Legislative Law and Process=Legislative Law and Process

Author: (American) Davis
Publisher:
Publish Date: 2005-01-01
Features: The book Legislation: Law and Process was written by Professor Jack Davis. It was first published in 1975 by Western Publishing as part of the Legal Essentials series and was revised in 1986. The version introduced here is the 1986 edition. The author dedicated the book to the voters of Minneapolis, Minnesota, because from 1958 to 1982, Davis served as a Senator from Minnesota for 24 years, and the book was written during his tenure as a Senator. As the author states in his preface, the book received widespread acclaim after its publication and became a "guide" for many lobbyists. A close friend of the author, who is both a professor and a former senator, read the book and said, "That’s exactly what it is!" Whether it is "exactly what it is" can be determined by examining the author’s credentials, the content of the book, and the ideas it conveys. The author has 24 years of experience in legislative work, serving as the majority leader of the Minnesota Senate and chairing the Judiciary Committee, where he was responsible for drafting and passing numerous significant bills, as well as for committee structure and Senate personnel appointments. It is highly appropriate for such an experienced professional to write this book.
Looking at the content framework of the book, the five major parts cover: (1) the legislative process, (2) bill drafting, (3) analysis of legislative power, (4) the impact of the constitution, and (5) legal interpretation. Other books on legislation and legal process also primarily focus on these aspects, such as The Law-Making Process by Professor Michael Zander of the London School of Economics. Within these five parts, the book provides an extremely detailed and thorough introduction to the legislative process, methods, structure, institutions, and internal and external relationships. Taking bill drafting as an example, it offers a very detailed yet concise and vivid description of the techniques, content, editing, and common pitfalls in drafting bills. Only a seasoned professional immersed in the legislative process for decades could achieve this level of detail. No wonder lobbyists keep a copy on hand, using it as a classic reference to understand and influence legislative activities. In this sense, while the book may not match the academic value of works by major theorists like F.A. Hayek’s Law, Legislation and Liberty, from a practical standpoint, no other comparable book comes close.
For Chinese readers, while they may not directly benefit from the book’s practicality (e.g., using it as a guide to lobby the U.S. or Chinese legislative bodies), they can gain insights into the U.S. legislative system and process through its vivid and realistic descriptions and discussions, and draw inspiration from its to refine China’s legislative system. The profound ideas conveyed through the description of the process are what make the book valuable and worth attention. First, the author tells us that legislation is important and impactful. From constitutional, tax, financial, environmental, employment, criminal, and marital systems to trivial matters like whether to wear a helmet while riding a motorcycle or wash combs after using them for beauty treatments, everything is regulated by law. Therefore, legislation is no joke—it should not be taken lightly, and one should not stand idly by. Good legislation benefits both the nation and individuals, while poor legislation can cause endless harm.
Recently, the U.S. Congress has been debating whether to pass a Seduction Copyright Infringement Act, aimed at regulating any computer technology that could lead to online copyright infringement. Many (especially those in the tech industry) strongly oppose it, fearing it may stifle technological innovation. In China, a traffic regulation in Beijing sparked fierce debate between drivers and pedestrians, ultimately favoring pedestrian interests, meaning drivers bear liability for accidents regardless of fault. These are examples of how legislation affects society and individual lives. Since legislation concerns the interests of the nation and every citizen, "those who want something from a legislature must ask for it" (Those who want something from a legislature must ask for it). The legislature is more like a "review board" (Board of Review), rarely initiating legislation but rather reacting to and judging the demands of the people (or interest groups) and forming laws based on these demands. The author even argues that the principle of "inertia" (inertia) in physics is a common trait of legislatures—that is, bills are generally passed only when pushed by external forces, otherwise they languish in committees. This concept may be unfamiliar to some Chinese readers, who believe that legislation is the initiative of the legislative body (or "the higher-ups") and has nothing to do with them. They only enforce (or try to evade) laws passed. In reality, when citizens see themselves as "legislators" and actively propose legislative demands for their own interests, the laws passed are more likely to be voluntarily followed. Therefore, legislation should be seen as a bottom-up process, not the opposite.
