Wednesday, February 17, 2021

Xin He: "Divorce in China: Institutional Constraints and Gendered Outcomes" (European Chinese Law Research Hub)



The folks over at the European Chinese Law Research Hub (with thanks to Marianne von Blomberg, Editor ECLR Hub, Research Associate, Chair for Chinese Legal Culture, University of Cologne) have posted Xin He's (Law Faculty at the University of Hong Kong)  marvelous summary essay around his recent book.

Marianne von Bloomberg explains:

Why are women still at a disadvantage in Chinese divorce courts? And why is domestic violence frequently disregarded by judges? Xin He observed divorce proceedings for over more than a decade and in his new monograph presents a first-ever study on divorce cases based on fieldwork conducted inside Chinese courtrooms. He finds: The judiciary's slogan “achieve the combination of both legal and social effects” may turn into a vehicle for the reinforcement of patriarchal decision-making.

Xin He is Professor at Hong Kong University's Law School and a pioneer in studying China’s legal systems from a socio-legal perspective. 'Gendered Divorces in Chinese Courts', published by NYU Press in 2020, is his second book.

Enjoy the read and as always, we would love to hear your comments, criticism and ideas.
With the kind permission of the ECLRH I am cross posting the essay below. The original ECLRH post may be accessed HERE. And as a plug for the marvelous work at the European Chinese Law Research Hub: iIf you have observations, analyses or pieces of research that are not publishable as a paper but should get out there, or want to spread event information, calls for papers or job openings, or have a paper forthcoming- do not hesitate to contact Marianne von Bloomberg,

"Divorce in China: Institutional Constraints and Gendered Outcomes"

17. February 2021

Xin He


Why do so many Chinese woman suffer or even die from domestic violence? Why are women still at a disadvantage in Chinese divorce courts for property and child custody? Why are the personal safety protection orders rarely issued?  Why are the laws protecting women’s rights not implemented?

The existing literature has, explicitly or implicitly, attributed this to the following four reasons: incomplete protections of the law, out-of-court gender biases, a lack of gender consciousness on the part of judges, and disparities between the litigation capabilities of men and women. While each of these reasons contributes to the gendered outcomes, they are inadequate at explaining the breadth and depth of women’s bleak situation.

In Divorce in China, Xin He turns to the most unlike suspect—Chinese courts and judges. This new book argues that institutional constraints to which judges are subject, a factor largely ignored by the existing literature, play a crucial role in generating gendered outcomes. Twisting the divorce law practices are the bureaucratic incentives of the court and its political concerns for social stability. The judges are responding to two sets of interrelated institutional constraints: efficiency concerns and stability concerns.

The judiciary trumpets a slogan “to achieve the combination of both legal and social effects.”

Efficiency concerns mean that judges are supposed to handle cases efficiently. The Civil Procedural Law stipulates that cases tried by the Normal Procedure are to be completed within six months, and those using the Simplified Procedure have only three months to finish. Some senior officials managing their courts even shorten the limits to 90 or 20 days, respectively, to allow themselves more room to manoeuvre. The case closure rate, an indication of the effectiveness and efficiency of court operations, appears in every court’s annual work report. By December of each year, many courts stop taking new cases so that they can increase the case closure rate for the year.

Stability concerns mean that the court decision is accepted by the litigation parties and by society at large—it does not foment social instability. This is controlled by the appeal rate, the remand rate, the petition rate, and the number of malicious incidents, including social protests and deaths. The judiciary trumpets a slogan “to achieve the combination of both legal and social effects.” While the legal effects suggest the observations of legal principles and rules, social effects imply that society accepts the decision peacefully. It would be nice if the two were consistent and mutually reinforcing. But when they conflict, legal principles and rules have to make way for social effects. That is, the law is compromised.

Due to these concerns, judges often choose the most efficient, yet safest, way to handle issues in divorce litigation. They have to make sure that cases are finished before the deadline, and this without malicious incidents. They want a balanced decision, acceptable for both parties which does not provoke extreme reactions. This behavior pattern, Xin argues, results in gendered outcomes.

domestic violence confirmed at the trial level is often erased, dismissed, or ignored at the appeal level.

