[author]CHEN Hongjie
[content]
How Dispute Governance Stabilizes Legal Expectations———The Legalization Principle of the "Fengqiao Experience" in the New Era
CHEN Hongjie
Abstract: Our social governance model, represented by the "Fengqiao Experience" in the new era is attempting to explore and transform more diverse practices, by leading social forces to participate in governance and building a multi-party cooperative governance system. Using the metaphorical expression of the classic case of legal sociology, “Qadi’s twelfth camel”, legal sociologists attempt to provide a new approach to national governance or dispute governance, that is ,by actively “lending” a “camel” to society, they strive to surpass the non-cooperative strategies commonly adopted by game participants to overwhelm or replace one party, make it possible for a non-cooperative game that was originally zero sum to transform into a cooperative game that is positive sum (i.e. win-win or multi win). From the perspective of the symbolic function performed by “Qadi’s Camel”, in the strategic context of cooperative games, the most important symbolic resource that the judiciary can invoke is the “expectation” itself. It is through the symbolic medium of “expectation of expectation” that all participants in the game are able to reproduce the “expectation” as a symbolic resource in the process of implementing cooperative strategies. The public power system, symbolized by the judiciary, is likely to obtain surplus cooperation through “lending” a “camel” to society.
Keywords: Xi Jinping Thought on the Rule of Law; Normative Expectations; Positive Sum Game; Collaborative Governance; Fengqiao Style Court
Introduction
In a highly mobile, anonymous, and diverse heterogeneous society, interpersonal interactions have begun to break away from traditional social ties on a large scale, characterized by distinct anonymity and "dis-embeddedness." To ensure that the behavioral expectations for extensive interpersonal interactions can achieve necessary universal consistency, one of the fundamental achievements of social civilization's development has been the institutionalized projection and selective evolution of behavioral expectations. This ensures that people's expectations of others are themselves expectable (this is the guidance, prediction, and evaluation function of law). General Secretary Xi Jinping has a brilliant exposition on this that is both easy to understand and contains profound legal philosophy: "We must guide all people to abide by the law, to rely on the law to solve problems, and we absolutely must not allow the phenomenon of 'major disturbances lead to major solutions, minor disturbances lead to minor solutions, and no disturbance leads to no solution' to spread."
One of the important strategies of social evolution is to have functionally differentiated third parties be responsible for making legal decisions that are binding on the entire society. This is to ensure that the system can be independent of personal preferences and shape a social expectation structure with continuous stability. The key lies in achieving the function of stabilizing the social expectations of the law through the finality of judicial trials. General Secretary Xi Jinping pointed out succinctly: "To comprehensively advance the rule of law, we must uphold judicial justice." By professionalizing the roles differentiated for the distribution of third-party normative consensus (represented by judges), society can then have a predictable third-party reference as a foundation, forming an expectation structure that sustains social interactions: the expectation that participants in social interaction have of their interaction partners is precisely the expectation that a judge holds for them.
For this reason, the modern judicial system, as a power apparatus aimed at stabilizing social expectations, is primarily built upon the foundational architecture of the judge's role in adjudicating according to law. However, from the perspective of the interactive evolution of society and law, the law is not an "ought-to-be" entity existing in a vacuum. Rather, it achieves generalization for heterogeneous and diverse expectations through selective differentiation across the three dimensions of temporality, sociality, and facticity. In this sense, the function of law is not merely that of a compulsory command, but more so, it is to select for behavioral expectations that can be generalized in a mutually compatible way across the aforementioned three dimensions. With the support of an expected third-party consensus, the expectation structure facilitated by law can be institutionalized in the social dimension. Since the function of law is carried by the selective achievements it facilitates, whether from the perspective of dispute governance or from the bifurcated view of "law on the books" versus "law in action," public decision-making that undertakes judicial or quasi-judicial functions cannot simply be an abstract deduction of "fact/norm" in three-stage syllogistic logic. Instead, it needs to actively deploy the third-party consensus assumptions and symbolic beliefs that can be expected at the level of expectation production to facilitate the production and reproduction of the social expectation structure.
Given the complexity of dispute governance practice, the high costs required to achieve "adjudication according to law" in the operation of the formal system can lead to a shift in court-based dispute governance towards a limited degree of informal operation. As the American scholar Robert C. Ellickson believes, "if lawmakers lack a keen eye for the social conditions that foster informal cooperation, they may create a world with more law but less order."
From the perspective of expectation production and management, the norm-oriented judicial operation emphasizes a "steadfast adherence to virtue" centered on the law, while the problem-oriented dispute governance strategy often adopts a pragmatic cognitive interaction "according to the situation." This inevitably creates an internal tension between "norm/cognition." This also prompts us to think further: in the different expectation dimensions of "is/ought" and "norm/cognition," in what sense can judicial dispute governance stabilize legal expectations? Expanding our vision to the level of grassroots social governance in our country, this is actually the main challenge we face in our commitment to promoting the legalization construction of the "Fengqiao Experience" in the new era.
1. The Legalization Challenge of the "Fengqiao Experience" in the New Era
The "Fengqiao Experience" was a successful experience of the Fengqiao District of Zhuji County (now Zhuji City), Zhejiang Province, in the 1960s, in response to the call of the Central Committee, to actively mobilize the masses to carry out the struggle against the enemy during the Socialist Education Movement. After hearing the report in Hangzhou, Chairman Mao Zedong affirmed the local practice of not easily resorting to coercive police measures but relying on the masses to reason with stubborn elements, using persuasion to win them over (resolving conflicts on the spot without handing them up), and instructed that the Zhuji experience be promoted through a document issued by the Central Committee. At that time, the "Fengqiao Experience" was a successful example of combining specialized public security work with the mass line, truly achieving a stable situation of "few arrests and good public order."
