2017 Zhang Xuebo: Observations on the History of Rule by Document 1982-2017

During my five years at the U.S. Embassy Beijing Environment, Science and Technology Section 2006 – 2012, I found much grand-scale and local politics, law, and economics behind the phenomena I was struggling to understand. China wanted to join the WTO yet the Chinese provinces with all their protectionist measures seemed not even to be members of a ‘China Trade Organization’！ Reading the China Public Health Yearbook a few months after I arrived, the national public health pictures didn’t match the province-by-province picture. The prevalence of some diseases nationwide was higher than the highest reported level of any province. Apparently there was much data correction in Beijing of unreliable provincial reports. Leading me to wonder how much did Beijing really knew? Or more likely they knew, but decided to pretend they didn’t until they could do something about it?

There was law although not operating the way I might expect from my scant experience of it in the USA — laws seemed vague and sometimes regulations supposedly based on the laws were sometimes confidential. Parenthetically one of my minor coups in Beijing was getting a copy of the “internal distribution only” book that explained the PRC’s then opaque reporting scale for air pollution from a kind Shanxi Province environmental protection official.

Then there was the parallel system of officials documents and instructions with red headers issued by Party and government organizations at all levels. To my untutored eye, these were sort of laws too, though in English we might call them administrative instructions though sometimes they weren’t based on any law — sort of instructions pacing the void with no clear legal basis but underpinned by the general understanding that the leader’s and party views congealed into document form were as legitimate as a law.

Law in the PRC is an intriguing topic. When I was at Bowdoin College in the mid 1970s, my Chinese history professor Jack Langlois invited Harvard Law School Professor Jerome Cohen to visit. Professor Cohen said that when he started up program on Chinese law, people would laugh at him and “There is no law in China”. By the time I arrived at U.S. Embassy Beijing in 1996, the PRC National People’s Congress had been elaborating the Chinese legal system for the nearly twenty years since the second founding of the PRC by Hua Guofeng and Deng Xiaoping.

In late 1997 I went along with visiting Senator Frank Murkowski and some colleagues to a dinner at the Great Hall of the People and a meeting with PRC National People’s Congress Natural Resources and Environment Committee Chairman Qu Geping and former head of the PRC environmental protection agency Senator Murkowski that the conception of obedience to law is still quite weak in China. Qu said that the National People’s Congress of China may be the only parliamentary body in the world that needs to send investigation teams through the countryside to see if the laws are being obeyed.

When I visited the Environmental Bureau of Shanxi Province in Taiyuan, I asked them about their coordination with the central government and other provinces. I was told “Those officials from the central government only come by once a year to give us a report card…. We don’t really have anything to do with the environmental protection authorities of other provinces.” Vice Director the Environment and Development Research Institute at the Chinese Academy of Social Sciences Zheng Yisheng was a great help in helping me better understand how law and political system affected environmental work.

I had the impression of vague laws, instructions from on high (actually from many different levels of on high — different layers of government and different ministries or bureaus within the various levels) . Instructions issued from a ministry or bureau at the same level of government didn’t seem to apply to other ministries/bureaus at the same level. Instructions seemed to have a short half-life, they would be issued and re-issued every year with slight changes. Though the law seemed vague to an outsider like myself, that was perhaps by design — different strokes for different folks and localities. Even “instructions” (if that is the right word) from the Central Committee were often called opinions. When I asked a Chinese official why some documents are called opinions, he replied that they are called opinions because they are guidance that is to be applied or not and implemented according to local circumstances.

Judges too get instructions on more sensitive cases from the Political and Legal Affairs Committee 政法委员会 of their local party organization. So I got the impression of a legal/document system that was very flexible, that could be a positive thing or could be arbitrary, and varied considerably from place to place according to the competence (and corruption) of local officials and their calculation of what they could get away with. Sometimes in the pages of a PRC State Council thinktank publication for officials， Information for Deciders 领导决策信息， I would see articles about local policy experiments in areas that were given exemptions from certain central government laws or regulations to try something new.

China has laws as well as documents that come down from on high (though perhaps not quite imperial rescripts) and the effect they have or don’t have on society reminds me of the popular saying “for every measure that comes down from on high, a countermeasure emerges from below” 上有政策，下有对策

The legal and document system for regulating society interpenetrate and shape one another. The discussion of the dual rule by law/document system reminds me somewhat of how New China described itself in the 1970s and 1980s as “walking on two legs” — meshing the best of the Chinese and the foreign in diverse fields such as science, medicine and music with greater or lesser difficulty. Perhaps Chinese laws are best left vague because the documents provide an intermediary layer of interpretation. Perhaps given the at times arbitrary power of Chinese officials, documents provide a shield easier for local people to take refuge behind than even the most straightforward interpretation of a law. Interpretations might leave people open to attack in the often very tense political atmosphere of the 1950s and 1960s and even later at times depending upon the political weather and the whims of the leader.

Susan Finder, a scholar at Peking University’s School of Transnational Law, recommended the article which I have translated below. It gives us some good insights into the rule by law/rule by document regulatory ecosystem of Chinese society.

Professor Finder’s Supreme People’s Court Monitor blog, along with China Law Translate and the China Collection , is one of the online resources about PRC law that I find helpful.

Professor Zhang Xuebo, like some other professors of the Central Party School and many Chinese legal scholars, hope that China one day will one day be a country ruled by law. Chinese legal scholars and lawyers (defending your clients too vigorously just won’t do) have had a difficult time over the past decade as Party General Secretary Xi Jinping has emphasized even more strongly than it has been in more recent times the primacy of Communist Party ideology and the unquestionable rule of the Communist Party.

A decade ago, some Chinese scholars hoped that the PRC Constitution could be re-interpreted to promote a democratic transition. Those two principles, my legally untutored self suspects, were moved to the body of the document so that even constitutional law scholars will not have have false hopes, were moved down from the preamble to Article One of the Constitution of the People’s Republic of China:

Article 1: The People’s Republic of China is a socialist country under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants.

The socialist system is the fundamental system of the People’s Republic of China. The leadership of the Chinese Communist Party is the most essential feature of socialism with Chinese characteristics. It is forbidden for any organization or individual to destroy the socialist system.

[Note: I have added some translator’s notes, URLs to references, and two illustrations from articles on bureaucracy to this translation.

To look into this further, you may also want to read the official PRC government guide to document types, translated on this blog as 2012: PRC Official Party and Government Document Issuance and Handling Guidelines.

http://www.gov.cn/guoqing/2018-03/22/content_5276318.htm

ACADEMICS 学术界 No. 9 Sep. 2017

Observations on the History of Rule by Document: 1982-2017〔*〕

by Zhang Xuebo

Department of Political Science and Law, Central Party School of the Chinese Communist Party, Beijing 100091

〔* 〕This article was supported by the 2015 National Social Science Foundation of China Youth Project “Empirical Research on Organization and Procedures of Taxation and Legislation (1977-2015)”

About the author: Zhang Xuebo is an associate professor of the Department of Politics and Law of the Party School of the Central Committee of the Communist Party of China. Zhang, who is also a Doctor director of the China Finance and Taxation Law Research Association, holds a Doctor of Laws degree, does research in the fields of finance, tax law, economic law, and economic history.

[Abstract] In the actual political life of China, rule by document is an objective fact. From the Central Committee of the Chinese Communist Party down to the township level, all levels of Party organization and government can publish red-header documents which have varying degrees of effect. Through documents issued at various hierarchical levels, quick responses can address problems that arise in the economy, in society and in building the Communist Party organization. Typical of this is the Document No. 1 issued for fourteen consecutive years beginning in 2004. Document No. 1 reflects the Communist Party Central Committee and the central government’s great attention to the Three Rural Issues concerning agriculture, rural areas and farmers. The Fourth Plenary Session of the Eighteenth Central Committee proposed that the PRC promote the rule according to law across the board. However, considering that this is an era of change unprecedented in thousands of year of Chinese history and how the Chinese Communist Party has relied upon rule by document ever since the revolutionary era, this means that rule by document will continue to play an indispensable role for a long time to come. Here we take an objective look at the development and functions of rule by document and offer suggestions for improvements in this subject which remains and important one in the legal field.

