Judiciaries in England emerged from four interacting historical sources. At the foundation lay the authority of monarchs empowered to judge their subjects’ rights, duties and status by virtue of the regal office. The second form of judiciary arose by royal delegation of decisional power to dedicated judges sitting in permanent courts of common law, or to executive courts with a more political mandate. A third source of judicial power was local and widely distributed, whereby groups or associations or sub-units of government solved disputes and allocated rights and duties as a process of self-direction, taking place for example in manors, boroughs, guilds, and church assemblies.

Chapter 8 turns to the labor of law, or the difficulty of keeping up with the daily work that underpins this legal order. While Constitutional Court judges have garnered substantial attention, lower-court judges are tasked with the majority of the work of social constitutionalism in Colombia. They are the ones who have reviewed each of the nearly eight million tutela claims that have been filed since 1992. Many of these lower-court judges report that they feel overworked and underresourced. Material and normative pressures, thus far, have combined to ensure that these judges continue to keep up with the labor of social constitutionalism.

The chapter considers the process of nomination and election of judges, as well as their qualifications and the outcomes of the election process. It then examines the way in which the Court engages as a judicial body with the parties, with specific reference to the Court’s exercise of its advisory jurisdiction. Finally, it discusses the process of decision making, before drawing conclusions on the outcomes of that process, i.e. the judgments and opinions of the Court.

This chapter examines courts in Asia as cultural symbols, social organizations, and political battlegrounds. As cultural symbols, courts are often embedded in religions, colonial legacies, and local norms. These cultural symbols are found in both informal tribunals and more institutionalized religious and secular courts. As social organizations, courts are intertwined with bureaucratic hierarchies, political influences, and the career trajectories of judges. This is particularly salient in civil law jurisdictions across Asia. As political battlegrounds, courts provide a space for the judicialization of politics as well as a soil for judicial corruption. The readings also examine the complexity of judicial decision-making in different national contexts. In addition, the readings highlight the nature and impact of judicial reforms, which take place amid broader political and social changes in both democratic and authoritarian contexts and can lead to tensions as well as encourage new alliances.

Because dialogue represents philosophy happening in the context of interpersonal relationships, it is a natural place to investigate power dynamics, both displays of power and displays of resistance. But in literature, unlike in life, the power dynamics are completely within the control of one person, the author, who can script the situation as he chooses. In this chapter, I argue that there was a change in the rules of comportment found in literary dialogues between the first and fourth centuries CE that can be traced through paying close attention first to the appearance and then to the development of a new character in these discussions – a judge. A shared embrace of forensic rhetoric to express philosophical antagonism existed across changing modes of judgement in the Roman Empire. I argue that this forensic dialogic mode was introduced as a mode of sublimation of political energy, as a rerouting of resistance into a safer domain of scholastic antagonism.

Chapter 5 considers those battles regarding the Abortion Act that found their way to the courts, as broader struggles over the meaning of the Act became framed as narrow, technical questions of statutory interpretation. We consider the role of Pro-Life (and, to a much lesser extent, Pro-Choice) groups in driving this litigation and explore how the focus and framing of these disputes would change over time in line with the shifting centre of the moral debate. We consider how meaning was given to the statutory text, emphasising the important roles played by doctors in giving meaning to the Act before these disputes reached the courts.

This chapter investigates judicial precedents in China’s instrumentalist legal system and finds that judges are generally reluctant to refer to a judicial precedent, including a guiding case, in the process of making a judicial decision. It further reveals that the guiding case system has effectively crystallized a bureaucratic system of judicial precedents with guiding cases at the top of the pyramid. A bureaucratic system of this kind is grounded primarily in the political hierarchy of the courts and a nationwide typical-case-selection movement, in which the lower courts are politically responsible for submitting a certain number of typical cases selected from within their respective jurisdictions to the Supreme People’s Court every year. Finally, it attempts to develop a bureaucratic theory of judicial precedents centred on guiding cases that fits into China’s authoritarian context and that differs substantially from any other type of case law in a liberal context.

This chapter shows how biographical research can lead us to better understand the legal and political dynamics that prevailed in the court during the 1960s and 1970s. The chapter presents an innovative use of biographies in the sense that they are not a goal in themselves, but a means to create primary sources to study the court's institutional behaviour and its power struggle with national governments. This biographical methodology uncovered that the bench of judges which ‘revolutionized’ European law in the 1960s and 1970s was not as isolated and apolitical as existing literature had portrayed as so far. The judges could rely on a vast political network, which not only helped them in assessing how far they could push the integration process further in their rulings, but which was also useful when it came to persuading national decision-makers of the fact that the court’s rulings were in their interest. The chapter further addresses the challenges raised by the biographical approach and gives an account of the research strategies adopted to unearth empirical material on mostly unknown judges coming from different national, legal and professional backgrounds.

