black's theory on the behaviour of law revisited iii: law as more or less governmental social...

International Journal of the Sociology of Law 1998, 26, 365]392Article No. sl980071

Black’s Theory on the Behaviourof Law Revisited III: Law asMore or Less GovernmentalSocial Control

KAM C. WONGDepartment of Government and Public Administration,Chinese University of Hong Kong, Hong Kong

Introduction

In 1976 Donald Black introduced his theory on the behaviour of lawŽ . ŽBlack 1976 . Black defined law as ‘‘governmental social control’’ Black

.1976: 2 . Sherman observes in his 1978 general review of Black’s theory oflaw that Black’s concept of law needs to be defined in a meaningful

Ž .manner Sherman 1978: 10]11 . Griffiths, who wrote the only full-lengtharticle on Black’s concept of law in 1984, laments that Black’s concept of

Žlaw is defined without reference to the theoretical structure Griffiths.1984: 37 . More recently, Wong compiled a comprehensive review of

Black’s theory of law and found that Black’s concept of law is not clearlyarticulated; a critical conceptual link, the term government, is not definedŽ .Wong 1995: 214 . In 1998 Wong provided a restatement to Black’sconcept of law by introducing the idea of ‘‘more or less governmentalsocial control’’ as realized in the twin concepts of governmental sponsor-ship of private social control and governmental delegation of social control

Ž .powers to private parties Wong 1998a .This article provides an empirical assessment of Wong’s restatement to

Black’s concept of law. In it I show how the restated concept of law as‘‘more or less governmental social control’’ and its associated analyticalframeworks are helpful in studying the law enforcement role and func-tions of the Strike Committee during the Canton]Hong Kong strike of1925]1926 in China; then operating as a de facto and quasi-governmentagency.

This article consists of five sections. ‘‘A restatement of Black’s concept

.0194-6595r98r030365q28 $30 00r0 q 1998 Academic Press

Black’s Theory on the Behaviour of Law III366

of law’’ summarizes Wong’s objections to and his restatement of Black’sconcept of law. ‘‘The historical context of the Canton]Hong Kong strikejiuchadui’’ provides a brief historical background of the Canton]HongKong strike as a foundation to the discussion of the roles and functions ofthe strike Committee jiuchadui during the strike. ‘‘The redistribution ofgovernmental social control’’ investigates the relationship between theKMT government and Strike Committee in order to elucidate the role,functions, powers and responsibilities of the Strike Committee jiuchaduiin enforcing the Canton]Hong Kong strike. This sets the stage foranalysing whether the Strike Committee and its jiuchadui were engagingin ‘‘governmental social control’’. ‘‘ Jiuchadui as governmental social con-trol’’ illustrates the utility of the ‘‘more or less governmental socialcontrol’’ conceptual frameworks in analysing the extent to which theStrike Committee was functioning as a quasi and de facto ‘‘governmentalsocial control’’ agent. The ‘‘Conclusion’’ summarizes some of the majorempirical findings and discusses a number of the more important re-search issues and theoretical implications of this research.

[ ]A Restatement of Black’s Concept of Law 1

Black’s concept of Law as governmental social control

Black’s concept of law is simple and straightforward. Black defines law asŽ .‘‘governmental social control’’ Black 1976: 2 . He provides a descriptive,

and not an analytical, definition of government. He discribes governmen-tal social control as the ‘‘normative life of a state and its citizens’’. Blackintended his definition to encompass ‘‘any act by a political body that

Ž .concerns the definition of social order or its defense’’ Black 1972: 1906 .However, none of the critical terms } government, state, or politicalbody } are defined. Wong has construed Black’s concept of government

Ž .as formally institutionalized political authority Wong 1998a . Finally,social control is defined as ‘‘response to deviant behavour’’ of every kindincluding ‘‘law, etiquette, custom, ethics, bureaucracy, and the treatment

Ž .of mental illness’’ Black 1995: 106 .

The myth of unitary government

The major problem with Black’s concept of law is that he defines govern-w xment in dichotomous terms 2 . Government either exists or does not

exist. In this regard Black echoes historical understanding and followsconventional wisdom. People have long associated state and governmentwith omnipotent, omnipresent, undivided, perpetual and absolute politi-

Ž . Ž . Žcal control over an area country or people association Elazar 1987:.11 . However, political scientists have long taken a contrary stance. For

K. C. Wong 367

example, political scientists have advanced three classical models toexplain power sharing in government. They are, respectively, the pyramidŽ . Ž .Fieldhouse 1965; Sale 1990 , center-peripheral Briffault 1990a, 1990b ,

Ž .and matrix power structure of government Elazar 1987 .

Debunking the myth of government

The deconstruction of the myth of government as an holistic and inte-grated unit can be achieved in two ways: internally and externally.Internal deconstruction. There is a substantial division of labor within thegovernment, particularly when government services are bureaucratized,both horizontally and vertically. Thus, while the political sovereign makespolicies at the top, it is up to the professional administrators to carry themout at the bottom. This is a vertical division of political v. administrativelabor, and a policy-making v. a policy-execution role. The politicalsovereign then, as now, also expanded the span of his control or fine-tunedhis administration by creating coordinated horizontal specialized depart-ments, e.g. establishing judicial v. legislative v. executive branches ofgovernment. This is a horizontal division of labor.

ŽExternal deconstruction. There may be competing sovereign powers legal.pluralism in a state, each commanding the loyalty, allegiance and obedi-

ence of a group of citizens of the state at a point of time and over ageographical area, e.g. a citizen of the U.S.A. is subjected to multiplejurisdictions at any point in time: county, state, and federal law apply,depending on the time, place, matters and issues involved, while a citizenof imperial China is subject to overlapping social control as a son to hisparents, a member of his family clan and as an associate to his profes-sional guild.

The idea of relative government

The debunking of the myth of government makes way for the properconstruction of a sociological definition of law that recognizes the relativityof governmental social control, i.e. more or less governmental socialcontrol in multiplex law. It serves at this juncture to remind ourselvesof Professor Max Rheinstein’s penetrating observation that socialphenomenon is not absolute but relative.

After all modern science could not achieve its spectacular results untilthe phenomena to be observed had been described, classified, andsystematically arranged for ready reference . . . In social science it alsoseems at first glance that we know those phenomena whoseinterrelations we are trying to unravel. We think that we know the


species of, let us say, political organization . . . but let us try to definethe exact borderline between monarchy or republic . . . None of thesequestions can be answered for the simple reason that clearly definedspecies do not exist in the realm of social phenomena . . . What wefind are mixtures . . . The question is always one of more or less, or one ofdefining the position of a concrete phenomenon upon a scale ofinfinite transitions between the two extremes of clear-cut polarity.Ž . Ž .emphasis added Weber 1954: xxvii]xxvii .

More or less, more so than unitary, governmental social control thusbetter describes governmental social control in action. When privateparties take part in governmental social control, e.g. private security, theyare engaging in governmental social control of a sort. When privateparties are given the legal authority to maintain social control, e.g. familydiscipline in China or chartered associations in England, they are lawdeputies. When the government becomes involved or participatesin private social control, e.g. organizing community policing, privatesocial control takes on the color, authority and characteristics of thegovernment.