[Keywords] governance by document; policy; Document No. 1; The Three Rural Issues; governing the country according to law]

DOI: 10. 3969 /j. issn. 1002-1698. 2017. 09. 022I.

I. The Issue

The parallel roles of policy and law are are an important issue in the the political life in China’s political life today. Prior to the proposal of the Chinese Communist Party Central Committee to rule the country according to law [1], its parallel existence was not an issue. The Chinese Communist Party has always governed the country according to its policies.

These policies are embodied in meetings, documents, and instructions issued on the governance of the state. Comrade Mao Zedong once said that constitution is what I make although I don’t remember the exact quote. We still rely on speeches and meetings to resolve issues. He himself said he was like a monk with an umbrella: without hair/law and seeing no heaven above. [Translator’s note: 无法无天 wufa wutian This means “acknowledging neither heavenly nor earthly authority”: wild and uncontrolled. Hair and law are homonymns in Mandarin Chinese. For introduction to PRC document types see 2012: PRC Official Party and Government Document Issuance and Handling Guidelines ] [2]

Within the Chinese Communist Party, politics is conducted through the drafting and proclamation in formal meetings of many kinds of documents. Symbols play a central role in these political processes. Drafting party documents also demonstrates political power. Another is making the political work report at a party congress. Mao Zedong’s political work report “On Coalition Government” to the Seventh Congress of the Chinese Communist Party was a sign that he had arrived as Party leader. Wang Ming, upon returning to China in 1937 prior to the Sixth Plenary Session of the Sixth Party Congress, at a politburo meeting fought for but failed to obtain the right to make the political work report to the Party Congress. [3].

Transmitting decisions through talks at meetings as well as recording and transmitting talks in the form of documents became a very effective method for the Communist Party and government. The success the Communist Party enjoyed then confirmed this method which it has followed ever since. During the revolutionary period, meetings and documents both as important tools for transmitting decisions. This was true for the KMT as well. [4]

Ever since 1997, when the Fourth Plenary Session of the 15th National Congress of the Chinese Communist Party advocated “ruling the country according to law”, amplified again in 2014 when the Fourth Plenary Session of the 18th Party Congress decided to “make all-round progress on rule according to law”, the question of how to handle the relationship between rule of documents and rule of law in light of China’s current situation. This has become a major question for agencies and cadres at all levels. Should we abandon documents as the basis for governing China? Or do do we use both documents and laws? If we were to retain “rule by document” how could it be constrained and improved?

In this article I try to take an historical perspective, looking at the origins of “rule by document”, analyze that system, and then on the basis of that analysis consider what path we might take as we move forward.

II. Observations on the History of Rule by Document: 1982 – 2017

“Documents on the Rectification Movement” 《整风文献》from the Yan’an period in 1942 [5] is the earliest official document in Chinese Communist Party’s history. Finding documents and materials prior to the start of the policy of Reform and Opening is difficult so here I will use the Reform and Opening Up period to investigate government by document as a political phenomenon. Among examples of “government by document” in China, the most influential one must be the “Communist Party Central Committee and PRC State Council Document No. 1” 中央一号文件 issued every year. For five consecutive years, from 1982 onwards [6], the Central Document No. 1 focused on the Three Rural Issues (Translator’s note: agriculture, farmers and rural areas). From 2004 to 2017, the center’s Document #1 has been the same for 14 consecutive years – focusing on the Three Rural Issues. Party Central Committee Document No. 1 became symbolic of the Communist Party Central Committee and the PRC central government’s attention to the Three Rural Issues.

Consider the meaning of the title “Central Committee Document No. 1” : it is the first document that the Central Committee of the Chinese Communist Party issues every year. That this issues take up Document No. 1 demonstrates that the Central Committee and the PRC State Council are most concerned about these issues and that they are the most urgent issues that need to be solved. Thus it has become a weather vane for the policy of the Party Central Committee. Just because the first document that the Central Committee and State Council issued for nineteen consecutive years beginning in 1982, one can conclude that issues of agriculture, rural areas and farmers are the socio-economic development issues that most preoccupy the Communist Party Central Committee.

Document No. 1 issued each year embodies the latest expression of policy and policy signal from the Party Central Committee. For example, in 1982 Document No. 1 of 1983 affirmed the “household contract system” 包产到户. Then in 1983 it affirmed the “household contract responsibility system” 家庭联产承包责任制. With Document No. 1 in 1984, the Party Central Committee stressed continuing to put on a firm foundation the “household contracting responsibility land tenure system with a contract period of at least 15 years.” 家庭联产承包责任制，承包期至少要15年以上 The 2006 Central Document No. 1 proposed for the first time “building a new socialist countryside”. 建设社会主义新农村 [7]

There is a very strong positive correlation between the contents of Document No. 1 and resolution of the various economic and social issues that they address. For example, the years 1982 -1986 was a period of rapid development. During those five years, Document No. 1 had an important role in clarifying policies on promoting rural reform. A typical issue in these annual documents is the reform of the “household contract responsibility system“. Rural reforms began with “contract work” in the 1979 rural reform in Fenyang County 凤阳县, Anhui Province. This reform, backed by Document No. 1, led to nationwide reforms to solve the productivity problem. The reform of the rural land system, an important economic system, was eventually confirmed in law by the 1993 amendment to the PRC Constitution.

More than 30 years have passed since then. Today, more than 30 years have passed in history. We can imagine that if it hadn’t been for Document No. 1 that such a change, which fundamentally affected the PRC fundamental economic system established in the PRC Constitution, would have been done according to the rule of law. If so, then the basic problem of feeding China’s peasants would not have been solved and the forces of agricultural producctivity would not have been liberated. It is fair to say that, during the 1980s, the average Chinese had little notion of any distinction between law and policy. In their minds Document No. 1 had greater legitimacy. [8] Even today, when the process of reform and opening up having been underway for forty years, considering things from a factual and from a sociological perspective, official documents still have greater authority then do laws and regulations. (9)

Another typical example is the 2012 Chinese Communist Party Politburo document “On Improving Work Style and Eight regulations for Staying in Close Touch with the Masses.” 关于改进工作作风，密切联系群众的八项规定 In the words of General Secretary Xi Jinping, the eight regulations were created so that the Chinese Communists would “win the confidence of the people” 徙木之信. Implementing the “Eight Provisions” transformed the atmosphere of the entire Party. In actual fact, the implementation of a central committee document can produce that kind of effect. This was more effective than a strict criminal law and many kinds of systems of oversight would have been. Given this successful case of “rule by document”, doing away with it in the near future is hard to imagine.

In addition, an ongoing case of government by document are the “Two Studies and One Action” 两学一做 [Translator’s note: study the Party Constitution 党章 and Party regulations 党规, study Xi Jinping’s speeches, and be a good Party member.] Here, studying the Party Charter, Party rules and Xi Jinping’s speech series means learning and studying various documents. In fact throughout the history of the Chinese Communist Party, the organized group study of documents has been a sacred task. (10) The speeches of General Secretary Xi Jinping cannot be seen as merely the thinking of one particular individual. Once organized into the form of a document, it becomes an authoritative statement of the Party’s guiding ideology. [11] This is especially true for the “Code of Conduct for Political Life withinthe Party under the New Situation” 新情势下党内政治生活准测and the “Regulations on Internal Supervision of the Chinese Communist Party” 中国共产党党内监督条例“ adopted by the Sixth Plenary Session of the Eighteenth Central Committee. Here every single Chinese character counts. Every detail is significant. Education about the Party spirit is at the very heart of acquiring the ideology and behavior of a Communist Party member. [12] Moreover, at the core of education in Party spirit is the study and implementation of core Party Central Committee documents.

