Social Conflicts And Legal Control

This dissertation, taking social conflicts and legal control of present China as its research object, relying on works on conflict theory of sociology, establishing on realistic predicaments faced by controlling social conflicts through laws, and using study methods of case analyses, logic positivism and comparison, review and criticize the simplified idea of constructing social order through laws. On the base of argumentation of dual structure of social orderincluding subsistence order and significance order, it contemplates the limits of law in controlling realistic conflicts (concerning subsistence order) and non-realistic conflicts (concerning significance order), and puts forward paths and suggestions of dual systems for controlling social conflicts.Except introduction and epilogue, there are seven chapters in the dissertation.According to Chapter one to three of the dissertation, it, by introducing the argumentations between conflict theory and function theory of sociology in the West, emphasizes the theme that conflicts are not sickness of social order, and defines the category of conflict in the sense of this dissertation. In the West, Conflict means a continuously confronting process between two or more parties who have the rivalrous interests, and the process of the conflict from mind to act. Western conflict theory of sociology and function theory prove the theme pro-and-con that conflicts are not sicknesses of social order. A good social order does not mean complete elimination of conflicts, but means the order is able to accommodate and bring conflicts under control effetely. Then, the dissertation reviews the general relationship between conflict and law and logically concludes the thought of controlling conflicts and realizing order through law. From the point of view of sources, conflict is a dynamic source of law making. Law burdens the mission of controlling and administrating conflicts from the very beginning of its born. Following the process of modernization in the west, secularity and scientism became a developing trend of western thoughts. Modern liberalism jurisprudence, which is deeply infected by Thomas Hubbes, presumed the existence of human beings as natural state before social order, and denied the existence of ultimate purpose and holy. In his proposition, it was human beings' inevitable destiny to be driven by orexises. Happiness only means constant satisfaction of orexises. Therefore, human beings, through social covenants, established social community and a system of legal right which maintained the community so as to protect natural rights. The meaning of this jurisprudence is that law was positioned as a delicate system for distributing interests (rights). Law was an effective tool for controlling conflicts which were based on rivalrous interests. Law was a means for building and maintaining social order. I take this set of thought as notion of constructing social order through law. The legitimate causes of this notion is as follow. Jurisdiction for controlling conflicting parties is assumed to be impartial, non-submissive and independent. Law, which is relied on by roles for controlling conflicts, can only be pre-existing, public and rational. Direct or indirect state's violence and threat, which are the base for controlling conflicts, are dualistic unification of rational and compulsion. At the same time, it needs strong social safeguard. What is vivid and striking is the fact that the development of west society has achieved summit in perfecting laws in the sense of text, making laws a controlling technique more and more delicate. Besides, other factors including long history of rational culture tradition, profound religious care, sufficient developed civil community, mutual market, consummate systems, which strongly and effectively help and support judiciary to control social conflicts.Chapter four of the dissertation affirms that the conception of constructing social order through laws has been admitted since 1978 when China begun its social transformation and summarizes the characters of social conflicts at present time, demonstrates the seriousness of social conflicts our society faces, sets up some preconditions of the predicament of the conflicts controlling by law for the introspection in the following parts of this dissertation. By recalling and reviewing the legal positioning of social conflict in the past since the establishment of People's Republic of China (New China), the establishment of New China was the start of modem transformation of its society. In the first twenty-eight years of New China (1949-1978), the normal form theorem of classes struggling and nihilism in law was formed. This theorem and judgment about social conflicts and law positioning had not been completely corrected until the Third Plenary Session of the Eleventh Central Committee of the Chinese Communist Party. In the second twenty-eight years of New China (1978-2006), the normal form theorem of modernization and development were formed. Under the guidance of it, law has been positioned to serve the socialism aim of market economy which is able to reasonably distribute interests. The social status of law has been promoted day after day. It certain said that, after the norm of rule by law and constructing socialism law society was admitted in the constitution, the western notion of constructing social order by laws has been admitted by China society. On the other side, however, when reviewing the past twenty-eight year's practice of constructing social order by laws since 1978, we find out that social conflicts have been in a crisscross pattern, such as the rise of quantity of conflict, multiple conflicting parties, complicated causes of conflict. Realistic conflicts such as unequal distribution of