The Action Logic Of Law Field

The solution to civil disputes and state judicial practice open up an important way to understand law, society, politics and culture in China, and the relation between public servant and citizens offers a significant perspective from which we can discern the interaction between the state and society. At present our official judicial practices, however, encounter many problems and dilemmas under the circumstance of the call for rule of law. The administrative litigation is one the most typical among them, and was criticized severely since the universal difficulty in registration and execution as well as high rate of lawsuit losing and common nolle prosequi. Further, the relation between public servant and citizen is not harmonious too, as is shown from the enormous administrative litigation and mass appeal to the higher authorities for help. Hence through the study on the case that the citizen brings an action against the public servant, that is the administrative litigation in legal term, we can link these two up, as such, to undoubtedly stimulate our sociological imagination, to provide us the theory base to have a deeper understanding of the society, and offer help to construct the harmony social order and the judiciary reform.On base of the differentiating from common law failure, the paper put forward a core concept—law failure, namely expression inconsistent with practice, in attempt to use the concept to integrate and include the complicated practice of the state's official justice. In addition to this, the practice and transformation of our system can be detected as a whole. The Legal Pluralism, the Law in Action, and the Law Confliction theory can't expound the inner mechanism of law failure as well as the deep logic of the legal institution change for their own limited visions although they are the chief theoretical frames to explain the law failure.Thus, this dissertation, starting with Bourdieu's practical sociology, by exploiting the field theory as its analytical frame, studies the administrative litigation of judicial practice in China. In this way, the defects of thought have been overcome in traditional legal study: those of the internal and external perspectives, namely the formalism and instrumental ism; the integration of institution and action can be realized as well. The law field theory considers the law as actor's practice, the judicial sphere as contending for law judge power. The legal practice is not neutral, standard, of a scale and legal machine-like productive model as in ideal condition, but a fight acquiring various capital and resources, strategies and game skills.After clarifying the problem, and under the guide of the concerned theories, the paper explores by fieldwork the law failure of the citizen's action on administrative litigation in a local community; the expedient strategies of administrative departments; and techniques of a grass-roots court's dealing with administrative litigations. It's found that the citizen's litigation process in legal field nowadays is of capital operation and resource mobilization. Citizens transform the institutional, social, cultural and human capital into law capital, and utilize many strategies, such as problematization, stress injustice discourse, media intervention, appealing to the higher authorities for help, private relieving, to help their litigation game. On the whole, the suit logic of the citizen appears as the switch among the rightful, reasonable and survival logic. The administrative department will apply the blocking up field, increasing cost, decreasing gains, intervening verdict and revenging strategies to suppress the litigation. While the court, pressed by the double power structure, manipulates the techniques of striving for support, pragmatic judging strategies, intermediation and institution innovation to reach compromise and balance. So it shows flexibility among agency, interests and responsive judge logic.Through those researches on the law field action logic of the trilateral between the litigation and judge, the paper points out that the law failure is the practice form of normal institution in China, and also the legitimization reproductive system under the legitimization conflict of the several sides. The law failure formed a temporal and expedient local balanced order, which is a transitional and dynamic interim order. In addition to the imposed and induced institutional change, the law failure is a kind of motive and mechanism of institution transformation, namely the game transformation. In the power structure of the law field nowadays, the law institution change shows a character of institutional involution. This paper discusses and states briefly that the development of China should march toward a harmonious relation between the public servant and the citizen, and a stable social order under the rule of law, depending on the judicial independence.In a word, through a positivism study on the litigation in a local judicial space, we explain the reason, function and inner mechanism of the law failure, so as to look into both the legal and social order of our country, and the universal pattern of the institution change and practice.