has become an increasingly large and important part of China's broader "policy-making" process ever since the 1978 Third Plenum of the Communist Party Central Committee endorsed the development of "socialist legality." Western sinologists and legal scholars have responded admirably to this change, analyzing the content of the subsequent outpouring of legislation, as the chapters in this volume amply demonstrate. Western studies of the politics of law making, however, still are just beginning. Most Western discussions of China's law-making system remain trapped between two truisms: an old truism--that "the party controls the legislature"--and a new truism--that the National People's Congress ( China's legislature) is "no longer a rubber stamp."
The old truism--about party control--implicitly assumes that the party leadership is sufficiently unified (monolithic, even) that it can resolve all disputes over legal policy within the confines of party decision-making organs, without resort to the legislature or other bodies as adjunct arenas of political warfare. It cannot help us understand the political activism in the NPC since 1980. On the other hand, the new truism--about the NPC's independence--does not go far enough to give us a politically credible explanation of the political forces, cleavages, and processes that transformed the NPC into an arena of conflict on significant issues. In my opinion, even the very thoughtful recent studies of the law- making system--which stress the NPC's new role as a move by the leadership toward "legalization," "rationalization," and "inclusion"--have overstated the degree of leadership unity on the proper role of law-making institutions, and understated the importance of political forces and disputes in reshaping the relationship between those party and state organs which make China's legal policy. 1