For nearly three decades, there have been heated discussions in the United States about economic incentives in legal practice. Researchers generally agree that economic interests play a critical role in shaping lawyers’ behavior. A telling example in this regard is lawyers’ practice of case screening. Motivated by self-interest, lawyers tend to conduct case screening on a rational, cost-effective basis and seek out cases with high fee potential. This intentional pursuit of potentially lucrative business is particularly prevalent among lawyers in private practice (Reference Helland and TabarrokHelland and Tabarrok 2003; Reference JohnsonJohnson Jr. 1980-81; Reference KritzerKritzer 1984, Reference Kritzer1987, Reference Kritzer1997, Reference Kritzer1998, Reference Kritzer2001; Reference Kritzer and KrishnanKritzer and Krishnan 1999; Reference Kritzer, Felstiner, Sarat and TrubekKritzer et al. 1985; Reference Van HoyVan Hoy 1995, Reference Van Hoy1997, Reference Van Hoy1999). Economic incentives, however, are rarely unbounded in legal practice. Rather, they are often mediated by sociocultural factors, such as lawyers’ sense of responsibility, reputational concerns, desire for professional challenges, political ideologies, and so on (Reference Daniels and MartinDaniels and Martin 1999; Reference KimKim 2009a; Reference Kritzer and KrishnanKritzer and Krishnan 1999; Reference Menkel-Meadow and MeadowMenkel-Meadow and Meadow 1983; Reference Van HoyVan Hoy 1995, Reference Van Hoy1997; Reference TrautnerTrautner 2011).
Building on scholarly insights into sociocultural restrictions on economic incentives in legal services, this study brings to the fore the effects of relational embeddedness on the legal profession's practice of case screening. By “relational embeddedness,” I refer to concrete and durable relationships among law practitioners, clients, adversaries, and the communities these individuals inhabit. Using data retrieved from more than 17 months of ethnographic research in rural China, I demonstrate that relational embeddedness holds the key to our understandings of the legal profession's decision-making in the case screening process. Over the past decade, legal services in rural China have been commodified to the extent that law practitioners usually select cases on the basis of perceived payoff. The commodification of legal services, however, has not yet shaken up the primacy of relational embeddedness in the practice of law. Rather, law practitioners’ relationships with extended families, community members, and political elites have crucial bearing on their decision-making at the workplace. Within this context, decisions as to whether one extends or withholds legal services from disputants hinge on not only perceived payoff, but also current and future ties with clients, adversaries, and the nearby communities. By meticulously scrutinizing multiplex relationships involved in legal services, law practitioners seek to meet the practical needs of their personal life. They also do so in hopes of upholding important moral obligations toward family, community, and the local state. In that sense, the legal profession's case screening is not only economically but also socially motivated.
On two distinct fronts, the findings described above add new depth to our knowledge of legal services in rural China and beyond. One, by introducing the concept of relational embeddedness into sociolegal research, this study invites careful reflections on conventional wisdom about the ramifications of social connectedness in the practice of law. The past decades have witnessed the rise of a burgeoning scholarship highlighting the paramount importance of social connectedness in legal practice in the United States, China, and elsewhere. Conceptions such as social capital, networking, and guanxi (i.e., the Chinese term for direct and indirect connections between social actors) have made deep inroads into the research on legal professions, and, in turn, greatly enriched our understandings of the embedded nature of legal practice vis-à-vis the state, the market, local communities, and international society.Footnote 1 Rich and sophisticated as this scholarship is, it often features a lopsided focus on the bright side of social relationships, and particularly, the positive impacts on the development of legal careers. The dark side of social connectedness—that is, the negative consequences resulting from law practitioners’ embeddedness in multiplex social relationships—has remained understudied (Reference DinovitzerDinovitzer 2006). In light of this problem, this study closely examines the case of legal services in rural China with the intention to illuminate not only the positive but also the negative effects of law practitioners’ efforts to cultivate ties with various social actors. In so doing, I call for greater scholarly attention to the divergent outcomes of the embedded nature of legal practice.
