The Tradition Of People's Judicature From The Perspective Of Modernity:The Evolution,The Predicament And The Orientation

The Tradition of People's Judicature is the generic term of judicial idea,technology and practice since the Communist Party of China established the judicial system in Shensi-Kansu-Ningsia Border Region.It's a dynamic process of constantly adjusting itself with the change of time and environment instead of a fixed entity.As a judicial form,the Tradition of People's Judicature is the concrete presentation of the nation's judicial function in practice.On the one hand,it is an important area of legitimacy reproduction of the ruling party,so it needs to embody the legitimacy basis of power;on the other hand,it also needs to meet the requirements of effectiveness in order to achieve social integration in the judicial field.In this sense,the political and legal logic implied in the Tradition of People's Judicature is isomorphic with the principle of the operation of the state system.Specifically,the formation and evolution of the Tradition of People's Judicature is accompanied by the revolutionary narrative since the beginning of the 20 th century and the reform narrative since the 1980 s,which is based on the macro background of China being forced into the wave of modernization and opening up modernity.In other words,a deep understanding of the Tradition of People's Judicature is inseparable from the recognition of the characteristics of the occurrence and construction of Chinese modernity,which is embedded in the interaction between the value system with ideology as its core and the process of social change.Based on this,in order to have a more accurate judgment of the current position of the Tradition of People's Judicature,it is more appropriate to explain the formation and development process of the Tradition of People's Judicature in the perspective of Chinese modernity.The occurrence of Chinese modernity is a history of revolution.From the failure of the practice of bourgeois republic after the 1911 Revolution to the criticism of conservatism by the New Culture Movement,to the revolutionary radicalism road opened by the May 4th Movement,to the establishment of a new power by the Communist Party under the background of the combination of Marxism-Leninism and Chinese revolutionary practice,China finally regards the people's democracy as the legitimate foundation of the modern nation-state.This process of regime selection not only embodies the equal value of Chinese revolutionary modernity,but also inherits the deep characteristics of pan-moralism of Confucian political and cultural tradition.After the founding of the People's Republic,the revolutionary party turned into the ruling party.The idea of people's democracy and its institutional construction and related discourse shaped the political practice of New China.The Tradition of People's Judicature is an important part of this political practice.Synchronized with the formation and perfection of power,it had evolved from the establishment of mass justice in the Shensi-Gansu-Ningsia Border Region to the increasingly mature practice since the founding of the People's Republic,running through the requirements of people's democracy all along,which was embodied in the nature of enlightenment and dependence of the political and legal aspects of the Tradition of People's Judicature.The nature of enlightenment of the political face of the Tradition of People's Judicature determines that the ultimate goal of judiciary under the leadership of the Communist Party of China is good.Judges are not only the applicants of the law,but also the preachers of socialist morality in New China.This characteristic is also embodied in the following two aspects in the construction of the judicial system: the requirements for the selection and management of judges and the working methods of the mass line.The nature of dependence of the legal aspect and the political aspect are two sides of the same body.The former pays more attention to the relevant system provisions at the operational level,which is embodied in two aspects: obeying the leadership of the Party and serving the central work.Under the background of revolutionary theme and social transformation through national movement,the Tradition of People's Judicature went to the extreme of moral evaluation,and ended up with self-dissolution.Drawing lessons from national construction in the early 30 years of the founding of the People's Republic,the central government timely took economic construction as the focus of national work,and China entered a new stage of reform and opening up.Overviewing the past 40 years of reform and opening-up,economic reform,with the main contents of expanding the autonomy of economic subjects in micro-fields,the marketization of resource allocation mechanism in meso-level and the change of macro-policy environment,has promoted the transformation of Chinese society from traditional society to modern society.That is to say,it has become increasingly rational.Rationalization of economic society is embodied in individual autonomy and profit-seeking,abstraction of interaction and social order maintained by institutionalization of knowledge.Law is the most important institutional form,which represents the will of the state,brings all social systems into the orbit of the institution,and carries out technological governance of the society through the expert system as an abstract mechanism.This way of social integration is no longer based on transcendental value identification,but on individualism based on deep self and desire production.Judicial system is an abstract mechanism existing as an expert system in a rational economic society.It is based on social trust and has the characteristics of "delocalization" of abstract mechanism.Driven by the rationalization of economy and society,the people's judicial tradition has changed.From the perspective of the relationship between politics and law,the evolution of the Tradition of People's Judicature is reflected in the following aspects: firstly,the nature of enlightenment of the political face strengthens the promotion of judicial professionalism in the process of depoliticization,which is embodied in the consideration of professionalism by the qualifications and promotion criteria of judges and the formal rationalization of judicial methods;secondly,the legal aspects have gradually become autonomous,which is reflected in two aspects: obedience to the Party's leadership of justice and judicial service as the center of work.Driven by the rationalization of economy and society,the Tradition of People's Judicature is advancing towards the direction of standardization and institutionalization.However,the multi-dimensional evolution of history has not made the Tradition of People's Judicature completely fade away its own characteristics and become a new judicial form.Instead,the dualistic judicial pattern of morality and law has been gradually formed under the opposite and complementary relationship between China's legal order,political order and social order.On the one hand,the social integration through the routine way of justice reflects the breadth and depth of judicial coverage,but the basic capacity of justice is relatively weak,and it is unable to integrate the social order intertwined with multiple nature in the transitional period,which is embodied in the dilemma of imbalance between supply and demand of justice in practice.On the other hand,in the "powerless" part of the conventional judicial system,the "continuing revolution" initiated by the moral supremacy of the judiciary and the state's arbitrary power tries to concentrate limited resources in the form of judicial mobilization to overcome the problems that the conventional approach can't solve.It is between the depoliticization and politicization of justice that conflicts between judicial morality and legitimacy emerge from time to time and become a deep dilemma of judicial operation under the current dual structure of morality and law.The deep dilemma of judicial operation under the current dual structure of morality and law is essentially the dilemma of the establishment of modern nation-state in China,which is further magnified under the background of globalization.The fundamental characteristic of western modernity is the dualistic split between the ultimate concern of belief and rationality.Rationality has become the basis of economic and social development,and through nurturing national identity based on individuals,the coupling between nation-state,society and individuals has been realized.In order to solve the possible crisis of social integration in the process of building a nation-state,non-Western traditional post-modernized country realizes social integration by reshaping the unified value and integration mode.The construction of China's national state takes the accelerated reconstruction of economy and society as its surface,and the ultimate concern is to realize the cultural and political demands centered on national rejuvenation,which makes it still unable to get rid of the integrated mode based on moral monism.Under the globalization tide dominated by the logic of capital proliferation,the conflicts of interests and values between countries are becoming more and more intense.Under this background,the logic of the construction of China's national state has its advantages and disadvantages in safeguarding national interests,achieving citizen's identification and serving the development of economy and society.Considering the characteristics of order at home and abroad,the orientation of people's judicial tradition should be distinguished between sovereignty logic centered on national identity and governance logic centered on constitution.