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BusinessLaw1and2answers - Business Tutorial Outline Answers...

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Business Tutorial Outline Answers Tutorial 1 & 2 What do we mean by the word "law"? STOTT p2 to p6 http://www.uplink.com.au/lawlibrary/Documents/Docs/ Doc31.html http://www.oycf.org/Perspectives/10_022801/what_is_law.htm. What Is Law? Bo LI Perspectives, Vol. 2, No. 4 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
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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
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