III. The Internal Logic of “Rule by Document”

Prior of the creation of New China by the Chinese Communist Party, the role of documents was still understood as “rule of the Party by document”. Documents, especially Communist Party Central Committee documents, embodies the will of the Party Center and were a symbol of power. The transmission of documents from level to level implemented the political organization of the Party. A document’s degree of confidentiality determined the scope of its circulation and so awareness of Party internal affairs showed the rank of a person within the organization and their extent of their identification with it as party members. [13] This served not only the need for secrecy but also was a sign of a person’s power within the Party since some internal reference documents circulate only among a defined group of Party members and government cadres. [14]

After 1949, “ruling the Party by document” gradually expanded to “ruling the country by document.” Once the Communist Party came to power, the core task of the Party became ruling the country. As a result of their experience within the Party organization, ruling the country by documents also became a norm for party members. A typical example of conveying the spirit of the Party Central Commiittee and conveying instructions for specific tasks is the February 7, 1977 People’s Daily article “Learn from the Documents and Master their Key Points” 《学好文件抓住刚》 [15] Mao Zedong’ 1956 The speech at the Politburo meeting on April 25 “On the Ten Major Relationships” 《论十大关系》 became an important ideological guide for Chinese society on the construction of socialism.

(1) The great effectiveness of rule by document

Drafting and promulgating of laws and regulations is a very slow process. Their defining characteristic is the requirement that the proper procedure be followed. They involve many formal procedures including review by the National People’s Congress. By comparison, with documents matters are handled economically. Documents can assume many forms. An authoritative document such as the decisions of the Third Plenary Session of the Eighteenth Party Congress took eight months to draft including a complex process including repeated requests for opinions, expert reviews, surveys and research, repeated revisions, and asking senior comrades and democratic parties for their opinions.

[16] Some documents, however, may be simply the revised text minutes or text of a leader’s speech. [17]

In general, however, while there are corresponding procedures for documents, these are not hard and fast procedural requirements so adjustments can easily be made in them as the situation requires. For China, which is ruled by an exemplary advanced political party [18], this means that this is still essentially rule by the elite. China’s primary goal remains becoming a rich country with a strong military. 富国强兵 All other values must be subordinated to this goal. Especially in times when the Chinese people have not yet fully established their nation-state and its national sovereignty has not yet been put on a firm footing [19], it has not yet been possible for China in practice to make the rule of law its top priority.

At this point, the internal logic of rule by document and rule by law are consistent, that is, both aim at social efficiency. People usually think of law as the art of good and just governance. [20]. However ever since the 1970s, more and more scholars of the economics of law have found that the rule of law, when considered as a dispute resolution mechanism, that its efficiency-seeking is one of the fundamental benefits it offers.

If a legal rule can be repeatedly affirmed, this is often because it is consistent with efficiency. This is often true in practice even if that was the not original intentional of the judge who established the rule did not set out with efficiency as an objective [21]. This is no different from the original intention of rule by documents. Regardless of whether it is an ordinary document or is an instruction on a particular matter, all documents are created with the objective of efficiency in mind. [22].

(2) The organizational function of rule by document

Documents have always been an effective organizational tool for the Chinese Communist Party. In traditional Chinese society, orders from above reach only down to the county level. The Kuomintang established the superstructure of a modern state but rural society continued to labor under its ineffective traditional baojia system [Translator’s note: A traditional community-based, non-governmental system of collective responsibility and enforcement.] The Chinese Communist Party organized peasants by building party organizations and then peasant organizations. Later, after the founding of New China, the Communist Party through the organization of layer upon layer of Party organizations leadership of Chinese society from the top to the bottom. Moreover, the Communist Party organization its work mainly through party meetings. Party meetings are mostly about “reading documents”.

If you examine Chinese Communist Party formal meetings, you will find that there is little actual discussion in the formal meeting. Meetings are mostly taken up with reading documents and listening to documents being read. A great deal of the discussion is in the preparatory meetings, small group discussions and democratic life meetings. Formal meeting revolve completely around documents. A few people read the documents while most people listen. There is a complete process of governance from drafting documents, to soliciting opinions, to reading them out in public to printing and distribution. This is how the Party governs party organizations. This process is an essential one for the Chinese Communist Party. That is why the Party is now emphasizes strict governance [23] of the Party as it struggles to accomplish its “Two Centenaries” 《两个一百年》.

Although some scholars say that the official meetings of the Chinese Communist Party are just formalities but that is not so. Indeed, Party meetings are mostly taken up with “reading documents” and “listening to documents being read”. However, the party itself is organized through specific details of the meeting such as participants, venues, and the positions that people hold [24]. Documents embody speeches. For example, every year the Central Party School organizes training for cadres at all levels. Rotations are arranged for middle and senior level leading cadres. For middle and senior level leading cadres, most of this training is taken up with studying documents and understanding the spirit of the documents. However, continuous rotation training is also part of the organization of middle and senior leading cadres.

(3) Cultural metaphor of rule by document

2013 article 文山会海，空话套话 Empty Talk, Mountains of Documents

A popular saying vividly illustrates China’s system of social governance through ruling the country by documents and ruling the country by meetings: wenshan wenhai mountains of paperwork and meeting as vast as the sea. 文山会海 Behind this phenomenon is deep-rooted formalism and bureaucracy. After the Eight Point Regulation中央八项规定 were promulgated, corruption has been curbed from top to bottom. Nonetheless, the problem of obsession with formalities has not been fundamentally solved as we can see from the fact that people are still having meetings about the problem of having too many meetings. [25]

Concurrent with the wenshan wenhai problem is that leaders are issuing more and more instructions.

2019 article in The Paper: Party Fights Formalism, Paperwork to Reduce Grassroots Burden

When the author was detailed from his regular job to be a Party Standing Committee member at the county level, many grassroots cadres in conversation mentioned an interesting phenomenon: provincial leaders, then city party committee leaders and then county leaders one after another all issue instructions about the same matter. Cadres must carry out all these instructions and other cadres need to check that the instructions have been carried out. When too many instructions are issued, grassroots cadres are benumbed and can’t spare the time to examine carefully the best way to carry out instructions and just get worn out from running around trying to carry them all out.

The fundamental reason the institution is so complex is that there are many layers of government, duplication of work by multiple offices and multiple leaders who asserting responsibility on a particular issue. Many scholars like to discuss vested interests within the Chinese system, but they are often like to talk about specific people or specific families. The largest group of vested interests, however, is essentially the entire bureaucracy. Bureaucracies formed during the Song and Ming dynasties, becoming thereby China’s largest interest group. Even if you are the emperor, if you open oppose that interest group, you will have a hard time getting anything done. (26)

Premier Zhu Rongji in his day forced some reductions on this interest group, but even he was not able to avoid the vicious cycle of the bloating, cutting, and bloating once again of bureaucracies described by Huang Zongxi’s Law [Translator’s note: Huang Zongxi’s Law, proposed by Tsinghua University Professor Qin Hui based on the work of Qing historian Huang Zongxi, holds that bureaucratic bloat, the uncontrolled expansion of fees and taxes, gradually undermines the effectiveness of governance in the middle and late years of a dynasty and frustrates efforts at reform.]

The problems of bureaucratism and of wenshan huihai are caused by too many bureaucracy. One of the main reasons that governance was honest and effective in the Yan’an border area was that that border area government accepted the suggestion of democrat Li Dingming and implemented a policy of “reducing the number of troops and of simplifying administration.” There were fewer officials all focused on getting things done and so rule by document did not reach the extreme of wenshan huihai.

IV. The fading of rule by document

Rule by document, efficient and convenient as it is, had had an indispensable role in the transformation of Chinese society. However, unforeseen circumstances will arise in any system long in use that might even make it deviate from its original intention.

