MIDTERM (Lec 1-6) Flashcards
(35 cards)
Why study law? (2)
- It is needed to effectively understand a society
- Law and enforcement reflect political and socio-economic situations of societies
Why do we need law in society? (3)
- Maintaining social order and protecting the legitimate rights of social actors
- Providing stability and predictability (e.g. so businesses make long-term investments)
- Mediating and resolving social disputes/law and conflict resolution (in the shadow of the law). This can go through informal channels
What are informal channels?
Informal channels of resolving conflicts among citizens or social actors are normally based on their voluntary cooperation or negotiation. Two situations in which informal channels are used:
1. When state power is absent
2. When the people are reluctant to resort to formal channels
Why use informal channels?
- Cheap and effective
- In small communities, when the state is absent
Limitations of informal mechanisms or norms (3)
- it is context-specific (e.g. only works in small communities, not to strangers)
- Less costly, but not binding
- It may not be reasonable to others
Features of formal channels (4)
- Stable, clear and legitimate
- Independent legal institutions staffed with capable and incorrupt aents are trained, disciplined and integrity
- The political system that limits the power of both public and private actors (checks and balances)
- Political and social culture conductive to fair law enforcement.
Limitations of formal legal systems (5)
- Requires knowlegde
- Requires money
- Requires time
- It can be too rigid (e.g. ATM)
- It can be too relaxed (people can continue committing small crimes)
Confucian ideology and law in China (4)
- It emphasizes the cultivation of moral goodness
2, The emergence of the formally-enacted law was an indication of moral decline - Disputes mean a disturbance of social and the natural order, and should be avoided if possible
- Reconciliation (i.e., compromise) takes precedence over direct confrontation (i.e., in the court)
So, mediation is better then court.
Why is going to court a taboo? (3)
- The undertaker (who prepares the dead)
- Pawnshop (indicative of debt)
- Taking to the court (loss of face because you were not respected by the offending party)
What was the government’s attitude towards lawsuits?
Negative, because it was too costly. It made the lawsuits as bad as possible, do people would fear the court and law and prefer to settle things in informal ways
In what ways were courts humiliating? (3)
- Litigants had to kneel
- Torture was used to elicit evidence of confession of guilt
- Someone had to be responsible (accused or accuser)
What is an unacceptable crime in China?
Betrayal and murdering your parents. This is because of Confucian values. This shows how this ideology also influences law
Other reasons against formal punishment (5)
- Jails were horrible
- Corruption
- Court is like a tiger’s mouth
- No transparency
- Law is nothing but trouble
Dispute mediation institutions (4)
- Gentry (had property, conformity with code of conduct, educated, mediatos).
- Village leaders
- Families and clans (face issue prevented them from using lawsuits)
- Guilds (regulated business activities and mediated conflicts)
What about Chinese society after 1949?
Socialist China was established in 1949, after which the party-state controlled the society. After 1958, rural people were formed into rural collectives. By the late 1950s, urban people were formed into work units
Social arrangements in 1950s China (3)
- Public ownership and limited mobility
- Rationing system
- Party’s dominance in the political system
Rural Commune System (1958-1984)
In the early 1950s, land was initially distributed to individual peasant households. From 1958, peasants were organized into the commune system. Their land was turned in to the collective.
The collectivization of the agricultural production in rural areas:
Structure:
* Production team: consisting of a number of peasant households
* Brigade: consisting of a number of production teams
* Commune: consisting of a number of brigades
What are the political implications of collectivization? (4)
- The rights of peasants as a collective were not protected
- Peasants lost their freedom of mobility
- The source of the divide between the urban and rural areas emerged.
- A system of low efficiency emerged.
Implications of rural collective for dispute resolution: In rural collective period (until the early 1980s), civil disputes were mostly addressed within the village community, often with the intervention of village cadres and/or senior villagers.
The work-unit system in urban China: nationalization of property
- An overwhelming majority of the urban population worked in the work units in the public sector
- Welfare benefits, such as housing and pension, were provided by the work units (e.g., factories, government agencies, schools)
- Personnel-file system, together with the rationing system, controlled employees (e.g., getting married needed documents provided by the work unit).
Implications of the work-unit system (2)
- Conflict between individuals across work units were not many as they did not interat with each other
- Conflicts within a work unit were mostly addressed within the work unit by the leaders
What formal legal institutions were established during the 1950s? (3)
- Courts
- Procuratorate (represents the government)
- Public Security Bureau
What was the party-state’s attitude towards law?
- Highly instrumental and highly political
- Laws and legal institutions were used to achieve political and economic goals, such as land reform and nationalization of urban economies (e.g., factories)
- In the early 1950s, government agencies instead of the courts played a more important role in addressing criminal activities. This approach seemed to be rather effective in dealing with certain issues like drugs and prostitution.
What is the direct impact of the Cultural Revolution on politics and law?
- About 100 million people in China were negatively affected by this political movement. 34,000 officials, including the president of the country, were executed. The whole country was in a chaos for 10 years.
- Cultural revolution is an important reason for the Chinese party-state to strengthen the rule of law.
Mao’s political movement in 1966
- Laws that protected individuals’ rights were largely ignored (e.g., some people were frequently beaten)
- The major criterion used to judge a person was his or her class background and political attitude, which was rather subjective. Anti-revolution or anti-Mao could be a crime leading to death penalty
- Legal procedures were largely ignored, and people could be executed without court trials
- Government agencies, including the legal departments, were sometimes paralyzed (destroying the courts, procuracies, and the public security bureaus).
During the Cultural Revolution, court rulings were politicized, and about 64 percent of the political cases were mistakenly judged.
From 1978 to 1981, the Supreme Court reviewed 1.2 million criminal cases judged during the Cultural Revolution and corrected the rulings of one-fourth of them, affecting 326,000 people.
