On The Modesty Of Local Legislation

The word modesty embodies the meanning of restraint,prudence and courtesy.Generally speaking,the modesty of local legislation refers to that it is necessary for the local legislators and the participants in local legislation to adhering to the principle of prudence and moderation when they conducting the local legislative activities,so as to achieve the goal of proper quantity and good quality of local laws and regulations as far as possible.In fact,the spirit of the modesty is embodied in a lot of legislative thoughts and practices at all times and in all countries.In the ancient West,Plato’s attitude about the law was distrust.Augustine insisted that the enacting of secular law must follow the eternal law.And Montesquieu considered that the legislative power needed to be restricted.These are the origins of the thought of the modesty of legislation.Since modern times,Savigny was opposed to the fanaticism of the enactment of law.Leoni argued that the overflow of legislation would deviate from personal freedom.Epstein considered that we should contract the force of law.These also embodied the spirit of the modesty of legislation.In ancient China,this spirit embodied in the ideas such as "the more laws,the more thieves" and "complex legislations leading to complex ruling".In practice,there appeared the phenomena such as "simple laws and fewer penalties in the early Han Dynasty","laws were loose but never miss in the Tang Dynasty".The launching of customary investigation campaign in late Qing Dynasty and the Republic of China,and the legislative principles and practices of "Mature one,Formulate one" and "Pilot legislation" in the new China period,all of these were reflecting the spirit of the modesty of legislation.Although the modesty of legislation has been affirmed by scholars,it has not received enough attention.Few scholars have summarized this theory of the modesty of legislation,especially in the field of local legislation.Taking many new changes and characteristics in the field of legislation in recent years into consideration,it is necessary to sum up the relevant problems of local legislation in China from the perspective of the modesty of local legislation and to feed back the practice of local legislation.In 2015,the Legislative Law was amended.It makes that the number of local legislative subjects expand to cities with districts and four cities without districts.With the addition of provincial legislative subjects such as provinces,autonomous regions,municipalities directly under the Central Government and municipal legislative subjects such as autonomous prefectures,the number of local legislative subjects reached 354.It caused the rapid growth of the number of local regulations.Up until January 1,2019,the total number of local regulations that enacted by 243 newly-added municipalities which possessing local legislative power has reached 906.They were consisted of 206 procedural legislations and 700 substantive legislations.However,the realistic request of the modesty of local legislation is not only out of the sharp increase in the number of local legislative subjects and the rapid growth in the number of local regulations,but also out of the obvious phenomenon of the convergence of local legislations in cities with districts,the phenomenon that many cities compete to legislate only out of the "characteristics" of the regulated objects have occurred,and the situation that local regulations exceed the scope of local legislative authority have occurred.Through studying and discussing these circumstances based on the realistic requirement of the modesty of local legislation,it is found that it is necessary to study the questions about the modesty of local legislation in legislative theory.And it is found that it is urgent to discuss the modesty of local legislation in the field of local legislative practice.The necessity of modesty in local legislation is mainly out of these two aspects in the aspect of legislative theory:the failure of representative legislation and the limitation of law.The failure of representative legislation refers to the inherent limitation of the enactment law,that is,the laws are not invented but the result expressed by the legislator.There is a certain degree of distortion in the process of expression of the law,and there are many doubts on the issues of "representative","public will" and "election" in the representative system,these make the foundation of the statutory law not firm.The limitations of law mainly lie in that law is only one of the multiple social norms such as morality,customs,policies,market rules and so on.The limitations of law decide that its reach is limited,moreover,the law often lags behind the social life.It alone would be incapable to achieve the perfect justice.The excessive legalization will engulf human freedom and justice and restrain human progress.In the aspect of local legislative practice,the urgency of modesty in local legislation is mainly out of these aspects:the inadequate capacity of local legislative,the immature local legislation and the alienation of local legislative power.The inadequacy of local legislative capacity not only includes the insufficiency of legislative qualifications and legislative competence,but also includes inadequate legislative bodies,weak legislative ranks and inadequate legislative technology.The immaturity of local legislation includes the imperfection of local legislation which is reflected by frequent revision of local regulations at provincial level,large cities and newly-added districts.The unnormative local legislation is reflected by Qilian Mountain Incident,Pan Hongbin Incident and other illegal local regulations.The unpractical local legislation is reflected by the Regulations on Road Traffic Safety in Jiangsu Province and Qingdao City kennel management regulations.The alienation of local legislative power is mainly manifested in that some administrative organs or departments take the advantage of local regulations to obtain "staff","money" and"power" and to pass the buck.For example,the local regulations might add staffing level through establishing such clauses as adding the specialized agency and adding the subordinate institution.The local regulations might create added budgets through establishing such clauses as adding the items of fine and adding fee items.The local regulations might increase local legislators’ power through establishing such clauses as establishing or extending departmental function and power.The local regulations might make for passing the buck through establishing such clauses as adding the obligations of citizens while weakening the rights of citizens.Thus,from the point of view of local legislative practice,we could say that it is urgent to initiate the modesty of local legislation.There are mainly four aspects to initiate the modesty of local legislation in practice.Firstly,regulate the local legislative power.It mainly contains the following points:respecting and protecting individual rights to prevent the infringement of citizens’ rights and interests by local legislative power;strengthening and implementing legislators’ the responsibility to ensure that local legislative power is not abused;changing the consciousness of local legislative participants to ensure the of local legislative power can exercise scientifically;clarifying the jurisdiction of social norms to prevent local legislative power from interfering in extrajudicial space improperly;clarifying the area of central and local legislation to prevent local legislative power from exceeding its jurisdiction.Secondly,normalize the local legislative activities.It mainly includes these points:improving the local legislative procedures;implementing the system of the examination and approval for the record of the local legislation;promoting the open-door legislative system.Thirdly,overall plan the local legislative activities.It mainly includes these points:the universal local legislative matters should be legislated in unison by the provinces or the country;enhancing the joint legislation between provincial and municipal organs of power.Fourthly,optimize the activities of local legislative.It mainly contains the following points:strengthening the argument about the project approval of local legislation and strengthening the argument about the contents of local laws and regulations;improving the evaluation which before local legislation and after local legislation;allocating local laws and regulations,local government rules and other normative documents reasonably.It should be noted that the objective need of modernization of local governance require the delegation of the local legislative power to lower levels.This is reflected in the fact of expansion of local legislation in China.This is because the local governance has diversity and autonomy,it has priority to the central governance in a sense,and it has advantage in the respect of cost-effectiveness.Furthermore,from the perspective of the local legislative practice,it is shown that the local legislation in China in the respect of the subject of local legislation,the local legislative power and the scope of local legislation remain to be expanded moderately.So,the local legislation should adhere to the spirit of modesty and pay attention to the moderate expansion in the meantime,neither can be biased.Of course,in China,the local legislation is immature now,it should give priority to adhering to the spirit of modesty and be complemented by the moderate expansion.After the Legislative Law has been amended,the local legislative subjects is increased and the local legislative power is restricted.In this background,through using the research method of document research,historical analysis,empirical analysis,normative analysis and case analysis,my paper study the subject of the modesty of local legislation in depth in the hope of alleviating the complicated situation of local legislation to a certain extent,thereby improving the quality of local legislation and promoting the construction of the local rule of law,in the meantime,filling the relevant research gap about the local legislation to enrich the legal theories.