The concept of law as more or less governmental social control

Black’s concept of law can be improved by making it more sociological,i.e. incorporating the idea of ‘‘more or less governmental social control’’.The concept of law as ‘‘more or less governmental social control’’ can beadequately captured by two inter-related, though mutually exclusive, con-cepts; the delegation of governmental social control rights to private partiesand governmental sponsorship of private social control measures.More or less governmental delegation of social control rights. More or lessgovernmental social control can result from the affirmative delegation ofsocial control rights and responsibilities. Delegation of social control

Ž .rights and responsibilities is a re-redistribution of constitutional rights.These rights are conferred upon or acknowledged by the state to exist in aprivate party in order that the party may take part in governmental socialcontrol, e.g. family discipline or clan rule in traditional China, sheriffdeputies in the Wild West, and private policing in modern America.Depending on the scope of delegated control, extent of delegated author-ity, and degree of supervision over delegation, i.e. social control responsi-bilities, powers, and accountability, the delegated party acts more or lesslike an autonomous government. The broader the delegation } moreresponsibilities, greater powers and lesser accountability } the more aprivate party behaves like an autonomous government. The narrower thedelegation } more restrictive responsibilities, lesser powers and closersupervision } the less a private party behaves like an autonomousgovernment.

K. C. Wong 369

Social control authority is of three kinds. In decreasing order ofauthority, they are: authority to define social norms; authority to establishsocial norms; and authority to enforce social norms. This corresponds toour Western notions of legal policy-setting, law making, and law executionŽwhich encompasses in broad terms law enforcement, prosecution, adjudi-

.cation and punishment .More rights of social control mean more power sharing with the

dominant social control qua political authority and, in turn, power domi -nation over subordinate social subjects. In Black’s terms, power sharingwith an established political authority means more law for a politicalinferior. Power domination over another social equal means less law forthe dominating social equal. Power sharing is manifested in negotiationfor control as give and take. Lesser power allows for the negotiation overoutcome. More power allows for the negotiation over substantive law.Power parity allows for the negotiation over procedure law. Power

Ž .domination from more to less is manifested in the imposition of thedecision-making process, decision-making norms, as well as resultsŽ .Table 1 .

More or less government through sponsorship of private social control? More orless government in social control due to state sponsorship of private socialcontrol activities is state participation in private social control. Statesponsorship means state countenance, approval, endorsement, promo-tion, sanction andror enforcement.

State sponsorship can be in the form of passive endorsement or activeinvolvement corresponding to the two extremes of sponsorship, i.e. fromminimal endorsement to maximum involvement.

Passive endorsement includes countenance, approval, or endorsement.Countenance is implied acceptance. It is demonstrated by knowledge ofprivate social control and a failure to act. Approval is expressed accep-tance. It is demonstrated by a formal acknowledgment of private socialcontrol. Endorsement is positive acceptance. It is an acceptance plusquality assurance. It is demonstrated by certification or recommendation.

Active involvement includes promotion, sanction, or enforcement.Promotion is active development. It is steps taken to facilitate the estab-lishment, maintenance, growth, expansion and improvement of socialcontrol, including enabling legislation but short of making available legalsanctions for private control enforcement. It is measured by effortscontributing to the development and maintenance of private control, e.g.making available material resources or offering advice. Sanction is makingavailable legal punishment for private social control. Enforcement isdirectly participating in social control activities through the exercise of

Ž .state social control powers and institutional authorities Table 2 .Having familiarized ourselves with the conceptual structure and analyti-


Ž .Table 1. Governmental delegation of public social control policingw xauthority 3 } an analytical framework

Theoreticalconcepts Operational definitions Example

w x Ž .Governmental Delegation of social-control 4 } 1 Constitutiondelegation of the redistribution of govern- provisions

Ž .police powers ment’s constitutional power to 2 Enablinguse force to enforce the law and leglislation

Ž .maintain political or socialorder.

Ž .Delegation of norm-defining 1 Governmentauthority } the extent to which social controlthe government delegates the philosophy

Ž .authority to define general 2 Jurisprudentialnormative expectation. thought

Ž .3 Lawenforcementpolicy

Ž .Delegation of norm-setting authority 1 Police legislationŽ .} the extent to which the govern- 2 Police rules and

ment delegates the authority to regulationsset specific normativeexpectations.

Ž .Delegation of norm-enforcing 1 LicensingŽ .authority } the extent to which 2 InspectingŽ .the government delegates the 3 Policing

authority to seek compliancewith the normative expectations.

cal frameworks for the concept of law as ‘‘more or less governmentalsocial control’’, let us turn to how these analytical tools may help us indiscerning the ‘‘governmental social control’’ role and functions of theCanton]Hong Kong Strike Committee during the Canton]Hong Kong

Ž .strike 1925]1928 in China.

The research question

As observed, Black’s concept of law does not entertain the possibility of amore or less governmental institution, as a legal qua political entity, andin turn could not accommodate more or less governmental social controlas a social practice. There are two issues involved here; both of them areconcerned with the relative distribution of government social controlpowers and the proper attribution of governmental social controlcapacity.

K. C. Wong 371

Table 2. Governmental sponsorship of privatesocial control } an analytical framework

Theoreticalconcepts Operational definitions Examples

Governmental Endorsement } the extent to which the NeighborhoodŽendorsement government accepts and approves of the Watch Garofalo

Žpassive existence of private social control or & McLeod. .sponsorship self help. 1989: 325]344

Countenance } the extent to which the Vigilante, self-helpŽgovernment tolerates the existence of Perry & Pugh

private social control. 1989: 129]131Approval } the extent to which the Guardian Angels

Žgovernment tacitly acknowledges the Pennell, Curtis &.existence of private social control. Henderson 1985

Endorsement } the extent to which the Community watchgovernment affirmatively approves of theexistence of private social control.

Governmental Involvement } the extent to which the Family disciplineinvolvement government actively participates in over juvenileŽactive bringing about the private social scheme.

.sponsorshipPromotion } the extent to which the ‘‘Crime Stoppers’’

Žgovernment takes steps to establish, Rosenbaum,maintain, expand, or improve the Lurigio &private social control scheme. Lavrakas 1989:

.401]420Sanction } the degree to which the Non-intervention ingovernment made available legal sanctions domestic abuseand resources for private social control. Berk & Loseke

1981: 317]348;Hirschel et al.1992: 247]283;

Enforcement } the degree to which the Family disciplinegovernment actively corroborates with over juvenile

Žthe private social control agency in Lundman, Sykes &enforcing a private social Clark 1980:control regiment. 130]151;

Schutt & DanneferGa. Code Ann., S

Ž . Ž .15-11-2 12 1990 ;1988: 509]520

First, when is a government acting in the capacity of a government inexercising social control? Alternatively, under what circumstances can it


be said that the government is not acting in a governmental capacity inexercising social control? For example, is a government acting in thecapacity of a government when it performs private social control functionswith government authorities?

Second, when are citizens acting in the capacity of a government? Morespecifically, under what circumstances can the social control action ofprivate citizens be considered an exercise of government authority, vest-ing it with quasi-governmental social control capacity?

ŽThis research, in attempting to apply Black’s concept of law as restated.by Wong to the study of law enforcement activities of the Strike Commit-

tee during the Canton]Hong Kong strike raises mainly the second issueand touches only tangentially on the first. Thus, the pertinent researchquestion is: ‘Was the Strike Committee acting in a ‘‘governmental socialcontrol’’ capacity when delegated with police powers by the KMT govern-ment during the Canton]Hong Kong strike?’ More simply put, was theStrike Committee jiuchadui a ‘‘law’’ enforcement agent under Black orWong’s definition of law?