After more than sixty years of vicissitudes and changing times, the "Fengqiao Experience" has gone from the policy, class struggle, and mass mobilization style of governance of the first 30 years of the People's Republic of China, to the development of socialist democracy and the improvement of the socialist legal system in the 30 years after the reform and opening up, and then to the advancement of comprehensive rule of law and the acceleration of the construction of a socialist legal system with Chinese characteristics and a country under the rule of law since the 18th National Congress of the Party. It has continuously evolved, striving to achieve an era-based transformation from "individual governance to universal rule of law."
During his tenure as Secretary of the Zhejiang Provincial Committee of the Communist Party of China, General Secretary Xi Jinping wrote an article in the Legal Daily, pointing out that we must "always adhere to organically combining the study and promotion of the 'Fengqiao Experience' with the implementation of the basic strategy of ruling the country according to law, advancing the various tasks of ruling the province according to law, and strengthening the construction of grassroots democratic politics, and with promoting the cultivation of civic virtue through the rule of virtue." In his report to the 20th National Congress of the Communist Party of China, General Secretary Xi Jinping further pointed out that at the grassroots level of society, we must adhere to and develop the "Fengqiao Experience" in the new era, improve the mechanism for correctly handling contradictions among the people in the new situation... and build a social governance community where everyone is responsible, everyone fulfills their responsibilities, and everyone enjoys the benefits.
It is not difficult to see that as times have transformed, the conceptual scope of the "Fengqiao Experience" has also been continuously injected with new ideological connotations through the subjective practice of the Party and the people. From the perspective of practical logic, the "Fengqiao Experience" was undoubtedly problem-oriented at the beginning, whereas the "Fengqiao Experience" in the new era must strive to practice the normative orientation of "universal rule of law." General Secretary Xi Jinping pointed out in his important discourse on comprehensively ruling the country according to law: "Make everyone believe that as long as it is a reasonable and legal demand, a reasonable and legal result can be obtained through legal procedures." Based on General Secretary Xi Jinping's relevant important expositions, adhering to and developing the "Fengqiao Experience" in the new era at the grassroots level of society also implies exploring a practical opportunity for a path to legalization with Chinese characteristics. This path's practice embodies a narrative of the relationship between the state and society that is both separate and integrated; it is a complex operation where formal and informal systems both compete and seek cooperation; it is a multiple game where politics and law are both functionally differentiated and mutually reliant. In this regard, the core meaning of the "Fengqiao Experience" in the new era is neither merely pursuing result-oriented pragmatism, nor is it purely oriented towards normative legal formalism, but rather it is an effort to explore how to solve practical problems within a normative context.
This aligns with the requirements set forth by General Secretary Xi Jinping for developing the "Fengqiao Experience" in the new era: "unblock and regulate channels for the masses to express their demands, coordinate interests, and protect their rights and interests, improve the grassroots governance platform supported by grid management, refined services, and information technology, and improve the urban and rural community governance system, to resolve conflicts and disputes at the grassroots level and in their incipiency." On this point, existing research mainly starts from the major issues facing the "Fengqiao Experience" in the new era, and then proceeds to contemplate its legalization construction, contributing Chinese solutions and wisdom to global grassroots social governance. However, existing research on the empiricist path of "Fengqiao Experience" on "Fengqiao Experience" can certainly present the a posteriori spectrum of legalization construction in an empirical sense, but it lacks an a priori imagination of the legalization principle of how law stabilizes social expectations. In view of this, the following text intends to start from a comparative cultural perspective to explore the possibility of dispute governance based on normative expectations.
2. The Normative Metaphor of Dispute Governance: Starting with "the Qadi's Twelfth Camel"
A Bedouin herdsman made a will to distribute his camels among his three sons. The rule was as follows: in the estate to be distributed, the eldest son could take half of the camels; the second son could receive a quarter of the camels; and the youngest son could get one-sixth of the camels. But this will encountered a rather thorny problem in its actual execution: the 11 camels left by the old father could not be divided whole according to the distribution rules in the will. The three brothers fell into dispute because they could not properly distribute the inheritance and had to submit the dispute to the Qadi, who played the role of a judge in Bedouin society. To handle this case, the Qadi came up with an ingenious solution: he took out one of his own camels to participate in the distribution. In this way, the number of camels to be distributed became 12, which could be divided perfectly according to the rules of the will. Thus, the eldest son got the 6 camels he wanted, the second son got 3, and the youngest son got 2. The most brilliant point was that the total number of camels the three brothers received was exactly the 11 left by their father. Consequently, the Qadi also took back the remaining 12th camel. All three brothers acknowledged the Qadi's solution as just.
In terms of the judicial function of "settling disputes and defining rights," the Qadi, who plays the role of a judge in the expectations of all parties in society, could have handled it like any other routine lawsuit, in a manner of "one ruling, two outcomes." From the perspective of producing a social expectation structure, those who hold an optimistic attitude towards the social dominance effectiveness of institutional authority also tend to push judges into the position of adjudicators, continuously reproducing generalized normative expectations through the "legal/illegal" code distribution of judicial decisions.
It is not difficult to see that the tripartite relational structure of civil litigation's "one ruling, two outcomes" presupposes a strategic environment of a non-cooperative game for the participants in the judicial field. A so-called non-cooperative game refers to a game in which "each participant, starting from individual rationality, independently chooses actions or strategies that maximize their own benefits." The non-cooperative game in civil litigation is very prominently reflected in the strategic environment that attempts to shape the state-society relationship through the universality of law: the legal ideology of the "rule of law" encourages people to actively use the weapon of litigation to fight for their rights. The point for which the court, responsible for producing the social expectation structure, is most hoped for lies in its autonomous rational presupposition of "obeying only the law."
In this strategic environment that upholds the "rule of law," if there is no additional action incentive, "one judgment to end it all" is actually the most rational choice that conforms to the interests of the decision-maker.