Second, by foregrounding the primacy of relational embeddedness in case screening, this study underscores the importance of context-specific norms and ethics in shaping legal services at the grassroots level. As rural China underwent dramatic social changes over the past decades, local norms and practice, such as mianzi (face), renqing (human emotions), lishang wanglai (reciprocity), and huzhu (mutual assistance), have continued to mold rural residents’ interactions with one another (Reference KipnisKipnis 1997; Reference YanYan 1996). Indeed, law practitioners often acutely feel the weightiness of mianzi, renqing, and other cultural rules in their professional decision-making, despite the central government's decadelong reforms intended to marketize legal services in the countryside. By illustrating how Chinese law practitioners strive to dovetail their professional services with the moral fabric of rural communities, this study contends that the practice of law is an integral part of a localized moral economy. Only with adequate local knowledge of this moral economy can we fully comprehend how and why the practice of law is, and will remain, a craft of place (Reference GeertzGeertz 1983).
Economic Incentives and Relational Embeddedness in Legal Practice
Much research has been conducted to examine economic incentives in legal practice over the past three decades. Studies of lawyers’ case screening prove to be quite revealing in this regard. For example, research shows that lawyers make laborious efforts to seek out cases with high fee potential and avoid those with low prospects of winning in courts, when their fees are tied to the amount of damages recovered for clients (Reference KritzerKritzer 1997). By comparison, lawyers paid on an hourly basis are less selective in case screening and tend to invest more time in case processing (Reference Kritzer, Felstiner, Sarat and TrubekKritzer et al. 1985). Concerns about potential payoff also shape the goals lawyers pursue in dispute settlement. When fee arrangements are directly linked to litigation outcomes, lawyers demonstrate a strong tendency to focus on monetary goals in negotiations (Reference KritzerKritzer 1987). Even when lawyers engage in pro bono services to help indigent clients, their case screening is not entirely insulated from cost-effective calculations. Rather, they must consider how much pro bono work they can afford and whether such services will dampen relationships with paying clients (Reference SandefurSandefur 2007). By being strategic about the time and energy invested in legal services, lawyers seek to maximize their economic interests and minimize risks and costs (also see Reference Helland and TabarrokHelland and Tabarrok 2003; Reference JohnsonJohnson Jr. 1980-81; Reference KritzerKritzer 2001; Reference Van HoyVan Hoy 1995).
In the process of case screening, the legal profession's economic rationality is rarely unbounded though. Rather, it is often mediated by various sociocultural factors. Concerns about professional reputations, for example, keep a great many lawyers from engaging in unscrupulous pursuits of short-term monetary interests (Reference Daniels and MartinDaniels and Martin 1999; Reference KimKim 2009a; Reference Kritzer and KrishnanKritzer and Krishnan 1999; Reference Van HoyVan Hoy 1997). Ideological commitments to helping the poor and the marginalized constitute another important force curbing lawyers’ unethical conduct in seeking profits (Reference Menkel-Meadow and MeadowMenkel-Meadow and Meadow 1983). Additionally, lawyers sometimes accept cases they would not consider otherwise so that they can return favors previously received from colleagues (Reference ParikhParikh 2006). Some go as far as to assist no-fee or low-fee clients to please friends and satisfy obligations toward ethnic communities (Reference LochnerLochner 1975). After decades of research, sociolegal scholars have converged on one point: to develop sound understandings of the legal profession's case screening practice, we must heed both economic and non-economic motivations behind the practice of law. To further elaborate on this point, the following paragraph draws on some of the most influential insights from economic sociology.
Since the publication of Reference GranovetterGranovetter's (1985) article, Economic Action and Social Structure: The Problem of Embeddedness, sociologists have emphatically stressed the significance of relational embeddedness in market based economic exchanges. In this view, rather than occupying separate, differentiated domains, economic activities in modern societies take place within concrete social relationships and are driven by not only cost-effective calculations but also cultural norms and ethics associated with market players’ positioning in distinct social spaces. Moreover, sociologists have spelled out the conceptual distinctions between formalistic properties and substantive meanings undergirding social relationships. The former term refers to the strength, density, and shape of social networks among market players, and the latter pertains to the meaning-making processes that run through many economic activities (Reference BiggartBiggart 1989; Reference SakoSako 1992; Reference UzziUzzi 1997). In recent years, researchers have sharpened their focus on the normative contexts of market transactions by underscoring how relational embeddedness shapes market players’ interpretations of the meanings of economic activities (see Reference ChanChan 2009 as a prominent example).