The Historical Context of the Canton–Hong Kong Strike[ ]Jiuchadui 5

The Canton]Hong Kong strike was one of the longest, large-scale strikesin international labor movement history. It lasted 18 months from 23 June1925 to 10 October 1926. The strike was precipitated by the indiscrimi-nate shooting of peaceful demonstrators by foreign soldiers stationed inShamian, Canton. It was also one of the most organized and well-financedstrikes in China.

Ž .The strike was directed by the Chinese Communist Party ‘‘CCP’’ ,Ž .Guangdong district committee Guangdong qu wei . It was organized by the

Ž .All China Workers’ General Union Zhonghua quanguo zong gonghui .Deng Zhongxia who led the strike, was experienced in labor movement

Ž .and strike affairs Wang, 1994, Vol. 2:168 . The strike was coordinated byŽ . Žthe Canton]Hong Kong Strike Committee bagong weiyuanhui Wang,

.1994, Vol. 2: 180]182 . In the course of events the Strike Committee actedand functioned more like a mini-government than a traditional union. It

Žwas publicly referred to as the Canton shadow government ‘‘Guangdong.dier zhengfu’’ by friends in China and authority in Hong Kong. Internally,

it had departments such as administration, propaganda, recreation, com-munications, finance, jiuchadui, etc. Externally, it provided education,recreation, welfare and news services to its members and the public.

In the course of preparing for the strike, the Strike Committee set up aŽ .five-regiment 540 men in each jiuchadui on 5 July 1925 to direct the

strike, supervise the strike members and enforce the strike laws. Though

K. C. Wong 373

the jiuchadui was not the only voluntary strike ‘police’ force, it was thebiggest, strongest, and most organized Wu-San-Shi Yundong he Sheng-Gong

ŽŽ . .Bagond WSSYD 1985: 275, 281]282, 333]341 . When the jiuchadui wasfirst organized it had a strength of 2000. This was later increased to 3000.

Ž w x.It had 10 armed patrol boats and 400 guns Tian & Xu 1989: 187 18 . Itsmajor role was to enforce the Strike Committee’s orders and rules, andmaintain strike discipline.

The Strike Committee had a training ground for the jiuchadui and aŽ .prison for violators with 300 prisoners in December 1925 . The jiuchadui

members were dressed in blue and had a red arm-band. They inspectedall goods and persons coming into and going out from Hong Kong andGuangdong. Anyone who violated a strike order of the Canton]HongKong Strike Committee would be ‘arrested’ and sent to the court. Strikeleaders accused of corruption and collusion with local troops were like-

Ž .wise arrested Chesneau 1968: 292]293; Zhang & Han 1987: 284 .In time, the Chinese scholars came to refer to the Canton]Hong Kong

Žpicket as the earliest form of ‘‘revolutionary law enforcement’’ Zhang &.Han 1987: 285 .

The Redistribution of Governmental Social Control

IntroductionŽ .This part of the paper concerns itself with two questions. 1 What role did

Ž .the respective parties KMT government v. CCP Strike Committee play inŽ .the Canton]Hong Kong Strike? 2 Did the Strike Committee function as

a state-sponsored policing agent with the grant of authority and theprovision of support from the KMT government?

[ ]Co-production of law and order 6

On 1 July 1925, the Canton provincial government was formally inaugu-ŽŽ . . Žrated Guandong sheng dangonguan SLXB 1928: 1 hereinafter Canton

.government . No sooner had the Canton government been establishedwhen it was confronted with a national crisis } the ‘‘Shamian massacre’’

Ž .} of international proportions Wang 1994: 174, 178 . The newly formedCanton government was ill-prepared for the incidence. At this point intime, the new Canton government had no established infrastructureŽ . Ž . Ž .SLXB 1928: 3 , process SLXB 1928: 4 , resources SLXB 1928: 9 , or

Ž .plan SLXB 1928: 6 to respond to a crisis of such a magnitude. TheŽ .police suffered from inadequate manpower SLXB 1928: 11 due to

Ž .reorganization and consolidation SLXB 1928: 9 . They had not thenŽ .formulated a law-and-order blue-print SLXB 1928: 9 , much less a crisis

management plan. The Canton government relied heavily on the army to


Ž .carry out its orders SLXB 1928: 5 and the military was used to supple-Ž .ment the regular police force SLXB 1928: 11, 29 and even supplant the

Žregular police in the performance of law-enforcement duties SLXB 1928:.11, 15, 24, 47 . The Canton government also relied heavily on voluntarism

Ž .to implement critical government programs SLXB 1928: 5, 13 . TheChinese ubiquitous past, i.e. the preference for local rule as manifested inthe existence of multiplex, indigenous, ‘‘natural’’ social control organiza-tion, also played an important part in determining the government’s

Ž .social control policy Qu 1981; Van der Sprenkel 1962; Wong 1998b .Criminal justice and social order were popularized and communizedŽ .SLXB 1928: 58 . Local groups were used to maintain law and orderŽ . Ž .SLXB 1928: 26, 27 . The professional corporate bodies e.g. shang hui

Ž .and functional collective organizations e.g. gong hui were made naturalŽallies. They were considered ideal candidates for self-governance SLXB

.1928: 47 . The Canton]Hong Kong Strike Committee was a prime exam-ple of such public and private joint-governance and central and localcooperative rule. The only differences were that the Strike Committeehad a well-defined mandate, high degree of autonomy, broad policepowers, and the discretionary authority to use force with few oversights.

The Strike Committee was also different from such other workers’organizations coming before it, notably the workers’ strike organizationsof the Chang Shen dian railroad strike, Anyuan lu miners’ strike,Shanghai Japanese cotton mill strike and the Jinghan railroad strike, inthe following respects.

Ž .1 The Strike Committee was a democratic institution which had broadrepresentation amongst the strikers.

Ž .2 The Strike Committee was a self-governing political body. It hadreal political authority.

Ž .3 The Strike Committee was a significant policy maker. It coulddecide upon when, how and in which direction the strike was to beconducted.

Ž .4 The Strike Committee has legal authority and coercive power. It couldmake and enforce law.

In sum, the Strike Committee came close to being a mini-government,with elected law-making bodies that could set public policy, enforce lawand maintain order by the use of force.

In all, I observe in this section that in the early days of the KMTgovernment, the government allowed many state law and order functionsto be performed locally and privately as a result of its political vulnerabil-ity and the nation’s cultural legacy. This opened up a unique opportunityfor the CCP, an increasingly powerful workers’ association, to wrestle

K. C. Wong 375

control from the KMT government during the Canton]Hong Kong strikew x7 .

Jiuchadui as Governmental Social Control

Introduction

In this section I discuss in some detail what specific kinds of strike-enforcement powers were delegated to the Strike Committee in enforcingthe Canton]Hong Kong strike. Specifically, I will look at how such powerswere exercised as a way of understanding the Strike Committee’s policingrole, functions and capacity during the Canton]Hong Kong strike. I willalso look at how the KMT government assisted and supported the StrikeCommittee in enforcing the strike. Finally, I will apply the conceptual

Ž .framework developed earlier in Part 1 especially in Tables 1 & 2 to assistin assessing the ‘governmental social control’ capacity of the StrikeCommittee during the strike, and in so doing affirming the appropriate-ness and utility of Wong’s restatement of Black’s concept of law as ‘‘moreor less governmental social control’’.