Depending upon how one defines the term ‘international commercial court’, the twenty-first century has witnessed a growth, particularly in the Middle East and Asia, of specialist courts which appear to have been established with the resolution of international commercial disputes in mind. This chapter considers the role these new courts are fulfilling in the field of international commercial dispute resolution, with a particular emphasis on the role and character of the judiciary and the development of jurisprudence, as well as broader issues relating to access to justice more generally. There also features a short case study in relation to the Qatar International Court and Dispute Resolution Centre.

Physical possession is among the legal standards Chinese judges can apply in child custody determinations: whether a change in the status quo would undermine the best interests of the child. Because children in rural areas overwhelmingly live with their fathers or paternal grandparents, and because judges overwhelmingly apply this physical possession standard, judges’ child custody orders are entirely consistent with the adage, “Possession is nine-tenths of the law.” Women who fled domestic violence often left their children behind in the possession of their abusive husbands. Because defendants, simply by withholding consent, could so easily prevent courts from granting divorces, women frequently bargained away their child custody rights in exchange for their freedom. In both scenarios, courts deferred to the patriarchal order by privileging fathers’ child custody claims. Even when there were compelling and legally justifiable grounds for rejecting the status quo on the grounds that it posed a safety risk to the child, judges nonetheless tended to apply the physical possession standard. Judges had no apparent hesitation to grant custody to perpetrators of domestic violence.

The first part of this chapter is devoted to a computational analysis of judicial discourse in written court decisions. Chinese judges ignored domestic violence allegations in the process of denying divorce petitions. When often justified doing so on ideological, moral, and therapeutic grounds. Although divorce litigation was rife with allegations of domestic violence, they had no discernable effect on the character of judicial discourse in court holdings. Regardless of domestic violence claims, judges focused on couples’ reconciliation potential and provided paternalistic and patronizing relationship advice. Judicial discourse was gendered insofar as judges directed such gaslighting strategies toward women more than toward men. The second part of this chapter is devoted to an analysis of judicial decision-making: (1) the extent and nature of gender inequality in case outcomes, and (2) the effect of domestic violence allegations on case outcomes. Judges took the claims and interests of men more seriously than those of women. Domestic violence did not move the needle toward divorce. Victims of domestic violence, mostly women, were revictimized by judges who ignored their claims.

This chapter picks up where the previous one left off. Included in courts’ toolkit of coping strategies to the problem of caseload pressure is the routine practice of denying first-time divorce petitions and granting them on subsequent attempts. The divorce twofer is a pressure release valve for courts. Denying divorce petitions helps judges clear their dockets more efficiently and thus improves their performance evaluation scores. By enhancing judicial efficiency, the divorce twofer greases the wheels of justice and helps judges clear their dockets, often at the cost of injustice. The benefits judges gain from denying first-attempt petitions are clear: less onerous pretrial and trial formalities, shorter trials, and briefer decisions. China’s judicial clampdown on adjudicated divorce is, more than anything else, courts’ response to rapidly expanding volumes of litigation. China’s ideology of family preservation, which has deep roots but which has been further elevated since 2012, helps enable and justify the judicial clampdown on divorce.

This book chronicles and explains Chinese judges’ tendency to deny divorce petitions. This tendency has intensified beginning in the mid-2000s in a process I call the judicial clampdown on divorce. Most divorce petitions in China are filed by women, and about one-third include allegations of domestic violence. In their determination to deny divorce petitions, judges have generally ignored plaintiffs’ allegations of marital abuse. In so doing, they have subverted China’s domestic laws and international commitments protecting gender equality and women’s physical security. This book is about decoupling in two senses of the word. Decoupling, the book’s title, refers both to the decoupling of married couples and to the decoupling of legal practices from legal promises. This chapter zooms in to the organization and operation of the basic-level courts tasked with handling China’s divorce litigation, as well as to the involved actors, including litigants, judges, and legal advocates. It also zooms out from courts and litigation by situating them in the broader landscape of divorce processes.

In this chapter, I demonstrate that Chinese civil justice became increasingly perfunctory as a response to swelling caseloads. As the volume of litigation mushroomed beginning in the mid-2000s, the population of frontline judges handling cases remained stable and even declined after a judge quota reform imposed a hard cap on the number of judges a court could appoint. Aggravating the challenge of appointing judges in sufficient numbers has been the challenge of retaining judges. Insofar as judges could not be recruited in greater numbers and court cases multiplied relentlessly, judicial efficiency gains became the only way out of the problem widely referred to as “many cases, few judges.” China’s clogged courts innovated by deputizing assistant judges, expanding the scope of the simplified procedure, and increasing lay assessor participation. Courts in Zhejiang adopted these coping strategies earlier and more aggressively than courts in Henan. The efficiency gains for courts and judges have come at the expense of due process for litigants, particularly female litigants.