In all fairness, the embedded nature of economic activities is hardly a novel idea to sociolegal scholars. In fact, many have noted the importance of relational embeddedness in legal practice, although they may not use this terminology (Reference Franklin and LeeFranklin and Lee 2007; Reference KimKim 2009b; Reference LandonLandon 1990; Reference Lazega and Van DuijnLazega and Van Duijn 1997; Reference MichelsonMichelson 2007; Reference ParikhParikh 2006; Reference Uzzi and LancasterUzzi and Lancaster 2004). Landon's research on rural attorneys in Missouri represents a case in point. In his study, small-town attorneys were remarkably integrated into the social fabric of the communities they served professionally. Many frequently found that their (prospective) clients happened to be acquaintances, neighbors, friends, and family members. In this environment, attorney-client interactions were regularly marked by ongoing relationships arising from friendship, kinship, and community membership, thereby generating crucial repercussions for the practice of law. Rather than aggressively pursuing zero-sum outcomes, small-town attorneys often took a conciliatory approach in disputing in hopes of satisfying clients on one hand and preserving important social relationships on the other (Reference LandonLandon 1990).
Looking beyond rural Missouri, we soon realize that lawyers in non-rural and non-Western contexts frequently come under the influence of relational embeddedness as well. Studies of Chinese lawyers in urban settings have repeatedly underscored this point. In the Chinese case, lawyers equipped with strong ties with state agents, such as police, procurators, and judges, tend to enjoy a wide range of privileges and benefits. To start with, they stand a better chance of securing insider information, case referrals, and even projects allocated by government agencies than peers with only weak or no ties with such agents. By advertising their special insider connections with state agents, lawyers can render themselves more effective in client recruitment than otherwise. Furthermore, by embedding themselves in clientele networks bridging public and private spheres, lawyers can fend off obstructionism and unlawful rent seeking imposed by misbehaving authorities (Reference LiuLiu 2011; Reference Liu and HallidayLiu and Halliday 2011; Reference Lo and SnapeLo and Snape 2005; Reference MichelsonMichelson 2007; Reference Wang and GaoWang and Gao 2000). In short, Chinese lawyers greatly benefit from their formal and informal connections with the state and its elite representatives.
Landon's research on rural attorneys in Missouri, together with the studies of urban Chinese lawyers, exemplifies the long-standing scholarly interest in the effects of relational embeddedness on the practice of law. Despite that, the question of how relational embeddedness intersects with economic incentives in legal practice has not yet drawn much attention from sociolegal scholars. Whether and how the embedded nature of legal practice affects law practitioners’ economic interests remains unclear to this day. This gap in the literature leads to specific limitations in our knowledge of the legal profession's practice of case screening. For example, existing research has mainly focused on how lawyer-client interactions shape case screening and processing. This line of inquiry recognizes client characteristics, such as likeability, trustworthiness, and deservingness, as important considerations for lawyers’ decision-making in case selection (Reference Daniels and MartinDaniels and Martin 1999; Reference MichelsonMichelson 2006; Reference Mather, McEwen and MaimanMather, McEwen, and Maiman 2001; Reference Sarat and FelstinerSarat and Felstiner 1997; Reference TrautnerTrautner 2011). Few studies, however, have expanded their scrutiny from client characteristics to the properties of potential adversaries within and outside the courtroom. Accordingly, we know little about how lawyers’ relationships with prospective adversaries and the surrounding communities affect their decisions about case screening and processing. This limitation, in turn, hampers our efforts to comprehend the import of context-specific norms and ethics in the configuration of non-economic motivations behind legal services.
In light of the literature on economic incentives in legal practice and also considering the significance of relational embeddedness in lawyering, this study aims to address three research questions:
• To what extent is the legal profession's practice of case screening economically motivated, and to what extent is it socially driven?
• How do cultural norms and ethics shape the legal profession's socially motivated case screening?
• Ultimately, how does the introduction of relational embeddedness into the studies of case screening inform the research on legal professions in general?