Delegation of Police Powers

The power to strike

On 8 July 1925 the Guangzhou National Government endorsed the ideaof an economic boycott directed against the British in Hong Kong. TheNational government’s standing committee issued the ‘‘Directive Autho-rizing the Guangdong Provincial Government to Carry out Its Decision toSupport the Guangdong]Hong Kong Strikers’ Union Headquarters’’Ž . Ž .hereinafter Directive WSSYD 1985: 260]261 in support of theCanton]Hong Kong Strike. Item three of the Directive instructed theGuangdong provincial government to declare the 24 ports and othercoastal areas closed to the export of food to Hong Kong. The Directiveclearly specified the role of the Strike Committee and the Nationalgovernment. If affirmed the National government’s role in setting strate-gic policy while conceded to the Strike Committee the role of implement-ing the strike. It further vested the Strike Committee with legal authority,and political legitimacy, to act on behalf of the government in organizingthe strike. The Directive also implicitly held the Strike Committeeaccountable for the successful prosecution of the strike, discipline of thestrikers, and propriety of the Strike Committee’s action. The message wasclear: the Strike Committee has the widest liberty to act, but shouldconduct itself within well-defined limits and with the utmost care anddiscretion.


The Strike Committee accepted the KMT government’s invitation andproceeded to fashion a strike plan. On 9 July 1925, one day after theDirective was issued, the Strike Committee settled on a strike date. TheStrike Committee sent a ‘‘Circular telegram on implementing the block-

Ž .ade of Hong Kong’’ DBGZL 1980: 281]282 which declared that ‘‘Fromthe tenth of this month, all boats and ferries will be forbidden to travel toHong Kong and New Territories, so that it will die of starvation’’. Itfurther asked the National government to instruct its army and police toassist in the blockade.The power to implement the strike. Taking hints from the KMT government,the Strike Committee took charge of orchestrating the strike. The StrikeCommittee had the power to decide upon the date, scope and manner incarrying out the boycott. On 9 July 1925 the Strike Committee issued‘‘The wire of Sheng-Gang Strike Committee on implementing the boycott

Ž .of Hong Kong’’ DBGZL 1980: 281]282 to make the strike effective. On25 November 1925, the Strike Committee decided to expand the scope ofthe boycott to other coastal ports newly under the Nationalist govern-

Ž .ment’s control DBGZL 1980: 285]287 On 15 March 1926, the StrikeCommittee organized a naval patrol to provide zone patrolling of the

Ž .boycotted seaports DBGZL 1980: 285]287 .The power to finance the strike. The Strike Committee had the power to ‘taxand spend’ to finance the strike. For example, on 9 February 1925 theStrike Committee promulgated the ‘‘Kaifang Sheng-O Hangxing tiaoli’’Ž . Ž .Canton]Hong Kong Sailing Regulations DBGZL 1980: 310 whichpermitted the resumption of the Canton]Macau steam line service inorder to facilitate the return of strike workers from Hong Kong andMacau to Guangzhou. As a condition, the shipping company had to agreeto free up space for Hong Kong and Macau strikers going back to Cantonfree of charge. In another instance, on 21 September 1925, the StrikeCommittee issued the ‘‘Sheng-Gang bagong weiyuanhui duiyu Ri, Mei, Fa

Ždeng guo lunchuan dianhu tiaoli’’ Regulations of the Strike Committee on. ŽJapanese, American and French steamboats and ships DBGZL 1980:

.310 , which permitted Japanese, American, and French boats to resumeoperation subject to certain conditions. One of the conditions laid downin Article Five of said regulations was that ‘‘One-tenth of the workers’salary should be voluntarily contributed to this Strike Committee, toobtain food provisions for all’’.The power to set strike law-enforcement policy. The Strike Committee had akey policy role to play in deciding upon how to enforce the strike law. Forexample, the Strike Committee made clear from the start that they wereboycotting for a public cause and not over private grievances. Thus, onthe issue of whether to continue to strike or not to strike, the StrikeCommittee declared that: ‘‘Because our strike concerns the whole issue of

K. C. Wong 377

race and not our own personal problem, what to do next is a complexproblem, and requires the help of overseas and local Chinese to resolve’’Ž .DBGZL 1980: 48 . The Strike Committee also expected and insisted uponmaximum participation from the widest quarters in its decision-making.For example, on 23 July 1926, when the negotiation between the Chineseand British government came to a halt, the Strike Committee took theinitiative to solicit the opinions of the countrymen, the overseas Chinese,the nation’s labor unions, and world labor unions, the KMT and theNational government before it came to a final decision.The power to make strike law. The Strike Committee was given a wide scopeand a free hand to promulgate organic laws for the establishment of strikeagencies, administrative law for implementing the strike, substantive andprocedure criminal law for the punishment of offenders. The StrikeCommittee promulgated various organic laws for the establishment, ad-minstration and control of strike organs, including: the ‘‘ Jiuchadui zuzhi

Ž . Ž .fa’’ Organic law of jiuchadui DBGZL 1980: 234]235 ; the ‘‘ JiuchaduiŽ . Žweiyuanhui zuzhi fa’’ Organic law of jiuchadui committee DBGZL 1980:

. Ž235]236 ; the ‘‘ Jiuchadui junfachu zuzhi fa’’ Organic law for the jiuchadui. Ž .military law office DBGZL 1980: 238]239 ; the ‘‘ Jiucha weiyuanhui gediŽbanshi chu zuzhi fa’’ Organic law of jiuchadui committee offers in various

. Ž .places DBGZL 1980: 239]241 ; the ‘‘ Jiucha xuan zhuan dui jianzhang’’Ž . Ž .Charter of Jiucha propaganda troop DBGZL 1980: 241]242 ; the

Ž . Ž‘‘Heshenchu zuzhi fa’’ Organic law of joint-hearing office DBGZL 1980:. Ž244]247 ; and the ‘‘Shui-lu zhencha dui zanxing guize’’ Provisional organic

. Ž .regulations of the land]sea reconnaissance troop DBGZL 1980: 288 .The Strike Committee also promulgated extensive and detailed admin-

istrative rules for the implementation of the strike. For example, on 14August 1925, the Strike Committee set forth the standards and procedure

Ž .for the issuance of the special permit texu zheng with the ‘‘Sheng-GangŽgongren weiyuanhui guanyu sheli texuzheng de tongzi’’ Notice of Sheng-Gang

. Ž .Strike Committee regarding special permit DBGZL 1980: 310 to facili-tate and simplify the release of goods now in storage and awaitinginspection and disposition.

The power to interpret strike laws. The Sheng-Gang Strike Committee en-joyed a wide scope in drafting administrative regulations and had muchdiscretion in allowing for dispensations from such rules and regulations.For example, the Strike Committee made special rules allowing for specialdispensation to local residents, and the Committee often made exceptionsto the general boycott rules in order to alleviate the adverse impact of theboycott on the local residents, such as the ‘‘Sheng-Gang bagon weiyuanhi

Žtezhun baoan nonghui nongmin jingguo yingjie tiaojian’’ The Sheng-GangCommittee: conditions of special permission for Baoan peasants’ associa-

. Žtion and peasants to pass through the British border DBGZL 1980:


.256]266 , which allowed the border-area peasants to obtain rice, fertiliz-ers and salt across the Hong Kong border. The Strike Committee alsoadopted special provisions for speedy inspection to avoid forseeablehardships. The Strike Committee adopted special rules to facilitate thespeedy inspection of perishable foods, e.g. salt fish. On 17 April 1926, theStrike Committee promulgated the ‘‘Sheng-Gang bagong weiyuanhui guanyu

Žxianyu yunshu banfa xunling’’ Instruction of Sheng-Gang Strike Commit-.tee regarding the transportation of salt fish which allowed the free

transport and selling of salt fish without prior inspection clearance,Žsubjected to speedy on-the-spot inspection on demand DBGZL 1980:

.256]266 .

