SPACE, IDENTITY AND THE RULE OF LAW: REFLECTIONS ON THE STUDY OF REGIONAL RULE OF LAW IN CHINA
On China’s road to the rule of law, the legal system plays an important role. With the development of Chinese massive legislation from 1978, the legal system is more and more comprehensive and established. However, with the number of laws increasing, the problems about the efficacy spring up, especially when we enforce the same law in different spaces. The reasons are very complicated. In the old days, we always think that the rule of law is general and universal, ignoring that in different spaces there may be different connotations and understandings about it. If we think that China’s rule of law is only pushed by the government especially the central government but not a sort of practices in which everyone participates, we may misunderstand the complexity of the rule of law in China. Actually, if we transfer our angle of view from abstract doctrines of the rule of law to the concrete practices, we can find a lot of helpful information which helps us to understand the rule of law properly.
The problem is how we deal with the universality and specificity of the rule of law. If we think that the rule of law is universal for all places, the topic about space, identity and the rule of law has no point. However, the author will point out that this idea is wrong. Today in Chinese academia, it is a good inclination that more and more scholars have noticed the space dimension in the rule of law and opened many helpful fields like the regional rule of law, rule of law in rural China, rule of law in minority, nationality and regions and so on.
This sort of research needs the angle transformation. From the perspective of abstract doctrines of the rule of law, it is necessary to emphasize the nation, government, rationalism, and legal unity. However, if taking a more microscopic angle, we will see another side of the rule of law, that is, personal emotion, identity, belonging, loyalty, trust, etc. All of these should be involved in it. The topic of this paper is based on this transformation. In the author’s opinion, the rule of law must be unfolded in different spaces where different people with different identities participate in. This decides that the rule of law is rooted in society, not only the enforcement of government, elite group, etc.
However, can the current study on the regional rule of law achieve this transformation? The author thinks the regional rule of law which the scholars support is still a kind of the national rule of law and an abstract rule of law. Therefore, how to justify the regional rule of law? Does it exist? This paper tries to answer these questions. The structure of this paper is as follows. Firstly, it reveals the problems existing in the current study on the regional rule of law. Secondly, this paper will observe the rule of law through the perspective of space and identity. Finally, it proposes a kind of the community rule of law and puts forward some suggestions to supplement or reform the study of the regional rule of law.
II. REFLECTIONS ON THE STUDY OF REGIONAL RULE OF LAW
At present, the regional rule of law is a hot spot in academic research. In order to prove the existence of the regional rule of law, the concept of region must be clarified. The representative view thinks that the region refers to ‘regional units within sovereign states based on a particular level of administrative jurisdiction, or it is a combination of a number of administrative levels of administrative jurisdiction formed by a certain geographical relationship.’ This kind of region with administrative jurisdiction level includes provinces, cities, counties, towns and so on. It also includes the combination of different administrative jurisdictions, such as Yangtze River Delta region, Bohai Rim region and Greater Bay Area of Guangdong, Hong Kong and Macao. However, this paper will point out that there are many difficulties in constructing the regional rule of law at the administrative jurisdiction level, so it is necessary to recognize the concept again.
A. Non-Autonomy and Non-Sharing of Regional Power
First of all, from the vertical point of view, the administrative region cannot solve the dilemma between the autonomy of regional power and its subordinate attribute to the central power. Unlike a federal state, China is a unitary state, and the power of any regional unit is not entirely autonomous. Therefore, the power enjoyed by any local region is not a sovereign power; sovereignty is only enjoyed by the state. If the regional rule of law is limited to the region under administrative jurisdiction, it inevitably raises the question about its origin. Some opponents believe that since sovereignty is inseparable, these regional units or collectives cannot possibly be sovereign units, and naturally they cannot be used as the basis for deducing the concept of the rule of law, because the law is the order of the sovereign. Only the sovereign can construct an independent and consistent framework for the development of the rule of law. Therefore, the region can only develop the regional legal system, but not the regional rule of law.
Some supporters argue that the source of the regional rule of law does not come from the sharing of sovereignty but from the power of governance. The power of governance is the general name of the state power to govern and manage state and social public affairs through its organs. In their view, although sovereignty cannot be divided, the power of governance can be divided. If the power of governance is mixed with sovereignty and dominated only by the central government, it will inevitably lead to a one-size-fits-all approach to the management of domestic affairs, and the effectiveness of its policies or the rule of law will inevitably be questioned when it is implemented in the local level. On the basis of the power of governance, the scope of powers, the exercise of powers and the assumption of responsibilities in local government show obvious autonomy. Therefore, the autonomy of local governance does not violate the principle that sovereignty cannot be divided, and it provides a legitimate basis for the regional rule of law.
