Examples of conflicting social norms

Since the reform and opening up, with the tide of modernization, China has formally set the goal of "rule of law" and completed the legislative construction of multi-level legal system at a high speed. However, in the process of social transformation in China, the development level of the rule of law is not in direct proportion to the completeness of the legal system. On the contrary, with the large-scale legislative activities, there are more and more legal provisions, but the social order is not satisfactory. We are faced with the dilemma of "more laws and less order". During this period, the most direct and obvious performance is that in the face of the conflict of different social norms, people have unprecedented doubts about the legal effect, and their sense of order and security of the whole society has declined, and various deviant behaviors have occurred in large numbers. Therefore, this paper analyzes the conflict and interaction between the pluralistic social norms in contemporary China, and then makes a sociological study of social control in China's transitional period.

I. Diversification of social norms

Rousseau, a French enlightenment thinker, said in On Social Contract: "People are born free, but they are everywhere in chains." ② Xunzi, an ancient thinker in China, said: "People are born with desires, but they can't, and they can't be without demands, and they can't argue. Fighting is chaotic, and chaos is poor. " Here, Rousseau's "shackles" that bind people's social behavior and Xunzi's "measuring boundaries" that guide people's desires are all social norms. The word "norm", called nomos in ancient Greek, contains the meanings of law, ethical habits and religious etiquette. Latin for norma, English for Norma, including norms, standards, models, models, typical and other meanings. In ancient Rome, "norm" was once the name of a tool for measuring land. In Chinese, "norm" originally refers to rules as a measuring tool, and later it was extended to laws and regulations. (4) American jurist Roscoe? 9? According to Pound, the purpose of law is to realize justice, which means a system, an adjustment of relationship and an arrangement of behavior. ⑤ From the perspective of sociology of law, social norms that regulate social order and social behavior can be collectively called "law".

In academic circles, the distinction between law and law has always existed in the debate among jurists, especially legal philosophers. The legal structure is divided into monism and dualism in a narrow sense and a broad sense: monism holds that law is law, a normative document formulated or recognized by the state and guaranteed by the state's coercive force, and there are no other types of laws outside the state law; Dualism holds that law is all norms to adjust society, and law is only a reflection of law. Before the state enacted the law, the law existed in people's social life and guided people's behavior in a hidden form. In real life, different social relations are in different fields, and various social norms with inherent attributes distribute people's rights and obligations from different levels, which not only determines the diversity of norms that people recognize or must abide by and a series of subsequent program choices, but also makes the "dualism" of legal structure occupy a dominant position in theory and practice. As Liang Zhiping said: "Legal sociologists have found that even in the most developed countries, national laws are not the only laws. Besides the so-called formal laws, there are a large number of informal laws." Therefore, the theory of legal pluralism is a powerful analytical framework, whether it is the multiple interaction of social order or the path choice of social control.

The concept of "legal pluralism" originates from legal anthropology and refers to "a country with two or more legal systems in a society". "In every society, there are various legal structures that adapt to the diversity of groups. They are independent, interdependent, interpenetrating or all three. " Legal pluralism is actually a subversion of "legal centralism" and "national positivism" His exposition of law abandons the view that law is related to class, state compulsion and rulers' ideology, and directly or indirectly acknowledges the diversity and diversity of social norms under the carrier of multiculturalism. Domestic scholars usually study the theory of legal pluralism on the basis of "state law" and "non-state law", and use the dual structure division of "state law" and "folk law" to carry out research.

Persian Pieschel believes that "no human society has a single and consistent legal system, and there are as many subordinate groups as there are.". On the other hand, every subordinate group that plays a role in society adjusts the relationship among its members with its unique legal system. In different subordinate groups, at least in some aspects, there are necessary differences in their respective laws. " Attending doctor. In the traditional society of China, the high homogeneity of social members, the high closeness of social space and other realistic conditions make the primary groups based on congenital factors such as blood and geography constitute the foundation of the whole society, and Confucian ethical dogma constitutes the leading value system of the whole society. The dual structure division of "state law" and "folk law" basically conforms to the legal reality of our traditional society. However, in contemporary China, the rapid transformation of social structure not only disintegrated the old etiquette order and hierarchical system, but also gave birth to a series of large-scale, professional and impersonal secondary organizations (such as units, companies, schools, institutions, etc. ) Based on bureaucracy. These professional groups, free from the restriction of blood and geographical factors, have become the intermediate link between China's family and individuals in modern society. As Durkheim pointed out in the Theory of Social Division of Labor: "In fact, corporate bodies are the basic elements of our social structure. In the mass organizations of our time, if there is no industry system, then the rest can only be a vacuum that can't be described by any language. " From this point of view, in modern society, occupation has increasingly become the most important social attribute of social members, forming a normative carrier independent of state law and folk law. In this social background, the conceptual framework established by defining "non-state law" as "folk law" from the perspective of "superior law" and "subordinate law" not only obliterates the pluralistic reality of China's current normative carrier, but also goes against the theoretical presupposition of "systematization", so it is easy to draw the same theoretical explanation. Therefore, in view of the theoretical deviation in the division of the dual structure of "state law" and "folk law", we have expanded the concept scope of law from the perspectives of the legal basis and the effective scope of social norms, defined the industrial norms established based on the internal articles of association of enterprise professional groups as "group law", and further defined China's pluralistic social norms as the ternary structure framework of "state law", "group law" and "folk law".