ŽThe power to enforce strike laws. The ‘‘ Jiuchadui zuzhi fa’’ Organic law of. Ž .jiuchadui DBGZL 1980: 234]235 specified the jiuchadui’s law enforce-

Ž . Ž .ment duties as follows: a To maintain order; b to intercept provisions;Ž . Ž . Ž .c to chase after running dogs; d to arrest enemies of the workers; e to

Ž .search and detain enemy goods; and f to conduct a blockade of HongKong, Macao, and Shamian traffic.

From the original archive documents, the actual role, functions andpowers of the Canton-Hong Kong jiuchadui can be ascertained. First, thejiuchadui was involved in setting up blockades against the importation andexportation of prohibited goods. For example, on 29 September 1925 thestanding Committee of the National government decided to send thearmy to assist the jiuchadui in blockading Qian Shan and Wan Zi against

Ž .illegal food export WSSYD 1985: 314 . Second, the jiuchadui was involvedwith the inspection of incoming cargoes for imported foreign goods, i.e.British and Japanese goods. For example, it was discovered that theNanning General Chamber of Commerce has sealed imported goodswithout inspection. In such cases, the jiuchadui had to reinspect the goods

Ž .if suspicion was aroused WSSYD 1985: 333]341 . Third, the jiuchadui wasinvolved with interdicting and seizing smuggled provisions to the British,transportation of strike workers to and from Hong Kong, and the impor-tation of enemy goods from Hong Kong. For example, in August 1925,the jiuchadui was informed that the local ‘‘evil gentry’’, tyrants, andunscrupulous merchants at Baoan have been sabotaging the strike. In thetenth month, 23rd day, the jiuchadui intercepted a boat numbered 2389belonging to an ‘‘evil gentry’’ carrying food and visitors to Hong KongŽ .WSSYD 1985: 330 . Fourth, the jiuchadui was involved with investigatingand reporting upon foreign spies and suspicious characters. For example,on 6 October 1925, the Strike Committee reported the sighting of twosuspicious British nationals. It instructed the jiuchadui to investigate their

Ž .activities closely and report on them accordingly WSSYD 1985: 316 .Fifth, the jiuchadui was responsible for maintaining order and disciplinewithin the striker’s rank and common area. It was particularly involved

K. C. Wong 379

with the investigation and arrest of striker-impostors, troublemakers, andhooligans. On 24 November 1925 the Strike Committee asked for permis-sion to punish those unruly people who violated strike discipline andorder.

Those strikers . . . who violated the laws and regulations, causingdisturbances to the area, should be immediately arrested according tolaw and punished additionally, so as to set an example to preserve

Ž .order and peace WSSYD 1985: 332 .

Sixth, the jiuchadui was involved with preventing the local defense armyand police from colluding with unscrupulous merchants in the transporta-tion of food to Hong Kong and importation of enemy goods between

Ž .Taipo Hong Kong and Sha Yu Yong, and between Huang Yu Yong, AoŽ .Tou and Dan Shui WSSYD 1985: 341]342 .

The power to adjudicate and punish strike-law violators. The Strike Commit-tee had a near plenary over how strike law should be interpreted andviolators punished. First, the jiuchadui’s law enforcement activities weresubject mainly to internal administrative review by a joint hearing officeŽ .JHO made up of five hearing officials elected from strike workers from

Ž . Ž . w xCanton two members and Hong Kong three members 8 , with occa-Ž .sional KMT government oversight DBGZL 1980: 265]267 . Second, and

more significantly, there was no constitution or institution of control overthe Strike Committee’s exercise of strike powers. For example, the rele-

Žvant constitutional documents of the time, e.g. ‘‘ Jianguo dagang ’’ basic.principles of national construction of 12 April 1924, did not contemplate

the existence of a private strike agency with plenary powers to effect astrike. There was thus no external legal or administrative supervision overthe discipline of the jiuchadui misconduct. The jiuchadui committee andthe Strike Committee were only subject to internal administrative review.

Ž . ŽThe ‘‘ Jiucha dui zuzhi fa’’ Organic law of the jiuchadui DBGZL 1980:. w x234]235 drafted by the Strike Committee 9 made the jiuchadui answer-

w xable to the Sheng-Gang Strike Committee 10 , a strikers’ elected bodyw x11 . The jiuchadui was discouraged from reporting to anyone outside the

w xchain of command, including the KMT government 12 .The power to use coercive force. When the jiuchadui was first formed, it had2000 members. There were about 200 guns, one gun to ten jiuchadui.They also had 12 armed patrol boats as a ‘‘navy’’. Jiuchadui members weretrained in military tactics and subjected to military discipline. Thejiuchadui was not hesitant to use force to enforce the strike laws andsuffered many casualties at the hands of the local bandits, smugglers,

Ž .shangtuan and British soldiers Wang 1994; vol. 3: 194]203 .Lack of accountability. As to be expected, given the extensive delegation


of police powers, the open nature of the charge to conduct the boycott,and a lack of structural oversight by the KMT government, there weremany cases of jiuchadui abuse of power. There were many citizens’complaints about the Strike Committee’s conduct. For example, theowners of private premises complained to the Guangzhou Public SecurityOffice that the Strike Committee had been occupying private residenceswithout payment. The owners had asked the Strike Committee to vacatebut to no avail. The Canton government had to intervene before the casewas finally resolved, and only after the matter had been brought up

Žrepeatedly at Canton government provincial meetings DBGZL 1980: 44,.101 .

There were as many complaints from the government officials. Thechief of public security, Wu Tiacheng, announced to the public that ‘‘Thestrikers were more violent than the soldiers of Liu and Yang’’. On 22

ŽFebruary 1922 the Chinese custom and duties department Haiguan. Ž .shuiwusi , Canton customs office Yue haiguan , announced that it would

have to close the office because the Strike Committee had been encroach-ing on its legal mandate and authority.

Discussion on delegation of governmental social control

The above detailed description of the Strike Committee’s law-making andenforcement powers during the Canton]Hong Kong strike allows us touse the analytical framework developed earlier in ‘‘A restatement ofBlack’s concept of law’’ to ascertain whether the Strike Committee wasfunctioning in a ‘‘more or less governmental social control’’ capacity, i.e.

Ž .acting as a de facto state law enforcement agency Table 3 .

Ž .1 Responsibility is defined as the scope of state controlled mattersŽ .over people, places, things, objects, matters a party is charged

Ž .Table 3. Strike Committee’s governmental social control capacity SCin relationship to Canton]Hong Kong strike law enforcement }

an analytical framework

Responsibility Power Accountability

Ž . Ž . Ž .Defining norm A 3 B 3 C 3Ž . Ž . Ž .Establishing norm D 3 E 3 F 3Ž . Ž . Ž .Enforcing norm G 3 H 3 I 3

w xSCsgovernment capacity 13 .SC3smost governmental social control capacity; SC2ssome governmental socialcontrol capacity; SC1s little governmental social control capacity.Total possible SCsSC27. Most governmental capacity or approaching full gov-ernmental social control capacity, i.e. sovereign state.

K. C. Wong 381

with. This is commonly associated with a state’s political jurisdic-tion, manifested as constitutional limits and as translated into legaljurisdiction and administrative charge of all kinds. This is usually

Žmeasured in terms of the scope how many matters are under the. Žcontrol and the nature how important are the matters under the.control of the party’s jurisdiction.