However, can the power of governance become the origin of the regional rule of law? The author does not think this basis is sufficient. It is important to note that sovereignty and the power of governance are very different. Sovereignty is a kind of meta-power, and the power of governance is only a kind of management power derived from sovereignty, which is fundamentally subject to the arrangement of the sovereign. That is to say, even if the region has some autonomy in governance, this kind of autonomy is not original. It is just a certain arrangement by the sovereign, and it will even change with the specific time and space.
Take the local legislative power as an example. After the foundation of New China, our local legislative power division system experienced three stages. The first stage was between the foundation of the People’s Republic of China and the enactment of the Constitution of 1954. At this stage, the legislative system at the central and local levels was established. According to the Common Program of the Chinese People’s Political Consultative Conference of 1949, the Organic Law of the People’s Republic of China on the Central People’s Government of 1950 and the Program for the Implementation of Regional National Autonomy of the People’s Republic of China of 1952, the legislative power of China was mainly vested in the central authorities, but the governments at or above the county level had the power to formulate provisional decrees and regulations. The second stage was the period between the enactment of the Constitution of 1954 and the Organic Law of Local People’s Congresses and Local People’s Governments at All Levels of 1979. This period was basically the period of negation of local legislation. Except for the autonomous regulations and special regulations in national autonomous areas, other places did not have the legislative power. The third stage, from the enactment of the Local Organic Law of 1979 to now, is a period of constant expansion of local legislative bodies. The provincial congresses and their standing committees, the congresses of larger cities and their standing committees, the district cities congresses and their standing committees gained local legislative power in 1979, 1982, 1986 and 2015 respectively.
From the history of the development of local legislative power in China, it can be seen that this kind of governing power enjoyed by the local authorities is not natural or even reliable, and it is fundamentally dependent on the arrangement of sovereign according to the times change. As an example, from 1986 the larger cities could legislate as long as they did not contravene the upper laws. However, the Legislation Law of 2015 limited the legislative competence of the larger cities to urban and rural construction and management, protection of history and culture and environmental protection. According to the power of governance, the power of the larger city is undoubtedly much more restricted than before. Therefore, how do we judge this region or place has a permanent governing power? In a hypothetical situation, if someday the local government lost the legislative power, would the local or the regional rule of law disappear? Therefore, in the author’s opinion, the theory of the regional rule of law which is based on the power of governance is not reliable. From the perspective of power, it can only have a certain degree of discretion in the completion of national arrangements, rather than the original, independent power like sovereignty.
Secondly, from the horizontal point of view, there is no sharing of powers between administrative regions. In the local unit of administrative jurisdiction, the local government is responsible for the respective local people’s congress, and there is no inter-provincial or inter-city congress or government. Therefore, there is no sharing of legislative, executive and judicial power between provinces, cities and counties. At best, it is just a matter of cooperation. In recent years, important regional cooperation documents such as the Beijing-Tianjin-Hebei Association and the Outline of Development Planning for the Yangtze Economic Belt were formulated not jointly by the local regions but by the central authorities. Also, the circuit courts across various regions were established by the Supreme People’s Court of China but not by regional people’s courts jointly. Even the legislative corporation in air pollution or environment protection between administrative regions is very hard because the power of each administrative region is not subordinate to the other horizontally.
Based on the above analysis, this paper argues that there are problems from the perspective of administrative jurisdiction. Firstly, from the vertical point of view, an autonomous rule of law is bound to be the rule of law of the sovereign or the national rule of law, because all the local powers (including legislative, executive and judicial power) are derived from the sovereign under the framework of the national rule of law. Just as the proponents of the regional rule of law believe, ‘the development of the regional rule of law is an organic part of the development of the rule of law in a country, and is the special space of the development of the rule of law in a sovereign state.’ If it is recognized that the regional rule of law belongs to the rule of law at the national level or that regional rule of law is equivalent to the development of the national rule of law, the value of regional rule of law is greatly diminished, because it cannot become a unique form of the rule of law, and it is just the embodiment of the national rule of law. From the perspective of power, the correct expression should be the national rule of law in the region but not the regional rule of law. Secondly, from the horizontal perspective, the independence of power among administrative regions determines that the power of a certain administrative jurisdiction cannot be shared by other administrative jurisdictions, and there are no cross-regional powers. This means that cooperation or contact between all regions, at least from a power perspective, is accidental and does not have solid institutional or legal support. To sum up, the perspective of power is not enough to justify the regional rule of law.
B. The Perspective of from the Top to the Bottom
In the current practices of the regional rule of law, the subject of the regional rule of law is the government of the region. Since 2004, many provinces such as Jiangsu, Zhejiang, Guangdong, Jiangxi and other provinces have issued the Outline of the Construction of the Rule of Law, the Five-Year Plan for the Construction of the Rule of Law and other local documents. The outline of each province takes the form of basic principle, goal and content in the overall layout. In the content part, the construction of the rule of law is divided into legislation, law enforcement, justice, the rule of law in society, supervision and accountability. With the establishment of the outline of the rule of law in each province, the evaluation index system of the rule of law was established by the government. Thus, we can see that the main body of planning, construction and evaluation of the regional rule of law is the government, and the path is top-down.