Second, the level of pluralistic social norms.

In a country's legal structure, pluralistic social norms are ladder-shaped due to different levels of effectiveness and application order, that is, the ranks of norms are different. Legally speaking, the hierarchy of norms is first manifested in the hierarchical structure of social power, and various social powers show the hierarchical structure of power structure because of the differences in regulating social relations and social order, and different levels of social norms are in a position commensurate with their authority; Secondly, the rank of norms shows the inclusiveness of social relations, and the social norms in the high rank are more tolerant and abstract to social facts, while the low rank is the opposite; Finally, the rank of specifications is the intersection of the effectiveness of multiple specifications. In a specific social relationship, different levels of social norms regulate a social fact at the same time, especially in a transitional society, there is no realistic correspondence between the rank of norms and the effectiveness of norms. Based on this, we define the ranks of "state law", "group law" and "folk law", and then explain the connotation of the current pluralistic social norms in China.

1. National laws

The so-called national law can generally be understood as a law formulated, promulgated, passed and implemented by a specific state agency from top to bottom. State law is an official method called state political system, which is itself the political product of state public power. In unger's discourse system, state law is a bureaucratic law or rule law, which has the characteristics of publicity and reality. It consists of open rules formulated and implemented by an organization with government characteristics, so it belongs exclusively to the activities of centralized rulers and their professional assistants. Therefore, strictly speaking, the national law is a set of formatted concepts formulated and recognized by a central organ of a country, enforced by state authority as a coercive force, and generally implemented by specific institutions. It is manifested in the clear expression and written norms of a series of social facts, the adjustment of social structure and social relations, and the constant revision with the changes of society.

Judging from the historical laws and regulations, the national law is not so much the law of the whole people as the guide of officials, and its role is mainly reflected in consolidating political power, moral education and necessary social management. As far as legal effect is concerned, in the traditional society of our country, the direct rule of "national laws and regulations" stops at counties and counties, while Max? 9? In Weber's words, the governance history of China's traditional society is a history of "imperial power trying to extend its governance power outside the city", and the national law "crossed the city wall, and the effectiveness of governance authority was greatly weakened or even disappeared". Today, with the tide of modernization, China's national laws are more transplanted from western laws, which have the strongest legitimacy and the highest legal rank, and generally meet the requirements of general social justice. However, the national law, as a strict social norm imposed by public power, lacks a kind of family connection for people, which affects its effective scope and directly leads people to question and resist the national law.

2. The rule of group theory

Legal sociologists pointed out: "In every society, there are some sub-groups that make up the society, such as religions, associations and political alliances. Every group has its own legal order. Although many legal systems are not laws in the strict sense, they often imitate the systems and symbolic forms of national laws, and there are also some normative agreements in legal forms. " Compared with national law, the emergence of group law is accompanied by the development of modern society. Under the conditions of disintegration of primary groups, highly developed social organizations and highly differentiated social members, group law is derived from social subgroups, and as a normative type of "non-state law", it enriches the theory of legal pluralism in China.

In China's traditional society, the establishment of primary relations is mainly due to pre-existing factors such as consanguinity and geography, which leads to some secondary relations based on occupation (based on members' professional ties) and interests (based on members' common interests and hobbies). Primary groups and corresponding secondary groups become the carrier and synthesis of this social norm. Based on this, some social norms similar to "group law" have appeared in traditional Chinese society, such as "guild law", "gang law" and "association law". However, the traditional society in China is far from forming a normative carrier independent of national law and folk law. These social norms with the embryonic form of "group law" are just written folk laws and customary laws, and there is no room for independent implementation.

