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II.From Private Contract and Village Pact to People’s Public Pledge
The Existence of a Social Contract Consciousness
From a Habermasian standpoint, views on public sphere may basically be understood as re-exploring and reusing the resources of direct democracy, which has been weakened greatly since entering the era of the representative system and bureaucracy. The objective was to combine the face-to-face discussions at the grassroots level with organized society and mass democracy that already changed into the oversimplified voting behaviors overall.Therefore, it may be said that the public sphere prototype can also be found in forms of tribal assembly, folkmote, town meeting, moot and so forth. And the essence of public knowledge arising from it lies in the conception of social contract. Consequently, when the social contractual order in China is discussed, the question of whether any consciousness of social contract exists should be first posed and answered.
Generally, traditional politics and law has been viewed as lacking the concept of social contract.For example, Qian Mu, a great scholar on Chinese national culture, put forward the dichotomous schema of contract-type regime and trust-type regime, as to explain the essential distinction between Western Europe and China in the ruling typology.In addition, Prof. Yuzo Mizoguchi, a famous Japanese Sinologist, also pointed out that because China placed individuals as “the private” in an inferior position of value system (in a derogatory sense of selfishness), “it has not developed a theory of state or society that takes personal contract relationship as a fundamental principle of ‘the public’ “.However, Prof. Mizoguchi continued, saying that, because of the reason noted above, “on the contrary, there has also been a dynamic tendency out of anarchism and toward the society based on free contract relationship or free alliance of the common people”.This proviso appears to be very significant.
The Chain Reaction from Private Contract, Village Pact to People’s Public Pledge
In fact, desiring to impose restrictions on the selfishness of “the private,” the traditional “private contract (siyue)” relations in Chinese everyday life have been interwoven with many kinds of parameters, such as a third-party approach, “the public” factors and social interference.In other words, the Chinese “private contract” relations always contained elements that may lead to a “public pledge”.Prof. Hiroaki Terada, a scholar of Chinese legal history, went a step further to determine its characteristic as the mobility and continuity between the contractual and legal order, and sought the medium for peasants and bureaucratic state in the village-made agreements including prohibitory appointment, village pact, oath of alliance for refusing to pay rent or taxes and so on.According to his analysis, the social order based on village-made agreements may be viewed from two aspects—gathering together to discuss regulations and gathering together to take sanctions against violation.
What bore out Prof. Mizoguchi’s proviso concerning the paradox of social contract conception much more clearly is the practice of “people’s public pledge” in contemporary China.Indeed we have watched the “dynamic tendency out of anarchism and toward the society based on free contract relationship or free alliance of the common people” again and again in the ordering based on the “people’s public pledge”,“patriotic public pledge”, village pact and other contractual relationship.Thus it may be said that some conceptions of social contract or public contract exist in China as well.
Rural Self-Governance According to State Law and Village Pacts
In China today, where the modern legal state is the ultimate goal, the three-in-one combination of contractual rules including (1) the Charter of Self-government as “mini-constitutional conventions (xiao xianfa)”, (2) the Village Pacts as behavioral norms of villagers and (3) Specific Regulations, such as administrative norms of village committees, are being perfected and emphasized as never before, in the wake of village democratization.This is a very significant phenomenon.These contractual rules of grassroots self-governance are adjusted in light of public will and for way of equal participation, repeated discussions and voluntary recognition of the people.On the other hand, however, these contractual rules must be in line with state law and are inclined to formalization.Actually, while assimilating to the local conditions and customs, most of the charters, pacts and specific regulations are formulated in accordance with the Constitution, laws, and administrative regulations as well as governmental policies.The structure of the village pacts and articles is modeled on substantive law, and its executions are guaranteed by both the autonomous organizations of self-government and the administrative organizations.It is also surprising that the village contractual rules cover a very wide range of subjects including: the basic rights and duties of villagers; administrative institutions for the village public affairs; finance; taxes; mountainous land and forest; collective-owned enterprises; private businesses; contracts; productive services; power supply; responsibility system of contracted land; labor disputes; public welfare; public security; marriage and family; birth control; neighborhood relationship, etc.Therefore, this formation of order through “people’s public pledges” may be considered a type of legalization.
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