Beermann Aids Administrative Law Reform in China

Professor Jack Beermann has spent the last few years working with Chinese legal scholars to help reform the country’s administrative laws.

Attendees of the Sino-US International Conference on Administrative Law, from left to right: Neysun Mahboubi (UPenn), Michael Asimow (Standord), Hosts Ma Hauide and Ying Songnian, Peter Strauss (Columbia), Edward Rubin (Vanderbilt), Jack Beermann (BU Law), Richard Murphy (Texas Tech)
Attendees of the Sino-US International Conference on Administrative Law, from left to right: Neysun Mahboubi (UPenn), Michael Asimow (Standord), Hosts Ma Hauide and Ying Songnian, Peter Strauss (Columbia), Edward Rubin (Vanderbilt), Jack Beermann (BU Law), Richard Murphy (Texas Tech)

Jack Beermann has become deeply involved in an international conversation over the reform of China’s administrative law. The Harry Elwood Warren Scholar and professor of law has traveled to the country several times to attend conferences, roundtables, and forums, joining with an international community of administrative law scholars as they help China ease some of the tension created by its complex administrative system and combat the corruption that has stemmed from that complexity.

Administrative law reform is a long and arduous process for any country, let alone one of the largest and most rapidly growing countries in the world. For China, the push began more than a year ago, and, Beermann notes, will likely take another several years to achieve.

Professor Beermann’s involvement began when he attended the International Workshop on the Reform of Administrative Approval System and Government Regulation in August 2013. Sponsored by Zhejiang University but held in Beijing, the conference’s mission was to recommend ways to improve China’s slow and complicated licensing and permitting system. Beermann notes that it often takes upward of fifty permits to open a new business. The process is long and expensive, and ultimately hinders economic growth. Further, it often leads to corruption. “Anyone who touches a permit application has the potential for corruption,” Beermann says. “And the problems begin there and move into the social sphere; when illegal businesses open to avoid the permitting system, it leads to unregulated and often unsafe working conditions. Workers often move into the larger cities to work illegally, meaning their children miss out on social benefits like public education because their parents can’t register as having a legal job. Often, the children remain home with grandparents while their parents work in distant cities.”

Beermann has argued that, rather than making it difficult to obtain a permit to start a business, the Chinese government should channel its resources into creating safe working environments, producing safe and healthful foods, and improving the quality of the drinking water. His paper from that conference was included in a report delivered to the Chinese government, which shortly after announced reforms to the permitting system.

It was a step in the right direction for a government that is reluctant to reform. “The current administration is very anti-corruption,” Beermann says, “even as it strictly polices the freedom of speech of its journalists, scholars, and political dissidents.” Under such pressures, academics have become a strong source for new ideas to reform Chinese law. “It’s much safer for a legal scholar to speak out about what’s wrong with the system than it is for a political activist to do so,” Beermann says. “The academic setting has become a safer space to discuss theories of legal reform, so many of the new ideas being implemented have come out of conferences and workshops on the subject.”

In June 2014, Beermann returned to Beijing to attend the Sino-US International Conference on Administrative Law, organized by the China University of Political Science and Law (CUPL) and the China Administrative Law Group (CALRG). The conference was hosted by eminent Chinese legal scholars Ying Songnian, emeritus professor at CUPL and former chair of the CALRG, and Ma Huaide, vice president of CUPL and current chair of CALRG. Professor Ma, a well-known and respected scholar of administrative law, studied American Administrative Law with Professor Beermann at BU Law as a visiting scholar in 1995.

Professors Ying and Ma organized the conference to provide the government with suggestions on how to reform China’s Administrative Litigation Law (ALL), the law that citizens use to sue the government for violations of its own statutes and rules. Beermann notes that as currently structured, the ALL has not been effective at enforcing limits on administrative power or curbing official abuse of governmental power. As is it, he says, many claimants are convinced—one way or another—to drop their cases against the government. “One great difference between Chinese and American administrative law,” Beermann says, “is that in China if an agency issues a rule, you cannot challenge the rule; you can only challenge how the rule is applied to you. And even if the court agrees and concludes that the rule is illegal, the court cannot declare the rule invalid.” Beermann notes that much of the discussion at the conference, including his own presentation on standards of American judicial review, focused on whether the administrative litigation law should allow courts the power to strike down rules.

In the United States, Beermann is working with the Administrative Conferences of the United States (ACUS), a federal government agency, to aid its efforts in improving administrative systems both domestically and abroad. Beermann recently joined representatives from ACUS, as well as federal judges, academics, and officials of the Environmental Protection Agency, the Department of State and the Department of Commerce to discuss how the group can coordinate more directly with the Chinese government in its administrative law reform.

There has been progress in China, and Professor Beermann is cautiously optimistic that the country will move its reform in the right direction over the next few years. However, he still has his doubts. “Closed systems of government breed corruption, cronyism, and favoritism at all levels,” Beermann says. “The puzzle of China is whether a country can move toward rule of law and build a free economy, but not have a free political system.”

It may take years to answer that question, but Professor Beermann will be there to find out.