|
Public Opinion as the Criterion of Legitimacy
For most occasions, the legitimacy of a legal order was established when the decision of the parties involved and the opinion of the local community were in agreement.Recently, “contentment of the people”, that is, the extent to which the people are content with the judges and courts of justice, has been emphasized.It is the slogan of satisfying the people that have promoted supervision of popular opinion and mass media including live telecast of trial hearings, investigative questionnaire of court observers’ views, etc.Among legal scholars, however, there is growing anxiety about the possibility that because of the tension between discursive power and judicial independence, procedural integrity and reasoned discussions may be sacrificed for the “performance” of direct democracy, and free evaluation of evidence and public opinion may be distorted by journalistically edited reports of a litigation.In reality, strengthening the supervision of popular opinion without the real rights of free speech easily leads to pseudo public opinion that can be manipulated by state power.
Here, society’s value choices warrant attention.Namely, it is question of the collective behavioral pattern: in seeking justice, will the people resort to the law and adjudication system, or appeal to mass media or public opinion?According to statistics of a questionnaire of social opinions recently conducted by the State Planning Committee, the preferred mechanism for resolving problems that may affect social order was, in descending order, government departments, mass media and legal means.In particular, the preference of urban residents in 2000 was 89.2% for government departments, 79.0% for mass media, and 73.5% for legal means, and 77.7%, 73.9%, 72.5%, respectively, in 2001.As for rural residents, the questionnaire took place in the countryside starting from 2001, and the figures showed the same order as that of urban residents: 74.6%, 57.4% and 56.7%, respectively.The example of Ancun given above also made clear that the villagers have been appealing to government departments and the mass media for support and help.It is interesting that a tendency of Chinese people to have more faith in the forum of public opinion than in the legal system manifested itself in these simple data.Here we may find a hypothesis that social consensus or universal truth can emerge from not only the rational dialogue according to procedural requirements but also the chaos of ideological fighting for discourse hegemony.
Surely the mass media in China has yet to enjoy full freedom of speech, and the dynamics of communication are still organized and oriented by political power to a great extent.Thus the press circles are also serve to strengthen the effectiveness of governmental social control.Nevertheless, speech through mass media is not a completely one-way traffic.It is possible even for the common people to make their views and behavior public through journalists or letters to the editor or newspaper contributions.They may even strategically take advantage of the publicity of public figures and their social resonance in order to gain a negotiation position equal with the state power.Especially because the mass media always stresses social passion and the recognition of the people, it is not difficult to find an opportunity for political participation or resisting the structural pressure of the state.In view of China’s cultural tradition that has been seeking legitimacy of legal system in consensus and recognition of the common people, rather than an external transcendental power, the role of popular and public opinion in providing social order will become increasingly important from now on, along with the commercialization of mass media and the development of free speech.
IV. The Institutions, Mediums, and Symbolic Circuit
for Public Discussion
As indicated above, ordering social through public pledges and the discourse of public indignation have been particular phenomena of modern state building in China.This fact was based on the “cultural nexus of power” in Prasenjit Duara’s words and the needs of social control over that kind of grass-roots communities with changeable power relations.Without this mechanism, the state may lose its control at the grass-root.In fact, the political successes of Chinese Communist Party depended to a great extent on skillful mass mobilization through popular opinion and public opinion.Therefore it is necessary to investigate from the perspectives of both face-to-face and anonymity about the reality of institutions, mediums and symbolic circuit for public discussion.
|
