强世功权力的组织网络和法律的治理化——马锡五审判方式和中国.pdf

强世功 :权力的组织网络与法律的治理化—— 马锡五审判方式与中国法律的 新传统（上） Organizational Nexus of Power and Governmentality of Law: Formation of New Legal Tradition in 1940s Co mmunist China Jiang Shigong Abstract There are two opposite kinds of approaches to the studies of mediation characterized by the Ma Xiwu’s Judicial Mode in 1940s communist China. One, based upon historicism, maintains that im portance of mediation in legal system of communist China exhibits the continuance and extension of traditional legal culture in the history. The other, based upon functionalism, emphasizes the breakup of traditional legal culture and the modification of mediation by communist ideology. Based upon the reflection and criticism of these two kinds of approaches, with some new materials, the article brings forward new approach of relation/event based upon ‘archaeology’ and ‘genealogy’ in the sense used by Foucault to this topic. In this way, the article put the Ma Xiwu’s Judicial Mode as an incidental historical event into the power relations in the transformation from traditional empire to modern nation-state in China. In the process of state-making, the state law transplanted from the West met the resistance from the indigenous customary law exemplified by marriage law. In order to settle such troubles, the Communist Party used various power techniques and constructed ‘organizational nexus of power’ so as to put its power into the rural society. Therefore, the incidental medication practice was integrated into the nexus of power as a special kind of governmental art. In the competition between legal discourse regarding law as autonomous system an d political discourse regarding law as efficacious instrument of governance by the Party, state law was eventually subject to the governmentality as an instrument, which constructed the heart of new legal tradition. In this new tradition, the aims of law are not social justice but the Party