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2. The politics of law had been emphasized, especially during the period of “cultural revolution.”Similar to Carl Schmitt’s conception of the political as the ability to distinguish between public friends and enemies, the criminal adjudication in China also devoted much attention to the friend/enemy distinction by labeling the offenders as the “public enemies of the people.”In accordance with this logic, many criminal cases as “friend/enemy contradictions (di-wo maodun)” and related legal judgments were handed over to the people for the “insider discussions (neibu taolun)”.However, it is these kinds of political and class-based judgments that made a large number of unjust verdicts.
3. Although the people who took part in the discussion on these law cases may put forward a proposal on the sanction (in the name of the great majority or unanimity), the judicial organs must still make the judgments based on laws and policies, and only take the mass opinions as reference.Nevertheless, the outward appearance of judicial proceedings was to present the legal decision as unanimous of the judicial organs and the popular opinions.Thus, each judgment made illuminated the linguistic circulatory system between legal decisions and the will of the people.
The Educational Functions of Public Indignation
4. Popular justice was always carried out at public accusation meetings or public trial assemblies.Criminal adjudication was then justified by mass opinion and emotional rhetoric such as “having incurred the greatest popular indignation”, “the feelings of the masses ran high and were filled with indignation” which are used in a written judgment or a proclamation.In fact, it is possible to say in a sense that the offenders or lawbreaking persons have been asked to play the role of a “negative teacher.”
5. The judgments that were pronounced or executed were compiled and circulated as material for discussion from which lessons were drawn.The slogan for its aim was“educating a crowd of people by adjudicating a piece of litigation” and “to turn negative factors into positive factors”.Furthermore, the related authorities also heeded the opinions and reactions of the masses to deal with the any objection in advance or immediately, and to identify improper judgment.
6.In traditional China, mediation was a means to avoid the formal verdict according to bureaucratic law through popular informality.The people’s mediation in contemporary China, however, has been turned into a part of state power, and plays a dual role of both social mobilization and social control.In other words, the people’s mediation has been considered an appendage to a newly emerging order that promotes political participation on the basis of internalization of laws, policies and socialist morality through energetic persuasion, education and propaganda, and fosters a spirit of discipline at the same time.
Of course, the popular justice that prevailed during the “Cultural Revolution” has been refuted in China today, and the modernization of law has become mainstream. However, we can see that the above-mentioned phenomena are still left over to a greater or lesser extent in grass-roots judicial proceedings as well as executive activities of the village pacts.For example, many executive teams that enforce village pacts have been organized and the common people have been using their discretion through public discussion since the 1980s.Even a form of public accusation meetings or public trial assemblies still continues in some regions.Moreover, it was pointed out that the problem of adjudication being influenced by popular indignation was not resolved until the end of 1999.Recently, although emotional factors have disappeared indeed from judgments and proclamations, the discourse of public indignation and popular justice can still find expression more or less in the court-watching measures such as the spectator system of the people’s deputy and supervision by the public opinion.
The Problem of Pseudo Public Opinion
Public opinion as a mobilization device is far from the “ideal speech situation” in Habermas’ words.The “inside discussions” within a local community may promote unsymmetrical information transmission, and reject rational dialogue under conditions of public agora or arena and procedural due process at the same time.In addition, the public accusation meeting or public trial assembly easily becomes a forum not for free discussions but only a ceremony for declaring the government’s decision in the name of general will or public opinion.There the tyranny of the majority that worried Alexis de Tocqueville emerged more often than not.Of course, when we speak of this kind of problems, we do not mean that there was no opportunity of expressing disagreement with the general will or pseudo public opinion in name of public interests.For instance, some institutional remedies such as the system of paying return visit to the parties of past cases, appealing against a final decision for specific retrial according to the adjudication supervision procedure, and seeking audience with the higher authorities for righting wrongs, etc., had been supplied in China.However, the dialogues had been isolated from public discussions, and there were not enough guarantees for free participation and equal rights to speech.
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