Why Send Law to the Countryside?

Abstract

This is the basic question of this chapter, as well as the entry point of the research. When we do research on basic-level judicial systems , judges often talk about going to the countryside to handle a case.

Divide our forces to arouse the masses, and concentrate our forces to deal with the enemy.

—Mao Zedong (“A Single Spark Can Start a Prairie Fire,” Collected Works of Mao Zedong, vol. 1, the 2nd Edition, People’s Publishing House, 1991, p. 104.)

War is politics carried out with bloodshed, while politics is war carried out without bloodshed.

—Mao Zedong (“On Protracted War,”

Collected Works of Mao Zedong (bound volume),

People’s Publishing House, 1966, p. 447.)

Appendix: Experience the Modernity of Chinese Law

—A note to “Why Send Law to the Countryside?”

I

My friend Zhao Tingyang plans to write a book on issues of China’s modernity specifically and asked me to write a chapter. I used one of my old writings to fulfill the task. It is not accurate to say that I only want to fulfill the task. I can deceive neither the readers nor my own academic conscience. “What is your contribution?” has always been one of the questions I ask myself for the purpose of my “Everyday examinations in three approaches” as proposed by Confucius . In the final analysis, I think this article is related to China’s modernity. The only caveat is that I’m not willing to use the modernized vocabulary or propositions which are relatively popular at the moment to discuss this issue.

Why is that? Because I hate discussing issues such as “modernity” at the concept level. My hatred is due to my following doubts. How could you have meaningful exchanges without misunderstandings at such a highly conceptual level? How could you prove that you are not only talking to yourself and therefore beating around the bush? There is even the possibility that it is difficult to find out where misunderstanding arises, just like if you have gotten lost in the woods. The more important thing is that this kind of destined construction of “grand narrative” is very dangerous, since many trivial but not necessarily unimportant things may be ignored, suppressed, or distorted (intentionally or unintentionally) due to their incompatibility with the grand narrative.

It is because of this reason that I have chosen my article Why “Send Law to the Countryside”? to first of all feel and then understand some problems concerning the modernity of Chinese laws. I hope that due to this specific and lively individual case, we can connect certain daily practices of Chinese people with the issue of modernity, in order to enable those who are not good at or are not used to conceptual language to observe the modernity of Chinese laws (from my point of view, even if they do not understand this modernity, as long as they are able to find issues from their lives sensitively and to give theoretical analysis, it is certainly enough for them). At the same time, I hope this article can help those scholars or intellectuals who are used to grandly narrating at the level of concepts and propositions created by the Western countries to understand this kind of, or another level of, legal modernity.

I wish readers could read the main text first and then take a look at this note. If you think it is interesting and are willing to, you may read “Sending Law to the Countryside” once more, including that seemingly strange postscript which was deleted by the editor. Ultimately, I hope that the readers will use their own daily-life experience to question, challenge, or verify this article.

II

At the moment, many people are accustomed to connecting modernity of laws with “justice “ or “social justice” or “rights”; or with specific legal principles (such as the right to silence of criminal defendant) or practices (such as the Simpson trial) of certain Western countries. However, justice is the word that is simply too abstract and big. It can cover almost everything and therefore becomes the pursuit of human society for thousands of years although some people may have never used or even heard of this word. Justice is a concept without time or life. In Holmes ‘ words which are even more vivid, it cannot “wave its tail.” It is only a tool used to express one’s own feelings and to justify their desires. There is a story popular among lawyers : A new lawyer won his case and telephoned a senior lawyer, claiming that “justice has won.” However, the senior lawyer ordered him to “appeal immediately.” This shows the opinion of certain lawyers on the relationship between justice and laws. Posner’s pedigree analysis demonstrates that “right” is actually a kind of instinct of human beings. Without this instinct, the human being cannot survive as a species. Whether you call it “right” or not, we were born with these instinctive feelings, and we did not simply acquire them in modern times. The legal principles or practices of Western countries certainly influence the modernity of Western society, but it does not equate to the modernity of Chinese laws. On the contrary, at least to the majority of Chinese jurists, these principles or practices more possibly have become the counter evidence of the “premodernity” of our legal practices at the moment, which have thus proved that we are not able to discuss about the modernity of modern Chinese laws , or we are at most able to discuss the modernity of Chinese laws through our wish to “be connected to the international world” and at the level of pure imagination. However, is this the modernity of laws as practice? As a matter of fact , it can only reflect the modernity in ways of thinking and feeling, as well as the psychology of modern Chinese people involved in the legal field.