(1) Rule by document reduces government operational efficiency

The original intention of the system rule by document, rule by instruction and rule by meeting was to take a short cut to a more efficient method of governance. This was to help people on the front lines to to address problems that crop up in practice so that they could solve them quickly. The original intention was to avoid the cumbersome process of public decision-making process and of relying on laws and regulations. Constraints on this rule by man system included many factors including the subjective wishes of leaders and their available information. The original logic of the rule by document system was that when a problem needs to be solved urgently, going through formal procedures would waste much time and institutional capital where as through rule by document, problems could be solved much more quickly through the rule of man. This, however, is all based on the assumption that formal procedures continue to function. Thus rule by document (including government by issuing instructions) can only solve a problem that formal procedures cannot solve.

What really happens, however, is that once someone finds that a problem can be solved in a certain way, everyone no longer follows normal procedures. Everyone then looks to documents and instructions to solve problems. In such a situation, formal systems become useless and the efficiency of government operations declines. The designers of rule by document system did not anticipate this. During the revolutionary period, we could rely on this as our principal system of governance. However, once society enters a period of peaceful development, although rapid social development continues, we can no longer rely on rule by document as our principal method of governance. Instead it must become a supplement to formal procedures.

In reality, the logic is just the opposite. A typical case is the internal reference news system 内部参考消息. Reference news was designed to give the central leadership more information and thus make decision-making more objective and scientific. After it became a system, however, writing and reading reference news became part of the work process. Some people wrote internal reference just for the sake of writing something while some others used internal reference to promote their own achievements. When was originally intended to come from the bottom-up often became in practice something that was top-down. The petition system 信访制度 is another typical example. The petition system was originally designed to handle a small number of social issues that legal procedures were not capable of assuming. However, once everyone learned about this system, there developed an entire supply chain that fed off it. Some people became petition system experts, some carried on rent-seeking behavior within the petition system supply chain, thereby becoming a fairly large interest group.

(2) Rule by documents interferes with the formal system

During China’s rapid transition from an agricultural civilization to a commercial and industrial civilization, the rule by document system found favorable conditions for its growth because the Chinese Communist Party during the revolutionary period had accumulated considerable experience with it. However, during the transitional period, the rule by document system interfered with the formal system and the strenuous efforts of the Chinese Communist Party Central Committee to promote the comprehensive rule of law. Rule by document and rule by instruction were used a short, quick and easy method. Initially, this method was very efficient since problems could be solved quickly.

However, once everyone decided that the needed a specific instruction from the leadership to solve every individual issue, then laws and regulations become dead letters. When that happens, the rule by document system can move the entire society to become a “society that runs on hidden rules”.

That is, nobody’s words match their actions. Everyone looks for their one special channel to get what they want. [27] By then, this is a very efficient system for those people who have the proper connections and resources but for most people, the overall social efficiency is greatly reduced. Lower social efficiency is a secondary problem. The main problem is that written laws and regulations become ineffective. Reaching the goal of rule according to law become a distant, unattainable goal.

Over the past decade, maintaining social stability has become the government’s key governance policy. The internal logic of maintaining social stability and rule by document are completely aligned. Whether society remains stable or not is the result of the natural development of society. However, when “maintaining stability” becomes a task, then “maintaining stability” itself takes on a completely different meaning. The “maintenance of stability” has become a top-down chain of industries with too many interest groups that feed off of it. The rise of “nail households”[Translator’s note – urban residents who refuse to move, blocking a development.] , grassroots county and rural township governments, grassroots public security stations, petition bureaus, organized crime, social stability offices and other actors have formed an enormous interest group.

The Zhou Yongkang clique, by continually emphasizing the importance of “social stability” were able to continually expand their own personal power and to make themselves into a full-fledged system that contained its own independent departments of finance, justice and police. This is a kind of high level “metaphysics”. The slogan “Small matters don’t leave the village, big issues don’t leave the township, difficult problems don’t leave the county and conflicts are not passed on up to superiors.”“小事不出村、大事不出镇、难事不出县、矛盾不上交” is the result of this kind of logic of “maintaining social stability”. Making your goal seeking political achievements like “no problems here” reflects the thinking of these kinds of people. This kind of thinking is totally unsuited to the objective situation of a country passing through an increasingly complex stage of socio-economic development. Once law and policy become empty things then a formal legal system will find it impossible to resolve the conflict of interest disputes that many people bring to court.

V. The way ahead for rule by document

First of all, it can be expect that for a considerable time to come rule by document and the petition phenomenon (28) will continue. Now, the logic of rule by man will continue to coexist with the “comprehensive rule of law” that the central authorities have been strongly promoting. This is a necessity during China’s current rapid social transformation. Socio-economic development will not be altered simply by certain elites wanting it to be so. For example, China’s urbanization cannot be accomplished overnight. China’s rural population of 600 million [29] cannot be all become urban over the short term. This also means that at least for the next twenty years, at least 500 million people will still be leaving in rural areas. Accordingly, rule by document and rule by honest officials who judge things for themselves regardless of the correct procedure 清官情节 cannot be expect to disappear during this time. That is why the central authorities made the Three Rural Issues 三农问题 [note: agriculture, rural issues and peasants] the subject of Central Document No. 1 for fourteen years from 2004. Work such as building the new socialist countryside and stressing poverty alleviation emerge from this line of thinking. So in terms of social governance, although the Fourth Plenary Session of the Eighteenth Central Committee made strategic arrangements towards “comprehensive promotion of ruling the country according to law” 全面推进依法治国 , we still need to calmly face the fact that the rule of man and the rule of law will continue to co-exist for a long time to come. This means that rule by document and rule by law will continue to coexist for a long time.

Secondly, in terms of the relationship between rule by document and rule according to law, we must recognize clearly that ruling the country according to law will become the principal way of governance of society. Although the rule of man and the rule of law will continue to co-exist for a long time, everyone from the top to the bottom [30] will subjectively come to recognize that with the further development of the market economy, ruling the country according to the law achieves the greatest efficiency and creates a more just way to rule society, but objectively establishes a channel through which disputes that arise in society can be resolved. Although the rule of law may cost specific persons some capital, but for the entire society and for most people, social capital expenditures are sharply reduced and the overall social welfare is increased. Therefore, no matter whether we look at it from the perspective of fairness or from the perspective of efficiency, ruling the country according to law must become the main channel for resolving disputes in society.

Furthermore, rule by document must escape the rule of man and be transformed to rule by virtue. Rule by virtue and rule by man overlap. However rule by virtue is still rule according to certain rules. The Fourth Plenary Session of the Eighteenth Central Committee clearly stated that the rule of law and the rule of virtue should be combined. This means establishing the rule of law as the main strategy for ruling the country and to supplement it with the rule of virtue. The so-called rule of virtue means that some deficiencies in the rule of law must be corrected as appropriate by taking special circumstances into account. If this individual belongs to a disadvantaged group in society, then the Party and the government can open up a special channel to address their needs. The rule of law is often expressed as a formal fairness and a determination of shares to end disputes. Therefore, through the rule of law can be supplemented through appropriate use of rule by virtue, for example through rule by document, rule by written instructions, and petitioning in order to achieve good social governance. The main point is that this kind of rule by virtue is supplementary and cannot be the principal method of governing society. Therefore, the rule of virtue can operate only with certain preconditions and must be constrained by the system.

Finally, rule by document must be severely restricted. It may only ber permitted to operate within a constitutional and legal framework. That is to say, rule by documents may address issues that suddenly arise and cannot be covered by the rule of law in a short time. Only under those conditions should political power address that special. Society’s preferred solution rule should be to seek legal relief. If people can achieve legal relief on the basis of law, they should not seek to obtain it on the basis of documents handing down instructions. What we call law is necessarily limited while circumstances exist in endless variety. We are a country with written laws. However, with the very rapid development of the economy and society, there may arise special circumstances where the law is not clear. When that happens, court will ask a superior court for instructions while it is trying a case. If the law is very specific about every particular matter, then judges will not need to ask their superiors for instructions. Be that as it may, issues resolved through rule by document must be in line with the spirit of the constitution and the laws. Not only may not rule by document violate the constitution or the law, neither may it run contrary to the spirit of the constitution and the law or even violate certain fundamental principles of law. [31].

