[ISCLH Book Review Series]Jusong fenyun: Qingdai de “jiansong zhi feng” huayu jiqi biaodaxing xianshi by You Chenjun 尤陳俊
- ljnwy3
- May 5
- 5 min read
ISCLH Book Review Series
Jusong fenyun: Qingdai de “jiansong zhi feng” huayu jiqi biaodaxing xianshi 聚訟紛紜：清代的“健訟之風”話語及其表達性現實 [Endless Litigation: The Discourse of Litigiousness and Representational Reality in the Qing Dynasty]. By You Chenjun 尤陳俊. Beijing: Peking University Press, 2022. Pp.431. RMB 68 paperback.
Reviewed by Junyu Liang (University of Macau)
The study of Chinese legal history, particularly legal practice and litigation culture, has focused on whether traditional Chinese society was litigious. Previous research assumed that Confucian moral ideals shaped a social culture of “litigation loathing” (yansong 厭訟) and “non-litigation” (wusong 無訟) in traditional China. Recent scholarship, however, has used the description of “litigiousness” (jiansongzhifeng 健訟之風) as evidence to demonstrate its influence on both the judicial system and local society in the Qing dynasty. You Chenjun, a law professor at Renmin University of China, moves beyond earlier factual discussions by reframing litigiousness not as a social phenomenon but as a discursive construct. He critically analyzes the power relations behind the discourse of litigiousness by considering their context and reveals the litigious practices in the Qing dynasty through interdisciplinary approaches. He argues that the description of litigiousness shows a “representational reality,” constructed by specific groups to serve particular aims, and thus cannot objectively reflect the social reality of the Qing.
This book can be divided into two parts. The first part includes the Introduction and Chapter One, where You Chenjun reviews existing scholarship in detail and elaborates on his methodology. He adopts a historical approach to legal and sociological research to reassess litigiousness in the Qing dynasty, drawing theoretical inspiration from the paradigm established by Qu Tongzu 瞿同祖 (1910-2008) (pp.14 & 81). He also examines the use of comparative frameworks and concepts such as “right” (quanli 權利), considering the linguistic gaps in translation. The second part, comprising Chapters Two to Nine, mainly covers two themes. Chapter Two focuses on the impact of Confucian ethics on traditional Chinese litigation culture. Chapters Three to Nine analyze the discourse of litigiousness from the perspectives of Qing officials, litigants, litigation masters, and the judicial system. According to You Chenjun, the discourse of litigiousness arose and spread from a structural contradiction in Qing governance: local officials exaggerated the discourse of litigiousness when faced with the tension between limited judicial resources and increasing demand for litigation. In return, the discourse of litigiousness strengthened the authority of the judicial and administrative system. After the concluding chapter, You Chenjun discusses judicial reform in modern and contemporary China in the appendix.
The discursive analysis of litigants and litigation masters is perhaps You Chenjun’s most insightful contribution to the field. He indicates that the discourse of “high litigation fee” (songfei gao’ang 訟費高昂) partially reflects objective reality while showing Qing officials’ efforts to reduce judicial backlog by discouraging litigation through misleading the ordinary people. In this discourse, the litigants are portrayed as passive. However, You Chenjun highlights their agency by closely examining a range of cases. By regarding litigants as actors with economic rationality, he demonstrates their diverse litigation strategies, such as “aim for procedural approval, not judicial examination” (tuzhun butushen 圖准不圖審), and methods of allocating fees. In this sense, You Chenjun reveals the complexity behind the discourse of litigiousness. He also sheds light on the narratives of “retribution for litigation masters” (songshi ebao 訟師惡報). From the perspective of sociology of law, You Chenjun explains how it stigmatized the litigation masters. He argues that litigation masters, deemed an illegal group, struggled to cultivate a strong work ethic independently due to official repression. Consequently, the discourse of “retribution for litigation masters” helped curb their abusive practices while sustaining the social demand for their services despite their lack of legitimacy.
Another contribution of this study is You Chenjun’s reassessment of the connection between the intensification of litigiousness and the long-term trend of the actual tenure of magistrates. He argues that the analytical perspective of “lack of the concept of res judicata,” developed from Shiga Shūzō’s 滋賀秀三 (1921-2008) work, is insufficient to explain why litigants repeatedly brought their cases to the local yamen rather than appealing to higher-level courts (p. 286). Considering the tenure of magistrates as part of the “institutional resource,” its reduction towards the later period reflects the declining adaptability of the administrative/judicial system in responding to structural socio-economic changes. In this context, litigiousness becomes a “discursive resource” to enhance the legitimacy of the judicial system. While analyzing regional litigiousness through local variables such as clan power, You Chenjun suggests that “litigious society” should not be overemphasized as a general term. Instead, it requires an in-depth discussion of how regional differences function within society, thus enhancing the understanding of litigiousness beyond abstract stereotype.
Legal historians will benefit from the book’s diverse sources, theoretical framework, and methodology, while scholars in the social sciences will gain valuable insights from You Chenjun’s historical analysis. He defines this book as “a work of sociology of law by approaching history as sources,” similar to Lawrence Friedman’s “impact research” (p. 14). He constructs a conceptual framework by introducing Michel Foucault’s (1926-1984) discourse analysis, as well as Philip C. C. Huang’s idea of “representational reality” and “objective reality.” On this basis, he emphasizes that the discourse of litigiousness not only reflects partial reality but also demonstrates the tension and conflict between Qing governance and ordinary people who attempted to maximize their interests through litigation. He extends his discussion to litigation in modern and contemporary China, suggesting that the appropriate use of “mediation” as a discursive resource can address the challenge of excessive cases confronting judges in contemporary China (p.418). This comparison shows his concern for reality about legal research. Yet, to better understand how the discourse of litigiousness influenced ordinary people, You Chenjun could further analyze individual narratives in the judicial archives and reveal the complex interplay between commoners’ discourse and practice in various trivial matters from their perspective. Future research on regional variations in the discourse of litigiousness, taking into account diversity in the Qing dynasty, will further enrich this book. Overall, this book marks an excellent and thought-provoking example not only for those who study the Chinese legal history but also for the sociology of law.
In summary, You Chenjun’s examination of the discourse of litigiousness and representational reality in the Qing dynasty offers a refreshing understanding of law, history, and society in traditional China. He effectively advances the study of Chinese legal and social history with theoretical awareness and interdisciplinary approaches. The book opens up new possibilities for interdisciplinary dialogue between the fields of history, law, and sociology.
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