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Social Power and Legal Culture

March 20, 2010

Melissa Macauley. Social Power and Legal Culture: Litigation Masters in Late Imperial China. Stanford: Stanford University Press, 1999.

Zhou Guanghui (2003)

Litigation masters, who played an important but illicit part in legal practice in late imperial China, have received little scholarly attention prior to Melissa Macauley’s seminal volume. In this book, Macauley undertakes the examination of litigation masterly activities by situating them in the broad context of commercial revolution, cultural interplay within the urban-rural nexus, and late imperial bureaucratic retrenchment. He study greatly enriches our understanding of Chinese legal practice as well as legal culture.

As Macauley demonstrates, litigation masters, as an identifiable social entity, were mostly from the ranks of low literati. Their activities mainly included providing legal services, including the writing of legal accusations for people who sought them out. Unlike their Western counterparts – lawyers who acted as the agents of the centralizing state at the expense of local powers – litigation masters were deemed useless to the state-building projects of imperial China, and remained out-of-view power brokers within local arenas. Macauley forcefully argues that the litigation masters often helped the weaker party in a dispute by breaking free of the local informal mediation system and allowing the case to reach the government. She also challenges earlier works on Chinese law and society that tended to emphasize ideological hegemony, by pointing out that law could be used by all parties in contests of power.

Litigation masters emerged historically as a response to the demand for legal service during an age of commercialization and changing conceptions of poverty. Still, officials and elites kept condemning litigation masterly activities. In Chinese legal practice, the system of formal adjudication at the county level was designed to discourage lawsuits by relying on considerable informal mediation by male elders and other esteemed villagers. Litigation masters prompted government intervention by making numerous false accusations and exaggerated appeals. The government was thereby forced to consider their cases. This not only deprived local elites of their dominance through informal mediation, but also increased the backlog of civil lawsuits selected for the review of higher officials. Litigation was fundamentally immoral in a Chinese legal culture that was oriented toward a Confucian ideology stressing social harmony. This explains why there was universal and persistent resentment of litigation masters among state and local elites. Interestingly, as Macauley shows in her analysis of opera and other popular culture, in contrast to this official discourse there was also a non-official trend among lumpen literati toward regarding litigation masters in a more favorable light.

In his review, Matthew Sommer points out that the “greatest contribution” of this book is to “liberate us from the clichés of imperial discourse, which for centuries condemned these proto-lawyers as wicked parasites” (Journal of Asian Studies, vol. 59, Feb. 2000: 156). Yet several nagging questions still remain. Macauley provides a uniform picture of litigation masters from the late imperial period to the early republican period, and one wonders whether state-building efforts during the twentieth century, which witnessed the state aggrandizing itself at the expense of local elites, led to any change in the discourse surrounding litigation and legal specialists. Another concern is that Macauley derives this general image of litigation masters mainly from a small number of cases, and within a relatively short period. Sources, as she recognizes, contain significant prejudices. Considering that legal testimonies were often acquired through the use of torture in imperial China, one must indeed be cautious of their use.

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