权力的组织网络与法律的治理化——马锡五审判方式与中国法律的新传统

The Network of Power Organization and the Governmentalization of Law:Ma Xiwu's Form of Trial and New Chinese Legal Traditions

中国共产党的法律传统形成于陕甘宁边区政府时期,这一时期所发明的马锡五审判方式以及由此推动的人民调解成为中国共产党法律制度中影响最为深远的主要传统之一,这一传统直至今天依然影响着中国的司法实践。一般说来,对于陕甘宁时期的调解制度的研究存在两种流行的主张。一种,我称之为"

There are two opposite kinds of approaches to the studies of mediation characterized by the Ma Xiwu's Judicial Mode in 1940s communist China.One,based upon historicism,maintains that importance of mediation in the legal system of communist China exhibits the continuance and extension of traditional legal culture in the history.The other,based upon functionalism,emphasizes the breakup of traditional legal culture and the modification of mediation by communist ideology. Based upon the reflection and criticism of these two kinds of approaches,with some new materials,the article brings forward a new approach of relation/event based upon‘archaeology’and ‘genealogy’in the sense used by Foucault to this topic.In this way,the article put the Ma Xiwu's Judicial Mode as an incidental historical event into the power relations in the transformation from traditional empire to modern nation-state in China.In the process of state-making,the state law transplanted from the West met the resistance from the indigenous customary law exemplified by marriage law.In order to settle such troubles,the Communist Party used various power techniques and constructed an‘organizational nexus of power’so as to put its power into the rural society. Therefore,the incidental mediation practice was integrated into the nexus of power as a special kind of governmental art.In the competition between legal discourse regarding law as autonomous system and political discourse regarding law as efficacious instrument of governance by the Party,state law was eventually subject to the governmentality as an instrument,which constructed the heart of new legal tradition.In this new tradition,the aims of law are not social justice but the Party's policies,not settling disputes but modifying and governing the society.It is in this tradition that we could understand the difference between the rule of law in the West and the rule by law in contemporary China.