Hostname: page-component-669899f699-swprf Total loading time: 0 Render date: 2025-04-24T14:54:41.993Z Has data issue: false hasContentIssue false
  • English
  • Français

Pragmatic Discourse and Gender Inequality in China

Published online by Cambridge University Press:  01 January 2024

Xin He  and
Kwai Ng
Get access Rights & Permissions [Opens in a new window]

Abstract

Using courtroom dialogs from actual court trials in China as data, this article analyzes an emerging “pragmatic discourse,” deployed by judges to assist, but at the same time to constrain divorcing women. Through questions, statements, rebuttals, and other interactional devices, Chinese judges define the premises that underpin the law's understanding of gender equality and women's welfare. By looking at how discourses are deployed by judges and litigants, we link micro linguistic practices to more general social forces and processes. Despite their honest effort to protect women's rights, Chinese judges often inadvertently reinforce and reproduce the patriarchal norm. The data demonstrate how the hegemonic patriarchal order reasserts itself in an institutional forum that is meant to promote gender equality. The interaction of the discourses also highlights the tensions in Chinese society and displays the effect of changing social environment on the legal operation.

Type
Articles
Information
Law & Society Review , Volume 47 , Issue 2 , June 2013 , pp. 279 - 310
Copyright
© 2013 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Article purchase

Temporarily unavailable

Footnotes

This research was funded by the Chiang Ching-kuo Foundation Research Grant and the UC Pacific Rim Research Grant. Xin He also wishes to acknowledge the financial support from a GRF grant of the Hong Kong Government. Special thanks go to the Chinese judges who helped arrange our fieldwork investigations and those who kindly agreed to be interviewed. We are also grateful for the comments of the editors and anonymous reviewers of the Review.