The research in academia is more complex. The first problem is whether the origin of the regional rule of law is top-down or bottom-up. Some scholars’ understandings to this problem are contradictory. As a whole, scholars believe that a society under the rule of law should be bottom-up, but this position is not firm. Someone puts forward two reasons for the existence of the local rule of law. The first reason is that we should focus on the local society since any national law is implemented in local society and social members are the objects of law implement. This understanding is odd. It should be noted that the bottom-up here is still based on the implementation of national law, but just transferring the perspective from the validity of national law to the actual effect. Therefore, in essence, it is still top-down and just pays more attention to the bottom. The second reason is that the law itself is a kind of practical wisdom and it is not entirely the product of rational planning, it needs to be informed of practical experience from the local areas. The author thinks these two reasons are conflicted. The latter is indeed a bottom-up perspective, emphasizing the unique significance of local particularity to the national rule of law. But it is regrettable that the latter is not deepened in the research.
The second contradictory concept is the regional governance put forward by some scholars. The original meaning of the term governance is a concept opposite to the rule. In Professor Yu Keping’s view, the difference between governance and rule lies in four aspects. Firstly, the authority needed by the governance does not necessarily come from government organs, but the authority of rule must come from the government. Secondly, the direction of government power is always from top to bottom, and governance is a process of interaction between the top and the bottom. Thirdly, the scope of management is different; the scope of governance can be across the national boundaries. Fourthly, the basis and nature of authority are different; the authority of governance mainly depends on identity and consensus. In other words, the original intention of governance is not to emphasize the government as the main body, but to emphasize the interaction between the government and society. In a certain level, governance needs to dispel the authority of political power and attach importance to the autonomy of the society. However, in the view of some supporters of the regional rule of law, regional governance still mainly relies on the authority of the government, emphasizing the formal norms in the national legislative system such as laws, administrative regulations, judicial interpretations, local laws and regulations, local government regulations and governmental cooperative documents. This understanding of regional governance, in fact, is just the exertion of the state powers in the region, which is very different from the concept of governance that attaches great importance to social autonomy.
The third contradictory concept is the regional legal culture. In fact, from the perspective of culture, it is more persuasive to justify the regional rule of law than from the angle of power. However, they are still taking a view of the culture from the top to the bottom. For example, on the one hand, scholars stressed the importance of local knowledge as a small tradition in the region, and believed that folk customs formed an important source of life in the development of the regional rule of law. But on the other hand, scholars are not firm about the independent status of folk customs. This means that when the small tradition of the regional culture contradicts the big tradition of the country’s overall culture, the small tradition should give way to the big tradition, and when the custom conflicts with the national law, naturally, we should give way to the national law.
In a word, whether it is in the practice of the regional rule of law or the academia, the perspective is mainly from the top to the bottom, which emphasizes the overall legal system of the country, the culture of the whole country and the leading role of the government in the development of the regional rule of law. Like the perspective of power the author discussed earlier, this top-down perspective determines the regional rule of law used by scholars is very difficult to separate from the national rule of law and becomes a unique pattern of the rule of law. If this is true, it is unnecessary to create this concept at all.
C. A New Angle of View
From the author’s point of view, the present study of the regional rule of law is centered on the administrative jurisdiction and from the top-down perspective, which lacks a detailed study on the complex relationship between space and man. On the one hand, the existing research has overemphasized the spatial structure of central-local, which is governed by the national rule of law and is still in the framework of the national rule of law. Under this spatial structure, the main task is to investigate how the local government or region implements or responds to the requests or arrangements of the central government. On the other hand, since the existing studies only emphasize the spatial relationship between the central and the local, they also lack the research on the individuals in the specific space.
However, we should note that the central-local space is just one of the spatial structures in which the individual is located. For the individual under the influence of the law, the country, unit, family, places of activities and other tiny spaces are all important. Similarly, in addition to citizenship identity, the individual may also be a farmer, a unit member, a family member and so on; all these identities influence and dominate the individual’s behaviours and views of the rules. Therefore, in order to reveal the special or the concrete rule of law which is different from the abstract rule of law in the whole state, we have to change our angle of view. This paper will try to use the angle of space and identity to understand the situation that the regional rule of law attempts to present. This perspective has the following characteristics:
Firstly, it is a multiple perspective. This perspective does not deny the importance of space constructed by governments including administrative jurisdictions; meanwhile, it does not deny the importance of other spaces that are closely linked to the lives of individuals or groups. These spaces should be treated equally. Therefore, this perspective is closer to the concept of governance, emphasizing multiple interactions of different spaces.
Secondly, it is an internal perspective. This perspective is not from an external observer to observe the space in which people live, but from internal participants to explore the role of different spaces in shaping people’s social relations. Therefore, this angle of view is closer to a cultural perspective.
