人民司法群众路线生成史研究(1937-1949)——以思想权力运作为核心的考察

Study on Creation History of Mass Line for People's Judicature

在革命早期,广大民众民智未开造成的思想障碍直接影响到中国共产党的政权建设,也阻碍了以现代司法独立为核心的司法正规化建设。共产党领导的司法实践和革命一样都是在民智未开这种大背景下展开的,它应当衔续起建构人民意志的先锋队之责,从而早日促成人民的心智变得理性成熟。共产党批判地继承了国民党对于民智开启的认识,试图在婚姻法、土地法、司法制度领域注入新的先进思想,并采取一种规训权力的方式来引领民众转变基本生活方式。但是,这种权力方式的运作在具体司法实践中受到了巨大的思想阻力。共产党在反思这场司法改革时深刻认识到陕甘宁边区微观权力文化网络这一结构性因素的影响。为了改变这种被动的局面,共产党在司法领域采取了"牧领权力"的治理术。民众心智开启或者说民众成熟以后,司法的功能就不再主要是实现思想上的教化和催生革命政治文化,而是解决社会纠纷、化解社会矛盾和型塑市民文化。

In the early time of the revolution, people of pre--enlightened mind didn＇t only affect the construction of the communist political regime, but also hindered judicial regularization which treaded the independence of judicature as the core. Both the judicial practices and the revolution leaded by the Communist Party took place in the ground of people of pre-enlightened mind and as the vanguard of Chinese people, it should always shoulder the responsibilities to construct the People＇s will, so as to facilitate general intelligence to he rational and mature. After inheriting KMT＇s understanding of the opening people＇s wisdom, the Communist party tried to inject new ideas in the field of marriage law, land law and the legal system, and also, it would guide people in the form of Disciplinary Power to shift the basic way of life. However, this mode of operation of power faced huge resistance in the specific judicial practice. When the communist party reflected the judicial reformation, they deeply realized the influence of the structural factors which were named as the micro power and culture network from Shensi--Kansu --Ningsia border areas. In order to change this passive situation, the communist party adopted a ＂Pastoral Power＂ in the field of judicial governance. After People＇s mind being civilized or mature, the main judicial function are no longer to realize the ideological enlightenment and revolutionary political culture, but to solve social disputes, resolve social conflicts and shape the citizen culture.