To answer these questions, I draw on insights from economic sociology and subsequently define relational embeddedness as concrete and durable relationships among law practitioners, (prospective) clients, (potential) adversaries, and the communities these individuals inhabit. At the heart of this conceptualization is law practitioners’ connectedness vis-à-vis various social actors, which can take on multiple forms simultaneously (e.g., friendship, kinship, partnership, and community membership). Note that this conceptualization does not presume any normative connotations. Rather, the cultural norms and ethics that mediate the relationships between law practitioners and other social actors originate from the particular contexts where the practice of law transpires. In the case of rural China, I expect that the norms and ethics at the center of village life—such as mianzi (face), renqing (human emotions), lishang wanglai (reciprocity), and huzhu (mutual assistance) (Reference KipnisKipnis 1997; Reference YanYan 1996)—play a crucial role in constraining law practitioners’ pursuits of short-term monetary interests. I also expect that, due to their embeddedness in multiplex relationships, law practitioners often feel morally obligated to extend their services to some disputants (i.e., positive obligations) and to withhold them from others (i.e., negative obligations). The next section contextualizes the current study by offering a detailed overview of legal services in rural China.
Legal Services in Rural China
The landscape of legal services has shifted considerably over the past decades in rural China. On one hand, a great many social problems have led to the proliferation of popular discontent and even sharp escalation of tensions and conflicts in rural communities. These problems include but are not limited to rural residents’ resistance to heavy taxation, protests against cadre corruption, petitions against illicit land expropriation, and struggles with environmental deterioration (Reference Bernstein and LüBernstein and Lü 2003; Reference MichelsonMichelson 2008; Reference O'Brien and LiO'Brien and Li 2006; Reference PilsPils 2005; Reference SternStern 2013). Meanwhile, mundane grievances such as disputes over divorce, debts, water use, consumer purchase, and personal injuries have continued to affect ordinary people in rural areas (Reference LiLi 2015; Reference MichelsonMichelson 2007). In recent years, popular demand for legal services has been rising—particularly among rural residents who intend to mobilize state law to address their grievances and to actualize important entitlements. On the other hand, the scarcity of licensed lawyers has remained a thorny issue in China's vast countryside. According to a news report published in the Legal Daily, 174 counties have not had a single lawyer by 2014, and the vast majority of those lawyer-less counties are located in western rural areas (Reference LiLi 2014).
Confronted with rising popular demand for legal services on one side and limited availability of licensed lawyers on the other, the central government implemented a number of reforms in the past decades. These reforms, in turn, generated mixed results in expanding rural residents’ access to justice (for a thorough review in this regard, see Reference FuFu 2015 and Reference LiuLiu 2011). Amid those government sponsored reforms were more or less concerted initiatives to streamline the delivery of legal services conducted by a particular group of law practitioners, known as jiceng falü gongzuozhe (basic-level legal workers) in the Chinese language. The remainder of this section focuses on the role legal workers play in the shifting landscape of legal services in rural China.
As a professional group, legal workers first appeared in the mid-1980s. In the following decade, the number of legal workers nationwide soared from 61,823 to 119,155 between 1987 and 1997. Meanwhile, jiceng falü fuwusuo (basic-level legal workers’ offices), the host organizations for this group, increased from 23,737 to 35,207 throughout the country. This period also witnessed a rapid expansion of services delivered by legal workers. In 1997 alone, legal workers processed a total of 1.67 million civil cases, a nearly19-fold increase in a decade (Reference GanLaw Yearbook of China 1987 and Reference Sun1998). In addition to handling citizens’ legal problems, this group facilitated local governments in notarization, dispute settlement, and other administrative affairs, thereby gaining an official status as part of the political-legal branch of the local state (Reference Fu, Chen, Li and OttoFu 2002).
The year 2000 was a turning point for law practitioners in the countryside—the Ministry of Justice in Beijing initiated a top-down reform in an attempt to detach legal workers from local governments, a measure known as tuogou gaizhi (unhooking and privatizing). Following the reform, many legal workers lost their former state sector membership, and their host organizations were officially reclassified as zishou zizhi (self-financing) and ziwo guanli (self-managing) service providers (Reference ZhuZhu 2008). Three years later, the Ministry of Justice started another initiative, prohibiting government officials from engaging in profit-making legal services. This measure was further consolidated by the promulgation of the Civil Servant Law in 2005. Together, these measures instituted the separation of market based, profit-making legal services and government funded, non-profit legal aid. Consequently, the majority of legal workers no longer remain on the local state's payroll, and many strive to retain profitable cases in hopes of keeping their business afloat.