Finally, it is a micro-perspective. It gives up the macro perspective of the national rule of law and goes into a deep exploration of the concrete spaces and the people in it. Therefore, this angle of view is closer to a sociology perspective.
III. SPACE AND IDENTITY
If we investigate the theories in the sociology, we can get many helpful resources to rich our understandings about the rule of law. First of all, we will discuss the concepts of space and identity and their relationship. The author will cite the space theories from the famous sociologists such as David Harvey, Anthony M. Orum and Henry Lefebvre to discuss in detail.
A. The Connotations of Space
Space and time are eternal themes in philosophy. For space, it is the basic dimension of human living. We live in the space, and every activity happens in the space. The distance, close, the geographic variation between different regions, special place and gathering, all have their special characters and points, which is the most important fact in the operations of social activities. Harvey thought that the concepts of time and space affected our understandings about the world and they provided us with a reference system, in which we could locate the relationship between the world and us.
The author should point out that the space in this article is not only a physical territory, although it is always understood like that. Here the space is in the sense of order, i.e. the order of space. Apart from the pure physic three-dimensional space, where there are people in a space, there exists an order. For example, urban space is usually understood as a physical phenomenon, but that is not enough. Some scholars have pointed out that the urban space is constructed and it compels us to obey its order, change our behaviour modes and life styles. Building space is also the same. The author tries to conclude some characteristics of space.
Firstly, space is not only an objective physical property but also a container to accommodate cultural symbols. They are repositories of memory, conveyors of rhetoric. For example, in Duara’s research on rural north China from 1900 to 1942, the rural north China is the space which accommodates the nets of cultural power. For Duara, the political authority in the village society is expressed in the framework which is composed of organizations and symbols. He takes the Earth Temple and the Guan Yu Temple as examples. For the Earth Temple, it represents the village and focuses mainly on the clan ties. However, the Guan Yu Temple expresses more general values than the God of the land, which is utilized to tie more people who do not have a blood relationship. This can explain why the Guan Yu Temple boomed from the Qing Dynasty, because from then more and more people who had no blood relationship gathered together. There are many examples like that especially in the ethnography research and the intimate relationship between culture and space is obvious. The author thinks if we move from a material point of view to a cultural point of view, the most important understanding from this transformation is discovered, that is, space is embedded by the human activity and is given human objectives and meanings.
Secondly, as a cultural phenomenon, space can be constructed, and it is a product of social construction. For Lefebvre, our society has transferred from the production in space to the production of space. He detailed the relationship between space and the capitalism and thought that space as a whole had entered the productive mode of modern capitalism, i.e. space was used to produce surplus value. In the old days, earth, the bottom of the earth, and sky are only sorts of natural resources, but now they have become the tools in capitalism. Space becomes a sort of means of production, consumer objects, political tools, and is full of class conflict. For example, modern real estate in fact uses the buildings to produce interests and striving for space has become an interest battleground.
Finally, if space is a product of social construction, the space arrangement is inclined to be criticized and needs to be justified. That means the legitimacy of space production has not already existed but must be earned. If we think that space is an objective, still, unchangeable existence, we are making a fault and taking it for granted that people just negatively obey the order that the space arranges for them. Why is the order of the space arranged like this but not that? Why do we have to live in this space but not that space? All these questions should be justified, and the construction of space must be tested by us.
An appropriate example happened in the process of urbanization. This is a very complicated process that means space change and space reproduction. Actually, in the process of urbanization, the peasant is not a passive object to obey the arrangement by the expropriation party but an active subject to fight for a more appropriate space for himself. As the two sides, the expropriation party and the peasant use many theoretical resources to look for the legitimacy of space change. For the expropriation party, a more attractive and persuasive theoretical resource it finds is modernization. Modernization means the urbanization is a necessary process in the tradition-modernization transformation, which indicates the rural area is surely lagging and the urban is surely advanced and the life in the city is sure to be happier than in the village. In the expropriation party’s opinion, modernization proves that the rural-urban transformation is just. However, another side utilizes other theoretical foundations to justify the peasants’ fight and denies that modernization is equal to urbanization. Many sociologists try to justify the uniqueness and rationality of rural culture and discover the disadvantages of the urbanization’s intrusion into the rural culture. The justification of space arrangement is always disputable, and many factors are presented to participate in the dispute.
B. The Relationship between Space and Identity
If we accept that space is a battleground in which every side fights for the space arrangement, the question is why the people can gather together to identify with one another and try to protect their desired spaces. The place theory can give us some clues.
The place is the special site for a person’s work and life, in which the intimate relationship comes into being. In sociology, the place is very important because we can find ourselves there. If we recognize that we are in the world and want to be a subject but not an object, we must look for our positions. Furthermore, the position must be in a place, and if it does not exist in a place, there is no position. Anthony M. Orum and Chen Xiangming point out the connotations of place: the first is a sense of personal identity, a sense of who we are; the second is a sense of community, a sense of belonging as a big family; the third is a sense of time about the past and the future, a sense of place in front of or behind us; the fourth is a sense of being at home, a sense of comfort. For Orum and Chen, the sense of identity and belonging in the place is the base for the intimate relationship between people.