For the above phenomenon of over-reliance on or even overdrafting of legal authority, which can be termed "legalization," Western society is not without critical perspectives such as "too much law, too little justice." In our country, Professor Su Li also once borrowed the intellectual metaphor of "The Story of Qiu Ju" to reflect deeply on the phenomenon of excessive "legalization." He believes that this logic of "legalization," which indiscriminately places law above society, can easily cause unnecessary social tearing, and that full consideration should be given to "which definition and rights protection mechanism is more conducive to social development and social harmony, and balances the interests of all relevant parties in a specific cultural context."
In view of this, in the practice of problem-oriented dispute governance, there are indeed many judges who, starting from the pragmatic standpoint of quelling disputes, actively adopt various experience-oriented judicial wisdom to solve practical problems. For example, the People's Court Daily once had a news report titled "A Good Judge Patches a Hole in the Wall." The story's background was a neighboring rights dispute, where the plaintiff claimed that the neighbor's improper construction caused damage to their house. The two parties, in a fit of pique, refused to compromise. The judge in charge of the case, Su Jianxin of the Shancun Town Tribunal of the Junxian County Court in Henan Province, in order to maintain long-term neighborly relations, personally, along with his colleagues, patched the hole in the wall. The judge's sincerity eventually won the parties' approval, and the case was resolved satisfactorily.
From the perspective of solving practical problems, the case of Judge Su Jianxin and the story of the Qadi seem to differ only in specific strategies; as long as the result is good, all is well. But from the perspective of institutionalizing behavioral expectations, behind these two judicial stories that transcend time and space lies a profound divergence at the level of expectation production: "norm/cognition."
Yu Hao believes: "For grassroots judicial governance, promoting the assimilation of legal norms and life facts in practice, thereby developing the effectiveness of legal rules through practice, and then achieving the social effect of case judgments through legal effects, is the basic position of grassroots courts when facing various dispute claims, and it is also an important means of legal development." From this perspective, the judicial metaphor expressed by "the Qadi's twelfth camel" does not actually dissolve the normative foundation of the rule of law. Because although the Qadi's strategy is a typical informal operation, it is precisely through this informal method that a cooperative game is facilitated, allowing the inheritance distribution rule established by the old father to truly obtain the normative effectiveness of actual execution in the process of dispute governance. The normative expectation of the law can thus be reproduced. In contrast, in the case of Judge Su Jianxin, we can only see the normative characteristics of the judiciary being dissolved by social cognition that is "guided by the situation."
Currently, the model of social governance represented by the "Fengqiao Experience" in the new era is attempting more diverse practical explorations and transformations. By guiding social forces to participate in governance and building a pluralistic, collaborative, and co-governed system, the governance resources that the state can deploy and integrate also have more open options. On this basis, grassroots courts, through the "1+N" pluralistic dispute resolution mechanism (tribunal + police station, judicial office, village committee, local sages, etc.), are deepening the creation of "Fengqiao-style People's Tribunals" in the new era. The basic model of participation in grassroots social governance is no longer simply "sending law to the countryside." Instead, it is necessary to find a "functional equivalent" in the cooperative game between the state and society, between the formal and informal systems, that can both solve problems and not weaken the normative foundation, so as to implement the effectiveness of legal norms through the actual effects of dispute governance and stabilize the normative expectations of the law. In this context, "the Qadi's twelfth camel," as an intellectual metaphor that transcends the "state/society" dichotomy, still possesses a pluralistic cultural significance that transcends the constraints of time and space in its governance connotation, and can provide important enlightenment for modern judicial civilization and social governance practice.
3. The Game Structure of Civil Litigation and the Choice of Judicial Strategy
Under normal circumstances, the contest for interests between opposing parties in civil litigation often manifests as a typical zero-sum game, where one party's ability to realize its claims is usually predicated on the opposing party paying a corresponding price. For example, in the aforementioned camel inheritance case, the eldest son, with a one-half inheritance share, wanted to receive 6 camels, but this objectively exceeded half of the 11 camels to be distributed. Under the premise that the total number of camels remains unchanged, the extra portion the eldest son wanted could only be borne by the other two brothers, thus meeting with their strong opposition. Because everyone only wanted to take more and was unwilling to suffer losses beyond the scope of the will, the inheritance case of the 11 camels fell into a seemingly unsolvable deadlock. The brilliance of the Qadi lies in his provision of an extra camel to participate in the distribution, which made it possible for the originally zero-sum non-cooperative game to be transformed into a positive-sum (i.e., win-win, or multi-win) cooperative game. This not only avoided a fallout among the brothers but also enhanced judicial authority and legitimacy, and at the same time, did so without any extra cost, because the camel provided by the Qadi was ultimately taken back by him as a "cooperative surplus." In this example, legal sociologists attempt to provide a new line of thought for state governance or dispute governance, which is to proactively "lend" society a "camel" to strive to transcend the non-cooperative strategy of overpowering or replacing one party that game participants usually adopt, "allowing the impossible communication to proceed."
However, while the idea of a cooperative game is rich in potential, this strategic choice still presents two practical problems that need to be resolved:
First, in the context of generally limited governance resources, and in the face of an endless stream of complex interest disputes, how can one sustainably mobilize external resources within a case-specific, situational game structure to find that "twelfth camel" that can balance the expectations of all parties at a critical point? In this regard, astute legal sociologists have actually pointed out the problem in their own way. For example, Pan Weijiang has pointed out that when handling various disputes other than the camel distribution case, does the Qadi's judicial warehouse also need to be stocked in advance with various items such as "elephants," "donkeys," "steeds," "beef," and "tents"? Obviously, for any Qadi who does not possess extraordinary divine power, this is an impossible task.
