Abstract
In the discussion above, I have divided the authority to solve disputes in rural community into four types. Among the four types, there are the authority of village administration and the authority of court, which are both in the category of institutionalized authority. The other two types are civil authority and the authority of village folk temple, which fall under the dimension of non-institutionalized authority. Disputes in the rural community are usually resolved by one or several of these authorities.
Ideology was no longer a weapon, but an end in itself.
Debord (1994: 73)
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Notes
- 1.
Ideal Type is generally translated into Lixiangxing in Chinese. Fei Xiaotong believed: “Ideal Type can be translated appropriately into the type in concept, belonging to the category of rational knowledge. It is not imaginary but common nature in concrete things, which is formed in people’s understanding process” (1985: III). It is actually the conceptualization of Chinese rural life, which is a theoretical framework. If you see Chinese behavior with “rural character ”, then we will have a generalized understanding of Chinese people. It differs from the ethnographic-style investigation at a particular time (1936) and in a particular place (Kaixiangong Village) by Fei (1939) in Peasant Life in China. This book is more of a description of the facts of a village. But there are thousands of villages like Kaixiangong Village in Chinese society while the differences among them are very obvious. It is actually a problem of methodology (Fei 1996a, b) reflected on by Fei Xiaotong about how to dialyze the whole China through conducting surveys on one or several villages and avoid falling into the dilemma of ethnographic research, which studies only details but not the overall picture. Fei Xiaotong called this method of summarization of “categories in mind” as a method of type comparing, which tries to give a theoretical sublimation to the study of community conducted at a particular time and in a particular place. Therefore, he called it “the work at the second phase”. Its core task is to conduct “analysis of social structure”, that is, the work to “see both details and the whole picture” (1985: 90).
- 2.
It should be emphasized that the “pursuit of no lawsuit” never really means “no lawsuit” but an attitude of most people towards litigation, which is an ideal. Moral elites in the society often use the harm of lawsuit to persuade people in order to instill the ideal of “no lawsuit”. In Ancestral Temple Regulations written by Wang Shijin in Ming Dynasty, the harm of lawsuit was listed so as to advocate the ideal of “no lawsuit”. There were regulations as follows: “A place where people in peace, with taxation completed and no lawsuit is the paradise in the world. Lawsuit only does harm to people without benefits: it wastes money and consumes energy; if tricks are used, people become bad in heart; and no matter how incorruptible the government is, you will be teased in the city, scolded in yamen (government office in feudal China) and have to wait to meet the official in days. If you are not righteous, you have to suffer loss; … You may suffer from caning, punishment and even home damage. You will injure yourself and humiliate your family while revenging wrong with wrong will also injury the future generations.” (“Deyi Record”, Ancestral Temple Regulations , cited from Fan et al. 1992: 178). The manifestation of this ideal in modern times is no more than the theory and practice of “local autonomy” in early Republic of China. In Zhenping of Henan Province, a “committee to quell the litigation at three levels” was set in rural autonomous organization. As to its purpose, the “committee to quell the litigation was set to mediate disputes in all districts and villages; while counties also had their committee to deal with disputes. Therefore, before a lawsuit was created, disputes had been settled unconsciously” (Zhao 1933: 303).
- 3.
The phenomenon of settling disputes privately in rural society can be reflected from the relationship between the state law and rural lawsuit in the late Song Dynasty by Gernet. Gernet considered that peasants sought private solution because they feared the severe criminal law in state legislation as well as the high cost of litigation (Gernet 1962: 106–108).
- 4.