The connotations of place are inclined to another concept: community. Many researches especially the rural sociology have focused on the rural community. The community is a local social system, in which the special identity is admitted. The identity keeps a special community going, and if you do not have the identity anymore, you will be expelled out of it. In rural China, many evidences have proved the importance of identity for keeping a rural community. For example, in traditional villages, the clan relationship which contains the identity is a core factor to decide the social construction, economic life, custom, etc.
Some scholar takes an interesting example. In a village of north China, some out-married women are deprived of their legal rights which include the right to distribute the homestead, vote and be elected. The reason is that the villagers’ committee regards that they are not members of the village. Since they are married to the man outside, they should not share the welfare of the village with other members. In this case, the villager identity is the most important standard to be entailed to the villager rights.
Another example is the rights of migrant peasant-workers in China. After peasants migrate from the village to the city for work, they would feel lost and easily lead to behaviour misconduct. The reason is that the space transformation produces identity disorder. The migrant workers always think that they are outsiders and they do not belong to the city, which makes them incline to accept the real but not reasonable situations in the city. When their rights are violated, they would not look for the help from the city but seek help from the people who come from the same place.
All these examples discover the intimate relationship between space and identity. If the space transformation has happened and the new identity has not been constructed, the old identity is easy to be disordered. Based on this conclusion, Orum and Chen point out we should promote the relationship between people and place, enhance the sense of community and the personal identity in the place.
IV. SPACE, IDENTITY AND LAW: AN INVESTIGATION IN LEGAL PHILOSOPHY
After we investigate the theory of space and the relationship between space and identity, we can transfer it to the law. Since all the human activities happen in the space, the law cannot be ruled out. The law participates in the production and reproduction of space. Furthermore, the law must consider the identity of the people in a space, if not, it inevitably leads to low efficacy. Therefore, the relationship between space, identity and law in legal philosophy will be investigated.
A. John Austin and H.L.A. Hart
From the modern legal philosophy, John Austin thought that the law was the sovereign command and the legal efficacy was limited in the scope of the sovereign. From this point, space seems in the theory of Austin’s positivism. However, as Austin focused on the authority of law, once the habit of obedience came into being in a territory, the relationship between people and the sovereign was obeying and being obeyed. The identity in the law is either the subordinate or the sovereign. For Austin, once you are subordinate, the other identities are meaningless to the law. The law of sovereign would not consider home, factory, communities and the identities affiliated to these places. The important factor to the law is the will of the sovereign, not the ideas of the subordinate. Whether it exists self-identification and whether it is voluntary obedience are pointless to the law.
H.L.A. Hart took an internal perspective to consider the law and revised the doctrines of Austin’s theory. As Hart claimed that his method was descriptive sociology in his famous book The Concept of Law, the author thinks it has a possibility at least to open a field to consider the relationship between the law, space and identity, although his idea is not related with these directly. Hart thought ‘the internal aspect of rules is often misrepresented as a mere matter of ‘feelings’ in contrast to externally observable physical behaviour … But such feelings are neither necessary nor sufficient for the existence of ‘binding’ rules ... What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of ‘ought’, ‘must’, and ‘should’, ‘right’ and ‘wrong’.’
If we have a critical reflective attitude to certain patterns of behaviour as a common standard, the problem or the thinking is opened. Certainly, we can use more social resources to criticize, accept and evaluate some sorts of behaviours (or the rules). Some scholars think that Hart inherited Winch’s viewpoint that all the meaningful behaviours had their social significance and rules presupposed the existence of social context. In this case, the relationship between the law, space and identity can participate in the dispute. Another point is Hart’s rule of recognition. Hart thought the rule of recognition might not be written and actually it was a social fact. Unfortunately, Hart did not talk about how the recognition came into being.
However, this inference may be assumed since Hart’s theory is a sort of positivism as a whole. This decides that Hart would not focus too much on the relationship between the law and society which is the theme of the sociology of law. In other words, Hart focused on the validity of law but not on the efficacy of law or the law in action. But this will close or hinder our thinking on the relationship between law and society, including the theme of this paper. The author thinks if we want to put the space and identity in the legal discourse, we have to go back to the social background and explore how the law comes into being and how the law comes into play in the society. It is undoubted that the authority of law is very important in the legal discourse and legal logic, but if you give up the stages before and after the existed laws, you will still lose the integrated understanding about the law. This is just the theme of the sociology of law.