Ž .2 Power is defined as the extent to which a party can effectivelyimpose his will on others. This is usually defined along the dimen-sion of the level of legitimate force allowed to be used.

Ž .3 Accountability is defined as the extent to which a party is amenableto supervision by the state. This is usually measured by the degreeof prior approval or by subsequent review of the party’s action ordecision.

Ž .4 The defining norm is defined as setting general social controlexpectations. The common indicators are adopting philosophy,setting policy, and making strategy decisions.

Ž .5 The establishing norm is defined as setting specific social expecta-tions. The common indicators are rule making and interpretation.

Ž .6 The enforcing norm is defined as seeking compliance with generalor special social expectations. The most common indicators arepolicing, arrests, and punishment.

A sample case analysis of more or less governmental capacity for the StrikeCommittee during the Canton]Hong Kong strike.

Ž .1 The Strike Committee has the broadest responsibility in definingŽ .A strike control for the union members, public, and the foreign-ers. This was manifested by the ability of the Strike Committee to

Ž .advocate political]social strike related philosophy, influence KMTŽ .national domestic as well as foreign policy, and to set strike

Ž .strategy on the full spectrum of strike issues AsSC3 .Ž .2 The Strike Committee has the broadest responsibility in establish-

Ž . Žing D strike control laws for the union members e.g. disciplinary. Ž . Žcode , the public e.g. import license , and foreigners e.g. boycott.rule . This was manifested by the authority of the Strike Commit-

tee to promulgate strike laws and provide for exceptions to themon all matters affecting the successful prosecution of the strikeŽ .DsSC3 .

Ž . Ž .3 The Strike Committee has the broadest responsibility G inenforcing the strike laws for the union members, public, and theforeigners. This was manifested by the unlimited authority of thejiuchadui to interdict any boats, inspect any goods and seize anygoods in all the designated boycott areas to implement the boycottŽ .GsSC3 .


Ž . Ž .4 The Strike Committee possessed much power B in defining strikephilosophy, policy and strategy. This was manifested by the StrikeCommittee’s ability to face up to the KMT government in the

Ž .Shamian incident BsSC3 .Ž . Ž .5 The Strike Committee had near total power E in promulgating

strike laws. This was manifested by lack of any prior consultationwith the KMT government. However, the Strike Committee’s rule-making authority was subject to overseeing by the KMT govern-

Ž .ment, if necessary EsSC2 .Ž . Ž .6 The Strike Committee exercised total power H in enforcing the

Žstrike law. This was manifested in the ability to use force with.KMT government assistance , imprisonment, and capital punish-

Ž .ment to enforce the strike law HsSC3 .Ž . Ž .7 The Strike Committee showed very little accountability C in

defining strike philosophy and policy. This was manifested in theStrike Committee’s ability to disagree with the KMT over issues of

Ž .philosophy, policy and strategy CsSC3 .Ž . Ž .8 The Strike Committee showed very little accountability C in

establishing strike. This was manifested in the Strike Committee’spublic disagreement with the KMT over issues of philosophy,

Ž . Ž .policy and strategy F FsSC3 .Ž . Ž .9 The Strike Committee showed very little accountability I in the

Ž .enforcement of strike law IsSC3 .

From this sample case analysis, it is possible to conclude that the StrikeCommittee enjoyed a SC score of 26r27 making it ipso facto a state agentwith full state capacity. The conclusion drawn from this analysis onlyserves to confirm and reinforce what was publicly acknowledged duringthe time, i.e. that the Strike Committee was functioning as a mini strikegovernment.

Governmental sponsorship of the Strike Committee

From the very beginning of the Strike the KMT and Canton wereinterested in doing what they could to assist the strikers and the StrikeCommittee. For example, the National government provided service inkind of all types for the strikers, e.g. the dispensation of telegram feesŽ . ŽDBGZL 1980: 262 and the administration of strike funds SLXB 1928,

.vol. 1: 19 . It led a concerted effort to harness funding from the privatesector to support the Strike Committee and displaced workers. It evenstarted a public works project to support the unemployed strike workersŽ .WSSYD 1980: 260]261 .Strike support. The government financed the Strike Committee’s adminis-

Ž .tration costs and the strike’s operational expenses SLXB 1928, vol. 1: 9 .

K. C. Wong 383

On 8 July 1925, just when the Standing Committee of the KMT govern-ment declared a blockage of 24 seaports and coastal areas, it madespecific provisions for the setting up of an office for the Strike Committee.For example, the Guangzhou provincial government instructed theGuangdong municipality to instruct the public security to allow theCanton]Hong Kong Strikers’ Committee to use the Dong Yuan complex

Ž .as a temporary office DBGZL 1980: 260]261 . The government started apublic work program for the strikers. For example, the Canton govern-ment instructed the Guangdong Construction Bureau to work with theStrike Committee in the building of the Huang Bu and Shi highways,thereby providing work for the idle striking workers. Most importantly,the government raised funds for the strikers. First, the KMT governmentstarted a system of collection and distribution of strike funds for the StrikeCommittee. The strike funds collected were to be reported in 3 days and

Ž .transmitted in 30 days to the Strike Committee SLXB 1928, vol. 1: 19 .Ž .Second, the Guangzhou provincial government Canton government

instructed the Guangzhou municipal administration to instruct thePublic Security Office to surrender 50% of all rental collections anddeposit them at the Central Bank for the use of the Striker CommitteeŽ .SLXB 1928, vol. 1: 19 . Third, the Canton government instructed the

Ž .Guangdong Commercial Affairs Bureau Shang Wuting to persuade themerchants and citizens to support the Hong Kong Strike CommitteeŽ .SLXB 1928, vol. 1: 19 . Fourth, the Canton government instructed theGuangdong Commercial Affairs Bureau to instruct the various Chinesecigarette companies to donate part of their earnings as financial aid for

Ž .the Strike Committee SLXB 1928, vol. 1: 19 . Between June 1925 and July1926, the Strike Committee collected and administered 5 million yuan ofthe strike fund. The Canton government was one of the biggest contribu-tors to the strike fund. From June 1926 to July 1926, it provided a total of2.8 million yuan, or 58.6% of the total 4.78 million yuan strike fundavailable. It was also one of the most consistent sources of financialsupport for the Strike Committee. The government donated about 10,000yuan each month to the strike fund. The July 1926 balance sheet of the

Ž .Strike showed the following sources of contribution Table 4 .Training. When the jiuchadui was first established, the Strike Committeerequested the KMT government to help with its staff training. Specifically,the headmaster of Whampao Military Academy, Jiang Jieshi, was asked tosend officer-trainees as organizers and instructors. On 14 September 1925Jaing dispatched 15 officers of the second graduating class to assist in theorganization and training of the jiuchadui. In fact, the chief military drillinstructor was Xu Chengzhang, an officer of the first graduating classŽ .Wang 1994, vol. 2: 194 .

Military assistance. The most important resource made available to the


Table 4. Sources of strike fund collected by the Strike Committee, July 1926

Ž .Source Amount yuan

Collected in China 250,000Collected from overseas 1.13 millionAdvanced by Canton government 2.8 millionSale of seized merchandised 400,000Fines 200,000

Total 4.78 million

Ž .Source: Chesneaux 1968: 293 .