physical interests, rights powers, resources become general. Unrealisticconflicts such as massive involved parties and giving vent to dissatisfaction are in anascending trend.The fifth and sixth chapter of this dissertation stresses the point that the practice ofcontrolling social conflicts and constructing social order has encountered enormouspredicament. Firstly, the dissertation reviews the system of land requisition disputes and thesystem of dealing with letter of complaint from the people, and analyses causes of legalimpotence in controlling realistic conflicts. Then, it expounds mechanism of non-realisticconflicts, emphasizes that the core of non-realistic conflicts be release of tension, and furtherconcludes that it is impossible for law to control non-realistic conflicts. As far as realisticconflicts are concerned, the first instance is that law for controlling realistic conflicts isdistorted by unbalanced social structure and therefore gets into impotent situation sometimes.The society moves depending on the logic of strength and this unbalanced social structure isattributed to the existing structure of legal system at the same time. Secondly, law, which isrelied on control ling conflicts in the sense of text and sayings through litigation often committhat when it regulates social actions, it is public, expectable and equal. On the other side,however, the system of dealing with letter of complaint from the people actually functions insettling conflicts with the logic which is against what law has committed. For non-realisticconflicts, considering the amount of people involved, the technical chance and outburst of theconflicts, and the core of non-realistic conflicts—release of tension concerning with people'spsychology and spirit, what non-realistic conflicts actually point to is the status ofout-of-order of people's spirit life. This means that law, in sense of technical rational, can notbe able to do much with non-realistic conflicts, no matter theoretically or practically.Therefore, there are gaps or ruptures between social order and legal structure. This conclusionmakes it possible for further reviewing the notion of forming social order through laws.The core of the seventh chapter is to review and criticize the notion of forming socialorder through laws, and, based on the review and critics, give some constructive suggestionsfor controlling social conflicts by laws in present time. The notion of forming social orderthrough laws takes social order equal to legal order. This simplied thought ignores the factthat the essence of social order is a dual co-existing structure of subsistence order andsignificance order. The focus of subsistence order concerns a series relationship such as rareresources, demand, collocation and supply of interests. Subsistence order may, through law asimplemental rational, be realized by reasonably distributing interests, running the societyeffectively and controlling realistic conflicts. In this sense, it is law's commission, acting as implemental rational, to control realistic conflicts, which takes physical interests as its coreclaim. What significance order focuses are the order, direction and attachment of humanbeing's inside spiritual lives. In present China, non-realistic conflicts partly reflect people'sconfusion or lost about the meaning of subsistence, psychogenic tension and perplexity. Thiskind of non-realistic conflicts, which clings to psychology, feelings and values, can not bedirectly controlled by law running as technical rational. And it is also impossible to formvalues of significance order directly by structuring significance order.Therefore, it is the tendency to construct a multi-controlling system for social conflicts.So far as China's present system of controlling realistic social conflicts are concerned, theobject of developing and bettering laws should be continuing construction of modern,scientific and rational laws, and establish more scientific legal system, more pluralistic pathfor demand of interests, more sound judiciaries and some quasi-judiciaries as supplementingsystem. As to non-realistic conflict which is homologous with significance order, because theforming of significance order relies on each one's self presentation in his or her living world,it is a long process for a community to form a system of core value. In this respect, it iscrucial for China society to respect those informal social control systems which are producednatively, and give them enough space to develop. For example, balladry is one of suchnatively produced system which is able to mitigate tension of interests. Its characters oftelling, mocking and playing justify the possibility of that function. At the same time, to makecertain the ranges and limits of social balladry make itself the object of institutionalization forlaws, and also give laws a chance of attempt to do something with non-realistic conflicts. Thisconfirms that, although law can not do much with non-realistic conflicts, it is still able torespect for laws, endorse and protect the eliminating system, which is produced by the societyitself, of non-realistic conflicts.It is one of the priorities for China's transforming society in about one hundred years toestablish a good and sound social order. The limits of legal order (rule of law) indicate that thenotion of forming social order through laws may not definitely be the last answer of good andsound social order. It is in this sense that the notion of harmonious society has been putforward and that, on one side, confirms that a society of rule of law makes a realistic path forconstructing a harmonious society, and concludes the idea of establishing a multiple systemfor controlling social conflicts on the other. It also reflects human being's openness mind inpursuit of nice and dignified community.