Second, how to distribute the costs and cooperative surplus generated from the execution of a cooperative strategy? In the camel will case, this problem does not seem to be an issue, because when everyone has distributed the 12 camels according to the predetermined shares in the will, the Qadi, who provided the "twelfth camel" to facilitate cooperation, just quietly takes back the remaining camel. But in real life, cooperative games are probably difficult to form such a perfect closed loop. More often, the costs paid to execute a cooperative strategy may not be recoverable. For example, the Chinese legal education film "A Judge on Horseback" once told a story equally rich in judicial wisdom: two sisters-in-law, out of a personal feud, were at loggerheads over the ownership of a pickle jar, and repeated mediation failed to resolve the conflict. Faced with this stalemate, Judge Feng smashed the jar, took out 5 yuan of his own money, and told each family to buy a new one, thus quelling the dispute. Not only that, Pan Weijiang even believes that for the Qadi to take back the camel that had already been put out for distribution without explanation is probably untenable from a legal perspective. In this view, if the Qadi has to invest an unrecoverable "camel" for every case he handles, then the cooperative strategy of his court is clearly unsustainable.
This requires us to ask a further question: in what sense is it possible for "the Qadi's twelfth camel," as a symbolic narrative metaphor, to make the cooperative strategy in the judicial field possible?
4. The Symbolic Medium of the Cooperative Game: From the Perspective of the Judicial Function of Stabilizing Expectations
The most astonishing and also the most bewildering aspect of "the Qadi's twelfth camel" is that it presents itself in a paradoxical existence: on the one hand, the Qadi clearly took out a real, tangible camel to participate in the inheritance distribution, and it seems that everyone did in fact get their share of this camel's value; on the other hand, it seems that no one could truly take away this camel in a real sense, because after everyone had taken their due share, this "camel" was restored to a whole camel that no one could divide, becoming a cooperative surplus. Regarding the miraculous quality of "the Qadi's twelfth camel," Pan Weijiang said that perhaps every judge has such a secret wish in their heart: "They all hope to have a camel like Judge Qadi's, which they can take out when needed, solve the problem, and then secretly take it back."
It is not difficult to see that "the Qadi's twelfth camel" is a symbolic expression with a dual connotation: the first connotation refers to the camel with real biological attributes that the Qadi actually provided; the second connotation refers to the symbolic resources that the public power system represented by the Qadi can produce in an institutionalized manner at a low cost. If the public power system wants to obtain a cooperative surplus by "lending" society a "camel," then this "camel" is bound to be more symbolic than its empirical reality. This is because, for empirically real camels, the state has no production cost advantage over society, and therefore it is difficult to gain value by "lending" this camel to society. Only with regard to symbolic resources does the state have an unparalleled production advantage (for example, with just a handsome uniform, the state can continuously recruit hot-blooded young people to join the state's coercive apparatus one after another), which makes it possible for the state to obtain a cooperative surplus through symbolic exchange with society.
Thus, what kind of symbolic resource can "the Qadi's twelfth camel" represent?
This is actually the most intriguing question from the perspective of legal evolution. As can be seen from the camel inheritance case, the fundamental challenge of legal practice is that an abstractly presupposed general norm is difficult to achieve actual execution when faced with a highly uncertain and complex society. In the camel inheritance case, for example, the image of the old father who made a will and demanded its execution by his descendants actually symbolizes the "deceased" "legislator." The inheritance distribution rule established by the old father, although it appears to have a clear semantic content and logical extension like the vast majority of established norms, cannot be actually executed when faced with the contingent variables of the factual dimension. This is undoubtedly a profound crisis of law; if a norm lacks a definite expectation of implementation, it is nothing more than a piece of paper. And once a norm is in a state of "anomie" in social expectation, it means that no one can "legally" inherit the old father's "legacy." In this sense, to ensure that the distribution of the deceased legislator's legacy can proceed legally and orderly, even when faced with an unenforceable established norm, the Qadi, as a judicial officer, must still provide an expectation that allows the norm to be executed. It is in this sense that "the Qadi's twelfth camel" serves the judicial function of stabilizing expectations; the originally unenforceable norm also gains a definite expectation of implementation due to the introduction of this symbolic resource.
In other words, in the strategic context of a cooperative game, the most important symbolic resource that the judiciary can deploy is "expectation" itself. It is precisely through this symbolic medium of the "expectation of expectation" that the various participants in the game can, in the process of executing cooperative strategies, enable "expectation" as a symbolic resource to be reproduced. Only then can the public power system symbolized by the judiciary gain a cooperative surplus by "lending" society a "camel."
5. To Take, One Must First Give: The Symbolic Strategy of Expectation Production
As mentioned earlier, the judge has two main optional strategies for dispute governance in the judicial field: first, the non-cooperative strategy of "one ruling, two outcomes"; second, the cooperative strategy of resolving disputes based on consensus. Regardless of the governance strategy, the key lies in how to "coordinate the litigation expectations of the parties." From the perspective of the relationship between the state and society, the parties, as members of society, will first generate corresponding interest expectations from their own interest standpoints. When the state conducts social governance, on the one hand, it should strive to respect the legitimate expectation that "each gets their due"; on the other hand, the state should also strive to produce a relational expectation that meets social needs through ideological production, defining what "each should get." For example, "governing the world with filial piety/benevolence" in ancient imperial China and "ruling the country according to law" in contemporary China. This is the so-called "to take, one must first give." Based on different expectation production strategies, "the Qadi's camel," as a symbolic representation, also presents itself in various interesting empirical forms.
5.1 The Virtual and Real "Camel"
First, the essence of the judiciary is a public good provided by the state to meet the dispute resolution needs of society. Accordingly, an effective judicial system must also be able to satisfy the universal social expectations for fairness and justice. To minimize the judicial costs incurred by the state due to disputing parties arguing endlessly ("the public says they are right, and the mother-in-law says she is right"), the state's most typical expectation production strategy is to legislate for society, using positivistic and universal legal norms as symbols to shape society's generalized expectation of fairness and justice. In this way, the judicial organs can appeal to the decision-making symbols of "all are equal before the law" and "adjudication according to law" to handle society's legalized expectations in a manner of "one ruling, two outcomes." In this sense, the positivistic law itself is the "camel" that the state "lends" to society.