Several group characteristics have further reinforced legal workers’ economic insecurity. First, compared to licensed lawyers, legal workers generally have less formal education and professional training, which results in a rather limited work scope. For example, legal workers cannot participate in criminal defense cases, a restriction imposed by existing laws, and they are almost nowhere to be found in high-end corporate services, due to limited legal training. Additionally, legal workers have not yet formed a national organization to advocate for their collective interests, whereas licensed lawyers had their professional association established as early as 1986 (Reference LiuLiu 2011).
It must be stressed that the aforementioned reforms have not ended legal workers’ profound embeddedness in rural China. Compared to licensed lawyers in urban settings, legal workers in the countryside are more tightly integrated into the communities they serve professionally–many choose to reside close to their client base so as to reduce business costs. Geographic proximity, combined with years of legal practice, often gives rise to multiplex relationships between legal workers and local communities. Seen from the locals’ viewpoint, legal workers are law practitioners—and they are also neighbors, acquaintances, friends, and fellow villagers—each social role is accompanied by distinct norms and expectations for the individuals involved. Legal workers situated in this context are expected to fulfill various obligations related to friendship, kinship, community membership, and other customary practices.
Furthermore, despite their loss of state sector membership, legal workers have preserved formal as well as informal relationships with the local state. Although many no longer receive public funding these days, they are hardly “self-managing.” In practice, local state agencies such as the Justice Bureau have continued to keep a tight grip on the delivery of legal services in the countryside. Here is one telling example: it is up to the Justice Bureau to appoint directors for legal workers’ offices. It is also the Justice Bureau—not a professional association—that conducts annual performance review for legal workers. Those who fail to pass this review will risk losing their license. Needless to say, legal workers who have cultivated strong ties with local state agencies seldom face this predicament (Reference LiuLiu 2011).
To sum up, as China underwent notable social transformations in the last two decades of the twentieth century, popular demand for legal services was on the rise, and meanwhile, licensed lawyers were often nowhere to be found in the countryside. Against this backdrop, legal workers emerged and have remained the key providers of legal services in rural China. Nowadays, two job characteristics (i.e., economic insecurity and profound embeddedness in local communities) mark legal workers’ everyday practice of law. The first characteristic—a tough condition resulting from decadelong reforms imposed by the central government—prompts legal workers to actively pursue profits in hopes of maintaining a viable business. The other characteristic—deriving from legal workers’ continued, geographic and social proximity to their client base—often motivates them to sustain crucial ties with community insiders and local political elites. It is within this context that the current study seeks to illuminate the interplay of economic incentives and relational embeddedness in the practice of law.
Data and Methods
Research Sites
The data for this article were retrieved from an ethnographic study I conducted in Guxiao and Xiqing between January 2010 and May 2011 (all the names in this article are pseudonyms). The selection of the research sites was mainly informed by my familiarity with the two rural townships. Located in southern Sichuan Province, Guxiao and Xiqing accommodate 25,000 and 48,000 residents respectively, and the vast majority of the residents rely on farming for a living. The past decade witnessed the two townships locked in a downward spiral resulting from economic underdevelopment, ecological deterioration, and rising labor out-migration. Speaking of their hometown, residents in their twenties express profound disappointment. Senior residents, however, harbor somewhat different memories: Guxiao and Xiqing were in their prime back in the 1980s. Farming brought local residents stable income, the port along the Ming River infused the townships with cargo, cash, and energy, and state-owned enterprises were burgeoning, supplying residents with job security and a sense of prosperity. Positive memories, unfortunately, were largely gone by the end of the first decade of the new millennium. In 2010, the annual per capita income barely reached 5,000 yuan (approximately 700 US dollars).
As the townships went through ups and downs, so did the two legal workers’ offices (one located in Guxiao and the other in Xiqing). Their earlier affiliation with the township governments was cut off as a result of the reforms initiated by the Ministry of Justice. The offices have hitherto become fully responsible for their financial gains and losses. At the time of this research, the two offices employed a total of seven legal workers and one staff member (see Table 1 for more information about the personnel). Note that none of the legal workers was on the local government's payroll. Instead, they were all paid on a commission basis, and service fees were their main source of income. This remuneration structure imposed great economic pressure on the legal workers in the offices. Unsurprisingly, they took rigorous measures in case screening in hopes of securing high payoff.
Table 1. The Personnel in the Two Legal Workers’ Offices
Note: All the names in the table were pseudonyms.