References

References

Alford, William, & Shen, Yuanyuan (2003) “Have You Eaten? Have You Divorced? Marriage, Divorce and the Assessment of Freedom in China,” in Kirby, W., ed., Ideas of Freedom in the Chinese World. Stanford: Stanford Univ. Press.Google Scholar
Atkinson, J. Maxwell, & Drew, Paul (1979) Order in Court. London: MacMillan.CrossRefGoogle Scholar
Barlow, Tani E. (1994) “Politics and Protocols of Funu: (Un) Making National Woman,” in Gilmartin, C., et al., ed., Engendering China. Cambridge, MA: Harvard Univ. Press.Google Scholar
Bourdieu, Pierre (1987) Language and Symbolic Power. Cambridge, MA: Harvard Univ. Press.Google Scholar
Cameron, Deborah (2001) Working with Spoken Discourse. Thousand Oaks: Sage.Google Scholar
Chen, Xuefei (2007) “Gender Preference in Judges' Discourse during the Trial of Divorce Cases [离婚案件审理中的法官的性别偏向],” 8 Peking Univ. Law Rev. 384–411.Google Scholar
China Law Yearbook (various years) Beijing: China Law Yearbook Press.Google Scholar
China Women's News (2009) “Legislating for Gender Equality [立法为两性平等护航],” 16 September. Available at: http://www.china-woman.com/rp/fs/cp/140/222/20090916/4%5C0.html (accessed 22 February 2013).Google Scholar
Collier, Jane (1988) Marriage and Inequalities in Classless Societies. Stanford: Stanford Univ. Press.Google Scholar
Conley, John M., & O'Barr, William M. (1990) Rules Versus Relationships: The Ethnography of Legal Discourse. Chicago: Univ. of Chicago Press.Google Scholar
Conley, John M., & O'Barr, William M. (2005) Just Words: Law, Language and Power, 2nd ed. Chicago: Univ. of Chicago Press.Google Scholar
Cooke, Lynn Price (2006) “ ‘Doing’ Gender in Context: Household Bargaining and Risk of Divorce in Germany and the US,” 112 American J. of Sociology 442–472.CrossRefGoogle Scholar
Davis, Deborah (2010) “Who Gets the House? Renegotiating Property Rights in Post-Socialist Urban China,” 20 Modern China 1–30.Google Scholar
Davis, Deborah (2011) “Marriage and Divorce Trends in China,” Interviewing Professor Deborah Davis. Available at: http://www.youtube.com/watch?v=o-HSt3iafiU (accessed 22 January 2012).Google Scholar
Duranti, Alessandro (1997) Linguistic Anthropology. New York: Cambridge Univ. Press.CrossRefGoogle Scholar
Ehrlich, Susan (1998) “The Discursive Reconstruction of Sexual Consent,” 9 Discourse & Society 149–171.CrossRefGoogle Scholar
Felstiner, William L. F., et al. (1980–1981) “The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …,” 15 Law & Society Rev. 631–654.CrossRefGoogle Scholar
Fineman, Martha (1988) “Dominant Discourse, Professional Language, and Legal Change in Child Custody Decisionmaking,” 101 Harvard Law Rev. 727–774.CrossRefGoogle Scholar
Fineman, Martha (1991) The Illusion of Equality: The Rhetoric and Reality of Divorce Reform. Chicago: Univ. of Chicago Press.Google Scholar
Foucault, Michel (1972) The Archaeology of Knowledge. New York: Harper & Row.Google Scholar
Foucault, Michel (1980) “Truth and Power,” in Foucault, M., ed. & C. Gordon, trans., Power/Knowledge: Selected Interviews and Other Writings. New York: Pantheon Books.Google Scholar
Friedman, M. Lawrence, & Percival, Robert V. (1976) “A Tale of Two Courts: Litigation in Alameda and San Benito Counties,” 10 Law & Society Rev. 267–302.CrossRefGoogle Scholar
Fu, Hualing, & Cullen, Richard (2011) “From Mediatory to Adjudicatory Justice: The Limits of Civil Justice Reform in China,” in Woo, Margaret Y. K., & Gallagher, Mary E., eds., Chinese Justice: Civil Dispute Resolution in Contemporary China. New York: Cambridge Univ. Press.Google Scholar
Goffman, Erving (1981) Forms of Talk. Philadelphia: Univ. of Pennsylvania Press.Google Scholar
Greatbatch, David, & Dingwall, Robert (1989) “Selective Facilitation: Some Preliminary Observations on a Strategy Used by Divorce Mediators,” 23 Law & Society Rev. 613–642.CrossRefGoogle Scholar
Hand, Keith J. (2011) “Resolving Constitutional Disputes in Contemporary China,” 7 Univ. of Pennsylvania East Asia Law Rev. 51–159.Google Scholar
He, Xin (2009) “Routinization of Divorce Law Practice in China: Institutional Constraints' Influence on Judicial Behavior,” 23 International J. of Law, Policy and the Family 83–109.CrossRefGoogle Scholar
He, Xin, & Hang Ng, Kwai (2013, forthcoming) “In the Name of Harmony: The Erasure of Domestic Violence in China's Judicial Mediation,” International J. of Law, Policy, and the Family.CrossRefGoogle Scholar
Hirsch, Susan (1998) Pronouncing and Persevering. Chicago: Univ. of Chicago Press.Google Scholar
Huang, Philip C. C. (2005) “Divorce Law Practices and the Origins, Myths, and Realities of Judicial ‘Mediation’ in China,” 31 Modern China 151–203.CrossRefGoogle Scholar
Huang, Philip C. C. (2010) Chinese Civil Justice, Past and Present. New York: Rowman & Littlefield Publishers Inc.Google Scholar
Li, Xiaoting (2011) “Releasing the Repressed Voices [释放被压抑的声音],” unpublished manuscript, on file with author.Google Scholar