It can be said that it is the law itself that consciously creates the society's expectation of the expected benefits symbolized by this "camel" of law. And once society transforms the expectation of the norm into an expectation of its own benefits, they will tend to maintain the stability of the norm based on the demand for stable benefit expectations. For example, in the camel inheritance case, all the contention revolved around the calculation of expected benefits, and no one attempted to question or challenge the old father's distribution rule. However, when the law maintains the "expectation of the norm" in this way, it also has to face a paradoxical fact: although they are both "expectations of the norm," the norm itself is the same, but the expectations differ from one another, and are even mutually exclusive. At this time, if the judiciary merely proceeds from a normative perspective, it is obviously impossible to determine which expectation is more worthy of being stabilized. On this point, decisionism, legal realism, and critical legal studies have all very correctly emphasized the "irresolvable problem of legal indeterminacy that cannot be eliminated through legal argumentation." The most enlightening point of "the Qadi's twelfth camel" lies in its revelation of the complex relationship in which norms and expectations mutually shape each other: a norm, while producing expectations, also needs to be reproduced through expectations. In this sense, the key to stabilizing normative expectations is not just to provide a coercive basis for the implementation of norms that excludes dissent, but more importantly, to provide the necessary cooperative incentives for the production of expectations. "The Qadi's camel" plays the role of producing expectations precisely in this sense. Under the cooperative incentive introduced from outside by the judge, the originally uncertain case-specific expectations become determinable, and the norm is thus reproduced through the determination of expectations.
Regarding the Qadi's judicial strategy for handling expectations, the famous legal sociologist Gunther Teubner believes: the Qadi did not make a ruling based on the principle of distributive justice; he merely lent the three brothers a legal fiction: a "fictional" yet "real" camel. Pan Weijiang believes that this method of legal fiction is similar to the "dotted line" in solid geometry; it is precisely because of the method of "drawing dotted lines" that we can "construct" a "real" three-dimensional space on a two-dimensional plane.
5.2 The "Camel" of Faith
Coincidentally, in the practice of dispute governance in our country in recent years, wise practitioners have also very skillfully utilized society's faith-based expectations, creating a symbolic resource in the intertwined virtual and real legal space that can be used to produce a cooperative surplus. On July 4, 2023, a netizen from Guangdong, while at the Lincheng Police Station of the Public Security Bureau of Xianyou County, Putian City, Fujian Province, discovered that this police station actually had a magical place called the "Mazu Judgment Room." At the entrance and in a prominent place inside the room, an image of Mazu with distinct local folk characteristics was specially posted. The netizen, in his astonishment, posted a tweet with pictures and text on a social media platform: "There is a Mazu Judgment Room in a police station in Fujian." The information dissemination and media reports that fermented along with this online event quite appropriately showed how law enforcers, in the intertwined legal space of the virtual and the real, "turn the virtual into the real, and generate the real from the virtual," using the "camel" of faith to produce expectations and govern disputes.
As the name implies, the operation of the Mazu Judgment Room mainly utilizes the folk belief in Mazu as a symbolic resource for coordinating state dispute governance. In Fujian Province, the earliest attempt of this kind was in Mazu's hometown—Meizhou Island, Putian City. In June 2019, 13 departments including the local Political and Legal Affairs Commission, Social Affairs Bureau, and Justice Bureau jointly took the lead in establishing the first Mazu Judgment Room at the Meizhou Town Judicial Office. Each party to a dispute has the right to choose a mediator they recognize to participate in the mediation. To better integrate social consensus, the selection of mediators is not limited to the staff of the judicial office but covers various local authority resources, such as village cadres, clan elders, or social sages trusted by the parties. Before starting the on-site mediation, the host will ask for the parties' opinions: are you willing to resolve the issue under the witness of Mazu? After obtaining unanimous consent, the host will ask everyone present to stand up and bow to the statue of Mazu. Through the ritualistic spatial setting of the Mazu Judgment Room, the state can very conveniently transform the cultural symbol of "the gods are watching three feet above" into a symbolic resource for filling and balancing the expectations of all parties. It is precisely because of the common reverence for Mazu, who "people are doing, heaven is watching" and cannot be deceived, that not only are the parties more likely to have mutual expectations of frankness and empathy, but the parties will also have greater expectations for the impartiality of the mediators. A resident of Meizhou Town said: "When there's a real conflict, we also like to go there (the Mazu Judgment Room) for mediation. After all, in front of Mazu, they (the staff) wouldn't dare to deliberately favor one side. We have more confidence in the fairness of the mediation result."
From the example of the Mazu Judgment Room, it can be seen that "state governance and state capacity both take the relationship between the state and society as their main object of treatment. Therefore, in the generation and application of state capacity, both the state and society are sources of state capacity." In this sense, "the Qadi's camel" is actually diffused throughout the various symbolic spaces that connect the state and society. This article will further illustrate this through a loan dispute case of a "trial on the kang."
