| In the perspective of small community but macro-history, for the purpose of applying the findings to practice, and through review of village governance and legal order changes of northwest Guangxi in history (especially since Qing Dynasty), this paper takes an example of Hezhai Village, located in Yizhou, Guangxi Province, which is known as the first self-governance village in China, emphasizes the historically inevitable emergence of villagers’autonomy in Hezhai Village and in Northwest Guangxi. On the other hand, the practice during the emergence and improvement of democratic governance by Hezhai villagers in the recent 30 years is taken as a basis to clarify the interactive relationship of the statutes and non-governmental norms, with focus placed on analysing the vicissitudes of authorities, norms and order in rural areas. Finally, this paper describes the dilemma of democray and law goverancet of villages during their transformation period, discusses reconstruction of rural legal order during modernization, and further provides experience and theory for democratic governance and law construction in rural areas. On this basis, it grasps the intrinsic logic of rural democratic governance and the trend of rural law order changes, investigates problems of subjectivity in Chinese legal history research, proposes methodological turning of from study to field, and realizes the ego in legal history research. The author neither intends to construct a theoretical system nor works out a radical solutions for the issues of democratic governance among villagers. These are neither the subject matters of this paper, nor can be summarized or simply solved through logic argumentation. Combining a micro-narration with a macro-perspective, the author expects to represent, with this common and typical example of Hezhai Village, the status of the interactive relationship between the state and villages, the peasants and the government, the statutes and non-governmental norms, on the basis of which, to study the changes of rural legal order. Therefore, we may get some new understanding on China’s democracy, constitutional government and rule by law during its transformation time. This paper is divided into six parts. Chapter I serves as an Introduction,which is the logical starting point of this paper, including four aspects, namely, presentation of problems, definition of main concepts, review and summary of relevant studies as well as the path, approach and materials of the study. From understanding of problems in China, the author points out the subject of jurisprudential study coming from not only further understanding and discovery on Chinese history and reality, but also grasp of feelings of life and hopes of the 900 million peasants in rural areas of China. However, it is difficult to separate reality from history, and even most urgent practical problems have certain historical origin and track of occurrence and development. Therefore, we have to follow a practice-based social science path when trying to understand Chinese rural problems, and no exception for legal history research. Some key concepts and usages are defined and explained in this chapter, such as governance and democratic governance, order and legal order,northwest Guangxi, village,and some other usages related to the research,such as region and period of time. Then the author sorts out relevant research findings in the academic world by three perspectives, namely, research on the history of Chinese rural social change, research on rural governance and constructing basic organ of political power and research on social norms and order of rural areas. Numerous achievements have been made by villagers’autonomy and rural governance, but none of them are sufficient to terminate the research on Chinese rural governance and order changes. Empirical studies on village governance in the northwest Guangxi are very few in the academic circles, and even fewer are comparative studies which connect regional autonomy in history with village governance in reality. Studies in this field are still very exciting and challenging, which require us to dig deeper and deeper. The author adopts a writing method of making a big thing out of minor issues, insists on combinations of case study with regional comparison, literature interpretation with field investigation, and process-event analysis with statistic analysis, emphasizes detailed description and interpretation of the case in a macro-historical background and strives for breaking the restricted classification by subjects.Chapter II traces back to the historical changes of village governance and legal order in northwest Guangxi, aiming at explaining that the villages have never been completely controlled by the state, and the village society has never been under full autonomy, there has been an interactive relationship among them. Ever since the implementation of a system of prefectures and counties by Qin and Han Dynasties, all central governments in ancient have attached much importance to unobstructed government orders and basically unified laws. However, with a lot of limiting factors, imperial power was suppressed by county government, and the state had to implement indirect governance of rural society with some intermediate strata, which functioned as a pivot point of a balance and resulted in a complicated and interconnected rural power structure. While penetrating into rural society, state power was balanced and restricted by some intrinsic powers in rural society such as the authority of the gentry and clan authority. During late Qing Dynasty and the Republic of China, China experienced an unprecedented revolution. Under the impact of modernization, a new combination took place for old and new authorities in rural society of northwest Guangxi, presenting a new trend in the legal order pattern of villages. The state intended to enhance its control over rural society and plunder natural resources through power penetrating, which on the contrary promoted the rise and development of local autonomous power. Four aspects are shown as follows:ⅰ) the appearance of local troops and expansion of the gentry’s authority in late Qing Dynasty;ⅱ) village governance reform and alienation of clan authority and the gentry’s authority in the Republic of China;ⅲ) the Red Storm started by the Communist