Li, Yinhe (1998) “Be Vigilant against Regression in the Revision of the Marriage Law [修改婚姻法是要警告倒退],” 2 Collection of Women's Studies [妇女研究论丛] 4–5.Google Scholar
Lubman, Stanley (1997) “Dispute Resolution in China After Deng Xiaoping: Mao and Mediation Revisited,” 11 Columbia J. of Asian Law 229–392.Google Scholar
Mather, Lynn, & Yngvesson, Barbara (1980–1981) “Language, Audience, and the Transformation of Disputes,” 15 Law & Society Rev. 775–821.CrossRefGoogle Scholar
Matoesian, Gregory M. (2001) Law and the Language of Identity. New York: Oxford Univ. Press.Google Scholar
Merry, Sally Engle (1990) Getting Justice and Getting Even. Chicago: Univ. of Chicago Press.Google Scholar
Mertz, Elizabeth (1994a) “A New Social Constructionism for Sociolegal Studies,” 28 Law & Society Rev. 1243–1265.CrossRefGoogle Scholar
Mertz, Elizabeth (1994b) “Legal Language: Pragmatics, Poetics, and Social Power,” 23 Annual Rev. of Anthropology 435–455.CrossRefGoogle Scholar
Mertz, Elizabeth (2007) The Language of Law School: Learning to “Think Like A Lawyer”. New York: Oxford Univ. Press.CrossRefGoogle Scholar
Minzner, Carl (2011) “China's Turn against Law,” 59 American J. of Comparative Law 935–984.CrossRefGoogle Scholar
Mir-Hosseini, Ziba (2001) Marriage on Trial. London: I. B. Tauris.Google Scholar
Mnookin, Robert, & Kornhauser, Lewis (1979) “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 The Yale Law J. 950–997.CrossRefGoogle Scholar
Ng, Kwai Hang (2009) The Common Law in Two Voices: Language, Law, and the Postcolonial Dilemma of Hong Kong. Stanford: Stanford Univ. Press.Google Scholar
Palmer, Michael (2007) “Transforming Family Law in Post-Deng China: Marriage, Divorce and Preproduction,” 191 The China Q. 675–695.CrossRefGoogle Scholar
Pan, Suiming (1999) “Five Doubts on Revising the Family Law,” [对修改婚姻法的五个疑问] in Li, Yinhe, & Ma, Yinan, eds., The Debate on Revising the Marriage Law [婚姻法修改论争]. Beijing: Guangming Daily Press. 103–105.Google Scholar
Philips, Susan U. (1990) “The Judge as Third Party in American Trial Court Conflict Talk,” in Grimshaw, Allen D., ed., Conflict Talk: Sociolinguistic Investigations of Arguments in Conversations. Cambridge, UK: Cambridge Univ. Press.Google Scholar
Philips, Susan U. (1998) Ideology in the Language of Judges: How Judges Practice Law, Politics, and Courtroom Control. New York: Oxford Univ. Press.Google Scholar
Richland, Justin B. (2008) Arguing with Tradition: The Language of Law in Hopi Tribal Court. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Sherzer, Joel (1987) “A Discourse-Centered Approach to Language and Culture,” 89 American Anthropologist 295–309.CrossRefGoogle Scholar
Silverstein, Michael (1993) “Metapragmatic Discourse and Metapragmatic Function,” in Lucy, J., ed., Reflexive Language: Reported Speech and Metapragmatics. New York: Cambridge Univ. Press.Google Scholar
Silverstein, Michael (2003) “Indexical Order and the Dialectics of Sociolinguistic Life,” 23 Language and Communication 193–229.CrossRefGoogle Scholar
Supreme People's Court Work Report (1996) In 1996 China Law Yearbook. Beijing: China Law Yearbook Press.Google Scholar
Trinch, Shonna (2003) Latinas Narrative of Domestic Abuse. Philadelphia: John Benjamins Publishing Co.CrossRefGoogle Scholar
Trinder, Liz, Firth, Alan, & Jenks, Christopher (2010) “ ‘So Presumably Things Have Moved on Since Then?’ The Management of Risk Allegations in Child Contact Dispute Resolution,” 24 International J. of Law, Policy and the Family 29–53.CrossRefGoogle Scholar
Wang, Xiaoling (2007) “An Investigation Report on the Divorce Cases in Court M,” [冲出围城：M法院离婚案件调查报告], Justice [司法] 201–210.Google Scholar
Woo, Margaret (2003) “Shaping Citizenship: Chinese Family Law and Women,” 15 Yale J. Law & Feminism 99–134.Google Scholar
Wu, Ruozhi (2007) “[当代中国家事法制实践研究—以华南R县为例] (On the Practice of the Family Law System in Contemporary China—South China's R County as an Example),” Ph.D. Dissertation, Renmin Univ. of China.Google Scholar
Xu, Anqi (1999) “A Pitfall for Marriage Law Revision: Constraining Divorce,” [婚姻法修改的误区——限制离婚] in Li, Yinhe, & Ma, Yinan, eds., The Debate on Revising the Marriage Law [婚姻法修改论争]. Beijing: Guangming Daily Press. 182–192.Google Scholar
Xu, Anqi (2007) “An Exploration on Divorce and the Status of the Female,” [离婚与女性地位及权益之探讨] Zhejiang Academic J. [浙江学刊] 198–206.Google Scholar
Yardley, Jim (2005) “Women in China Embrace Divorce As Stigma Eases,” New York Times 4 October. Available at: http://www.nytimes.com/2005/10/04/international/asia/04divorce.html?pagewanted=all (accessed 22 January 2012).Google Scholar
Zhu, Suli (1999) “A Calm View on Marriage,” [冷眼看婚姻] in Li, Yinhe, & Ma, Yinan, eds., The Debate on Revising the Marriage Law [婚姻法修改论争]. Beijing: Guangming Daily Press. 34–58.Google Scholar

Statutes Cited

The Marriage Law of the People's Republic of China, promulgated in 1980, amended in 2001.Google Scholar