Notes:

[1] In 1997, the 15th National Congress of the Chinese Communist Party first proposed “ruling the country according to the law”.

[2] Mao Zedong’s remarks when he met with the American journalist Edgar Snow on December 10, 1970.

[3] See the relevant plot in the central set of “Ode to Yan’an“. Director Song Yeming, starring Tang Guoqiang and others, released in 2003.

[4] For example, Chiang Kai-shek liked to use personal orders by leapfrogging his subordinates, skipping layers of bureaucracy, so that his instructions would go directly to all levels.

[5] See Mao Yufei 毛于非: “The Code of Governing the Country in the Red Header Document” 《红头文件的治国密码》, “Global People” 环球人物, No. 22, 2014.

[6] From 1982 to 1986, Document No. 1 from the Chinese Communist Party Central Committee and the PRC State Council focused on agriculture, rural areas, and farmers for five consecutive years.

[7] See Document No. 1 of the Chinese Communist Party Central Committee and PRC State Council in 1982, 1983, 1984, and 2006.

[8] In fact, even today, many people who petition still hold red-header documents in their hands as they petition for redress. In their minds, a red header document has the same as or even greater legitimacy than the law.

[9] A popular saying: “The constitution is not as good as the law, the law is not as good as the regulations, the regulations are not as good as the red-header documents, the documents are not as good as the leadership’s instructions, and the instructions are not as good as a telephone call from the leader”宪法不如法律，法律不如法规，法规不如红头文件，文件不如领导批示，批示不如领

导电话”is a description of the effectiveness of these norms in the sociological sense.

[10] Some intellectuals and cadres regard “two studies and one action” 两学一做 and “mass line education” 群众路线教育 as a leftist approach. This is not true since those activities are aimed at party cadres. If you are not a party cadre, that does not apply to you.

[11] Some intellectuals and cadres regard learning the spirit of “General Secretary Xi Jinping’s speech” as a cult of personality. This is not true. Secretary Xi’s speech recorded in the formal meeting was not personally inspired by him. It reflects the will and thought of the party, especially in the form of a document, which is transmitted to the whole party for study. This speech is not just an expression of personal thoughts at a particular time, but a reflection of the Communist Party Party Central Committee’s thinking and work decisions on major contemporary issues.

[12] See the Communiqué of the Sixth Meeting of the 18th Central Commission for Discipline Inspection.

[13] For example, even before Comrade Deng Xiaoping came back to work after the Cultural Revolution, the Central Committee first restored his right to read Central Committee documents. Party members are permitted to read differing levels of Party document according to their rank in the Party. The ability to read Party documents at various levels is a symbol of one’s power.

[14] Some documents are conveyed only to the provincial and ministerial level, other documents conveyed as far down as the department and bureau level, while still others are conveyed as far down as the county and regiment level.

[15] See the front page of People’s Daily on February 7, 1977.

[16] See the explanation in Comrade Xi Jinping’s “Decision of the Central Committee of the Communist Party of China on Several Major Issues of Comprehensively Deepening Reform” of November 14, 2013.

[17] For example, Comrade Mao Zedong “On the Ten Major Relationships” mentioned above.

[18] This actually means, to a certain extent, that the Party comes first and then comes the state.

[19] Taiwan has not yet been in any real sense reunited with China; the Xinjiang, Tibet, and Hong Kong independence forces are still stirring things up; and the Diaoyu Islands and South China Sea issues have not yet been completely resolved. These are all fundamental nation-state issues of sovereignty and borders.

[20] A saying of the ancient Roman jurist Ulpian.

[21] The example here is based on common law countries. But even in continental system civil law countries, if a legal rule passed by parliament does not conforms to the principle of efficiency, the public will probably evade it and thus giving rise to the awkward situation of the law being suspended.

[22] Of course, we will also consider the pursuit of fair value.

[23] The third, fourth, fifth and sixth intermediate plenums of the Eighteenth Central Committee of the Chinese Communist Party comprehensively addressed the deepening reforms, comprehensively governing the country according to the law, the all-round moderately prosperous 小康 society, and confronted the four issues involved in the strict governance of the party. Although the comprehensive and strict governance of the Party comes at the end of the list of our, it is the very foundation and the key to completely realizing the other three.

[24] This means to achieve a precise control of the entire organization by controlling which people participating in a meeting at a given time and location and the role people have in those meetings. This is the origin of the popular saying “The KMT has more taxes and the Communist Party has more meetings” 《国民党税多，共产党会多》describes this situation.

[25] From the Central Committee organs and central government agencies down to the party organs and government agencies at the county and township level, problems have arisen with so many meeting documents about meeting documents and documents conveying instructions about documents conveying instructions. Much time is consumed in the wenshan huihai of handling mountains of paperwork and vast seas of meetings.

[26] For example, the emperors of the late Ming Dynasty was often in conflict with the bureaucracy.

[27] This is a problem that Chinese people often encounter: a matter that could have been handled in accordance with formal rules must be entrusted to someone to handle on their behalf in order to avoid difficulties.

[28] The internal logic of rule by document, the petition system of letters and visits, maintaining social stability, nail households, and upright officials who handle matters as they personally see best are all the same: that is, the top-down thinking of the rule of man.

[29] This is based on the population according to the household registration system. If the population whose land has been recategorized from rural to urban household registration is included, the rural population would be even higher.

[30] That is, as Comrade Xi Jinping said, the point is to ally with the “key minority” of “leading cadres” and join forces under their leadership. See the speech Comrade Xi Jinping gave at the 2017 study and discussion seminar for principal provincial and ministerial-level leading cadres on the spirit of the Sixth Plenary Session of the 18th Chinese Communist Party Central Committee.

[31] Certain basic principles that exist in all legal systems. For example, the principles of equality, fairness, honesty and credibility in civil law and criminal law; the principle of statutory crimes and punishments in the law; the principles of taxation according to statue and according to one’s ability to pay in tax law.

〔Editor in charge: Tao Tingting〕

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https://www.xueshujie.net.cn/content/?595.html

作者简介: 张学博，中共中央党校政法部副教授，中国财税法学研究会理事，法学博士，研究方向为财

税法、经济法、经济史。

〔* 〕本文系2015 年国家社会科学基金青年项目“税收立法模式实证研究( 1977—2015 ) ”

( 15CFX050) 成果。

《学术界》( 月刊)

总第232 期，2017． 9

ACADEMICS

No． 9 Sep． 2017

文件治国的历史观察: 1982—2017〔* 〕

○ 张学博

( 中共中央党校政法部，北京100091)

