Stanford: Stanford University Press, 2022. xvi, 324 pp. (Tables, graphs, B&W photos.) US$30.00, paper; US$30.00, ebook. ISBN 9781503632011.
Marriage Unbound is an impressive work of interdisciplinary scholarship, grounded in empirical research, that significantly advances understanding of authoritarian legality and dispute resolution while yielding insights about statecraft and women’s rights in China. The author Ke Li empathetically relates, and meticulously analyzes, injustices encountered by migrant women who seek divorce, often to escape domestic violence. Intersecting factors of history, culture, and power explain how the PRC has appropriated rule of law, along with quasi- and extralegal methods, into its governance toolkit to maintain political stability. Rather than empowering citizens as predicted by theoretical models, legal mobilization and litigation reproduce gender and other inequalities, and disempower society’s most vulnerable.
This study is extensively researched using ethnography and historiography. Ke undertook fieldwork in rural Sichuan that included systematic observations of legal practitioners at work in “People’s Tribunals” (courthouses); 100 in-depth interviews with wives and husbands at various stages of divorce proceedings; and supplementary interviews with relevant political leaders, legal professionals, and courthouse staff. She also analyzed 198 divorce lawsuits from 2003–2011 to ascertain gender inequities in litigation outcomes, particularly around domestic violence, division of conjugal property, and child custody assignment. Finally, Ke assessed official records of village, township, and county-level agencies to construct a full account of how differently positioned state actors handled conjugal disputes. Ke is refreshingly transparent about her process, sharing how knowledge gleaned from one approach raised questions that required different sources and methods to answer. This vast information is cogently distilled into an engaging read. Tables and figures throughout help clarify and summarize key findings.
Chapter 1 delineates two theoretical arguments. First, Ke posits that authoritarian legality must be understood within its historical and cultural contexts. Laws and legal practice have been central to PRC statecraft and reflect the benefits and limitations of appropriating norms, values, and practices from both socialist and market institutions. Second, she proposes a new configuration of dispute resolution as an institutional practice involving interlocked power relations operating inside and outside of courtrooms. Chapter 2 elaborates on the topic. Divorce rates have increased over recent decades in China, concomitant with socioeconomic changes and regulatory reforms that eased marriage dissolution. Among labour migrants, divorce is pronounced and typically initiated by women. Migration compounds marital instability, such as by increasing opportunity for extramarital affairs and altering gender expectations. Given China’s urban-rural duality and hierarchy, and the reinforcement of patriarchy by state, market, and consumer culture, migrant women have few options besides marriage, and thus divorce, to fulfill their aspirations for social mobility, prosperity, intimacy, and inclusion.
Chapters 3 and 4 expand Ke’s perspective on authoritarian legality. From Maoist politicization of marriage and family to judicialization of domestic conflicts today, both ideological and institutional legacies of socialism have shaped legal developments in ways that enable, but also constrain, state actors. In chapter 3, Ke complicates a prevalent view in the literature of state retreat from society by establishing its orchestration of the rise of litigation as the dominant mode of dispute resolution. Evolving conflict management technologies allow the state greater, albeit more indirect and diffuse, control over citizens’ affairs. A 2003 regulatory reform that eliminated mandatory mediation and enabled citizens to directly register divorce agreements with local government indicates the state’s retreat from private life. But outsourcing marriage and family dispute resolution to the market has deleterious consequences for the poor and socially subordinate. Ke emphasizes that these are unintentional outcomes of a complex of disconnected agencies and actors drawing on inherited and borrowed cultural repertoires to improvize statecraft. Likewise, chapter 4 chronicles the plight of legal practitioners to highlight contradictions arising from bureaucratic fragmentation and inflexibility amid entrenched ideas and practices. Legal workers are expected to serve the public good and be financially self-sufficient. Yet the state allocates them insufficient resources and, by distinguishing them from lawyers, restricts their ability to practice, and so profit from, litigation. Demand vastly outstrips supply; in one county, just 13 lawyers and 23 legal workers served a half million residents (148)! No wonder that legal workers charge clients exorbitant fees and disperse inadequate advice.
Chapters 5 through 7 address Ke’s conceptualization of dispute resolution as involving agenda-setting, decision-making, and consciousness-forming power. These chapters shift attention from legal-political structures to the judicial practices within legal aid centres, courtrooms, and mediating rooms, where state actors wield authority to gain profit and prestige. Chapter 5 examines how judges, responding to institutional and organizational pressures, effectively limit marital dissolutions by applying repurposed socialist mechanisms of “case withdrawal, adjudicating against divorce, and stalling … by imposing cooling-off periods” (153). Tellingly, while divorce petitions have increased in recent decades, divorce approval rates have declined. In law, marriage and divorce are private matters, but judicial actions (or nonactions) inadvertently perpetuate the PRC’s interest in marriage and family stability as a bulwark against social and political unrest.
Chapter 6 explores the institutional co-optation, and limited resistance, of legal professionals. Due to their organizational double role as both mediators and adjudicators of divorce disputes, and the imperviousness of mediation to formal scrutiny, judges can abuse their authority and manipulate litigants for professional and personal benefit (e.g., efficiency, status, profit). In courtrooms, legal professionals defer to judges and manage clients accordingly, “holding divorcing women’s rights contention in check” (219). Outside the courtrooms, they may identify legal loopholes or suggest extralegal actions to assist their clients. Chapter 7 exposes how courts routinely ignore evidence of domestic violence and favour defendants (men) against accusers (women). Typically, husbands have more social capital than do wives, which they mobilize to influence advantageous outcomes in court proceedings. Divorce-seeking women recognize, and vociferously demand, conjugal property and child custody, but rarely claim land rights. Ke attributes this silence to their profound sense of powerlessness amid patriarchal power structures, from legal-political institutions to the patrilineal-patrilocal family. Ke’s exhaustive research is invaluable to identify where change is needed, beginning with the Marriage Law, “which has yet to recognize land rights as conjugal property, thus suitable for partition at the time of divorce” (252).
Arianne M. Gaetano
Auburn University, Auburn