5.3 The Diffused "Camel"
The plaintiff in this loan dispute case was a credit cooperative in a small town in northern Shaanxi, and the defendant was Villager Wang, from a village located in the heart of the desert about 15 kilometers from the town. In the 1980s, Old Wang borrowed a total of 200 RMB from the credit cooperative in two installments and then failed to repay it for nearly a decade. In the end, the plaintiff attempted to resort to judicial channels to "collect the debt according to law." Of course, this case also had its specific background, namely a large-scale "debt-clearing" campaign initiated by the local government to solve the problem of widespread defaults by local villagers. To smoothly resolve the problem, the "debt collection team" that set out from the town was very typical in its composition, reflecting the symbolic strategy of cooperative governance between the state and society: in addition to Presiding Judge Gao from the town's dispatched tribunal, who provided the legal backing for "debt collection according to law," the plaintiff also invited a police officer from the local police station to "bolster their presence." Upon entering the village, Presiding Judge Gao, after consulting with the plaintiff, also specially called on the village party secretary. This group of people thus "majestically" entered Old Wang's cave dwelling and were invited by Old Wang onto the kang as most honored guests. On the kang, "debt collection according to law" became an authoritative discourse that Old Wang could not refute: "Today we are collecting the debt according to law, you must repay it"; "Let me tell you, you need to be clear about the nature of this, this is debt collection according to law, it's different from before." Faced with a group of public officials who were speaking sternly and acting seriously (among whom some played the "bad cop" and some the "good cop"), Old Wang, who was momentarily confused, had no choice but to go out and borrow 500 RMB to try to settle the matter. But this was still a considerable distance from the "debt-clearing" governance goal. Presiding Judge Gao said: "The principal and interest total 717.05 RMB, plus fees, a litigation fee of 200 RMB, and a vehicle fee of 200 RMB." To collect the full amount, Presiding Judge Gao, as a "guest," not only unceremoniously used the state's coercive "threat" but even issued a "harsh word" at the risk of "tearing off the face of politeness": "Now that the lawsuit has been filed here, if you say you can't, we will set a time for a hearing, and you will come to the town tribunal at that time"; "If you can't pay, we'll seize your property. We've come today, and we're not leaving until it's paid..." But the state's "asking price" clearly exceeded Old Wang's psychological expectations, and the latter could only "refuse to accept" with a stiff upper lip. He said: "It was my mistake, but... that's all there is, you guys figure it out"; "How did it get to be so much..." Just as the two sides seemed about to "break down" talks, the village party secretary said something to both sides that is worth our repeated contemplation—the village party secretary first "held back" Presiding Judge Gao: "What's there to have a hearing about, it's not worth it. If he remains obstinate, or his attitude is still not right, then that's an option..." Then, he counseled Old Wang: "Borrow a bit more, pay it off. Presiding Judge Gao is here, he'll reduce it for you. You can't pay, they can wait, but if they come again, you won't be able to handle the law... My point is for you to go borrow, I'll sit here too, and I'll have the 400 RMB in fees waived for you"; "Look, let me tell you, you're always poor, what needs to be paid should be paid. Go borrow another 250 RMB, for the rest, I'll cover this favor for you..." In the end, Old Wang went out a second time to borrow money, not only repaying the principal and interest in full but also bearing a 50 RMB litigation fee.
In a scene of state-society cooperative governance practice like the "trial on the kang," its most potent aspect lies in a certain symbolic exchange mechanism that is spontaneously generated by this governance strategy. Under this mechanism, the village party secretary can not only "sell" (or "earn") the "face" of "I'm sitting here too," but can also "cover" a favor for Old Wang by waiving the remaining fees. This symbolic exchange is possible because the "face sold" or the "favor covered" at the moment can be converted into a symbolic expectation of symbolic social capital that can be deployed in the future. For example, today Old Wang "sold" the village party secretary some face, tightened his belt and went out again to borrow money to fill the debt gap; in the future, when necessary, the village party secretary will naturally return the favor. And the village party secretary is actually willing to offer this "face," because his ability to speak up and cover favors in front of the officials from town is in itself a very face-gaining matter, which allows him to invisibly have more symbolic capital for the villagers to "sell" him face. It is precisely through this symbolic exchange between "present/future" and "face/favor" (of course, in specific practical scenes, the symbolic resources available for exchange are not limited to these) that diffuse power and symbolic resources can effectively participate in the production and reproduction of symbolic meaning. This allows a top-down state discourse like "debt collection according to law" to effectively deploy the symbolic imagination of social participation and conspiracy, forming a symbolic capacity that can dissolve the coercive colors and violent attributes of the state, turning the zero-sum game between the state and society centered on the distribution of power and resources into a game of symbolic exchange, where present interests are requisitioned or transferred and converted into symbolic expectations for the future. Of course, the desirability of this dispute governance strategy is, to a considerable extent, attributable to the Party's leadership system, which has formed a non-hierarchical network organization system that is "horizontally to the edge and vertically to the bottom" at the grassroots and in specific fields.
6. Dispute Governance from the Perspective of Expectation Management: Between Norm and Cognition
Let's look back at the camel inheritance case. In a real-life situation, the camels to be distributed are not completely homogeneous individuals, but more likely vary in size, strength, age, sex, health, and some may even be pregnant... If we fully restore all these neglected variable factors, we might find that a truly fair distribution plan is not as simple as it appears in the Qadi's example, where solving a mathematical division problem smoothly resolves the issue. Nevertheless, the intellectual metaphor contained in the camel inheritance case can still provide us with a general insight: desirable dispute governance depends on how to effectively manage expectations between fact and norm.
6.1 Analytical Framework
The German sociologist Niklas Luhmann believed that the social structure of expectations can be divided into two types: cognitive and normative. To illustrate this, he gave a rather interesting example: I am about to meet my newly appointed secretary and arrange work. I expect that she might be a young, beautiful blonde, but I am disappointed to find that she is actually quite plain. In this case, I can only adjust my own expectations to adapt. This kind of timely adjustment of expectations in accordance with facts is cognitive; we can only "adapt to the situation" and adjust our mentality. But for the matters within this secretary's scope of duty, my expectation is a normative one. If she does not perform the tasks I assign her well, I will not think that there is a problem with my expectation; I have reason to insist that her work status must conform to my expectation.
It is not difficult to see that "the Qadi's camel" also contains a dual expectation structure of normativity and cognition: on the one hand, it is precisely through this virtual-and-real "camel" that the Qadi provides an executable expectation for an unenforceable norm, which undoubtedly serves the function of stabilizing normative expectations; on the other hand, once society also views the cooperative surplus generated by the introduction of "the Qadi's camel" as a predictable benefit, then society may "adapt to the situation" and produce a cognitive expectation of "major disturbances lead to major solutions, minor disturbances lead to minor solutions, and no disturbance leads to no solution." In this regard, to promote the necessary differentiation between normative expectations and cognitive expectations, when courts introduce various virtual-and-real "camels" in the process of dispute governance, they must ground social expectations in the normative domain.