Li Yiyuan studied this “ruled by rites ”, or the cultural root of “ruled by man” as he called it, through comparing Oriental and Occidental. In his view, people in the western countries pay attention to “ruled by law ” due to their cosmology or religious concept. Their cosmology assumes that people are born with original sin, so we are not able to be perfect, so they believe that human should be bound by norms. The norms are the initiator of the Western legal development. Li Yiyuan thinks that in Chinese cosmology, it doesn’t exist the idea of considering people born with “original sin”. In contrast, the Chinese think that people are born with “original goodness”, which can be proved by the emphasis on self-cultivation in order to achieve perfection in human’s practice. “So Chinese do not assume the existence of a perfect God as the ideal goal. Instead, we only describe the saint’s image and deeds as the model of general public. While on the other hand, due to this reason, we do not emphasize external norms including vow and law to ensure rules and regulations. We emphasize on applying self-cultivation to constrain people’s behavior; we focus on the inner self-cultivation and teaching people to learn from the saint, so our culture always describes people who want to be politicians as ‘saint internally and prestigious externally’, which is the root of our society as the one “rule by man” (Li 1996: 111).
- 5.
But in rural area, these “reasonable” civil customs often conflict with the state law and cause “illegal” issues. Recently, in the movie The Accused Shan Gang which has exerted a huge repercussion, in order to punish the unfilial daughter-in-law, Shan Gang asked her to show a movie for the whole village and asked her parents to educate their daughter. Due to the public humiliation, the daughter abused her parents-in-law more seriously so that Shan Gang asked the militia to parade the daughter-in-law through the streets. Practising private penalty was apparently in violation of the state law, which put Shan Gang in the dock. But legal scholars with compassion to Shan Gang argued that his behavior was acceptable in the village, which meant that he punished the daughter-in-law in accordance with local conventions, so the locals didn’t understand why he was accused (Liang 1998: 17). The theme of the movie is not really this but a call for improving peasants’ awareness of state laws through the transformation of their political awareness. As legal scholars said, “It is just too naive to consider it as the ignorant ideology and outdated idea among peasants and consider that legal problems in rural area can be solved by strengthening peasants education and improving their awareness. In fact, different from the general idea, scholars are not always cleverer than peasants. Legal solutions cannot always meet client’s requirements while its arbitrariness, stiffness and unrealisticness may also cause new problems” (Liang 1998: 18).
- 6.
Therefore officials responsible for “folk affairs” had an important duty to educate people. In “Instructions for Prefecture and County Affairs” published in the period Emperor Yongzheng of Qing Dynasty, Yongzheng as the emperor instructed local officials: “As parents of the people, officials in prefecture and county should promote the moralization of imperial court to change customs in rural society; it is your second responsibility to advocate virtue and penalize the vicious upon the imperial court’s decree, … so good people will follow the trend and become virtuous while the evil will thoroughly reform himself. So hearing will disappear through education while laws can be implemented and the morality can be promoted.” (“Notice of Prefecture and County”, Instructions for Prefecture and County Affairs, Vol. 1, edited by Tian Wenjing and quoted from: Zheng 1991: 175–176).
- 7.
According to the demographic statistics of squire in Qing Dynasty by Zhang Zhongli, these squires became government students at 24 years old and died at 57 years old, who played a role in rural area at 33 years old on average (Zhang 1991: 95).
- 8.
Duara (1988) had a different interpretation on the heterogeneity of rural squire. In his view, the late Qing government ruled the rural society through dual agents. One type was the for-profit state agent while the other was the agent for protection formed by villagers in order to talk to the government directly to fight against the exploitation. Among agents for protection, the grassroots squires played an important role in organization.
- 9.
In the summary of Chinese legal culture by Japanese scholar Shiga Shuzo, he emphasized the integration of human relation, reason and law and described the relationships between these three aspects by using words of a Chinese official: “between the heaven and earth , the two words (it is suspected that it should be three words) including law, reason and human relation originally run parallel without confliction” (Shiga 1998b: 22). The integration of these three is a form of “Confucianization” of Chinese law in my opinion.
- 10.
In Ming and Qing dynasties, the development of rural custom could be proved by a lot of historical data but “in the vast history before the Song and Yuan dynasties, no textual research existed” (“Letter with Li Yihou”, Collected Works of Weijizi, Vol. 8, Cao 1993: 227).
- 11.