〔摘要〕在现实中国政治生活中，文件治国是一种客观存在。从中共中央到乡镇

都可以发布不同等级效力的红头文件。通过不同层级的文件，可以快速地对经济社会

党建等各个领域存在的不同问题进行快速反应。典型的就是自2004 年以来的连续14

年的中央1 号文件就反映了中央对于三农问题的高度重视。尽管十八届四中全会提出

全面推进依法治国，但是中国所处的数千年未有之大变局时代，以及中国共产党自革命

时代以来的路径依赖，使得文件治国在相当长时间内起着无可替代的作用。对文件治

国的来龙去脉和其功能进行客观研究，并提出完善思路，是摆在学界的一个重大课题。

〔关键词〕文件治国; 政策; 1 号文件; 三农问题; 依法治国

DOI: 10． 3969 /j． issn． 1002 － 1698． 2017． 09． 022

一、问题的提出

政策与法律并行，是当前中国政治生活实践中的现实问题。在党中央提出

依法治国〔1〕之前，这并不成为一个问题。因为中国共产党一直奉行政策治国。

那么具体的形式又表现为会议、文件、批示治国。毛泽东同志曾说宪法是我制定

的，但是我都记不住。我们还是靠讲话，开会来解决问题。他而且自称是和尚打

伞无法无天。〔2〕在中国共产党党内政治生活中，围绕文件的起草、宣读等一整套

政治流程都是具有极其重要的象征意义的。文件的起草被视为重要的权力象

— 224 —

征。在党代会上作政治报告是体现政治权力的重要标志。毛泽东在中共七大作

《论联合政府》的政治报告是其成为中国共产党的领袖的重要标志。王明在

1937 年回国后在六届六中全会之前就试图争取在政治局会议上作政治报告的

权力，但是失败了〔3〕。通过开会讲话的方式以及文件记录和传达的方式来实现

党和政府的高效运转成为了中国共产党成功的一条重要经验。在革命时期的政

党政治中，会议和文件都是其重要的运转工具。不仅共产党如此，国民党也是如

此。〔4〕随着1997 年十五大中央首次提出“依法治国”， 2014 年十八届四中全会提

出“全面推进依法治国”，如何处理现实国情下的文件治国与依法治国的关系，

成为了摆在各级机关和干部眼前的一个重大问题。是否应该抛弃文件治国? 亦

或并驾齐驱? 如果继续保留“文件治国”，又该如何加以约束或完善? 文章试图

从历史的视野对“文件治国”的渊源和合理性予以分析，在此基础上再判断采取

如何的策略。

二、文件治国的历史观察: 1982—2017

中国共产党历史上最早的正式文件是1942 年延安时期的《整风文献》〔5〕。

鉴于改革开放之前的文件资料难以搜集，所以文章试图以改革开放的时间段来

考察文件治国这一政治现象。在整个中国的文件治国之中，最有影响力的可能

要属每年发布的“中央1 号文件”。而自1982 年开始连续5 年〔6〕，中央1 号文件

开始集中关注三农问题。自2004 年起到2017 年，连续14 年中央1 号文件同样

关注三农问题。中央1 号文件成为了中央关注三农问题的特有代名词。从“中

央1 号文件”本身的含义来看，是指每年中共中央发布的第1 号文件。由于每年

的第1 号文件显示了中央最关注的问题以及最急迫解决的问题，因而成为了中

央政策的风向标。正因为自1982 年起有19 年的中央1 号文件是关注三农问

题，所以可以推测三农问题是当前中央最关注的经济社会发展问题。而且从每

年的中央1 号文件可以看到最新的中央具体政策表达和政策信号。比如1982

年的中央1 号文件就肯定了“包产到户”， 1983 年的中央1 号文件就肯定了“家

庭联产承包责任制”， 1984 年的中央1 号文件强调要继续稳定“家庭联产承包责

任制，承包期至少要15 年以上”。2006 年的中央1 号文件则首次提出“建设社

会主义新农村”命题。〔7〕客观地分析，中央1 号文件与其所关注的经济社会问题

的解决也有着十分强烈的正相关关系。比如在1982 － 1986 年间，中共的农村发

展也是较快的时期，这五年的中央1 号文件在明确政策推动农村改革方面起到

了非常重大的作用。典型的是“家庭联产承包责任制”改革问题，这项以“大包

干”为起点的农村改革，起始于1979 年凤阳农村改革。这项改革在1982 年的中

央1 号文件中获得了背书，从而在全国进行了一场解决生产力的改革，但是这些

改革所改变的农村土地制度实质上是一项重大经济制度，其最终在法律上的承

认是1993 年的宪法修正案。今天，历史已经过去了三十多年，可以想象，如果没

有1982 年的中央1 号文件，对于这样一项涉及宪制的基本经济制度，完全按照

— 225 —

文件治国的历史观察: 1982—2017

法治的路径，那么全中国农民的吃饭问题就无法解决，农村的生产力就无法得到

释放。可以说，在20 世纪80 年代，中国的老百姓对于政策与法律的区分还是模

糊的，在其潜意识中中央文件就具有最高的合法性。〔8〕即便到了改革开放接近

四十年之后的今天，从事实和社会学视角来看，文件的权威和合法性事实上要高

于法律法规。〔9〕

另一个典型案例就是2012 年中共中央政治局出台的“关于改进工作作风、

密切联系群众的八项规定”。用习总书记的话说，八项规定就是中国共产党人

的“徙木立信”。“八项规定”实施以来，全党的风气为之一变，不敢腐的态势已

经形成。客观地讲，一个中央文件的落实能够产生这样的效果，其作用超过了严

厉的刑法和那么多的监督制度。这就是摆在眼前的文件治国的成功案例。从

“八项规定”的文件治国经验来看，短期内文件治国还难以被废止。

除此之外，正在进行中的文件治国的案例就是“两学一做”。其中学习“党

章党规”“系列讲话”就是对不同文件的学习和研究。实际上，在党的历史上，通

过组织生活学习文件是一种神圣的工作。〔10〕不能简单地将习近平总书记讲话视

为个人的思想，一旦将其整理为文件形式，则体现为党的指导思想。〔11〕尤其是十

八届六中全会通过的《新形势下党内政治生活准则》和《中国共产党党内监督条

例》，更是字字珠玑，没有一个字是废话。党性教育是共产党人的心学。〔12〕而党

性教育正是通过对这些核心的中央文件的学习来实现。

三、“文件治国”的内在逻辑

在中国共产党建立新中国之前，文件的作用还体现为“文件治党”。文件，

尤其是中央文件代表了中央的意志，是权力的象征。通过文件的逐级传达来实

现党的政治组织。文件的机密程度决定了文件传达的范围，因此知晓党内文件

的层级体现了党员在组织内的地位和认同感。〔13〕这种现象除了保密的需要外，也

是一种党内权力的象征，如一些内参会在一定范围的党员干部内进行传阅。〔14〕

到了1949 年之后，“文件治党”逐步扩展为“文件治国”。随着中国共产党

掌握了政权，党的核心工作转变为治国。出于路径依赖，文件治国也成为了中国

共产党的常态。比如1977 年2 月7 日人民日报《学好文件抓住纲》〔15〕就是典型

的通过文件方式向全国传达中央最新精神，布置工作的案例。毛泽东在1956 年

4 月25 日中央政治局会议上的口头讲话《论十大关系》，就成为了指导中国社会

主义建设的重要指导思想。

( 一) 文件治国的高效

法律法规的起草出台需要一个一个非常缓慢的过程，而且法律法规的最大

特点是程序化，需要经过很多正式程序，要在人大进行审议。相比较之下，文件

则可以便宜行事。文件的形式可以多样化。像十八届三中全会决定这样的权威

文件要经过长达七个月的起草，也要经历反复征求意见、专题论证、反复调查研

究、反复修改、征求老同志和民主党派意见等程序。〔16〕而有的文件则可能就是某

— 226 —

学术界2017． 9·学术史谭

次会议的纪要或者领导人讲话的整理稿〔17〕。总的来说，尽管也有相应的程序，

但是这些程序要求不是硬性的，可以根据实践需要便宜掌握。对于中国而言，由

一个先进性政党来治理国家〔18〕，实质上仍然是精英治国。中国的首要目标仍然

是富国强兵。其余所有的价值都要先服从于此项目标追求。尤其是当中国的民

族国家和主权尚未完全确立〔19〕之时，国家治理尚无法做到事事法治优先。

在这一点上，文件治国与依法治国的内在逻辑是一致的，即社会效率。通常

人们认为法律是善良公正的艺术〔20〕。但自20 世纪70 年代以来，越来越多的法

律经济学家们发现法治作为一个纠纷解决机制，效率是其追求的最基本价值之

一。一个法律规则如果能够得到反复确认，则其往往首先是符合效率原则的，尽

管确立这个规则的法官〔21〕一开始并未以效率原则为目标，但事实往往如此。文

件治国的初衷别无二致。不论是一般意义上的文件，还是就某项具体事项作出

的批示，都是为了追求效率〔22〕而作出。

( 二) 文件治国的组织功能

文件对于中国共产党而言，还是一直有效的组织工具。在传统中国社会，上

令止于郡县。国民党建立了现代国家的上层建筑，但是对于乡村社会，其保甲制

度效果并不理想。中国共产党通过党的建设，通过党团组织把农民组织了起来。

新中国建立之后，则通过一级一级党组织来实现从上到下的领导。而党组织的

主要工作方式就是会议。会议中的主要内容就是“读文件”。关注中国共产党

的正式会议，会发现正式会议中讨论实际上比较少，更多的是通过读文件和听文

件。大量的讨论都在预备会议、分组讨论和民主生活会上来进行。正式会议中

完全围绕文件来展开。部分人读文件，而多数人听文件。从文件的起草、征求意

见到文件宣读和印发是一整套治理流程。通过这一整套流程实现了对党组织的

治理。正因如此，对于正在为“两个一百年”目标而奋斗的中国共产党而言，全

面从严治党〔23〕的确是最关键一环。在一些学者看来，中国共产党的正式会议仅

仅是一个形式，但实际并非如此。会议的主要内容虽然形式上仅仅是“读文件”