In contemporary China, diversified social division of labor has formed diversified occupational classification, and social organizations have sprung up like mushrooms after rain. Various social organizations restrain, mediate and guide their internal members in order to run well. "In fact, the economic system is always in operation, and all kinds of people will promote this operation through mutual cooperation. For each profession, a series of norms must be formulated to determine the required workload, the appropriate remuneration paid to various personnel, his responsibility to the same person, and his responsibility to each other. " Therefore, the internal rules and regulations of a certain profession, a certain group and a certain sub-organization have formed a diversified type of group law in modern society. Among them, it includes not only the internal "unit regulations" of state-owned enterprises, which are closely related to national laws, but also the "group decrees" which are closer to folk laws, and also the "professional norms" of various enterprises such as private enterprises and foreign capital. In nature, group law is an independent and special normative classification between state law and folk law, and its legal basis and legal rank are also between the two. In a specific industry field, the effectiveness of collective efforts is often the most direct, but the scope of effectiveness is the smallest.

3. Folk law

In China's discourse system, the opposite of "government" is "folk", and "folk law" has become the most important conceptual category besides "state law". Broadly speaking, the emergence of folk law is separated from the emergence of the state, and it is a general term for all social rules that exist widely outside the "official enactment law" and are not officially or informally "authorized" by the state. In a narrow sense, folk law is a set of code of conduct evolved through customs, values, beliefs, ethics and cultural traditions in the long-term historical practice. Therefore, many domestic scholars equate "folk law" with "customary law", and the research on "folk law" is also carried out from the perspectives of "practical normative source", "spontaneous authoritative basis", "fuzzy normative form" and "local knowledge system". We believe that the emergence of folk law stems from people's social needs. It is a cultural model for people to adapt to the natural environment, lacking written laws and regulations and a complete and clear system of provisions. After the emergence of folk law, it is mainly spread and passed down through oral, behavioral and psychological means, unlike the strict formulation procedures and written forms of national law.

In the traditional society, faced with the legal reality of "no litigation", "restraining litigation", "harmony is precious" and "imperial power never leaves the county", folk law, as a basic norm guiding people's daily life practice, plays the most important role in social control. As ellman said: "Custom is not only the oldest but also the most common legal source: it stipulates the behavior that becomes' habitual' because of frequent compliance, and announces the sanctions for deviation." At the same time, the emergence of folk law is often based on primary social relations such as geography and consanguinity. The same kind of folk law may be limited to one village and one place, or it may be extended to several provinces, that is, the so-called "different styles in ten miles, different customs in a hundred miles", among which the customary law of ethnic minorities is the most typical. In the process of China's modernization, faced with the change of social structure and the intensification of social differentiation, folk law retains its core elements but is regarded as outdated and backward norms, with the weakest legitimacy and the lowest legal rank. At the same time, in specific social relations, people regard folk law as the most commonly used norm of life practice. "The regulation of ordinary people's behavior and the adjustment of interpersonal relationship still continues the great tradition, and the traditional folk norms still restrict people's behavior in a vague way", which also gives folk law the widest effectiveness and stability. Today, we are in an era where the legal system is full of loopholes, or the legal system is full of loopholes, and a multi-network era in which the legal order forces us to constantly change and infiltrate. Our legal life is composed of different legal orders, that is, the legal system, which is the counterpart of legal pluralism. Therefore, in modern society, the relationship among state law, folk law and group law also presents more cross-cutting characteristics. At the same time, based on the difference of the validity scope of the above three legal norms, we use graphs to distinguish them, as shown in figure 1.

Figure 1 Cross Diagram of Multi-social Norms

It should be pointed out that in any era and any society, social norms, as a "prescriptive proposition", have the core significance of guiding people's behaviors and producing corresponding positive/negative effects when actions meet/fail to meet their set standards. However, social norms will not regulate all social facts of a society. Outside the social norms, there will always be some "vacuum areas", and the behaviors in these "vacuum areas" are no longer social behaviors but completely personal behaviors (such as personal home furnishings, sleeping posture, eating habits, reading hobbies, etc.). ). If the circular space in the figure 1 is understood as the whole social behavior space A, then the national law B, the group law C and the folk law D in the figure represent their respective effective ranges, and the spaces outside the three belong to the "freedom" field. At the same time, with the change of social structure, the types and scope of human behavior are also expanding, and the effective scopes of "state law", "group law" and "folk law" are also expanding. Therefore, the diagram 1 is just a static macro expression.

Third, the conflict and interaction of pluralistic social norms.