Party and the villagers’pursuit of Soviet; andⅳ) the three-self policy and the system of three positions taken by one person implemented by the new Guangxi Clique. Even so, there was no fundamental changes in rural governance mode. After 1949, a series of reforms were carried out for rural areas in northwest Guangxi by the Communist Party, with not only old governance mode destroyed and an integrated social authority established, but also many contradictions left, which have ruined the root of its later disintegration. In general, clarifying the historical context of rural governance and legal order changes in northwest Guangxi is significant for finding the key to understand the inevitability of building a villager autonomous system in northwest Guangxi, which provides a good reference for analyzing hereinafter the interaction between the state and villages. Chapter III takes Hezhai Village as a study case to discuss the rise and deepening of democratic governance of villages. Like most villages in northwest Guangxi, people in Hezhai Village have enough to eat and wear, but are not sufficient to reach a well-off level. However, due to its typical role of having the first villagers’ committee in China, it has special memories and cultural traditions.A description of Hezhai experiance helps us to understand the historically inevitable birth of villagers’autonomy in northwest Guangxi. In this chapter, the author first introduces space-time environment, cultural traditions and the villagers’daily life of Hezhai, providing a simple sketch for its outline. The paper indicates that, due to infertile land and obstructed traffic as well as hero worship and recognition of bravery, strength and diligence, people in Hezhai Village have built strong consciousness of self choice since ancient times. Then the author describes and illustrates the whole process of the birth, popularization and promotion of Hezhai villagers’autonomy. In the late 1970’s, the old pattern of village interest was broken by fixing of farm output quotas for each household, which brought about great impact on village order and more conflicts and disputes emerged, even led to an out-of-control status which is summarized as six-more and one-less. Through spontaneous organization, a joint defense team for public security was set up, a village committee was established through democratic election, and the first village regulation in New China was formulated by Hezhai villagers. The Hezhai pattern of self governance among villagers had a quick impact on Yishan, Luocheng and some other places in northwest Guangxi, and attracted attention of Guangxi Autonomous Region Committee and the central government leadership. Later it was officially integrated into The 1982 Constitution of the PRC, indicating the legalization of villagers’autonomy. Then, this paper shows major performances of Hezhai villagers’autonomy in four aspects, that is, democratic election,decision-making, governance and supervision. Rural governance was improved by villagers through small ballot boxes, simplified NPC, mini-constitution and small discipline inspection commission, with substantial benefits obtained. Finally, briefly discusses the legality during democratic governance.Chapter IV involves authorities and order throughout rural governance changes. This chapter puts authorities, norms and order of Hezhai Village into a social transformation background of the past 30 years, and briefly describes the interactive relationship between statues and non-governmental norms on the standing of legal pluralism, through which, we can take a peep at the basic logic of democratic governance and the trace of legal order changes in Hezhai Village. Generally, three aspects are investigated:i) social authorities and village power structure. Hezhai is a Zhuang Nationality village with residents who have the family name of Meng or Wei. After the New China was founded, traditional intrinsic authorities such as village leader and clan elder gradually disappeared in history. According to the questionnaires statistics and interview survey, the author finds that Hezhai villagers still value historical and cultural traditions, but their clan sense and the impact are no stronger than any other village in northwest Guangxi and the whole country. Instead, authorities within national system which are represented by members of village Party branch and village committee and control of official power resources of villages began to rise. Hezhai Village has implemented the system of village Party secretary to hold a concurrent post as village head, and meanwhile advocated cross cadre assignment between the two committees. Authorities within the system, which integrate government orders with village interest, are the intermediary of interaction between the state and villagers. Moreover, authorities outside the official system such as virtuous persons, celebrities and economic talents and the power of ordinary villagers shall not be ignored;ⅱ) ruling by regulations and rural society control. In the past 30 years, a large number of laws, regulations and rules have been established by the state to meet requirements of the society. Meanwhile, some conventions, traditions and usual practices which have existed since ancient times have been reactivated and improved in rural society. For better explanation, non-governmental norms are classified into institutional norms and customary norms by the author, of which, the former are represented as working rules, village regulations and autonomy constitutions,which are easier to become a starting point for modernization of legal system in rural society. While the latter cover customs, general practice, morality, ethics, value standard, ideology, religious taboos and some other informal norms which are hard to describe in words, but they are important carrier for cultural continuity of rural society which give villagers a sense of belonging in terms of belief and emotion. These non-governmental norms and national laws are interactive and interconnected, jointly forming a multi-layer rural society control mode. The author further analyzes how proper interaction is achieved by statutes and non-governmental norms in village governance; and iii) dispute settlement and village order maintenance. Disputes in Hezhai Village are divided into contact