Strike Committee was perhaps the government authority. The Nationalgovernment provided military assistance and support for the strikers whenneeded and as requested. For example, Article 6 of the Provisional

ŽOrganic Regulations of the land]sea reconnaissance troop DBGZL 1980:.244]247 provided that ‘‘When members of this troop perform their duty,

they should inform the nearest military, police, jiuchadui to help inw xexecution 14 ’’.

Discussion of governmental support and sponsorship

The above detailing of KMT governmental support } political, moral,military, administrative, legal and material resources } for the StrikeCommittee during the Canton]Hong Kong Strike allows us to ascertain,with the analytical framework developed in the first part of this paper,whether the Strike Committee received the endorsement of the KMTgovernment in their strike law enforcement activities; thereby implicatingthe government in private law enforcement activities.

Table 5 clearly shows that the KMT provided extensive and consistentgovernment assistance to the Strike Committee during the Canton]HongKong Strike, sufficient to demonstrate a reciprocal relationship. In sodoing, the KMT government gave the Strike Committee more than justmaterial support; it gave it legitimacy and respect. In the process, ittransformed what was essentially a self-help stike enforcement effort into ade facto quasi-governmental social control exercise.

Conclusion‘‘How, then, should my writings be evaluated? Scientifically’’ BlackŽ .1995 .

This study rises to Black’s challenge in five ways. It assesses Black’sconcept of law empirically; scientifically; generally; cross-culturally; and

Ž .historically Black 1995: 831 .

K. C. Wong 385T

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The whole purpose of this research was to assess empirically the validityŽdoes a theoretical concept adequately capture the underlying reality it

. Žseeks to explain? and generality can a theoretical concept explain a set.of empirical phenomena which it is intended to cover? of Black’s concept

of law with a case study of the Canton]Hong Kong Strike CommitteeŽ .during the Canton]Hong Kong Strike 1925]1926 in China. I find that

during the strike, the Strike Committee, a citizens’ labor union, was givenŽextensive state powers of investigation, search and seizure, arrest, deten-

.tion, coercion and punishment to perform strike law enforcement activi-Žties preventive patrolling, inspecting importrexport goods, intercepting

smugglers, confiscating illegal goods, suppressing armed resistance, inves-tigating and arresting trouble makers, detaining suspects, conducting

. Žtrials with the fullest KMT support housing, funding, training, conflict.referral, armed support . In so doing the Strike Committee jiuchadui was

acting in a ‘governmental social control’ capacity. Indeed it was variouslycalled a ‘mini government’ or the ‘second government’ by friends andfoes alike at the time, including the KMT, Strike Committee, the HongKong-British, the press, and the Chinese people. In spite of this fact, if we

Ž .were to apply Black’s concept of law as governmental social control tothis case, the Strike Committee would not be considered by Black asexercising governmental social control, but only engaging in private

w xself-help 15 . The Strike Committee and the jiuchadui were not a formallyinstitutionalized political authority. This is certainly a result not intendedby Black in formulating his concept of law, which is supposed to be

Žsociological in origin, general in nature, and scientific in design Black.1995: 837 . The solution to this conceptual lapse is to restate Black’s

concept of law by incorporating the idea of ‘‘more or less governmentalsocial control’’. The restatement expands Black’s concept of law, allowingthe inclusion of private social control activities which have been endorsedby the government or based upon delegated governmental social controlauthority, i.e. private agencies functioning in a governmental social con-trol capacity with governmental powers and support in one form oranother, as in the case of the Strike Committee.

This study is also a first attempt to apply the ‘‘more or less governmen-Ž .tal social control’’ analytical frameworks Tables 1 & 2 to the study of

state-empowered and state-supported private law enforcement in China. Itfinds the frameworks, albeit crude and in need of further refinement,useful in articulating various key dimensions to measure the degree of‘‘more or less governmental social control’’ capacity. In this way, theframeworks provide much-needed, more structured ways by which to

w xassess empirically Black’s theory of law in the future 16 .The next stage of investigation, if the concept of ‘‘more or less govern-

mental social control’’ is to be properly incorporated into Black’s conceptof law, is to determine whether law behaves the same when ‘‘more or less

K. C. Wong 387

governmental social control’’ is involved, i.e. can Black’s theory of lawpredict private social control implicating governmental authority. If weare to pursue this line of investigation, it is quite possible that the law doesnot behave uniformly along the full spectrum of more or less governmen-

w xtal social control, as originally predicted by Black 17 . This will surelyŽ .‘‘require refinements of various kinds’’ Black 1995: 846 , vindicating

once again Black’s refreshing self-critical insights } theory never rests,Ž .people do Black 1995: 845 .

Finally, a word on the conceptual implications of this paper. While Iagree with Black that, scientifically, the central relationship between socialspace and social control seems no longer in doubt generally, I still havemuch difficulty in operationalizing and testing Black’s concept of law as

Ž‘‘governmental’’ social control in the particular case as with this casestudy of KMT v. the Strike Committee in their respective strike enforce-

.ment role in the Canton]Hong Kong Strike , in as much as the termgovernment is not defined by Black anywhere. This paper tries to curethis conceptual lapse by expanding Black’s concept of government toinclude private social control implicating governmental authority. Thisexpansive strategy, while successful in making Black’s concept of law moreattuned to the empirical reality of divided government, will not be whollysuccessful in salvaging Black’s concept of law if ultimately the termgovernment is not theoretically defined by Black or indeed turns out notto be definable ‘‘sociologically’’ and ‘‘scientifically’’. More problemati-cally, an elastic definition of ‘‘more or less governmental social control’’which allows for an ever more expansive construction of ‘‘governmentalsocial control’’ may in time obfuscate any meaningful differences betweengovernmental v. non-governmental social control, or obliterate the cleardistinction between law and private self-help, e.g. all private self-helprequires some degree of government sponsorship even if this only meansthat the government is tolerating such practices.

I began this paper by suggesting that this research was conducted as aresponse to Black’s challenge. By ‘‘challenge’’, I do not simply mean oneof research trying to discover a theoretical issue here or find someempirical support there for Black’s theory of law. The real challengeBlack poses for researchers is to continue to subject his theory to the mostcritical empirical assessment and robust theoretical debate, such thatfurther improvement } refinement, restatement, extension or, in theunlikely event, rejection } can be made. A theory is a statement of the

Ž . Ž .past pattern . A prediction is an assertion about the future relationship .Predicting the future from the past is a never-ending process; as should beour quest to validate Black’s theory of law!

Acknowledgements

This paper benefited from my continued discussion with Professor


Black over his theory and concept of law. His contribution is herebyacknowledged with great thanks and appreciation. I also thank ProfessorsHans Toch and Mike King for reading and commenting upon earlierdrafts to this paper. Lastly, I thank one of the anonymous reviewers forhisrher constructive comments.

NotesŽ .1 Taken from Wong 1998b .

Ž .2 In a personal communication March 1997 with the author, Black objectedto such a characterization of his work. However, he made three points

Ž .clear. 1 He insited that the term government is self-evident, thus requir-Ž .ing no elaboration. 2 He insisted that there is only one institutionalized

Ž .political authority at any one time and should be apparent to all. 3Researchers who are keen to test his theory are invited to adopt a conven-tional and common-sense approach to defining government.

3 The delegation of state authority thus can be analysed along three criticalŽ .dimensions: the scope of authority delegated i.e. jurisdiction , the nature

Žof authority delegated i.e. norm defining v. norm setting v. norm enforc-. Žing , and the accountability of authority delegated i.e. prior approval v.