Of course, in most cases, ordinary citizens cannot directly participate in the legislative process and need representatives (or lobbyists). The role of representatives or lobbyists is similar to that of lawyers in court, helping judges uncover and judge the truth of a case. If no one opposes a bill, even if it is disadvantageous to some, it may still pass, much like a "default judgment" in court. With lobbying, fairness and justice in legislation can be ensured to some extent. Because the three elements of "due process" (due process)—notice, hearing opportunity, and an impartial tribunal—are only strictly required in the legislative process; citizens’ hearing opportunities are generally represented by lobbyists; and there is no "impartial tribunal" in the legislative process. Unlike judges, legislators cannot be impartial and must constantly engage with relevant stakeholders, whose demands are usually conveyed through lobbying. China’s legislative process also requires legislative consultation and hearings, but they are generally "top-down" and selective, unlike U.S. lobbying, which is "bottom-up" and pervasive. If lobbying could also be injected into China’s legislative process, it might have a positive impact on the fairness and democracy of legislation.
Another noteworthy point in the book is the source and division of legislative power. The U.S. Tenth Amendment to the Constitution explicitly states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Therefore, the U.S. Congress only enjoys legislative power granted by the Constitution, while the states enjoy all these powers and the remaining legislative power. In other words, the scope of state legislative power is broader than that of the U.S. Congress. China’s division of legislative power is the opposite: the National People’s Congress holds all legislative power, while provinces, autonomous regions, and the State Council and its subordinate agencies enjoy legislative power delegated by the National People’s Congress. These two divisions are based on opposing theoretical assumptions. In China, the National People’s Congress represents the people and is one with the people; in the U.S., states are the people, while the federal government is a potential threat to their rights and interests. Both systems emphasize "popular sovereignty," but whether central or local power organs better represent public opinion is a matter of perspective. However, in practice, the two systems are increasingly converging: the U.S. Congress expands federal legislative power based on the "necessary and proper" clause of the Constitution, while Chinese local governments also increasingly exceed the authority defined by the Constitution and the Legislative Law through measures like "pilot legislation." Another difference in Chinese legislation is that U.S. court rulings have the same legal as laws passed by the legislature. This approach allows both the legislature and the judiciary to play complementary roles: the former is macro, while the latter is specific. Together, they ensure that laws are both stable and flexible, capable of adapting to ever-changing and complex social affairs. Of course, judicial legislation, apart from the long-standing common law tradition, also requires high standards of judicial professionalism, which may not suit China’s legal tradition and context.
Lastly, I’d like to mention the author’s views on the relationship between courts and legislatures. In the U.S., courts and legislatures have a "separation of powers and checks and balances" relationship, but the judiciary seems to be given more weight, as courts can review the constitutionality of legislation, while the legislature cannot interfere with court rulings. According to Chief Justice Marshall’s decision in Marbury v. Madison (1804), only those who apply the law to specific cases have the right to interpret it and, in the event of conflicts, determine which law violates the constitution and which is more applicable to resolving a dispute. Of course, judicial review is also subject to numerous restrictions. In China, when laws conflict, especially regarding constitutionality, the Standing Committee of the National People’s Congress holds absolute interpretive authority. However, this theory is controversial, and in practice, courts often face cases requiring immediate interpretation of constitutional conflicts or violations. Waiting for the legislature to interpret would delay rulings and may not yield appropriate or reasonable interpretations, as legislators are unlikely to have the practical understanding that law enforcement officials have of specific cases.
This is just a brief evaluation of the book, focusing more on institutional aspects. As I mentioned earlier, the book’s most important feature is its practicality, and the description of legislative technicalities is the main, detailed, practical, and engaging part. Unfortunately, due to space constraints, I cannot share more on this aspect with readers. I believe that after carefully reading the book, readers will fully and deeply understand and master these practical and engaging aspects.
Although my primary field of teaching and research is intellectual property law, I have long been fascinated by constitutional systems, particularly legislative systems, and have spent considerable time and effort studying legislative systems in various countries. This special preference stems from my time working in China’s highest legislative body. I am deeply grateful for that experience and for the people I worked with during that period. Although it was short compared to Davis’s 24 years, it allowed me to view the legislative systems of China and the U.S. from an insider’s perspective and gave me reason to believe that the gaps and differences between the two legislative systems are narrowing significantly through the efforts of generations of elites dedicated to developing China’s legislative system. The publication of this book in China will undoubtedly contribute to this effort.