What is more important is that in this kind of language, “modernity” has become a kind of ideology standard or concept of intentionality to judge whether something is right or wrong, desirable or not, but not a descriptive concept. It seems to be a priori inevitability, but not a possibility to feel the reality. Thus, “Life is Elsewhere” has become the basic feature of this kind of language. As related to that “God’s perspective” is another basic feature of this kind of language.

III

We must observe modernity from contemporary Chinese law practice, but not from our feelings or intentions. The case which I “robbed” (robbery without plan or specific object) from contemporary Chinese law practice may help us to feel this kind of modernity.

First of all, this individual case demonstrates in what natural, geographical, and cultural environment China’s laws function . China is a big country with vast territory and varied landforms, which causes the imbalanced development of political and economic culture in different parts of China. Contemporary Chinese laws function in and only in this kind of environment and thus present the “Mosaic” Phenomenon of legal practice to certain degrees. The venue where the loan collection case discussed in this article took place is a village “on the rim of the desert” and is therefore not a purely natural environment. It is expected to have certain implication or revelation to sensitive readers. Natural and geographic environments have left marks deeply on the function of contemporary Chinese laws. The law here is neither “formal rationality “ of Weber , nor “materialization of law” by Jurgen Habermas. It is not justice in form or in essence. You may feel more or less incompetent when trying to analyze and feel Chinese society by Western concepts. There is not much deduction of legal concepts or legal reasoning here. No judicial robes or lawyers . There are neither direct policemen nor prisons. It represents a battle between judges on behalf of the state and its citizens by definition of political relations. But you may feel more specific person-to-person contact. It is mobilization of various resources (not only resources of political power ), conscious, or unconscious utilization of strategies , and in pursuit of specific and trivial purposes of each individual in the process of the function.

But this is not like what some people may think—that it only shows “premodern” laws. This kind of evaluation may have some reasoning backing it. China’s judicial system , especially judicial practices in rural areas, does indeed have rather strong imprinting of change from a traditional society of acquaintances to a society of strangers . This change has been described or analyzed by many Western legal sociologists in their writings. If we only pay attention to this point, my description here will be only a repetition of traditional academic propositions.

However, my analysis has been paying attention to and, to some extent, given expression to the fact that “sending law to the countryside” is related to the founding of China as a nation in modern times. As a result, sending law to the countryside, sending law to the door as well as the strategy from “Encircling the Cities from the Rural Areas” in the old days to sending culture, science and technology, and medical services to the countryside in recent years, which has been included in the analysis as a background, are coherent and interconnected with each other in a certain sense. They are also one battle after another during the process of forming and founding of a modern nation. They can even be regarded as the process of forming and founding a modern nation itself, since there does not exist a result outside this process.

It is just at this level that we are able to see the profound difference between this story and the “law” story of primitive societies in jungle wilderness witnessed and recorded by anthropologists in the nineteenth twentieth centuries, as well as the theoretical model of unofficially legal or non-legal solutions of disputes in the eyes of legal sociologists of academism. Seeing from this perspective, we can say that this story is indeed infiltrated by modernity. Its modernity does not mean that it happens in modern times. What gives it its modernity is not time, but a complete set of framework of political practices and political institutions. It is even difficult for us to say that it is totally modernity of another kind of law . It is closely related to modernity of the world.

