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 resolution such as divorce litigation, in which judges resemble “street-level bureaucrats” and litigants are mostly “one-shotters” who know little about the legal process, regardless of the nature of the political regime. Political scientists’ obsession with regime types blinds them from seeing the actual social processes at work when it comes to dispute resolution. Nevertheless, Li’s engagement with authoritarian legality is both innovative and realistic. As her historical analysis of PRC policies in marital and family disputes shows (see Chapter 3, “Disputation as a State Enterprise”), the evolution of China’s legal change is not a simple turn against law or towards law in different period, but “a patchwork of distinct processes” and “more like a river, with currents, crosscurrents, and undercurrents” (p. 111). This cultural and pragmatic approach to authoritarian legality gives this hollow concept a new life.
The other pillar of Li’s theoretical framework, namely her power approach to dispute resolution, is painstakingly constructed yet less innovative. She argues that judges, legislators, and government officials exercise three interconnected types of power in marital disputes: formal decision-making power, agenda-setting power, and consciousness formation power. With this typology, Li makes a critique on both the dispute pyramid model and the legal endogeneity theory—two influential theories in American law and society scholarship that, according to Li, do not place state and professional power at the centre of our understanding of dispute resolution. This strikes me as an odd critique, because power has always been at the heart of the law and society literature, especially the studies on lower court justice in the US. The main difference between Li’s power approach and the “cultural turn” of the American law and society scholarship in the 1980s is that authors in the latter tradition often adopt a Foucauldian approach to power, which does not situate it in the hands of specific actors like Li does. In this sense, Li’s power approach here is a return to the classic Weberian notion of power, which is about how some actors exercise power on others, not how power diffuses in the legal system and other social institutions.
Although Li’s typology of power is not as new as she claims it to be, it works effectively in explaining her empirical data. Chapters 5–7 focus on the three types of power and use a delicate combination of rich ethnographic data and historical archives to illustrate how judges, legal service professionals, and state bureaucrats exercise power in divorce litigation. Divorce litigants, especially women, “suffer from the collusion among an unsympathetic court system, a co-opted legal profession, and an indifferent conjugal community” (p. 22). Many women ended their divorces “with little or no marital property, child support, or any remedies for blameworthy conduct, like domestic violence and spousal abandonment” (pp. 22–3). Although the conclusions that Li draws in the book are similar to the findings of previous studies, her meticulously documented and beautifully written ethnography makes the divorced women’s stories especially compelling and often heartbreaking. These stories alone are worth a serious reading and reflection even if one is not interested in sociological theory or legal change.
One may challenge some of Li’s findings because her field site was limited to a single rural county in south-west China and the fieldwork was conducted more than a decade ago in 2006–11. In urban areas, women’s suffering in divorce litigation might not be as extreme, and many more couples get a divorce through the civil affairs bureau rather than the court. However, “by placing ethnographic findings side by side with revelations from archival inquiries” (p. 15), Li was able to extend the temporal or spatial bounds of her fieldwork methodologically. Her archival research in 2017–20 benefited greatly from the Chinese government’s push towards the digitization of judicial decisions, government documents, newspapers, and yearbooks, which provides “a treasure trove, containing in-depth, minute, and yet rarely used records, spanning from 1949 to 2016” (p. 14). Such data sources are particularly valuable for overseas researchers like Li who have faced significant barriers in fieldwork and data collection in China in recent years.
The book ended with a short epilogue describing the author’s return to her field site in the summer of 2018. Much had changed since her initial rounds of fieldwork in the late 2000s, yet women’s plight in divorce litigation persisted. Li notes that recent legislative changes and judicial reforms, such as the introduction of the “cooling off period for divorce” in the new PRC Civil Code in 2020, have made divorce harder, not easier. She concludes the epilogue with a call for collective action and resistance, for women whose land rights are threatened upon or after divorce. It almost feels like the author was out of steam when writing down those words. Indeed, readers can see and feel the enormous effort that Li put into her research and writing for this excellent book—the final product of a very long scholarly journey. Perhaps its theoretical contributions would be underappreciated by political scientists who are not interested in culture or socio-legal researchers who are not interested in power, but the book will surely find its place in the classics of Chinese law and society research because of its richness and sophistication, as well as the author’s sincerity and compassion. When today’s academic publishing is filled with fast and junk food, this fine cuisine is a rarity.
