- Social Power and Legal Culture: Litigation Masters in Late Imperial China
Melissa Macauley's Social Power and Legal Culture examines the changing role of litigation masters in late imperial China in order to show how law and legal culture shed light on social and economic change and on the parallel evolution of the mentalities and culture that accompany change. The book looks at this issue in broad historical-legal perspective and draws on an impressive range of official archival and printed sources, legal codes, cases, and official handbooks, as well as different literary genres. Moreover, the author explores the relevance to her project of various theoretical models and interpretive insights, some of them comparative, and she has drawn on them selectively to produce an imaginative, multilayered interpretive framework for the study of legal culture in the late imperial period.
The author argues that the litigation master has been a problematic figure in Chinese history since the early empire because the very act of litigation was itself contentious. As such, it challenged the Confucian ideal of social harmony, and it undermined the Confucian approach to conflict resolution that centered on mediation, negotiation, and consensus building. The litigation master—the savvy, power-broking literatus with legal know-how and local yamen connections—challenged that approach and by so doing challenged the formal bureaucratic and informal local power structures that were supposed to resolve local conflicts.
Macauley argues that litigation and the litigation master began to play an extremely important role in local conflict resolution from the Southern Song to the modern period due to the convergence of dramatic social and economic changes flowing from commercial revolution, population growth, urbanization, and the persistent pattern of administrative retrenchment in imperial government, which reduced the reach and force of imperial control at the local level. In her treatment of this period, the author makes an ambitious and thought-provoking analysis of the impact of administrative retrenchment on law, legal processes, and legal culture. She argues that social and economic changes gave rise to the diversity, complexity, and stratification of society in the local arena and bred new conflicts arising from changing conceptions of property, the growth of commercial power, population transience, and the commodification of literacy. Her discussion of the changing character of the local power structure during this period uses Philip Huang's notion of the "third estate" quite successfully to describe the broad mix of local interests contending for control of local resources.1 She thus avoids the stereotypical view that local power groups were mainly gentry/literati elites, as is [End Page 511] often taken for granted in discussions about the public and private spheres in Chinese history.2
The author contends that conflicts intensified in the eighteenth and nineteenth centuries due to the social tensions and conflicts unleashed by the second commercial revolution of the sixteenth century. More conflicts led to more civil cases adjudicated in the local yamen courts, overburdening the fragile structures of local judicial administration and resulting in chronic backlogs of unresolved cases. To reverse this trend, local government in the late imperial period cycled many of these cases back to the local arena for resolution according to local customs and social realities. Yet, fobbing off responsibility for these deeply divisive issues on informal power-holders proved to be less and less satisfactory given the scale and complexity of local disputes. Local conflict might be resolved to the satisfaction of one group of local power-holders, but not necessarily to all the others, not to mention the weak and vulnerable, within a given community. Moreover, there was no effective way to resolve contentious cases between the state and the local community over such issues as abuse of power and conflicts related to tax collection and property law.
Enter the litigation master! The author argues that the litigation master went into action precisely when the normative power structure, both formal and informal, was unable or unwilling to cope with contentious issues. This shrewd local...