B. Eugen Ehrlich and Ferdinand Tönnies
If we investigate the theories in the sociology of law, we can find many helpful resources to understand the relationship between law, space and identity. Eugen Ehrlich’s theory of living law is most typical about this field. He thought, ‘three elements therefore must, under all circumstances, be excluded from the concept of law as a compulsory order maintained by the state, a concept to which the traditional juristic science has clung tenaciously in substance, though not always in form. It is not an essential element of the concept of law that it be created by the state, not that it constitutes the basis for the decisions of the courts or other tribunals, not that it be the basis of a legal compulsion consequent upon such a decision. A fourth element remains, and that will have to be the point of departure, i.e. the law is an ordering.’
If we think that the law is an ordering and state law is only one of the laws, we can take the chance to investigate more microscopic orderings other than the ordering of state law in the society. For Ehrlich, ‘society is the sum total of the human associations that have mutual relations with one another … the state, the nation, the community of states … i.e. the political, economic, intellectual, and social association of the civilized nation … the religious communions and the individual churches, the various sects and religious groups, the corporations, the classes, the professions, the political parties within the state, the families in the narrowest and in the widest sense, the social groups and cliques … constitute a society.’
Ehrlich emphasized the association of society and it is the keyword in his theory. What is the relationship between association and space? In the author’s opinion, space is a very important clue to form the association. Ehrlich’s association just emphasizes the human activities or subject side of the space. This is similar to the author’s understanding of the order of space, which means space has its subjective and constructive characters. Nobody would deny that state, nation, corporation, factory and family are not in a special place. From this perspective, Ehrlich’s theory would agree with the opinions of the sociology of space.
Besides, when we transfer our angle to the association in the society, we will find some microscopic phenomena to investigate what needs to maintain the member of an association and what is on earth happening in it. The mind, emotion, feeling, belonging, trust and identity, all these factors which excluded by the positivism can be put in the mechanism of maintaining an association. Ehrlich stated, ‘nevertheless there is no one to whom country, native land, religious communion, family, friends, social relations, political party, are mere words. Most people perhaps will set little store by one or the other of these, but doubtless there would be very few who do not cling with all their hearts and minds to one group at least.’
Besides the importance of loyalty or minds to the association, Ehrlich also emphasized the importance of membership for maintaining the association. Ehrlich stated that legal norms or other social norms all came from some association and only forced the duties to the members of the association. The legal norms are only binding to the members of the associations. This has already been at the touch of core connotations of identity. Actually, the core contents of identity just include the special rights, duties, responsibilities, loyalty, trust, etc. All these factor affiliated to a member of the association.
Similar to Ehrlich’s theory of association is Ferdinand Tönnies’ theory of community. Tönnies believed that the community was a lasting and true common life and it was a living organism. It was not a biological unity but a living human relationship and union. Tönnies proposed three types of community: blood community, geographical community and spiritual community. In Tönnies’ view, all three communities are linked to space and identity. He pointed out, for example, that the blood community was inseparable from the relationship between parents, children, brothers and sisters and it was even more inseparable from the place of home. Tönnies specifically described the role of city and village in the formation of community, and emphasized the role of family members, farmers, community members, and friends and so on.
C. Achievements in Chinese Academia
In China, the study of the relationship between space, identity and law has made great achievements in the field of legal sociology. The sociology of law pays more attention to the identification and recognition of the rules than the validity of the rules. Professor Zhang Jing is a representative of the study of identity. In her view, identity is the place of members of society, and its core content includes specific rights, obligations, responsibilities, loyalties, rules of identity and conduct, as well as the legalization of that right, responsibility and loyalty. Identity is not a traditional concept. The historical evolution from identity to contract does not mean that identity has disappeared in modern society. It simply means that the identity relationship of the members of society has changed from one identity to another. When this happens, the loyalty, attribution and the original identity to certain social institutions and groups will change. Identity changes can be accomplished by identifying with new rules. We can create a new identity by recognizing new rights, obligations and responsibilities through new rules. ‘When new rules and their legalization grounds are accepted by more members of society and spread over time, a broad social identity is generated and may become the standard of conduct recognized by the formal system through the legislative process.’ However, the process of recognizing the rights, obligations and responsibilities is not simply a process of rational construction or can be established simply by way of legislation. It should be a process formed through the practice of human behaviours. ‘Quite a number of cases have shown that there is a great distance or even conflict between formal records and people’s understanding. The evidence we find in the law does not seem sufficient to prove that people use them in their daily lives. People’s consciousness is difficult to be clearly expressed in the text of the law, and if there is one, it may be quite different from the thing that actually works.’ In other words, there may be a false phenomenon in the rules defining identity, which is similar to the division of law into law in books and law in action in the sociology of law.
V. TOWARDS A COMMUNITY RULE OF LAW
A. The Rule of Law Ignoring the Space and Identity
After we investigate the relationship between space, identity and law, we will transfer it to the rule of law which has been a mainstream legal discourse in the world. In the author’s opinion, the rule of law is not a sort of abstract doctrines but a practice based on the given time and space. It is undoubted that some core connotations in the rule of law are popular, but we still need to think about the special environment of different spaces. This indicates that it needs us not only to consider the macroscopic space such as globalization and medium space such as national states, but also to consider microscopic space such as association, region, urban, village and so on in a country. It goes without saying for the first two, but the third is always ignored in the theory and practice. This paper just summarizes some defects about the rule of law ignoring the space and identity.