和“听文件”，但会议从参会人员、参会地点、人员位置〔24〕等具体的细节上实现了

一种组织。文件是讲话的载体。比如每年中央党校都要举办各个层级的干部培

训班，对中高级领导干部进行轮训。对于中高级干部而言，学习文件以及其精神

是主要内容，但通过不间断的轮训实质上也是一种对中高级干部的组织。

( 三) 文件治国的文化隐喻

有一个成语形象地描述了中国的这种文件治国和会议治国的社会治理现

象: 文山会海。文山会海的背后是形式主义和官僚主义的根深蒂固。八项规定

之后，从上到下的腐败现象得到了相当遏制，但是一些形式主义的东西却没有得

到根本的解决，以会议对付会议〔25〕的现象在相当程度上仍然存在。与文山会海

现象同时，还出现了领导批示越来越多的现象。笔者在县级挂职担任常委期间，

与很多基层干部交流，很多干部提到当前出现一种有趣的现象: 同样一个事情，

省级领导作了批示，接着市委领导又作了批示，到了县里再次进行批示，有时候

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同一级党委政府还出现多位领导进行了批示。而这些领导批示都需要干部去落

实，而且还需要另外的干部来监督落实。当批示太多的情况下，基层干部难免陷

入麻木的情形，已经无力去认真研究如何落实，而是疲于应付。

根本的原因还是机构庞杂，政府层级多而且政出多门、多头管理的现象比较

严重。不少学者常常喜欢探讨中国的既得利益问题，但这些讨论往往把中国的

既得利益视为某些人或者某些家族，最大的既得利益群体实质上是整个官僚集

团。这个庞大的官僚集团，成型于宋明，之后就成为了中国最大的利益群体。即

便是贵为天子，如果与此集团公开对立，也往往处于被动。(26〕朱镕基总理当年曾

经对这个利益集团做过一次手术，但是仍然没有摆脱黄宗羲定律所描述的膨

胀—精简—再膨胀的怪圈。所谓官僚主义也好，文山会海也罢，关键是官僚太多

所致。而官僚要证明自己存在的价值，自然就会不断通过文山会海的形式来证

明自身存在的意义。延安时期边区政府为什么廉洁而且高效，一个根本原因就

是边区政府采纳了民主人士李鼎铭的建议，实行“精兵简政”，官员少了，都集中

精力做事，自然文件治国就不会发展到一个极端的“文山会海”的情形。

四、文件治国的异化

文件治国本身有着转型中国社会所不可替代的功能所在，即高效便捷，但是

任何一个制度运用久了之后，都会出现一些事先无法预料的情况，甚至出现了完

全与初衷相互背离的情形。

( 一) 文件治国使得政府运转效率降低

文件治国、批示治国、会议治国等方式，其制度初衷是避开繁琐的公共决策

程序和法律规则，寻求一种便捷、效率更高的治理方式，使得当事人或某些实践

中遇到的问题直接得到解决。但是这种人治的方式受到领导的主观愿望以及信

息来源等多方面因素的制约。按照文件治国的本来逻辑，是当实践中出现了某

个亟待解决的问题，通过正式程序可能要耗费相当长的时间和制度成本时，则通

过这种人治的方式来予以校正。但是前提是正式的程序仍然要运转，文件治国

( 包括批示治国) 仅仅解决一些正式程序所无法解决的问题。但是现实情况是，

当有人发现可以通过这种方式来解决问题时，所有人都不再遵循正常程序来解

决，都寻求获得文件、批示来解决。长此以往，则正式制度变得形同虚设，因而政

府运转效率反而降低。这是文件治国这一制度设计者们所未曾预料的。在革命

时期，可以依靠这种方式作为主流的治理方式，但是当社会进入到和平发展时

期，尽管仍然是社会快速发展时期，就不能依靠文件治国作为一种主要的治理方

式，而是作为一种正常程序的补充程序。

现实的逻辑则是恰恰相反。一个典型的案例就是内参制度。本来设计内参

是为了便于中央领导们能掌握更多的情况，便于决策更加客观科学。但是当内

参成为一种常态化的制度之后，写内参、看内参成为了一个工作流程。有的人为

写内参而写内参，有的人通过内参来宣传自己的政绩。本来应该是自下而上的，

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但现实则往往成为了自上而下的。信访制度是另外一个典型案例。本来信访制

度的存在是为了解决法律程序所不能吸纳的少量社会问题而设计，但当大家都

发现这个制度时，则依附这个制度形成了一条完整的产业链。有人成为了信访

专业户，有人在信访产业链中进行寻租牟利，成为了一个相当规模的利益群体。

( 二) 文件治国冲击了正式制度

在中国社会从农业文明向商业文明急剧转型时期，文件治国作为中国共产

党在革命时期积累起来的一种治国手段仍然有其存在的土壤，但过度使用则可

能冲击正式制度和中央正在力推的全面依法治国。文件治国、批示治国作为一

种短平快的技术性手段，实施之初确实存在效率高、时效快等优点，但当所有人

都把问题的解决依赖于领导人批示和一事一议的解决方式时，法律法规等制度

则可能被完全架空，成为一纸空文。此时，文件治国则可能导致整个社会进入到

一个“潜规则社会”。即所有人都变成了知行不合一者。所有人都试图寻找到

针对自己的特殊通道。〔27〕此时，对于有关系有资源的人而言，效率的确很高，但

对于绝大多数人而言，整个社会的效率却大大降低了。效率降低还是其次，最大

的问题是导致正式成文的法律规则形同虚设，让依法治国变成了遥不可及。

在过去十年，维稳一度成为政府的执政思路。维稳的内在逻辑和文件治国

的内在逻辑如出一辙。稳定与否，本身是社会自然发展的结果，但当“维稳”成

为了一项工作时，“维稳”本身已经异化了。围绕“维稳”成为了一条自上而下的

产业链。这条产业链上负载了太多的利益群体。钉子户现象的出现，“维稳沙

皇”的出现，实质上都在这条产业链条上。在这条产业链上，钉子户、基层县乡

政府、基层派出所、信访局、黑社会、维稳办等角色一起构成了一个巨大分利集

团。周永康集团通过不断强化“维稳”的重要性，不断扩大自身权力，将自身打

造成为一个包括财政、司法、警察等全方位的准独立的系统。这是一种高级的

“形而上学”。“小事不出村、大事不出镇、难事不出县、矛盾不上交”的口号就是

这种维稳逻辑下的典型反映。以“不出事”为目标的政绩观，正是反映了这种人

治思路无法应对日益复杂的经济社会发展的客观国情。即正式的法律政策被虚

置，正式的司法制度无法解决相当一部分当事人的利益纠纷。

五、文件治国的未来路径

首先，可以预见，在相当长的时间内，文件治国与信访现象〔28〕都将继续存

在，这种人治的治国逻辑与当下中央力推的“全面依法治国”将并立而存。这是

中国当下的急剧的社会转型背景所决定的。经济社会的发展不会以先进精英分

子的意志为转移。比如中国的城镇化建设不可能一蹴而就。中国高达6 个

亿〔29〕的农村人口短期内不可能完全转化为城镇人口。这也意味着在至少未来

二十年内，至少5 亿左右的农村人口还要生活在农村。基于这个判断，那么在农

业文明基础上的文件治国现象和清官情节都难以在这段时间内彻底消失。正是

在这个判断基础之上，中央才会自2004 年以来连续14 个中央1 号文件都是瞄

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准三农问题。社会主义新农村建设、精准扶贫等工作实质上都是这个判断的后