In the study of the Chinese concept of “justice”, researchers usually conduct an analogy between the justice concept in Western society and the definition about “justice” in ancient Chinese literature. As Young clearly indicated, since all great thinkers before the Empire of China took social order planning as the core of their thinking, so they were also interested in the implementation of social justice like Plato (1968) but with different approaches. As a result, we could translate the Chinese character “义” in Chinese classical literature directly into “justice” (Young 1981: 40). Huang Guangguo further used the western “theory of justice” as analogy of the Confucian “justice” (Huang 1991: 138–139). Xia Yong also believed that the so-called “integrity”, “righteousness” and “justice” in ancient Chinese had the same meaning as “justus” and “justitia” in Latin as well as “justice” in English, which could replace each other (Xia 1992: 28). In Chinese, “justice” means that the human behavior complies with certain etiquettes so in The Doctrine of the Mean : “Person with justice is that with appropriate acts” (Chapter XII). Thus, in ancient books, “justice” refers to appropriate acts in certain “time”. As Pang Pu said, “justice” meant “appropriate” and “just right” in its simplest sense (Pang 1996: 37). In the perspective of paleography, “justice” is an associative compound combining “sheep” and “I”. In the earliest Chinese dictionary Origin of Chinese Characters, the explanation to this word is as follows: “Justice is the prestige of a person worth sacrificing for.” Duan Yucai annotated: “In ancient times, prestige means justice, while nowadays benevolence does; manner is the expression used in showing one’s prestige…. Justice itself means the appropriateness of both manner and appearance. People with appropriate manner and appearance are good…. Acting like a sheep shows the trueness of a person” (Fang 1995: 283).
- 12.
Even from the perspective of paleography, “justice” and “interest” are always related. As the well-known words of Mo-tse, “love each other and benefit each other”; Guanzi said “people will know etiquette after being well-fed and well-clad”; in addition, it was said that “morality and justice are the root of interest” (“The 29th Year of Xigong”, The Commentary of Zuo); “a great state can be the leader of an alliance only when it deals with affairs with justice” (“The 8th Year of Chenggong”, The Commentary of Zuo); “establish a state based on justice” (the 16th Year of Chenggong, The Commentary of Zuo); “people will be involved in discussion about people while interests will be involved in discussion about justice” (Part 2 of “Zhou Chorography, State Chorography”); “people have an emperor to manage the state with justice so that profits have been brought about by justice and his people will be enriched” (State Chorography, Jin Chorography, Wugong) (Zhou 1995: 8). The discussion about relationship between “justice” and “interest” by Confucian and Mo-tse can also be referred to the discussion of Gan Xueping and Huang Xingchun. Their definite conclusion was that even Confucius who emphasized on “benevolence” rather than “profit” also strongly advocated the principle of reciprocity in social morality construction, thus Confucius claimed, “do not impose on others what you yourself do not desire” (Gan and Huang 1995: 155). In addition, when Shen Ching-sung reflected on “the controversy between justice and benefits”, he also put forward the speech of Confucian Mencius “not to talk about benefit” and “get rid of interest and get hold of benevolence”. Later Confucian took a reductionist explanation, considering that “Confucian must do justice without private interest”, which was extolled extremely by Confucian Dong Zhongshu in Han Dynasty. So from a certain sense, the so-called Confucian concept of “justice outweighing benefit ” was only a spread of Confucian ideas in Han Dynasty rather than its original meaning (Shen 1992: 963).
- 13.
Liang Shuming interpreted Chinese ethics in the book Gist of Rural Construction in this way: “What is ethics? Ethics means: A person has developed relationships with others since he was born (at least with parents and then brothers and sisters). From birth to death, his life is always associated with others and he always lives among relationships…. Relation develops in the relevant relationship and then there is justice…. In short, justice is born because of relation so that everybody is in the bonds of friendship; we all safeguard our own justice and relation, which is ethics” (Liang 1989/1936, Vol. 1: 659).
- 14.
For Shiga Shuzo, this internal “relation” was closely related to external “act” or “custom”. In other words, in his view, the “custom” or “habit” based on human relation was the root of Chinese law (Shiga 1998c: 82).
- 15.
