Much work in legal theory has been concerned with law and its operation, its
connection with morality and the interpretation of the law through the courts and
the judges. Law as a process of legislation has not been touched upon much. There
is now a developing literature in the Western world on the theory of legislation and
the process of lawmaking. This tries both to recover what Waldron has called ‘the
dignity of legislation’ and what has more generically been termed ‘legisprudence’.
What is important here is the study of the philosophy and context of good legislation.
Rather than concentrating on legal reasoning by the judges, the emphasis is on
the protocols of lawmaking and the reasoning necessary for good legislators and
legislation.
Dr. Peng He in her book addresses some of these issues drawing on Western and
Chinese sources for her argument for a ‘communicative’ theory of lawmaking. This
book is timely and important in the Chinese context. Her argument depends upon
the insight that what is important in societies is not just representative democracy
but ‘voice’ – the ability of other actors to be heard and of bringing their input into
offi cial systems. She shows how law can be seen not just as the one offi cial system,
but rather as a system in interaction with many systems of rules outside of it. This
helps to facilitate the many voices that exist outside of the offi cial legal system in
society, and can do so without subverting it. This for Dr. He counters the ‘top-down’
view that too many think of as the most appropriate way of lawmaking. Moreover,
she argues that this can also take further the idea of living under the rules as something
that is not to be seen as a narrow legalism but as something more akin to living
‘righteously’ – a view which is resonant with some parts of Chinese legal thought.