First, many laws protecting women’s interests are not fully implemented. These laws are created to reverse social, cultural, and economic biases against women. They are not necessarily gender neutral; they may favor women, or offer them a hand. Their implementations are crucial for rectifying gender biases and eventually achieving gender equality. Due to judges’ concerns however, domestic violence confirmed at the trial level is often erased, dismissed, or ignored at the appeal level. This occurs because the appeal court needs to strike a balance. The protection order, intended to help the victims of domestic violence before the litigation process ends, has been underutilized, because issuing such orders increases judges’ workloads. Child custody turns into a bargaining chip to soothe the unsatisfied men. Children are taken away from women simply because men are viewed as posing a more imminent threat to social stability.

Second, the judges’ behavior patterns privilege men in litigation outcomes due to their superior economic capabilities. As mentioned, by law, the bidding process is optional. However, out of efficiency concerns, judges encourage litigants to take this option. This is because bidding provides the most efficient way to fix a price for the matrimonial property. As a result, many women lose their homes. Out of stability concerns, judges also often allow an economically superior man to gain an upper hand in highly contested cases. Men with more cash are allowed to buy out women determined not to be divorced. On the other hand, women, with less economic capability, do not enjoy the same luxury when their husbands are equally steadfast against divorce. Women remain ensnared in the marriage shackles, even though they are desperate for their removal.

Finally, the judges do not alleviate cultural biases against women—rather, they perpetuate them. With such an approach, they accept the patriarchal culture, and reinforce gender inequality, turning a blind eye to cultural bias. Because of their concerns for efficiency and stability, they are reluctant to explore women’s sufferings because of their husbands’ impotency, or even rape committed by their husband’s family members. This is not because the judges are unaware that women’s rights are infringed upon. They just do not want to infuriate or even confront the men.  For their purposes of disposing of the cases efficiently without lingering effects, to do so would be unnecessary.

judges, catering to institutional concerns, consciously and inadvertently, make decisions detrimental to women.

It is thus inadequate to say that the brunt to women in divorce litigation stems only from the incomplete coverage of women’s rights, or vague definitions of key terms in the legislation. It is also not enough to blame the judges’ lack of gender consciousness, or inequalities and biases outside the court. One fundamental reason is that the judges, catering to institutional concerns, consciously and inadvertently, make decisions detrimental to women. Driven by these concerns, they allow the forces of inequality in social, economic, cultural, and political areas to infiltrate their decisions. It is the institutional reasons that prevent the judges from offering a level playing field for women. Equality can only be invoked and fulfilled when the courts have acted. Thus, the institutional failure to enforce the laws has become a major obstacle to gender justice.

This book is based on extensive fieldwork and interviews Xin He has conducted in various court settings over more than a decade. Obtaining access to Chinese courts is difficult, and has recently become even more so. Few outside researchers have attained this level of access. This book is the only study of Chinese divorce cases based on fieldwork conducted inside Chinese courtrooms. Xin He has observed more than 50 trials, and these observations constitute the foremost part of my data.

This book is timely, given the renewed and heightened focus on the rule of law in the official discourse in China on the one hand, and from the awaking gender consciousness on the other. From a doctrinal standpoint, China exemplars gender equality and the freedom of divorce. Yet, how are the laws implemented? What the Chinese courts actually do, and what the consequences are. From a socio-legal perspective, the book highlights the richness, sophistication, and cutting-edge nature of the underlying research. Divorce in China is as much an account of Chinese courts in action as a social ethnography of China in the midst of momentous social change.

HE Xin is Professor at HKU Law Faculty. A pioneer in studying China’s legal systems from a socio-legal perspective, he is one of the most cited China law scholars. His monograph Embedded Courts: Judicial Decision Making in China with Kwai Hang Ng (Cambridge University Press 2017) won “the Distinguished Book Award” by the Asian Law & Society Association and the runner-up of the book prize by the ICON-S (the International Public Law Association). He was awarded the Humanities and Social Sciences Prestigious Fellowship of Hong Kong in 2019.

Find his second monograph, Divorce in China: Institutional Constraints and Gendered Outcomes, published by NYU Press in 2020, here.

No comments: