Commercial Dispute Resolution in Qing Chongqing

A review of Complicated Matters: Commercial Dispute Resolution in Qing Chongqing from 1750 to 1911 by Maura D. Dykstra.

Chinese legal history is experiencing somewhat of a golden age. Over the past three decades, following the opening-up of several key archives dating from the Qing period (1636-1911), scholars around the world have challenged a range of long-standing assumptions about Chinese law: that it was strictly punitive, that it was irrational, or that it played only a minor role in people’s lives. We now know that Chinese law was pervasive, that people engaged with the judicial process frequently and to a range of purposes, and that magistrates handled a broad range of disputes, including the conflicts over property and family that Western jurists tend to think of as “civil” suits. Yet, we have never quite gotten beyond a couple of central ideas. First, scholars have continued to assume that, while Qing law may have functioned in an ideal environment, its judicial system was incapable of handling the massive increase in population and, as a consequence, lawsuits over the course of the nineteenth century. Instead, intermediaries predated upon the system, providing a service to commoners, but ultimately undermining the judicial authority of the harried magistrate. Second, the abortive Hundred Days Reforms of 1898 and the New Policies of 1901-1911, while informed by the work of Chinese jurists, have been seen primarily as artifacts of China’s haphazard borrowing of Western ideals, and thus an act of overreach in state reform that helped tip the Qing state into its final collapse. As much as we strive to respect and appreciate the Chinese legal tradition, it seems we cannot evade the longstanding idea that China could not keep up with the modern world.

Maura Dykstra’s dissertation demonstrates the contrary. Qing law did reform over the course of the eighteenth and nineteenth centuries, and it did so because officials found ways to cooperate with and flexibly incorporate social organizations. Moreover, the late-Qing reforms were in fact the culmination of this gradual integration of local institutions into the dispute mediation process. Dykstra demonstrates her argument through hundreds of case records concerning commercial disputes from Chongqing, Sichuan, from the mid-eighteenth century through the end of the dynasty.

Both the processes of mediation and resolution recorded in these case files and a statistical analysis of their means and outcomes point to a dialectical process of conflict and integration through a series of “repeated and overlapping cycles of innovation.” (p. 175) The cycles went like this. First, there was a crisis of local government, in which state commitments exceeded state capacity. Second, local government delegated solving this crisis to actors outside the formal bureaucracy. Third, the state negotiated new rules with those actors for handling similar crises in the future. That relationship could be institutionalized, as it often was in the nineteenth century, and the limits of those actors inscribed into law. In this characterization, the Qing was a responsive state, and its responsiveness led to increased stability in local society through the rationalization of expectations, processes, and outcomes in the legal system.

Dykstra chooses Chongqing not only because it hosts an exceptionally rich archive, but because its unique position on the frontier of state-making made its development a hyperbolic example of processes underway elsewhere. Chapter 1 provides a history of the Chongqing region in the longue durée that aptly demonstrates the region’s persistent status as a borderland relative to the Chinese imperial metropole. According to Dykstra’s account, the critical moment in Sichuan’s modern development was the devastation of the Ming-Qing transition, which greatly depopulated the region – until, that is, the Kangxi emperor opened it up to settlement. By the end of the eighteenth century, a large migrant and exile population intersected the disruptions of Qianlong’s Western campaigns, for which Sichuan was a major staging ground, leading to what Beijing saw as uncontrollable regional instability barely reined in by a military administration. Meanwhile, opportunistic merchants flourished in the unregulated frontier markets. Sichuan went from a depopulated borderland to a center of crisis-driven state-making as the Qing struggled to wrangle the laissez-faire economy. When the Qing made Chongqing a center for taxation and transshipment, the outpost’s population grew by an unmanageable 680% over the course of only a century. By then, the great campaigns had ended, and the military administration that had maintained some semblance of order suddenly vanished. As a result, by the end of the Qianlong era, Chongqing was a boomtown in which imperial administrative institutions had never taken root.

In Chapters 2 and 3, Dykstra documents the emergence of “collective responsibility” and “transitive responsibility” in the Chongqing legal environment. Collective responsibility organizations included not only the classic baojia system, but a panoply of other local institutions on whom the magistrate relied for maintaining security. In the context of Chongqing’s rapid expansion as a population center, the state’s commitment to mediate everyday disputes soon exceeded its capacity – the yamen simply did not know enough about society or have a large enough staff to intervene effectively. Collective responsibility organizations “filled the information gap” by providing the magistrate with the expertise necessary to decide cases involving their members. At the same time, Chongqing was emerging as a mercantile center, but local government struggled to enforce long-distance commercial agreements. These agreements came to rely on local brokers who instead represented their clients in court. While this was initially a useful stopgap measure, a crisis of authority soon arose, as merchants realized that the scales had tipped: the yamen relied on social organizations, not vice versa, and magistrates began to lose control. In response, new laws were introduced into the Qing Code that clearly delimited these organizations’ role to gathering and providing information to the yamen. (This point incisively illustrates the benefits of reading the Qing Code as a historical document.) The Qing Code now classified mediation of disputes as xishi “complicated matters” and as the distinct reserve of collective responsibility heads.

In Chapters 4 and 5, Dykstra demonstrates how officials rationalized and routinized dispute resolution by drawing on available institutions. Where the nineteenth-century crisis of Qing government has been characterized in terms of the weakness of the Beijing court, Dykstra suggests instead that it was a crisis of resources arising from a mismatch between state commitments and state capacity. The Qing response to the White Lotus (1796-1804) was not a harbinger of an empire in decline, rather the last gasp of an imperial system that was about to learn to respond effectively to local problems through state-making. Jiaqing, therefore, was a reformer. His government pushed for an expansion of county-level management to remove the burden from less-responsive upper-level officials. Expectant officials, whose population had boomed, organized into ad hoc bureaus and thus made up for the human resource deficit. What this adds up to is no less than a reevaluation of the nineteenth century as a “golden age of administration.” (p. 199) Arrangements with native-place associations and gentry were formalized, as both the personnel of these social institutions and their tasks were transferred to the new bureaus. Precisely during the Qing’s supposed period of decline, officials in Chongqing – and across the empire – were using the discourse of decline to push effectively for the strengthening of local institutions. In Chapter 5, Dykstra argues that merchant involvement in the dispute resolution process became predictable and routine. We find in Chongqing a merchant community that became increasingly involved in government, and the internal regulations of which came to form a body of local precedent. Dykstra demonstrates that the frontier context of Chongqing’s crisis-driven institutional development fostered innovative relationships between officials and merchant groups, which not only rationalized local administration, but were foundational to further reforms across the empire.

Chapters 6 and 7 draw on the preceding characterization of intermediaries and collective and transitive responsibility in terms of “purposeful” or “deliberate legal ambiguity” (p. 277) to rewrite the history of dispute mediation at the yamen. While scholars have tended to think of the Qing Code as a strictly punitive instrument, Dykstra demonstrates that it served to restrict and delimit power. This “bounded discretion” determined the actions available to magistrates during the mediation process, but it did not limit them to the yamen. Rather, as Dykstra demonstrates through data from hundreds of cases of commercial disputes, magistrates navigated the complex social world beyond its gates through the institutional forms of the information gap. That was the space in which the magistrate and his subjects routinely engaged in an ongoing dialogue about their respective roles. A skillful official could manipulate the lacunae of knowledge and expectations to shape the responses of litigants. In the roughly 30% of cases that defied relatively swift adjudication, the magistrate gradually doled out punishment to obstinate parties in order to encourage them to settle their case. Where other scholarship has schematically described an intermediate “third realm” of Chinese justice, Dykstra brings in agency and the politics of representation to illuminate how people became aware of and manipulated the need for information.

In Chapter 7, Dykstra presents a statistical analysis of the frequency of pre-court mediation in its diverse forms to demonstrate the gradual formalization and integration of these forums from the post-White Lotus reforms onward. While cooperation between the yamen and mediation forums appeared messy on the ground, the aggregate data point clearly to a gradual rationalization of this relationship and its procedures over time, as does the fact that the yamen came explicitly to adopt previous mediation outcomes as precedent for future rulings. Why, then, did “complicated matters” become more common, even as forums for mediation multiplied? Put simply, each forum was simultaneously a semi-autonomous social organization, and one whose members had come to realize the dependency of the yamen on the information they provided. These organizations could handle simple disputes themselves, so these were rarely noted in the archive. However, as organizations multiplied, they would produce more disputes involving a greater number of parties, and these would go to the yamen – which relied in turn on social organizations to produce coherent accounts of events. When those accounts conflicted, cases became increasingly fraught and returned to the court over and over again.

The last chapter, which also serves as a conclusion, demonstrates that the late-Qing reforms that scholarship has almost universally regarded as a set of borrowings from the West were, in fact, outgrowths of this gradual state centralization and rationalization. A new vision of the Qing state shifted away from the imperial mode of indirect governance, which strategically maintained an information gap in local law and bureaucracy, and brought the formerly illicit organizations and their relationships with local officialdom out of the darkness into a newly-defined national government apparatus. The formation of local chambers of commerce as part of the New Policies reforms (1901-1911) did not simply maintain the complex ecosystem of mediation forums that had grown up between state and society over the past century – it made mediation more transparent by bringing it into the realm of bureaucracy and documentation. Even when such institutions were not in fact created, as Dykstra indicates was the case in Chongqing, the regulations establishing them and their procedures nevertheless appear to have guided the dispute mediation process.

Dykstra’s notion of a purposeful “gulf between legal truth and lived fact” (p. 278) and the history of its maintenance and institutionalization encourages us to reflect on the nature of Qing law and the rather harsh judgments passed upon it in early scholarship. It is unreasonable to expect that any state should both assert and realize total control of dispute resolution, or that doing so would be a prerequisite for legal modernization. Rather, as Dykstra demonstrates, legal rationalization and a state-making could develop along a Chinese model, leaving a strategic information gap between state and society, something like what Presenjit Duara recently called the “transparent canopy.” Nevertheless, under a common set of pressures, including expanding populations, increasing urbanization, and greater integration through commercial networks, Qing law changed in such a way as to converge with legal systems elsewhere.

Here, then, to Dykstra’s point on translation, made in the spirit of the Legalizing Space in China project (http://lsc.chineselegalculture.org/). Scholars have tried to map ideal types such as “criminal” or “civil” onto various terms in Chinese, producing much argument but little descriptive precision. Qing jurists, Dykstra demonstrates, did not differentiate cases according to their relative importance, or according to an abstract division of criminal and civil. Where one case was labeled zhong “weighty,” it did not mean that its opposite, xi cases, were “trivial.” Rather, a “weighty” case simply carried a heavy punishment. Xi cases emerged as a separate category of jurisprudence because they belonged to the realm of mediation that is the subject of this dissertation – they were “complicated” matters that required a special kind of engagement with social organizations to resolve, an engagement further standardized, first by practice, then by codified law. When the Qing reformed its justice system to include official forums for mediation, it was acknowledging the centrality of complicated matters to the work of local government.

 

Eric T. Schluessel
Department of East Asian Languages and Civilizations
Harvard University
eschlues@fas.harvard.edu
Primary Sources
Sichuan Provincial Archives, Ba Xian Collection
Dissertation Information
University of California Los Angeles. 2014. 443 pp. Primary Advisor: R. Bin Wong.

Image: “Letter of Assent” (允單) from a Xianfeng-era bankruptcy case. Source: Ba Xian Archives 清6-2-2556

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