Firstly, the rule of law ignoring the space and identity focuses excessively on the exertion of powers but ignores the dimension of society. This character of the power exertion is always named the power from the top to the bottom. From this angle, the rule of law is not from society but constructed by the government or the elite politics. However, the legal system is one thing; the actual efficacy is another matter. This leads to a paradox that the legal system is developed, but the practice is not based on it. Many cases have proved that the actual efficacy of legislation is a big problem. The norm via power exertion is only a type of norm; the really effective norms are richer than the statutes. This means the customs, living laws, local knowledge which are accorded with special space and identity should not be excluded in regulating the behaviours of people. However, if you only emphasize and rely on the power to change or shape the behaviours of people, it will necessarily be rejected by these norms and lead to low efficacy.
Secondly, the rule of law ignoring the space and identity emphasizes the unity but denies diversity. From the connotations of space and identity, spaces and identities are various. However, the rule of law ignoring the space and identity thinks that law is universal and unity and anyone in anywhere should obey the law, as long as you belong to one nation and you are a citizen of the nation. There are only one space and one identity left, i.e. nation and citizen, which leaves no space for diversity. This sort of rule of law will not admit the diversity of local legal practice and deny the local creations in practice. It would not admit the special sorts of rule of law in different regions because the unity will not recognize differences in different regions.
Thirdly, the rule of law ignoring space and identity leaves no room for the individual. From this sort of rule of law, an individual is not a lively subject to create or participate in the practice of the rule of law but just an object and a dead factor. Personal mood, feelings, sense of belonging, loyalty, attitude, trust and identity, all these factors are excluded in the doctrines of this sort of rule of law. The individuals have been transferred to a group, i.e. an obedient group. This sort of rule of law is inclined to be oppressive in it. It is just because of these individuals that shape the practice of rule of law, who are flesh and blood, creative and passionate.
Fourthly, the rule of law ignoring space and identity disbelieves autonomy. For Ehrlich, the living law comes from associations in society, and the most important norms are just from the autonomy of associations. However, the rule of law ignoring space and identity is not based on autonomy but heteronomy, which emphasizes the obedient relationship between the elite group and people. This sort of rule of law thinks that the elite group represents the highest reason and ordinary people should be led by them, but it will deny the people’s creation and wisdom at all.
Finally, the rule of law ignoring space and identity presents a strong inclination of urbanization in legal practice. From this sort of rule of law, it is the urban area not the village as the focus since modernization is urbanization. But as long as the law must be uniform, the space and identity in the village are lost in this sort of rule of law. The urbanization in the laws leads to low efficacy, and it cannot solve the genuine problems in the village, although the laws seem very reasonable.
B. The Characteristics of the Community Rule of Law
In order to avoid understanding the rule of law as some cold doctrines which strip the space and identity, we should establish a kind of community rule of law by using the theories of Ehrlich’s association and Tönnies’ community. The rule of law is a phenomenon based on space (including geographical and cultural space), and it reflects the consensus and belief of people or groups. Space provides a scene for the rule of law, and any rule of law is the rule of law in the space. Identity provides the subject for the rule of law, and the rule of law comes into being in a group of people who share common beliefs and consensus. The rule of law cannot be deduced from power alone, which is the biggest problem faced by the current study of the regional rule of law. In the author’s opinion, the rule of law is sure to be a rule of law in a community that embodies space and identity, whether it is a national community or other communities.
In fact, Professor Gao Hongjun has put forward the concept of community rule of law for a long time. He believes that in order to overcome the dilemma brought by the present formal rule of law and the substantial rule of law, we need to set up the voluntary community and establish the community rule of law. In his opinion, the social community, as a unity of individual freedom and group, is different from the scattered group of individuals as well as the loosely connected group of people. It is a more lasting social combination with cohesion. In fact, the community is everywhere. According to the size, it can be divided into family community, village community, national community and cross-national community. In accordance with the formation of the community of ties, it can be divided into blood community, national community, community of interests, regional community and so on. On the basis of the function, it can be divided into political community, economic community, cultural community, religious community, ethical community and legal community. We summarize a few characteristics of the community rule of law.
Firstly, the community rule of law does not originate from the power’s external imposition but from the people’s internal need for maintaining the community. For example, the continuation of the family community must follow the basic ethical principles, and the continuation of the community of interests must follow the principles of win-win and reciprocity. These principles condense the consensus and belief of the community. Conversely, without these rules that support the community, it cannot be formed.