Chinese political scientists recently discussed social justice under such a framework. Their argument centered on a core question that whether a principle of social justice could be implemented among individuals or only under the force of government. Conservatives hope that the government can leave the society alone so that the society could realize social justice freely (Liu 1998: 121–159). But it seems that this anthropologist’s dream has already been wiped out at least from today’s perspective.
- 16.
Huang Guangguo once pulled out three interpersonal relationships in actual contact to further illustrate the significance of differential mode of justice principles in real life, namely emotional relationship, mixed relationship and instrumental relationship. Huang Guangguo believed that people used different “contact rules” in different relationships. In emotional relationship, people would use the “law of demand”, where there is no rational calculation; in mixed relationship, people adopted a “human relationship law”; and in instrumental relationship, people adopted the “equality law ” with a rational calculation (Huang 1991: 68–71). It is extremely difficult to distinguish these three relationships defined by Huang Guangguo. In urban community, this classification may be very effective, but in rural community, the situation is not so simple. As Fei (1985) discovered, “the relationship between cousins can be as far as thousand miles away”. In rural community, it becomes hard to know relative relationship clearly, let alone the relative-friend relationship. Thus in the actual situation, it is more likely to adhere to the “human relationship law” based on the relationship and friendship of both sides. But it is not easy and not necessary for the parties concerned to define the specific relationship category. Moreover, it is reasonable if the Confucianism thinks so, because we would not love our neighbors more than our families and love strangers more than our own acquaintances, otherwise it is not a normal situation (He 1988: 54–57).
- 17.
When Shiga Shuzo addressed the characteristics of China’s legal culture, there was a clear interpretation of “reason”. He believed that “reason” was “justice of common sense and feeling of equity”. According to him, Chinese “feeling of equity” was “to find the equilibrium point through allocating a little loss or pain to either side of opposites” and so on (Shiga 1998a: 13). From another perspective, it means the two sides would get their own interests to achieve mutual benefits. This is roughly what the Chinese concept of justice is.
- 18.
Legal researchers often analyze the declining function of customary law in resolving civil disputes from the perspective of its replacement by the state law and attribute such decline to the “eastward transmission of western sciences ” in modern times. In the inductive research of customary law in China by Gao Qicai, he pointed out clearly: “As law of Chinese model, it has always been composed by two parts including the one formulated by the state and the customary law , which coexist and supplement each other for thousands of years. After the eastward transmission of western sciences , under the influence of civil law system, the law formulated by the state has been strengthened and gradually gained an absolute advantage in the form while the inherent customary law has constantly been forgotten to a minimum scale. Legal scholars who grew up in this environment have become accustomed to the formal, classic mode of thinking and devoted almost all of their attention to the law formulated by the state. They center on the code of written law, becoming diligent glossators. We would better consider the issue from another perspective and face the life situation of grassroots, research into the deep down, draw rational factors from a large number of existing but fragmented customary law and look for multi-channels to adjust the law in line with social trends and real social life so as to make the institutional law of state truly effective” (Gao 1995: 2–3). Although such views have nothing to blame, it should be noted that the neglect of customary law is in fact an inevitable result of the incorporation of the whole country into the globalized nation-state building (Giddens 1985, 1991). In today’s reality, people’s behaviors have not been restricted only by customary law , but a new set of rules constructed by the blend of state law and customary law .
- 19.
Such “village regulations and agreements” were set up voluntarily by villagers on one side and showed the restraint and control by the civil authority to villages’ acts on the other side. A notice outside the ancestral temple of Zhang family of Huizhou in the 25th Year of Emperor Qianlong of Qing Dynasty (1760) can prove that: “The ancestral temple of Zhang family instructs: The river in front of the temple, from the two ports upstream to the Shuikouhengtan downstream together with the east river from the bridgehead upstream, no free walking to the river and non fish in the river is allowed. Everyone should comply with the rule with no difference. Some unscrupulous people violated the rule and fished along. Some were even so shameless that they dared to catch fish in the river undressed regardless of women’s passing by to wash and fetch water, which was deeply abhorrent. The temple assembled all villagers to forbid this act strictly. Anyone dares to fish or catch fish in the river in the future will be sent to the feudal official and punished severely. Everyone must abide by the rule and no regret is useful. It is hereby to issue the instruction” (Its original copy is stored in Chinese Academy of Social Sciences, Fu 1989: 35–36).
