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Book Review
| Melissa Macauley, Social Power and Legal Culture: Litigation Masters in Late Imperial China, Stanford: Stanford University Press, 1999. Pp. 456. $55.00 (ISBN 0-8047-3135-7).
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| Conventional wisdom has long held that imperial China's past judicial system was highly draconian and simply a means for a powerful state to oppress society. Ordinary Chinese would never enter the legal arena willingly and, when they were dragged into it, only met with treachery and injustice. Theorists of Western society and law, including Max Weber and Roberto Unger, have perpetuated this image by juxtaposing such a vision of China's traditional legal system against the "liberal" judicial tradition of the West. To be sure, the judicial system in China, like any other judicial system in history, functioned to help the state maintain social control and was quite remarkable for the degree to which it did so. Yet, recent scholarship on legal history in China has fundamentally challenged and revised this overly simplistic view to present a far more complicated picture of the judicial system and its attendant social and cultural implications for imperial Chinese society. Focusing on how ordinary peasants, widows, merchants, and the gentry went to court for a variety of reasons, and to varying degrees of success, this scholarship has demonstrated how the system was not merely a repressive social mechanism that kept an inert and passive population in check. Agents at all levels of society manipulated, negotiated, and appropriated different aspects of the legal arena to their own advantage. Together, these studies portray a much more dynamic picture of law in Chinese society, and society in law. |
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Melissa Macauley adds to this vibrant discussion with this masterful study of late imperial Chinese "litigation masters," literate men who helped ordinary Chinese negotiate the highly bureaucratic realm of the imperial state's judicial arena. Macauley's primary argument is that despite the official condemnation and aggressive attempt to contain litigation masters in the late imperial period, the litigation master and his practices were, in fact, an integral part of the systemic order of formal dispute resolution. To make this argument, Macauley first disentangles the history of litigation masters from the dominant negative official and elite characterization of them as "habitual litigation hooligans" or "pettifogging tricksters," charlatans who incite naïve and unsuspecting peasants to pursue selfish desires and entice honest folk to enter into the dishonorable activity of litigation. While state wariness toward litigation masters had existed long before the Qing dynasty (1644–1911), it was in the eighteenth and nineteenth centuries that the imperial state launched a particularly aggressive campaign against litigation masters. Bent on "simplifying" the bureaucratic machinery of the state through aggressive statecraft legalism, state officials increasingly blamed litigation masters for administrative problems posed by litigation (backlogging and overburdened appellate levels with unresolved cases) and placed them at the center of official malfeasance and subofficial immorality and opportunism. |
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Much of Macauley's study explores how, despite official defamation, the litigation master was, in fact, indispensable in an imperial system where the reach of the official judicial realm was limited. Emerging as early as the Song dynasty (960–1279), litigation masters were middlemen acting in the interstices between local arenas and the infrastructure of the state. Ranging from professional plaint-masters to simple literate men, they provided plaint-writing services (accusations, rebuttals, and prompting petitions), advice about legal strategies, and contacts in the legal arena beyond the village or local town. These skills enabled them to help ordinary people who were convinced that their own interests would not be addressed in local informal arenas (e.g., widows, debtors, younger male relatives, beggars, tenants) to circumvent informal, local power networks and access higher, more formal arenas. |
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In a fascinating chapter entitled "Clientele Empowered," Macauley's discussion of litigating widows provides a particularly effective example of how litigation masters enabled ordinary Chinese to invoke the power of the state and thereby alter the dynamics of the local arena of dispute resolution. Examining over 104 cases from the eighteenth and nineteenth centuries, Macauley discovered that 27 percent of the litigation facilitated by litigation masters involved women plaintiffs, among which all but two were widows. She notes convincingly that the high representation of widow-related cases was because widows were, as the female head of estate, often subjected to legal conflict with their own in-laws or other relatives within the local arena. All women in Qing China had to act via male proxy in court, and since a widow would have to circumvent her immediate social and familial circle to choose a proxy, it made perfect sense that they would turn to litigation masters for help. |
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In addition to providing the reader with a rich social history of these litigation masters, part of this book is a cultural history that examines the literary and theatrical representations of litigation masters. A popular figure in popular imperial drama and literature, the litigation master was a "trickster" who, with his cunning intelligence, overcomes official corruption and buffoonery. While she points out the obvious, namely that these unofficial depictions functioned to subvert the official narratives of the malicious and greedy pettifogger and levy an incisive critique of official incompetence, she also subtly demonstrates how they, in fact, partially overlapped with the official narrative in perpetuating the idea that courts were places of danger where corrupt officials battled with wily con artists engaged in verbal or written trickeries. Indeed, this converging vision of the Chinese courts as a morally treacherous place has proven quite intractable in our historical memory, serving as the basis of both modern Chinese and Western images of the "traditional" Chinese legal system as a dangerous and morally dubious arena. |
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Certainly, parts of this long book could have been shortened. For example, the chapter on litigation mastery in the southeast coast, which sought to take into consideration regional specificity of litigation mastery, seemed less integral to the overall argument, and perhaps would have been better as a separate article. However, these minor complaints aside, this study of litigation masters is an excellent example of new social and cultural history approaches toward law and provides refreshing insights not simply for scholars of China, but for all students of law, society, and culture. |
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| Eugenia Lean
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| Columbia University |
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