.after-the-fact veto .4 The delegation of state authority necessarily implies the delegation of

power to use force to secure the delegated authority. Thus Black’s LawŽ .Dictionary Black 1983 defines authority as the ‘‘Right to exercise powers;

to implement and enforce laws; to exact obedience; to command; tojudge . . . Often synonymous with power’’.

5 For a legal-documentary analysis of the Canton-Hong Kong Strike of JuneŽ .1925 to October 1926, see Zhang & Han 1987: 284]289 . For a collection

of original documents, see Wu-San-Shi Yundong he Sheng-Gang BagongŽ . Ž .WSSYD 1985 . For legislative history and debates during 1925]1926 fromofficial Canton provincial government council meeting minutes, see

Ž . Ž .Guandong sheng danganguan SLXB 1928 . For a brief summary, seeŽ .‘‘Sheng-Gang dabagong’’ The Great Canton]Hong Kong Strike in Tian

Ž . Ž .& Xu 1989: 146 . For a more detailed account, see Zhang 1986: 201]264 ,Ž .Wang 1994, vol. 1 to 5 . The most comprehensive set of original social data

on workers’ government in the Canton]Hong Kong strike is DBGZLŽ .1980 . For a highly readable, albeit opinionated, summary of the role and

Ž .incidents of the jiuchadui, see Cai & Hu 1980 . The most comprehensivediscussion of Sheng-Gang jiuchadui is an essay by Xian Yiyu, ‘‘Yu-Gang

Žbagong jiuchadui fengdoushi’’ A history of the struggle of Canton-Hong. Ž .Kong jiuchadui in DBGZL 1980: 165]174 .

6 I am indebted to an anonymous reviewer in suggesting the need to discussthe relations between KMT government and CCP Canton]Hong KongStrike Committee.

7 The anonymous review is concerned with the ‘universal significance’ of theCanton]Hong Kong Strike Committee as a de facto social control agent.The use of the Canton]Hong Kong Strike Committee as a means of

K. C. Wong 389

governmental social control by the KMT government, though driven byspecific political circumstances of the moment, is not unique to the time. Itreflects larger historical and deeper cultural forces at work. From antiquity,Chinese governments have relied upon indigenous and communal organi-

Ž .zations family, clan, guild to police and defend the people. See discussionin text, ‘‘The redistribution of governmental social control’’.

8 Article 2 of the Organic Law provided that ‘‘The joint-hearing office hasfive hearing officials, to be selected and filled by the Sheng-Gang strikeworkers, with two from Sheng and three from Gang’’.

9 Article 18 of the Organic Law provided that ‘‘If necessary, this law must bepassed by the people’s representatives congress, and referred to the legalsystem office for revisions’’.

10 Article 1 of the Organic Law provided that ‘‘Jiuchadui reports directly tothe Sheng-Gang Strike Committee’’. Article 7 further provided that ‘‘Allmatters concerning the troop are to be decided by the committee aftermeeting, and referred to a standing committee of three for execution’’

Ž .Article 15 provided that ‘‘The company commander da duichang , deputyŽ . Ž .commander dadui fu , platoon commander zhidui chang , deputy platoonŽ . Ž .commander zhidui chang , training and education director zuren are all

appointed by the weiyuanhui and confirmed by the Sheng-Gang StrikeCommittee’’.

11 Article 6 of the Organic Law provided that ‘‘The headquarters troopestablishes a committee, acting as the highest command organization of thejiuchadui. It is formed by 6 elected representatives from the Sheng-Gangstrike workers representative congress and 1 elected representative fromthe military committee’’.

12 Article 7 of the Jiuchadui disciplinary code provided that ‘‘Troops at allŽ .levels should not cross-over level to report yueji chengbao . . . and should

not report directly to . . . any other organs within the government, so as tounify authority over matters and avoid disputes’’.

13 The SC index used here is for illustrative and heuristic purposes ratherthan definitive or to be used in actual measurement. In constructing the SC

Žindex score I have arbitrarily determined a range for the SC variable from.most to some to no social control and assigned equally arbitrary possible

Ž .values to each SC3, SC2, SC1 . There are other measurement problems.Ž .1 Conceptually more or less governmental control is a continuous vari -

Ž .able and should not be measured with a ratio or interval measure. 2 Tothe extent that more or less governmental social control indices aremeasured along different dimensions with a ratio or interval measure, alegitimate question is raised as to whether such a measurement is trulyaddictive and thus can be added to form a global composite SC index, e.g.is SC2 on the responsibility indicator comparable to SC2 on the power

Ž .indicator? 3 The SC index as designed does not measure the relativesignificance of the nature of the governmental control authority } define,establish, enforce and focus primarily on the implementation of suchauthority } responsibility, power, accountability. A true SC index shouldtake into account both in creating a weighted SC measure. This should bedone in due course, but is considered beyond the scope of this paper.


14 The untranslated original suggests that the sea]land reconnaissance troopshad no independent arrest powers. They had to be accompanied by theestablished KMT authority.

15 Black can insist upon his original concept of law by interjecting the notionof agency to account for non-governmental persons or agencies performinggovernmental social control functions. The need to interpose a concept ofagency, besides the many problems raised, only vindicates the position ofthis researcher, i.e. Black’s original concept of law, should be able to, butin fact cannot be, applied to de facto and quasi-governmental social controlof all kinds. More significantly, an agency concept only achieves indirectly,vaguely and non-theoretically, what I try here to do directly, explicitly andtheoretically.

16 One reviewer raised two interesting questions not addressed in this paper.Ž .1 how should we deal with the conflicts between public social control that

Ž .go beyond the scope of ‘‘more or less governmentalness?’’ 2 what is thestandard for differentiating less-governmental social control from illegalactivities, and differentiating governmental social control for some unlawfulpractices for government or less-governmental authority’’. These are pre-cisely the kinds of questions we need to address, if we are to advancebeyond Black’s original theoretical framework. Black instructed us toinvestigate the social factors affecting the behavior of governmental social

Ž .control or law Black 1984 . This article raises the issue of how variousdegrees of ‘‘governmentalness’’ might influence the behavior of social

Ž .control Wong 1998b . The reviewer proposed that we should take Black’sconcept of law one step further and investigate the behavior of illegalrunlawful ‘‘governmental’’ social control. I thank the reviewer for hisrherinsight, which I believe will open up a new avenue for investigation.

17 Take the case of delegation of governmental social control powers. We canŽ .be certain of two things. 1 Delegated governmental social control will

behave differently from traditional governmental social control. This issaying no more than that different realms of law have different elasticities

Ž . Ž .of law schedules Wong 1995: 219 . 2 The differences between delegatedgovernmental social control and governmental social control are at theirgreatest when there is very little delegation and at their smallest when thereis a lot of delegation. However, when delegation of social control ap-proaches total, the differences between delegated social control and gov-ernmental social control again widen. The reasoning is a simple one. Littledelegation attracts little supervision, accountability, and control. Broaddelegation calls for continuous supervision, strict accountability, and maxi-mum control. However, when delegation of social control power is total,the delegated party shares social control with the dominant politicalauthority, as it acts independently of the dominant political authority. If aprivate party has absolute social control, it is able to establish, enforce andadjudicate upon social control norms under its charge. This means widediscretion and very little accountability. The private party becomes ipsofacto an independent governing party in its own right, i.e. an autonomoussovereign.

18 There is a disagreement in the original source materials as to the number

K. C. Wong 391

of guns that were available. See section ‘The power to use coercive force’. I wasnot able to resolve the conflict. The only safe conclusion to draw is that thejiuchadui were lightly armed.

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