Divorce law practices and the origins, myths, and realities of judicial "mediation" in China

Abstract

Using archival records of 216 court cases, this article argues that divorce law practices lie at the core of the tradition of "Maoist justice" that remains profoundly influential in the present-day Chinese civil justice system. These practices were born of a distinctive set of historical circumstances: the need to steer a middle course between an early radical promise of divorce on demand and the reality of peasant opposition, and the merging of peasant practices with Communist Party methods and doctrines. They must be understood in terms not of an either/ or binary-modernity and tradition, party and peasant-but rather of the interaction between them. They involve on-site investigations by judges and aggressive efforts at "mediation," as well as the formulation of ganqing (emotional relationship) as the basis for marriage and divorce. They have in fact been centrally important in shaping the civil justice system as a whole. © 2005 Sage Publications.