- 20.
I have transcribed the full text of village regulations and agreements as follows: In order to further implement the principle of the Party Central Committee to promote reform and opening-up as well as enhance “rule by law”, in accordance with the Constitution, laws and policies as well as situations in our village, it is hereby to formulate rules as follows:
Article 1: Cases resulted in civil disputes won’t be punished by police while those cause public outrage by violation of morality are within the scope of these regulations.
Article 2: Villagers living in the village should comply with these regulations.
Article 3: Anyone involved in fighting and brawling, who attacks others to injuries which are not serious enough for law and order punishment shall bear all medical expenses of the victim and a fine of 100 yuan. The victim must receive medical treatment in the hospital above township level or that designated by the mediator committee. Otherwise, he should bear the expense.
Article 4: Anyone who disturbs stations, markets, offices, shopping malls, schools and other public places should bear a fine of 100–150 yuan depending on the seriousness of situation.
Article 5: Anyone hinders state officials in the execution of their duty but not so serious as to bear legal penalties should bear a fine of 100–150 yuan and offer an apology.
Article 6: Anyone who intentionally damages public property should bear an additional fine of 100–200 yuan in addition to compensation for loss.
Article 7: Anyone who destroys a sapling should plant three trees and bear a fine of 10–20 yuan. If his action is intentional, the penalty should be double.
Article 8: Anyone who destroys young crops should be fined 200–400 yuan, depending on the consequences. Anyone should manage his responsible fields and not waste the land, or he should bear a fine of 100–130 yuan/µ.
Article 9: Anyone who creates disturbance due to alcoholism, abuses others and gathers together to gamble but not so serious as to bear legal penalties should bear a fine of 100–200 yuan.
Article 10: Houses without the construction approval on the homestead should be dismantled within the deadline and a fine of 20–30 yuan per square meter should be paid.
Article 11: Anyone who is about to get married must be registered while illegal marriage is forbidden.
- 21.
External influences are subject to the exclusion of rural society in general, which in a certain sense has become a habit in their lives. Fei Xiaotong once showed such psychology of exclusiveness in the form of folk tale. When he told his daughter about the legend of Kitchen God Worshipping, he made up such a story: “In our hometown, we offer sacrifice to the Kitchen God on December 24th in lunar calendar. It is a day to send the God of Kitchen to the heaven. The God likes to eat glutinous rice dumpling so that every family prepares a lot of those dumplings for him. There is a legend: … In ancient times, there were very evil men in the north, riding a horse and attacking us. We were farming and we had no horse, so we couldn’t run fast or beat them. After they conquered our ancestors, since they only knew ride horse and kill people, they could neither farm nor weave, they had to demand food from their emperor every day. The emperor asked: How to deal with it? The minister came up with an idea that since the farming people would rebel and be unreliable, so it would be best to send troops to their homes. Each household should feed a soldier and respect him as little emperor…. Soldiers on horseback looked like a hero but when he was in people’s house, it was a different story. They followed no rule and law, ate and drank a lot, killed pigs and chickens unrestrainedly and looked for trouble all day long. No one could live at ease while they couldn’t avoid their supervision. Farming people couldn’t tolerate them anymore. But these soldiers had guns and knives, so they could take people’s heads if anything was wrong. Farming people couldn’t defeat them. Finally, a clever man figured out a way. Each household pretended to show their kindness to reward the solider at home at the New Year eve. They agreed to make some glutinous rice dumplings on the evening of the 24th in lunar calendar and feed the soliders. Glutinous rice was very sticky so when they bit the food, their teeth got stuck. Then every family killed the solider with their own hands at home but the solider couldn’t make a sound…. In order to commemorate the event, the God of Kitchen was worshipped in kitchen altar. On December 24th in lunar calendar every year, every family makes glutinous rice dumplings to feed the God of Kitchen and send him to the heaven” (Fei 1946: 87–89).