For example, in the aforementioned case of the Mazu Judgment Room, the belief in Mazu itself is a symbolic resource with a highly normative expectation orientation. Introducing this symbolic expectation in the dispute resolution process is actually a strategy for institutionalizing behavioral expectations by "requisitioning" the dispute to realize the reproduction of social norms. Similarly, in Putian, Fujian, local grassroots courts also utilize the long-standing tea culture of the Minnan region to create a "tea table mediation room," where the judge and the parties resolve disputes while brewing and drinking Gongfu tea. In this process, the court also emphasizes introducing social authority resources such as local sages to participate in mediation. And in some neighborhood disputes involving "face," respecting the parties' subjective willingness to follow folk customs, traditional etiquette forms such as "eight eggs and a bundle of noodles" are used to express sincere apologies. For instance, in a neighborhood dispute where one party slapped the other a few times, the victim felt they couldn't swallow their pride and demanded one hundred thousand yuan in compensation for each slap, otherwise they wouldn't let the other party live in peace. At this moment, if the "camel" of traditional etiquette can be introduced into the dispute governance, this form of "apology," which possesses both symbolic and normative qualities, will undoubtedly have a better social effect than a purely tort law-based approach and will more easily resolve the parties' issue of "saving face."
6.2 Symbolic Strategies of Expectation Management
On February 23, 2013, at the fourth collective study session of the Political Bureau of the 18th Central Committee, General Secretary Xi Jinping pointed out: "The law should not be cold and icy; judicial work is also about working with the masses. A piece of paper with a verdict on it may give justice to the parties, but it may not be able to resolve the 'knot in their hearts.' If the 'knot in their hearts' is not resolved, the case is not truly concluded." Here, the "knot in the heart" of the party points to the self-expectation that has not been respected or recognized by the outside world. From the perspective of the dispute governance strategy of "lending society a camel," to provide the right remedy, the state needs to provide the parties with an expectation structure that can both reflect the self, integrate all parties, and at the same time, ground the expectation in the normative domain. This mainly involves the symbolic strategies in the following aspects:
6.2.1 Symbolic Interaction
From the perspective of the meaning-linked interaction between the self and the external environment, the social subject's self is generated when the individual engages in symbolic communication with others in a group. In this interactive process, the "I" allows the individual to exist in a self-conscious manner. The "Me," on the other hand, symbolizes the collective will of society and is essentially the objectification of humanity for the construction of social meaning and the expression of experience. Every human action begins with the impulse of the "I," but is always constrained by the direction of meaning indicated by the "Me." In the process of the social subject acquiring a "self," symbols play the social function of endowing meaning and controlling the "self." In different symbolic contexts, we "divide ourselves into different selves, and different selves correspond to different social reactions." The example of the "Mazu Judgment Room" very typically employs this symbolic interaction strategy, thereby enabling the "I" to restrain instinctive impulses for profit and confrontational tendencies, striving to organize the self according to the collective expectation identified by Mazu as a faith symbol, so that the expression of one's own interests is limited to the social expectation structure that conforms to the specific symbolic context.
From the perspective of expectation management practice, the essence of symbolic interaction is to make the production and reproduction of symbols a focal point for balancing and optimizing the relationships of diverse subjects, achieving the flow and "exchange" of symbolic capital between the state and society, and forming a "transversal" platform of symbolic capacity for society and a symbolic order of order based on it. For example, at the beginning of people's justice, the rise of the "Ma Xiwu trial method" was undoubtedly a major historical achievement in the construction of the new democratic regime's judicial symbolic capacity. Its essence lies in relying on our Party's strong leadership and organizational capabilities, through work methods such as "circuit trials, on-the-spot trials" to go deep among the masses to conduct research and fully absorb the masses' participation in judgment, thereby establishing a connection between the state's official power and individual masses through village authorities, effectively embedding the state's authority symbol into the endogenous diffuse cultural power and symbolic resource network of rural society. Based on this "transversal" social symbolic interaction, the one-time game in the conventional sense between state power and the parties can be transformed into a repeated game between the parties and the micro-power cultural network they are in. This allows the parties, based on the symbolic imagination of maintaining or obtaining long-term social and cultural capital (such as relationships, face, which are particularly valued in acquaintance societies, and other symbolic cultural resources), to compensate for the psychological gap where their short-term interests were not met.
6.2.2 Relational Imagination
People are products of social relations, and conflicts between people are often a sign that a certain social relationship has broken or is difficult to sustain. Therefore, dispute governance cannot only see the surface of the conflict but must pay more attention to the deep-seated relationships behind the appearance. In modern society, primary relationships traditionally maintained by blood and geography are also facing the challenge of accelerated transformation. "Various large-scale, professional, impersonal, and hierarchical secondary groups (such as companies, schools, institutions, etc.) are rapidly developing and pervading all aspects of social life." People are increasingly inclined to handle problems through social division of labor, contracts, and legal and other formal systems. Even in rural societies where primary relationships are deeply rooted, this trend is quite obvious.
The above facts have greatly weakened the grassroots authority in the traditional social governance network that relies on relationships and face to handle problems, and have also led the latter to produce a game strategy of "passing the problem up": in a neighborhood dispute over housing drainage in village A in southern Jiangsu, the grassroots third-party authority not only did not mediate and persuade according to conventional practice but instead allowed the conflict between the two sides to escalate. When the dispute escalated into a minor violent conflict, the parties could only call the police for help. And this is actually the "overt strategy" that grassroots dispute governance is not afraid to put on the table: "The two families weren't on speaking terms before, and they won't be in the future, so it's better to let it escalate and seek peace"; "After the conflict escalates, it can be transferred to the police station, and the village will have more time to deal with other work." From this perspective, in a conflictual relationship, "if the content of the conflict evolves into the entirety of the relationship between the parties, what needs to be resolved is not only their specific conflict, but also the redefinition of their relationship."