Montesquieu clearly pointed out in On the Spirit of Law: "Law has various systems. The so-called greatness and sublimity of human ideals lies in its ability to well understand which system should be related to what the law requires, without disturbing the principles that should govern mankind. " As a principled, universal and compulsory legal form, national law not only embodies the connotation of national public power, but also conforms to the broadest social interests. As a rule system juxtaposed with national law and folk law, group law has become an important link between China and individuals, public authority and individual rights in modern society; As a normative type that inherits, accumulates and integrates legal culture for thousands of years, folk law represents and meets the needs of social members in a certain region and a certain relationship network. In the theoretical framework of legal pluralism, "the law is insufficient", and state law, group law and folk law belong to different knowledge systems, bearing different purposes and value orientations in their respective normative fields, thus there is a relationship of "division of labor and cooperation" in adjusting specific social relations. When these three social norms are inconsistent or even contradictory in the direction and way of regulating social behavior and mediating social relations, they show normative conflict and opposition; When these three social norms are consistent in regulating social behavior and mediating social relations, they show normative interaction and integration. From a macro point of view, the conflict and interaction between state law, group law and folk law is the conflict and interaction between concept and practice, modernity and tradition, and ideal and reality. Therefore, we divide the interaction between them into the following types.

1. Conflict and interaction between state law and folk law

China's traditional folk law mainly focuses on matters such as "land, money and family debts in the field of marriage", which belong to the category of civil law according to the classification of modern laws. In modern society, the conflict between state law and folk law is also concentrated in the civil scope. For example, in some ethnic minority areas in China, folk laws have standardized procedures by means of fines, corporal punishment, and public parades. Therefore, it presents the characteristics of damaging reputation, personal injury and implicating innocents, which is completely different from the punishment method formulated by the state. Therefore, the conflict between state law and folk law is directly manifested as the conflict between concept and practice.

At the same time, in the traditional society, within the scope that the national law disdains but can't be standardized in fact, the folk law not only plays the role of resolving disputes and distributing rights in the closed rural society, but also reconstructs the normative concept of the national law to some extent. This ritual structure of "assisting rites to enter the law, integrating the law into the vulgar and all-encompassing" has also continued to modern society. For example, not long ago, China's Law on the Protection of the Rights and Interests of the Elderly was revised, and "always go home and see" was written into the law, emphasizing the "spiritual comfort" of children to the elderly, which immediately triggered a discussion among the people on the return of family ties. During this period, the national law and the folk law, which promoted ethics and maintained etiquette, were in harmony.

2. Conflict and interaction between national law and group law

Social norms are actually symbols of social power. Different social environments derive different social power relations, and also create different types of social norms and their implementation effects. Michael. 9? Michael mann once divided power into "authoritative power" and "decentralized power" to correspond to the power relationship in a closed and solidified centralized society and a free and pluralistic modern society. Group law was formed only when "decentralized power" became the dominant social power relationship, and it was more manifested as a normative system of multiple interests under the guidance of instrumental rationality. At the same time, as a written norm, based on the difference of value orientation of norms, the conflict between group law and state law also exists. For example, the Labor Law formulated by the state has strict regulations on working hours, overtime pay and even maternity leave. However, with the development of marketization, modern competitive relations have caused serious conflicts between group law and state law in specific normative requirements.

At the same time, as a social norm within professional groups, group law is close to the social control function of state law on issues involving basic national policies and social order, and also reflects the interactive relationship between them. For example, the group law is highly consistent with the national law on the newly introduced "two children alone" policy (that is, one of the husband and wife is an only child and can have two children) and territorial issues involving national sovereignty. In contemporary China, the "Articles of Association" which fully embodies nationalism and highlights the modern company concept best embodies the combination of state law and group law. It is even regarded as a kind of "implementation rules" to be implemented within the unit and improve the national laws.

3. Conflict and interaction between folk law and group law

From the source of norms, the group law in modern society is close to the national law, but it is parasitic on the folk law in traditional society. At the same time, the pluralistic social relations in modern society show the characteristics of diverse groups, some of which are even legal representatives of non-governmental organizations. In this context, the conflict and interaction between folk law and group law is more natural.

