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The Distance between Enforcing Law Reality and Rule-of-law Ideal

Author: LinHongHong
Tutor: ZhangYongHe
School: Southwest University of Political Science
Course: Legal Theory
Keywords: compulsory execution field habitus practice logic symboliccapital symbolic power
CLC: D90-052
Type: Master's thesis
Year: 2012
Downloads: 13
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Abstract

Legal practice is not just the application or observance of the law. How the actorsapply the rule of law is decided by the situation of certain field, which is limited bythe objective structure of the field and guided by the actors’ subjective standpoint. Thestruggle strategies to deal with the field are made and imposed under the combinedaction of these two factors, which usually present the favor of “case-closed anddispute-terminated” and a pragmatic behavior pattern. The actors obey the logic ofpractice which is different from the logic of theoretic throughout the process of theactions. The rule of the law is not strictly obeyed but associated with the actors assymbolic capital. However, in the form of symbolic capital, it is still binding upon theactors. This kind of binding force stem from the named power and the form power thelaw has as symbolic capital.Research about how the law realizes itself can only be known in specific practice.After analyzing the production process of the compulsory execution of a certain case,the discussion about the two phenomena of “strict law enforcement (strictjudicial)”and” flexible law enforcement(flexible judicial)”can only be possible. Thethesis includes three parts in structure.The first part is analysis of the structure of the enforcement field. The structureof the enforcement field is objective structure that can limit the actors’ actions.Entering the enforcement field, the actors form the complicated power relations, andthe field is form because of the tensions between these power relations. The field hasthe characteristic of independency, but it is also affected by the other fields whenrunning in reality. Judicatory field, social field and political field have greatlyinfluence on the enforcement field. And so they limit the enforcement field’ position.The enforcement field’s internal power relation and its position in a much broaderrange compose the objective limit to the actors.The second part is analysis of the action logic of the actors. The actors arealways under the limit of the field. They act by the guide of their own habitus, makestruggle strategies according to the condition of the capital they have in order to dealwith various conditions in the field. The actors always obey the practice logic fromthe strategies madding to imposing. Practice logic has a pragmatism favor. It is fuzzy and it is hard to understand, but it outlines the daily relationship between the actorsand the world.The third part is analysis of the law in compulsory execution. The law incompulsory execution obeys practice logic. It uses the practice strategies of“positional war” and “guerrilla war” in the meantime according to certain conditionsin the field. Using the strategy of “guerrilla war” can not sufficiently exert the namedpower and the form power, which distances the enforcing law reality and therule-of-law ideal. However, the distance is not insuperable obstacles.

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