dispute and invasion dispute, of which, the former is mainly in marriage, family, and neighborhood and some others in civil field, such as disputes between mothers and daughters-in-law and conflicts between a couple, and this kind of disputes has high frequency, usually involving reputation, which can naturally quiet down after emotional expression such as controversy, quarrel and shouting abuses in public. The latter happens among different families, mainly caused by personal or property torts. This kind of disputes has diversified solutions, such as mediation, reconciliation, administrative remedy or lawsuit, but villagers prefer non-litigious ways. Then the author takes a dispute arousing from forest ownership as an example to analyze the system of dispute settlement through democratic consultation in Hezhai Village. This case was one of the six major disputes in Yizhou in 1999, and the solution expressed Hezhai people’s principle of being their own boss while solving their problems. Finally, a brief discussion is made on Order without law proposed by Ellickson, with a conclusion that this does not mean a harmonious order has no laws or do not need laws, but to emphasize law is not the core to maintain social order. Therefore, it is easy to understand why Hezhai villagers are unwilling to drop lawsuit.Chapter V discusses confusions and options of village governance during transformation period. This chapter intends to find out the health status and possible problems in overall functions of villages in northwest Guangxi, and analyzes reconstruction of legal order in rural areas during its modernization process. In this extensive and dramatic change, village democratic governance is further shaped, and at the same time, faced with many new difficulties, for example, complete subversion and cross-question of the traditional value orientation of villagers brought about by modern civilization, erosion of village governance by township government and administrating of autonomy, large scale peasants continuously getting involved in modernization and urbanization, resulting in uncertainty in their participation in village governance, the urgency of improving consciousness of democracy and law, etc. On the other hand, village nowadays is a semi-acquaintance society. With promotion of taking laws to countryside of this state, non-governmental norms used to be local knowledge are now endowed with modern factors, and the relationship between statutes and non-governmental norms is closer and closer. However, the enforcement of statutes in village society is not always successful, but obstructed or screened by various intrinsic powers, and it even has to depend on non-governmental authorities and norms to perform its regulation and functions. In fact, the interaction between statutes and non-governmental norms has never stopped, but the effect and intensity of interaction have fluctuations. It is hard for researchers to describe village legal order with a thinking model of binary opposition such as traditional/modern and statutes/non-governmental norms. This paper indicates that the key to solve confusions in village democratic governance during transformation period is on how to coordinate between top-to-bottom national rules with bottom-to-top interest demand to achieve equality, checks and balance, inter-coordination and mutual benefits and finally realize good interaction. Of course, interaction does not conclude to disappearance of conflicts between statutes and non-governmental norms, nor denies the possibility of out-of-control status of village during transformation period. Gaps, even conflicts between non-governmental norms and modern statutes are inevitable, which is an issue of another aspect. Finally, the academic circle has endless arguments on its value in a long period and prospect of self-governance among villagers, with both pros and cons. This paper states that, though a great difference from our expectation, it is not proper to ignore what has been achieved by village democratic governance in the past 30 years. It is less and less like a vase, but a powerful evidence to show democracy is a good thing, and provides most real democratic practice for villagers, laying a sound foundation for active and stable reform of political system. Village democratic governance has put forward another way of thinking for democratic constitutionalism of China.Chapter VI is Miscellaneous. At this point of discussion, village democratic governance and legal order are understood in an aspect of interaction between the state and the village, and modernization of national democracy and ruling by law is reviewed via village experience. The author hopes to use the platform of field work and empirical study to encourage more academic colleagues to discover problems of China in the tight relationship between theory and facts, study Chinese experience and obtain methodological self-consciousness of getting to know China. Starting from the loss of subjectivity in jurisprudence of China, this chapter states that a profound localization process is necessary for introducing western social science into China; otherwise, jurisprudence and legal history research of China will only be vacant shell or decoration without much significance. This paper points out that jurisprudential study must get out of inane articles of law and canonical forms; instead, western theory shall be digested, absorbed, and used in understanding Chinese experience and serving Chinese practice. In other words, it is necessary to follow a path of from study to field. This not only means jurisprudential study will transfer from logical deduction by reasoning to empirical investigation, but also helpful for expanding the scope of traditional literatures on legal history, widening the field of view for legal history research, and further encouraging the vitality, critical skills and creativity of such research. This will not only provide abundant historical resources and academic wisdom for legal construction and jurisprudential development of China, but also can make full use of the legal history as a reference. Therefore, Chinese legal history will not be a museum piece but become true to life, and hopes are presented for localization of legal history or jurisprudential study. |
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