In view of this, our grassroots social governance is also constantly exploring how to smooth out the narrative of the relationship between the state's formal legal relationship and the primary relationship of civil society. In the "legalized" state context, we are re-lending society a "camel" concerning relational imagination and expectation, "so that the legal system, which is detached from the common sense of daily life, can be re-integrated into civil society." For example, the "legal savvy individuals" (法律明白人) who play an increasingly important role in grassroots (village, community) dispute governance—"they are rooted at the grassroots, have the advantages of being familiar with the people, the place, and the issues, and play the important role of 'peacemakers' in rural governance. They not only reason with villagers and explain the law, but also use the human touch of the countryside, making the mediation of conflicts and disputes not only rational but also more 'humane'." In addition, according to the "Opinions of the Supreme People's Court on Deepening the Construction of the One-Stop Diversified Dispute Resolution Mechanism to Promote the Source-Level Resolution of Conflicts and Disputes" (Fa Fa No. 25, hereinafter referred to as the "Supreme Court Opinions"), the concept of the state's diversified dispute resolution mechanism construction also highlights a dispute governance strategy that is compatible with the imagination of social relations. This involves a more complex issue of field construction.
6.2.3 Field Construction
Using the analytical concepts of social theory, a field (场域) refers to a social microcosm that relies on certain interaction norms and meaning media, as a result of social differentiation. These social microcosms "have their own logic and laws, and cannot be reduced to the determinant factors of other fields." One of the important functions of a field is to guide the meaning imagination of social participants. For example, the economic field's desire for profit; the scientific field's pursuit of truth; the judicial field's conviction in fairness and justice, and so on. A field is a highly rational social situational system where everyone has the opportunity to participate in the game according to pre-set rules and entry thresholds, competing for various tangible and intangible social capitals, implementing personal strategies, and vying for scarce resources and dominant positions.
According to the description of classical social theory, "the judicial field is a place where the monopoly of the right to determine the law is fought over." In this struggle, "the trial represents the paradigmatic manifestation of the symbolic conflicts inherent in the social world: this is a struggle between different, and in fact, mutually antagonistic worldviews. Each worldview, with its individual authority, seeks to obtain universal recognition, and thus to obtain its own self-realization." In the interactive game between the state and society, in order to effectively deploy the symbolic imagination oriented towards the future to balance the present social expectations, on the one hand, the state needs to fully utilize the "dis-embedding" mechanism that can abstract social relations from specific time-space scenes to stabilize social expectations; on the other hand, if the state's "dis-embedded" governance relies solely on abstract and equal legal education and discipline, it is difficult to win the bottom-up social recognition. Its real challenge lies in how to properly handle the impact of the micro-power cultural network on the operation of the state's macro-power: "the generation of every case has a profound social background, and the resolution of every case requires the support of social micro-power." It is precisely the state's demand or pressure for social cooperation that leads the state to evolve various symbolic strategies aimed at "spanning" society, always maintaining a spatio-temporal tension of "being present" in the symbolic competition for legitimate resources. In this regard, we can perhaps continue to draw useful insights from the aforementioned example of the "trial on the kang." When Old Wang faced debt-repayment pressure that exceeded his expectations, he subconsciously used his "home field" advantage to "play possum": "It was my mistake, but... that's all there is, you guys figure it out." Presiding Judge Gao, however, very shrewdly reconstructed the "home-away field" relationship: "Now that the lawsuit has been filed here, if you say you can't, I will set a time for a hearing, and at that time, you will come to the town tribunal." Here, the judge, as the dominant actor in the judicial field, very skillfully placed the immediate goal of dispute resolution under the judicial tension of a different time and place, which not only guaranteed his ultimate authority on the issue of legal decision-making was not challenged but also provided a spatio-temporal flexibility for the diverse participants in the judicial field to reconstruct their relational imagination. In this sense, whether it is the spatial symbolism of the "people's court holding sessions in the fields" or the diverse role symbolism of the adjudicators' identities, they are all utilized by the state to overcome the shortcomings of its normative projection capacity, using the symbolic mapping of "physical presence" or "status presence" to achieve the flow or "exchange" of symbolic resources, allowing the state and society to become an "imagined community" that transcends spatio-temporal limitations based on the shared meaning of legitimate resources.
Conclusion
Currently, we are committed to focusing on building "Fengqiao-style People's Tribunals" in the new era. This is both an application of the "Fengqiao Experience" advocacy of "conflicts not being handed up, but resolved on the spot" in the construction of people's tribunals, and it is also a tribunal model that responds to the needs of social transformation through "field construction," achieving the sinking of state power and enhancing the level of legalization in grassroots governance. For example, regarding the issue of establishing and improving a grassroots dispute resolution service system, the "Supreme Court Opinions" propose that under the leadership of the Party committee, "construct a diversified dispute resolution and litigation service system with grassroots people's courts and people's tribunals as the main body, extending vertically to townships (streets) and villages (communities), and connecting horizontally with grassroots governance units, grassroots Party organizations, public legal service centers (stations), etc., in which the masses widely participate. This forms a three-level path of village (community) — township (street) — grassroots people's court and people's tribunal, to promptly prevent and resolve disputes on the spot, and provide litigation services nearby or door-to-door." In this field structure, which is highly differentiated in time and space and has the potential for pluralistic co-governance, the law can continuously requisition various symbolic "camels," use the communicative rationality of "letting the masses speak and the judge explain the law" to connect the state and society, construct mutual expectations and a subjectivity of collaborative governance, and allow the state law's "camel" to fully borrow the "oasis" of social expectations to achieve reproduction.
Originally published in the Jiaotong University Law Review, No. 5, 2025. With thanks to the WeChat public account "Jiao Da Fa Xue" for authorizing this reprint.
Professor, Shanghai Institute of Judicial Research, Shanghai University of Political Science and Law, Deputy Director (on secondment), Research Office of the First Branch of the Shanghai People's Procuratorate, Doctor of Law