Secondly, from the rule formation mechanism in the community rule of law, it has the characteristics of negotiation, common will and inclusiveness. The rules are not the products of top-down power. Whether national laws under the national community, regulations under the geographical community, customs under the village community or rules under the trade community, they are all the products of consultations between members with the same identity. The rules embrace the community members’ faith and their understanding of life. Therefore, the law under the community rule of law is not only the rule of people’s behaviour but also the carrier of people’s lives and the meaning of lives. In addition, whether within or between the communities, these rules are inclusive. Within the community, the formation of rules in the community requires the respect for the opinions of each member, for everyone as an intellectual subject, and for their opportunity to participate. The rules of the community are not made by other subjects, but by the members themselves. Besides, rules between different communities should also be inclusive in light of possible conflicts. In particular, in a community as large as a country, in addition to the mandatory rules such as the criminal law that are necessary for the maintenance of the national community, flexible space should be reserved for the continuation of different communities. The national community should respect the pluralistic characteristics of different communities.
Thirdly, the dispute settlement in the community rule of law is mainly through dialogue, negotiation and communication between and among members, or through a recognized third-party mediation. The community rule of law attempts to break down the malpractice of dualistic division of norms and facts, and to build a bridge between them. In this respect, China’s traditional mediation system is in line with this dispute settlement model. The mediation system itself is open to habit, local knowledge, law in action and living law, which makes the settlement of disputes face the facts of complex real life, rather than the abstract rule. The appearance of mediation provides a space-time scene for people to use the rules of daily life. This space-time scene is different from the one envisaged by legislators or judges. Also, mediation can make full use of the imagination of the parties, which is a combination of friendly relations, customs and habits, moral factors and other unique meaning between the parties. All these are helpful to break through the abstract view of justice carried by the positive law.
Finally, in dealing with the relations between different communities, the community rule of law emphasizes an inclusive and interactive development among different communities. Therefore, it points to the theory of good governance, which emphasizes the benign interaction between national governance and social autonomy. In the Chinese context, good governance does not only need to establish the authority of legislation, but also to avoid the rigid formal rule of law. It should make governance more open to spiritual life, diversity and flexibility. Only in this way can we overcome the limitations of rigid law and approach good governance. In cases of conflicts between rules of different communities, the emphasis is placed on communication, negotiation and compromise on the basis of equal respect, rather than the way in which one side suppresses the other. In a sense, the community rule of law partly plays a role in dispelling the national rule of law, however, it is just in the interaction between the rules of the other communities and the rules of the national community that makes the latter truly effective. Any holistic rule of law that ignores the rules of other communities is only a false fantasy.
C. The Significance of the Community Rule of Law to the Study of Regional Rule of Law
On the significance of the community rule of law to the study of regional rule of law, this paper has demonstrated that the region of the regional rule of law should not be limited to the administrative jurisdiction, because from the perspective of power, the regional rule of law is only the performance of the national rule of law. It cannot be separated from the national rule of law and become a unique form of the rule of law. But does it mean that regional rule of law cannot be proven or has no point? According to the revelation of the relationship between space, identity and community rule of law, the regional rule of law can still be proved, that is, a regional community rule of law. This form of rule of law is not attached to power, but rooted in regional space and the needs of people under regional space. The existence of regional rule of law is a social fact and a living existence of human beings in the practice of rule of law. Therefore, if we want to use our perspective to supplement or reform the current study of the regional rule of law, what are the main points?
Firstly, research objects need to be expanded. At present, the study of regional legislation, regional law enforcement and regional judicature from the perspective of power only stays in the administrative jurisdiction space. This angle of view is relatively narrow, and the difficulty of breaking through the closeness between the powers of different regions is also great. According to the analysis of this paper, the region should not be limited to the administrative jurisdiction but be expanded to the diversified spaces in the region. There are other spaces such as cities, rural areas, factories, villages, units, school districts, etc. Besides, it should not be limited to the geographical spaces but expand to social and cultural spaces such as professions, various associations and so on. All these spaces are the rich resources for the research of regional rule of law.
Secondly, the research methods should be more diversified. Currently, the study of regional rule of law mostly concentrates on the theoretical argumentation. In the research method, we should advocate the pluralism in the study of the regional rule of law. We should focus on the relationships between law and social science, economics, history, political science, anthropology, psychology and other disciplines, taking interdisciplinary and empirical research. The study of regional rule of law should attach great importance to other disciplines especially in sociology which has made great progress in the research of urban space and rural space. In addition, it should pay more attention to the micro level and case study, such as the research on a certain group, a village, a family and so on.
Finally, we should take a relational perspective in the research of the regional rule of law. We have pointed out that the formation of space must face the competition of different spaces, and there are probably conflicts among communities. The study of regional rule of law should take a relational perspective, especially needs to deal with the relationship between smaller communities and the national community. When we consider the rule of law in China, we must keep the special structures of China in mind, i.e. we have to take relational perspective between different regions, local and central, urban and village, modern and tradition, etc.