China’s judicial clampdown on divorce has diverted marital disputes into the criminal justice system. When judges failed to protect battered women, domestic violence sometimes escalated to criminal battery or homicide. When judges ignored and subverted the law by routinely denying divorce petitions, divorce cases sometimes transformed into criminal cases after abusive husbands murdered their wives and after abused wives, in self-defense, murdered their abusive husbands. Endemic failure on the part of courts and the police to uphold their legal mandates to protect abuse victims has cost lives. So far, China’s criminal courts appear not to recognize domestic violence as a sufficiently mitigating factor to merit probation, much less acquittal, in homicide cases. In trials of women charged with killing their abusive husbands, criminal courts have steadfastly eschewed the concept of “battered woman syndrome,” and have therefore been averse to acquit—or even to sentence to probation in lieu of prison time—the very women they affirmed to be victims of domestic violence. Nonetheless, reforms introduced in 2015 have clearly turned the tide toward leniency in sentencing.

In addition to summarizing the key findings in this book, this concluding chapter draws also out their theoretical and methodological implications. From a theoretical standpoint, marital decoupling in China sheds light on institutional decoupling – the extent to which and reasons why legal systems that bear the symbolic hallmarks of global legal norms subvert them in practice. Michael Lipsky’s theory of street-level bureaucracy helps illuminate how and why Chinese judges created bottom-up legal and policy substitutes for the top-down domestic laws and international legal commitments they sidelined and subverted. From a methodological standpoint, macro-comparative cross-national research designed to assess the local impact of the global diffusion of law and rights are limited in their ability to do so if they cannot observe judicial decision-making and the institutional forces shaping it.

Quantitative analyses of child custody determinations reaffirm and build on findings reported in previous chapters. Just as domestic violence allegations did not increase the likelihood that courts granted women’s divorce requests, they likewise did not increase the likelihood that courts granted child custody to marital abuse victims. Owing to the dominant rural practice of patrilocality, fathers were more likely than mothers to have physical possession of their children. As a result, judges rewarded rural men with child custody for beating their wives. Judges supported the patriarchal family in additional ways. Rural courts tended to grant custody of only-sons to fathers. In rural areas, mothers’ best chances for child custody came from multiple children and from only-daughters. In cases involving siblings, courts frequently split them up between the parents. In cases of mixed-sex siblings, courts typically granted custody of sons to fathers and custody of daughters to mothers. Fathers’ advantages in child custody determinations were limited to rural areas, which accounted for most child custody determinations. Urban courts, by contrast, favored mothers over fathers.

By routinely denying divorce petitions when plaintiffs file them for the first time, judges extend a judicial process of a few months into a litigation repeat that typically drags on for over a year. When plaintiffs return to court for another try, judges tend to grant their refiled petitions. I refer to this routine practice as the “divorce twofer” because it rewards judges in several ways. This chapter offers explanations for the divorce twofer and why litigants in general and female plaintiffs in particular have borne the brunt of it. The divorce twofer conserves judicial resources; judges save considerable time and effort by denying divorce petitions. Heavy caseloads and performance evaluation systems that reward judicial efficiency have thus incentivized judges to deny first-attempt divorce petitions. Nationwide ideological calls to preserve marriage have further reinforced judges’ incentives to deny first-attempt divorce petitions and provided official justification for their tendency to do so. Enduring patriarchal cultural values help explain why judges have clamped down harder on women than on men, which is to say why the divorce twofer disproportionately targets women.

Many Chinese courts started posting their written decisions online in the 2000s, and all have been required to do so since 2013. This book is the product of a computational (a.k.a. “big data”) approach to analyzing a collection of documents far too large to code manually. In this chapter, I document the automated process of collecting and coding almost 150,000 written divorce decisions from two Chinese provinces, Henan and Zhejiang. Despite scholarly concerns about the possibility of systematic disclosure bias, I demonstrate that online collections of Chinese court decisions are well suited for the study of adjudicated divorce outcomes prior to October 1, 2016, when the Supreme People’s Court prohibited the online publication of divorce decisions. I describe my method of constructing and assessing the accuracy of the two key outcome measures at the heart of this book: the court ruling to grant or deny the petition and the court ruling to grant or deny child custody. I then describe how I constructed and assessed the accuracy of the key measures I use to analyze judicial decision-making in general and gender disparities in judicial outcomes in particular.

This chapter introduces China’s formal legal divorce rights, standards, and procedures, which align closely with global norms concerning the protection of gender equality and women’s physical security. China’s legal standard for divorce is the breakdown of mutual affection, which can be established on the basis of irreconcilable differences, physical separation, or statutory wrongdoing such as domestic violence. Only exceedingly rarely, however, have Chinese judges granted divorces on fault-based grounds. In recognition of difficulties abuse victims often face proving their allegations of domestic violence, Chinese law relaxes evidentiary standards in domestic violence cases. Judges nonetheless tend to disaffirm domestic violence allegations on evidentiary grounds. Defendants are absent from a sizeable proportion of divorce trials because they choose to opt out or because their whereabouts are unknown. Judges are more inclined to grant divorces when defendants cannot be found. Judges rarely grant divorces when defendants withhold their consent to divorce. They typically treat a defendant’s unwillingness to divorce as proof that mutual affection has not broken down.