- 22.
Take the institutional building of the court in Zhao County as an example. The present People’s Court of Zhao County was formerly set up in 1939 under the Judicial Section of People’s Government of Zhao County. In the agent class under the Judicial Section, there were a dozen of people. It had no public activity while its responsibilities were only “suppression of enemy agents, bandit heads and puppet reactionary forces”. Zhao County People’s Court was not set up until the Land Reform in 1948, at that time there were only seven or eight people. In 1950, Zhao County People’s Court changed its name into Zhao County People’s Courtroom. In 1958, due to the merging of Zhao County and Ningjin County, it was called Zhaozhou City People’s Court. In 1961, it was renamed as Zhao County People’s Court. In the period of Cultural Revolution , the public security system applied military control and established the Public Security Military Control Commission of the Chinese People’s Liberation Army, so the Zhao County People’s Court was replaced. In 1973, the court was restored again (Hebei Province Zhao County Chorography Compilation Committee 1993: 354).
- 23.
Liang Zhiping gave a clear definition of customary law in the book Customary Law of Qing Dynasty: Society and State: “Customary law is an intellectual tradition. It was born in civil society, out of habit, which is shown obviously in the long-term life, work, communication and interest conflicts of villagers so that it is full of spontaneity and with local characteristics. Since this set of knowledge is a practical substance, it is dominated by practical reason to a large extent. These features of customary law differ markedly from the state law. Broadly speaking, the state law is neither the legal code only nor the product of legislation. It also includes rules, notices and judgment issued by the relevant national institutions at all levels. State law in this sense can be seen as an elite intellectual tradition with conscious protection and unity. It has a strong symbolic implication and shows a strong characteristic of cultural selection” (Liang 1996a: 128).
- 24.
Of course, judging customary law from the perspective of power domination, it is possible to see the oppression of the class that masters economic resources to the villagers who lack of economic resources. Customary law becomes a form of power domination. As Fu Yiling once wrote in addressing the economic development of the Ming and Qing dynasties, “Recently I read the Hunan Xinhua County Annals. One section of its historical materials is sufficient to explain how the village landlords ruled the peasants by residual clan power and economic coercion and those measures were also consolidated through traditional customs. It is hereby to quote the content as follows: ‘It is Xinhua’s custom to carry out strict prohibition and eliminate fake product. On the streets of each village, there are monuments to prohibit officials to take sedan or ride horse, to forbid theft, killing livestock without inspection and quarantine, forced arrest and gambling, grazing cattle, horse, sheep, pig, chicken and duck to eat food grains without permission, to prohibit begging, shelter for stranger and fire at night. There are also monuments to advocate donation first for the stone bridge, wooden bridge, bridge with tile and pavilion, to prohibit graveyard transfer and tree cutting on the tomb mountain, to set free ferry, to publicly ban on selling wifes, selling men as slave and selling women as maidservant. For people concerned, these constraints are stated.’ Inscriptions on these monuments are seemingly related to villagers’ interests, but in fact are the four strong ropes namely the authority of politics, clan, god and husband used by landlords to restrain peasants, which is a specific measure to stabilize the feudal order” (Fu 1989: 39–40). If we look at customary law from the above perspective, or “super-economic power” (61–66) as Fu Yiling named it, problems can be discovered, which is a topic for further discussion and study.
- 25.
For example, Hart (1954) believed that “what is law” could be understood at least from three aspects: Firstly, how law and order connect together in front of threat? Secondly, what is the relationship between legal responsibility and moral responsibility? The final aspect is referred to as “what are rules” and “to what extent rules become laws”. In addition, Stone (1965) further distinguished seven different groups of understanding of law: (1) a complex entirety; (2) the norms to mediate human behaviors are always included; (3) it is the social norm; (4) the complex entirety is orderly arranged; (5) the order is accompanied by high pressure; (6) it is institutionalized; (7) it has a sufficient effectiveness to maintain itself.
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Zhao, X. (2019). Differential Mode of Justice. In: Power and Justice. China Academic Library. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-53834-0_9
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