As far as the conflict between the two is concerned, in the specific field of social norms, folk law defends traditional law, and group law promotes modern ethics, showing the contradiction between tradition and modernity, practice and concept. For example, in the development of resource-rich woodlands, mines and pastures, group laws often regard a set of folk laws that regulate the relationship between people and between people and nature as bad habits, or even abuse them. Especially in ethnic areas with rich cultural resources, the collective efforts to adhere to the commercial operation mechanism have been strongly resisted by folk laws, leading to various group protests. Another example is that some professional legal persons often conflict with traditional festivals such as Tomb-Sweeping Day, Dragon Boat Festival and even Spring Festival, and even deliberately avoid the provisions of folk law on traditional culture, thus aggravating the conflict between the two. As far as the interaction between them is concerned, among various types of associations, many non-governmental organizations are actually modern guilds, clubs, gangs and even non-profit organizations with the nature of public welfare. The group law produced in this type of organization is often inextricably linked with folk law. For example, the famous Shanxi merchants, Huizhou merchants and Fujian merchants in China still use the internal contract law that has been circulating for hundreds of years, and ensure the stability and development of their own groups through public fundraising and organizing people in various provinces. For another example, in order to inherit the classic literature resources, the fans who are popular all over the country still implement their internal norms in a folk way. Within these organizations, there is the transmission and blending of tradition and modernity between group law and folk law.

4. Conflicts and interactions among state law, group law and folk law.

In a sense, the formulation of any social form norms is to stabilize social relations, but social relations themselves are constantly changing. Therefore, in the process of social transformation, the conflict of social norms actually reflects the conflict between legal stability and social change. If the conflicts and interactions among state law, group law and folk law listed above are biased, then the interactions among state law, folk law and group law reflect the hierarchical differences in time, space and logic (represented by the intersection of B, C and D in figure 1), that is, the same social fact and the same social relationship are recognized by state law. Only when the legal effects of the three norms are different and incompatible with each other, or even when the legal effects of the three norms are consistent and compared with each other, can the practical significance of multi-norms be truly reflected in social changes.

First of all, in the change of social structure in China, state law, folk law and group law cannot independently and effectively maintain social order and regulate social behavior, which is a "normative vacuum". In fact, the "vacuum" state is not that there are no norms, but that society does not provide clear norms for its members, and many norms coexist and conflict with each other. In the "vacuum" state, people can follow the original norms, new norms and self-created norms, and no matter which norms they follow, the result will be rejected or even sanctioned by other norms. In daily life, this norm blind spot often exists in the form of implicit conflict between social norms. Taking China's private lending as an example, the national laws and regulations stipulate that the interest rate of private lending shall not exceed four times the benchmark interest rate of the People's Bank of China in the same period, and if it exceeds, it will be regarded as usury, and there are strict regulations on lending time and written contract. However, groups engaged in lending often raise money and lend money at a high rate of return, and most of the transactions take place in the network of acquaintances based on blood, region and industry. At the same time, the definition of creditor's rights relationship in folk law is based on traditional mutual assistance, and the detailed rules of post-event protection are stipulated in the form of private relief. In this normative conflict environment, the chaos of private lending occurs frequently, and people can't really fulfill their own interests in the face of disputes anyway. Therefore, in the period of social transformation, the conflict between state law, folk law and group law makes the "hidden rules" that deviate from the three major norms prevail, and people realize their recognized interests with norms that are not recognized by society, thus causing the chaos of "deviance and generalization".

Secondly, as far as the corresponding relationship between the three is concerned, social behaviors that violate the fundamental principles of social justice, such as murder, robbery, drug abuse, sexual dysfunction, etc., will be restricted by state law, folk law and group law at the same time. Moreover, due to the differences in its normative space and effectiveness, in this case, people are actually faced with the triple pressure of national compulsory sanctions, public opinion punishment and unit regulations. Therefore, when these three social norms are in the same direction in regulating social behavior and mediating social relations, they are often the normative environment with the best social control effect and the most conducive to social stability.

Four. Summary and discussion

From the perspective of pluralistic norms in China's transitional period and the theoretical framework of legal pluralism, this paper expands the traditional concept division of "state law" and "folk law" from the two dimensions of the legitimacy basis and effective scope of social norms, and defines the pluralism of social norms in China at present as the three-dimensional structural framework of "state law", "group law" and "folk law". Among them, "group law" is an innovation of this paper, which is a special and independent normative type between "state law" and "folk law" in modern society.

On the basis of analyzing the legal concepts of "rank" and "effectiveness", according to the rank of effectiveness and the order of application of social norms, we have determined the concept connotation and normative rank of "state law", "group law" and "folk law": the state law rank, which is the political product of public power, is the highest, followed by the group law rank formed in modern professional legal persons, and the folk law rank, which shows the spiritual core of "small tradition", is the lowest. At the same time, according to the "inheritance" point of view, we use the diagram 1 to show the interlegarity of multiple social norms.

From the angle of adjusting the direction and mode of social behavior and social relations, this paper systematically discusses and analyzes four kinds of relationships among three social norms: the conflict and interaction between state law and folk law, the conflict and interaction between state law and group law, and the conflict and interaction between state law and group law.