续展开。那么在社会治理层面，虽然十八届四中全会中央已经作出了“全面推

进依法治国”的战略部署，但是仍然要冷静地看到人治与法治并存的现象仍将

长期存在，这也意味着文件治国与依法治国并存的现象仍将长期存在。

其次，在文件治国与依法治国的关系上，要认清依法治国将成为社会的主要

治国方略。尽管人治与法治仍将长期存在，但是要从上到下〔30〕都从主观上认

清，随着市场经济的进一步发展，依法治国不仅能够最大效率和公平地形成较好

的社会治理，而且客观上法治具备了成为社会纠纷主要解决渠道的条件。法治

可能对于某个具体人而言，造成了一定的成本，但是对于整个社会的绝大多数人

而言，社会成本会大大降低，从而提高了整个社会的福利水平。因而依法治国本

质上不仅是公平的，也是符合效率的。因而不论是从公平的视角，还是效率的视

角，依法治国都应该成为社会纠纷解决的主渠道。

再者，文件治国要摆脱人治，向德治转换。德治与人治存在交叉，但是德治

仍然是规则之治。十八届四中全会决定明确指出要依法治国和以德治国相结

合。其含义就是要确立依法治国为主要治国方略的同时，以德治来作为补充。

所谓以德治国，即要对依法治国中出现的一些不足酌情予以校正。比如依法治

国对于整个社会而言，是富有效率的，但是对于某个具体的个人而言则可能是低

效率高成本的。如果这个个人是社会中的弱势群体，那么就可以由党和政府给

其开辟一个通道。法治更多的是体现一种形式公平和定纷止争，所以通过适当

的德治，比如文件治国、批示治国、信访等方式予以适当的补充，则可能取得社会

的善治。但问题在于这种德治是补充性的，不能成为社会主要的治理方式。所

以对于德治不仅需要前提，而且必须从制度上予以制约。

最后，文件治国要严格限制使用，而且要在宪法与法律框架内进行。换句话

说，文件治国是在法治无法覆盖的空白地带，而法律无法在较短时间内予以规范

时，才从权而办的特殊情形。社会首选的解决规则应该是寻求法律上的救济。

如果能够获得法律上的救济，则不应该寻求文件批示来予以解决。所谓法有限，

情无穷。由于我们是成文法国家，而经济社会生活发展十分迅速，常常有法律没

有予以明确的事项发生。即便是法律明确规定的事项，也很可能发生法律规定

中未予以明确的情形，这才发生法院经常在办案时向上级法院请示的问题。如

果每件事项法律规定得非常详尽，则法官无需向上级请示。但即便如此，文件治

国所解决的问题仍需与宪法和法律的精神相一致。文件治国不仅不能违反宪法

与法律，也不能与宪法法律内在精神，即一些法律的基本原则〔31〕相违背。

注释:

〔1〕1997 年中共十五大首次提出“依法治国”。

〔2〕1970 年12 月10 日毛泽东会见美国记者斯诺时的谈话。

〔3〕参见中央一套《延安颂》中相关情节。宋业明导演，唐国强等主演，2003 年上映。

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学术界2017． 9·学术史谭

〔4〕比如蒋介石十分喜欢通过手令的方式越级向下属传达其指令，使得自己的意图能够超越科层制，

直接到达各个层级。

〔5〕参见毛予菲: 《红头文件中的治国密码》，《环球人物》2014 年第22 期。

〔6〕从1982 － 1986 年，连续5 年中央1 号文件集中关注农业、农村和农民问题。

〔7〕参见1982、1983、1984、2006 年中共中央1 号文件。

〔8〕其实即便到了今天，很多上访的老百姓仍然是手持红头文件进行上访。在他们意识中，红头文件

具有与法律相同的合法性，甚至更高的合法性。

〔9〕民间顺口溜: “宪法不如法律，法律不如法规，法规不如红头文件，文件不如领导批示，批示不如领

导电话”就是社会学意义上的规范效力的生活描述。

〔10〕一些知识分子和干部将“两学一做”“群众路线教育”视为左的一套，这是不符合事实的。因为

这些活动都是针对党员干部而言的，如果你不是党员干部，并无此等要求。

〔11〕一些知识分子和干部将学习“习近平总书记讲话精神”视为个人崇拜，也不符合实际。习总书

记在正式会议上的讲话，并非个人灵机一动，而是体现党的意志和思想，尤其是以文件形式印发后传达到

全党学习时，就更非个人思想的临时表达，而是体现党中央对当代重大问题的思考和工作的决策部署。

〔12〕参见十八届中纪委第六次会议公报。

〔13〕比如邓小平同志在文革后出来工作前，中央首先恢复了其阅读中央文件的权力。根据党内地位

的不同，阅读不同层级党内文件是其权力的象征。

〔14〕一些文件会传达到省部级，一些文件则会传达到厅局级，一些文件则会传达到县团级。

〔15〕参见1977 年2 月7 日《人民日报》头版。

〔16〕参见2013 年11 月14 日习近平同志关于《中共中央关于全面深化改革若干重大问题的决定》的

说明。

〔17〕比如前文提到的毛泽东同志的《论十大关系》。

〔18〕这实际上意味着在某种程度上，先有党再有国。

〔19〕台湾尚未实质统一，新疆西藏香港独立势力还在兴风作浪，钓鱼岛、南海问题尚未完全解决。这

都是民族国家的基本内容，即主权边界问题。

〔20〕古罗马法学家乌尔比安语。

〔21〕这里的例子是以判例法国家为例。但即便在大陆成文法国家，如果一项议会通过的法律规则不

符合效率原则，则很可能被民众所规避，从而处于悬置的尴尬境地。

〔22〕当然同时也会考虑公平的价值追求。

〔23〕十八届三中、四中、五中、六中四个全会分别解决全面深化改革、全面依法治国、全面小康社会、全

面从严治党四个问题。而全面从严治党虽然摆在最后，但实质是其余三个全面实现的基础和关键之所在。

〔24〕其实从时间、空间、人员上对整个组织实现了一种精密的控制。所以民间顺口溜“国民党的税

多，共产党的会多”描述的就是这种情况。

〔25〕从中央机关到县乡党政机关均出现了以会议文件应对会议文件、传达应付传达的问题。大量的

时间花在文山会海之中。

〔26〕比如明朝后期的皇帝，常常处于与官僚集团的对立之中。

〔27〕即国人常常碰到的问题: 一个依照正式规则就可以办理的事项都要托人托关系，否则会遭到刁难。

〔28〕文件治国、信访、维稳、钉子户、清官等现象的内在逻辑是一致的，即自上而下的人治思路。

〔29〕这还只是依据户籍人口来统计。如果把那些土地换户籍的人口计算在内，农业人口则还要高于

此数。

〔30〕即习近平同志所讲的抓住“领导干部”这个“关键少数”，以上率下，形成合力。参见习近平同志

在2017 年主要省部级领导干部贯彻学习十八届六中全会精神研讨班上的讲话。

〔31〕任何一部法律都会存在一些基本的原则。比如民法上的平等原则、公平原则、诚实信用原则，刑

法上的罪刑法定原则，税法上的税收法定原则、量能课税原则。〔责任编辑: 陶婷婷〕

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