“What He Did Was Lawful”: Divorce Litigation and Gender Inequality in China

• Author: Ke Li
• DOI: http://doi.org/10.1111/lapo.12034
• Published date: 01 July 2015
• Date: 01 July 2015

“What He Did Was Lawful”: Divorce

Litigation and Gender Inequality in China

KE LI

Sociolegal research has shed considerable light on gender inequality in the civil

justice system. Existing research, however, rarely looks beyond court proceedings

to examine gender inequality stemming from the prior stages in civil litigation. This

article fills the gap by addressing the question of whether and how the early

moments in disputing produce inequality between women and men. Based on a

mixed-methods study of divorce litigation in China, I identify two critical moments

in the early stages in disputing: the initiation stage and the suit-filing stage. Findings

from the two stages indicate that, early on in disputing, the legal profession

routinely dismisses and violates women’s rights in marriage and family. Moreover,

due to the legal profession’s failure to convert important rights on the books into

formal claims, women’s marital grievances and rights claims fall through cracks

long before they can enter court proceedings. These findings suggest that gender

inequality can result not only from judicial decision making, but also from dispute

processing conducted prior to—and outside of—court proceedings.

INTRODUCTION

Sociolegal research of the past three decades has shed considerable light on

women’s struggles in the American justice systems, particularly their profes-

sional experiences as judges and lawyers.1In this regard, researchers recently

started examining Chinese women’s professional predicaments on the bench

and in law firms (Liu 2009, 2013; Michelson 2009). In both the United States

and China, however, less attention is paid to the experiences of women as

disputants and claimants in the civil justice system. Limited knowledge exists

about how gender inequality is created and reproduced among users of civil

litigation. When this issue comes under occasional scrutiny, researchers in

both countries tend to focus on court proceedings and litigation outcomes,

The research reported in this manuscript has been funded through the National Science Foun-

dation (Grant No. 0960759), Social Science Research Council, the Chiang Ching-kuo Founda-

tion for International Scholarly Exchange, and the China Times Cultural Foundation. This

article benefited enormously from the comments and suggestions of Ethan Michelson, Sida Liu,

Brian Steensland, Eliza Pavako, Brian Powell, Kathleen Oberlin and Chad Anderson. Deborah

Davis, Sara Friedman, Philip Parnell, Rachel Stern, Yan Long, Leila Kawar, and Shiri Noy read

works on which this article is based and offered helpful comments.

Address correspondence to Ke Li, Department of Sociology, Indiana University, IN 47405,

USA. E-mail: kelisoc@gmail.com.

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LAW & POLICY, Vol. 37, No. 3, July 2015 ISSN 0265–8240

© 2015 The Author

Law & Policy © 2015 The University of Denver/Colorado Seminary

doi: 10.1111/lapo.12034

with little consideration for the prior steps where women may be subjected to

biases and stereotypes. Consequently, little is known as to how the early

moments in the process of disputing may shape women’s interactions with

the civil justice system. This article, accordingly, fills the gap by addressing

the question of whether and how the early stages in disputing may result in

gender inequality within and outside the civil justice system.

Based on a mixed-methods study of divorce litigation in China, this article

identifies two critical moments in the early stages in disputing: the initiation

stage and the suit-filing stage. I start the analysis by scrutinizing the initiation

stage, in which divorcing women approach legal professionals for assistance.

Findings from ethnographic observations indicate that, early on in the course

of disputing, legal professionals routinely subject women to gender biases

and stereotypes. In doing so, they block or even derail women’s attempts at

legal mobilization. Then I investigate the suit-filing stage—a critical step

through which women’s grievances and rights are to be transformed into

formal claims. Archival research on divorce petitions, however, reveals that

the legal profession—a key agent of dispute transformation—frequently fails

to convert important rights on the books into formal claims. As a result,

women’s marital grievances and rights claims fall through the cracks long

before they can enter court proceedings.

These findings suggest that gender inequality can result not only from

judicial decision making, but also from dispute processing conducted prior

to—and outside of—formal court proceedings. More precisely speaking, it is

during the early struggles over access to justice that women lose significant

ground to men, thereby setting the course for their subsequent interactions

with the civil justice system. Seen in this light, divorce litigation in China

presents a valuable site for investigating through what process legal mobili-

zation opens up opportunities of reproducing gender inequality within and

outside family. Moreover, the case of divorce litigation in China provides us

with a window into the roles the legal profession plays in the course of

disputing. As this article shows, by differently shaping women and men’s

perceptions of grievances, by remaking or unmaking their rights claims—and

more fundamentally, by channeling some but not other grievances into court

proceedings—legal professionals exercise great power in determining law’s

limits in engineering egalitarian social changes. Together, these findings illu-

minate not only the specific process, but also the particular actors responsible

for the reproduction of gender inequality in a non-Western context.

WOMEN’S INTERACTIONS WITH THE CIVIL JUSTICE SYSTEM

Since the publication of Marc Galanter’s 1974 seminal article, “Why the

‘Haves’ Come out Ahead,” many studies have examined litigation success in

relation to various types of litigants (see Stryker 2007 and Lempert 1999 for

reviews). Only a handful of the studies, however, specifically address how

154 LAW & POLICY July 2015

© 2015 The Author

Law & Policy © 2015 The University of Denver/Colorado Seminary