History has therefore entered into this picture. “Sending law to the countryside” has been connected to the efforts and achievements made by the Chinese Communist Party to establish a modern nation-state during the time when revolutionary bases were being built. With this, we may be able to understand the strong political pursuit possessed by “rule by law” itself. However, this kind of historical connection is not only of political intentionality and political logic. This article shows their connection in knowledge pedigrees to a certain degree. My note which may make readers puzzled is that those metaphors of wars appearing from time to time in the article as well as strategy application of different parties in the “lawsuit” all have given the following: How strategies and technologies in the age of revolutionary wars are continued and transformed by different people in different manners or names in today’s China. This exploration of pedigrees of contemporary Chinese legal knowledge and skills may not be deep enough, but can still demonstrate the modernity of contemporary Chinese law in another aspect.

Please do not misunderstand me as trying to use this individual case as a representation or miniature of Chinese law. I see it only as an individual case (it is up to readers themselves to understand it). There are many individual cases of this kind. It is just because there are many of them which are ordinary cases, people often forget or ignore them. They are not expected to inspire attention to their existence. I’m just trying to make it stand out in a possibly careful manner, but I’m destined to do so in an awkward language and to let people see what Chinese law is! As a result, it is true that this individual case under analysis happens in a rural area in Northwest China. Even if it happened in an urban area in a Southeast coastal region, as long as you are not too controlled by modern judicial academic language in Western countries or by which you shape your observation of the reality, sticking to what Wittgenstein insisted as “don’t think, just look,” then we can still see the fact that the classic legal language in Western countries cannot cover the generalized legal practices of China. After all, law is not provisions. Nor is it institution. In this sense, I believe that this individual case itself possesses enough power to deconstruct all kinds of new and old legal ideological languages.

IV

I don’t and can’t possibly ask the readers to accept that this is Chinese law. I don’t even ask them to accept the conclusions of this article. There are multiple real forms of Chinese law. Any descriptions or analysis are destined to face all kinds of challenges, especially criticisms of popular legal languages. This article can still make people feel that the laws in our daily life are so subtle, delicate, and clever, and that our lives do have the possibility of argument and modern flavor. It can thus inspire us to pay attention to ourselves, to pursue our own languages, to focus on the reality, and to feel confident about our academic research.

This article is not creative enough but it attempts to be creative. It uses various Western resources of academic theories, but it does not copy mechanically any kind of Western social or legal theory, nor does it seek to promote certain Western academic theories. It therefore reveals a kind of indifference (either to copying Western theories to demonstrate the academic aspect of this research, or to criticizing or responding to Western theories to prove its own uniqueness). It uses writings of Mao Zedong , experiences of the Agrarian Revolutionary War, as well as colloquialisms among the Chinese people which can be felt more or less by everyone, but cannot traditionally enter academic anecdotes or pieces of gossip. It is complex, but these kinds of uses are not ideological, nor do they intend to prove the truth of the article or conclusion. It neither demonstrates feelings of foreign countries or foreign lands easily to be discovered by sociologists in the manner of hunting for novelty, nor puts on airs as a jurist who feels eager toward making standard evaluations as a judge for the society. It even does not show enough of the so-called conscience of intellectuals toward the poor or weak person in the case (but instead analyzes how he could become stronger in this specific dispute and thus rids him of the cheap sympathy he might get from other academic legal texts). He is cold, but not without stance.

At least, China’s legal academics is itself part of China’s legal practice. If there is reason in this, even when the above reasons could not convince you to believe in the modernity of Chinese law, then the importance, understanding, and introspective pursuits by this article to its (Chinese) experience, emotions, cases, language and even readers, the reasonable confidence of its research, and the seemingly indifference and mischievousness (meaning same as the word mischievous in the poem verse “the mischievous little boy picking seedpods of lotus by the brook”) given to traditional academic boundaries and moral principles of traditional intellectuals, it can be seen as a proof of the modernity of Chinese law (academics).

In Weixiu Garden, Peking University

May 2nd, 1999