Socio-Legal Ethnography of Divorce Litigation in China

Abstract

For socio-legal researchers, there are many ways to make sense of marriage and divorce in China. Some examine general patterns using big data and official judicial decisions. Others interview judges and observe divorce trials in court. Most of them reach the same conclusions: divorce is difficult for women, domestic violence is prevalent but unimportant in judicial decision-making, and men are more likely to get properties and child custody. Indeed, after this topic has been researched empirically for more than a decade, especially after the recent publication of two major studies, namely Xin He’s Divorce in China in 2021 and Ethan Michelson’s Decoupling in 2022, it may seem like there is nothing new to be said on the gendered outcomes of divorce cases in China. Yet, with Marriage Unbound: State Law, Power, and Inequality in Contemporary China, Ke Li has proven the sceptics wrong. Based on her 15-yearlong ethnographic and archival research, as well as a creative engagement with social science theories of dispute resolution and authoritarian legality, Li demonstrates how the Chinese state “has cultivated and deployed a cultural repertoire of statecraft” (p. 29) to penetrate and regulate the private lives of its citizens over the seven decades of the People’s Republic of China (PRC) since 1949. From political campaigns in the Mao era to mediations and litigations in the reform era, what Li terms the cultural toolkit of statecraft enables Chinese judges and other political-legal actors (village cadres, lawyers, and basic-level legal workers, etc.) to manage divorce in gendered and institutionalized ways that discriminate against women. This is a book not only about divorce but also about the nature of “authoritarian legality”—an increasingly popular concept among social scientists studying China. Unlike most political scientists who use this concept, however, Li presents a cultural approach to authoritarian legality. It does not seek to “probe what ‘functions’ or ‘functional purposes’ legality serves in authoritarian states” (p. 25) or to make the utilitarian assumption that “autocrats know very well how to leverage law and courts to maximum advantage” (p. 27). Instead, Li’s cultural approach asks “how authoritarian rulers build and rebuild law, legal professions, and courts over time as they calibrate and recalibrate a cultural repertoire of statecraft” (p. 30). Drawing on Ann Swidler’s theory of cultural toolkit and Sally Engle Merry’s notion of cultural appropriation, which refers to “political elites’ agency, flexibility, and ingenuity in transposing, blending, and layering diverse cultural influences in legal developments” (p. 31), Li argues that PRC’s ruling elites have employed four cultural appropriation strategies (i.e. diffusion, translation, bricolage, and path dependence) in China’s contemporary legal reforms. It is not a process of rational decision-making, but a pragmatic logic of practice with “a strong emphasis on trial and error, constant policy experimentation, and active learning, based on experiences rather than on theories or ideologies” (p. 36). I have always been cynical of authoritarian legality as a useful analytical concept, because labelling a legality “authoritarian,” “democratic,” or something else does not give it any real meaning in practice. This is particularly true in mundane, grassroots dispute