In the two offices, four out of the seven legal workers kept residence in the countryside (the other three commuted between the county seat and the townships on a regular basis). Due to this arrangement, those legal workers frequently found themselves approached by individuals they had already known outside the workplace. Part of the everyday legal practice, therefore, was to keep acquaintances, friends, and other community members content in their help seeking efforts. Additionally, the importance of cultivating strong connections with local political elites surfaced in legal practice from time to time. Along this line, one legal worker divulged that he frequently hosted mahjong games at his home as a practical way to foster good relationships with government officials and village leaders. Another stressed that the Chinese New Year remained as one of the most critical moments to strengthen ties with prominent figures among local authorities. In these accounts, maintaining good terms with political elites was as crucial as sustaining solid relationships with community members.
Ethnographic Observations and Follow-Up Discussions
My fieldwork in Guxiao and Xiqing involved frequent visits to the two legal workers’ offices, usually five days a week, four to six hours a day—I did so for about nine months. My status as a native Chinese speaker, familiarity with the local dialect, and intimate knowledge of the surrounding communities facilitated the efforts to cultivate rapport with the legal workers in the offices. As time went by, my research activities unfolded along several lines. First, I carefully reviewed annual reports, internal memorandums, and over 200 case records the Guxiao office maintained. This effort helped me form a clear view of the office's main areas of practice. In most years, handling rural residents’ disputes with family members constituted the largest category in the office's business dealings, followed by disputes with fellow residents, employers, healthcare providers, and government agencies. Based on this finding, I conducted the second step of research by observing a sample of 62 face-to-face meetings between legal workers and rural residents in need of professional assistance for disputing. In the course of collecting this sample, I took note of the disputants’ age, gender, the nature of their grievances, and prior relationships with legal workers. I also paid close attention to the legal workers’ responses to the disputants’ complaints, rights claims, and calls for help. Soon after the observations, I expanded my field notes by writing down important pieces of dialog between the two sides.Footnote 2
To contextualize my observations of the 62 meetings in the sample, I conducted follow-up discussions with the legal workers involved. I did so by making consistent efforts to discuss the dispute at hand soon after observing a face-to-face meeting between a legal worker and a disputant. Through the follow-up discussions, which lasted from a few minutes to over an hour, I probed several issues related to case screening. For example, what prompted a legal worker to help a disputant? Was the decision based on concerns about fee potential or social obligations? Apart from fee potential and social obligations, what factors affected legal workers’ decision-making in case screening? In short, those discussions allowed me to pinpoint economic as well as non-economic motivations behind the decision to extend legal services to certain disputants or not. Finally, I also completed seven in-depth interviews with legal workers from Guxiao, Xiqing, and the nearby townships to deepen my understandings of the various incentives behind case screening.
Analytical Strategies
To analyze observational and interview data, I used NVivo, a software program designed for qualitative research. After entering archival records, field notes, and interview transcripts into NVivo, I reviewed the three sources of data multiple times. In this process, I systematically examined the impact of fee potential and social obligations on legal workers’ case screening. More specifically, I coded and recoded the sample of 62 face-to-face meetings through the following steps. First, I divided the sample into different groups, based on disputants’ gender, age, and the type of their grievances. Second, I sorted the sample into two outcomes: “legal assistance was offered” and “legal assistance was withheld.” A meeting was categorized as the former, if a legal worker made the following endeavors: (1) closely examine the dispute at hand by eliciting specific information from the disputant, (2) clearly explain the law on the books (e.g., legal concepts, rules, and procedures), (3) offer insider's tips on the law in practice (e.g., clarify how the grassroots court system operates on the ground), (4) facilitate dispute management (e.g., explain how to avoid dispute escalation, collect evidence, or conduct bilateral negotiations with the other disputing party), and (5) encourage the use of professional services. If the aforementioned efforts were largely absent from a meeting, it was labeled as “legal assistance was withheld.”
Third, based on legal workers’ responses to the follow-up discussions, I coded the sample along two dimensions: fee potential and social obligations. Accordingly, I labeled 25 meetings as carrying “high fee potential,” 30 as “low fee potential,” and placed seven meetings in the in-between category, “fee potential uncertain.” After that, I used another three categories to code the sample: 41 meetings were marked as “no obligations involved,” as they featured no prior ties between legal workers and disputants outside the workplace. Hence, the former were under no social obligation to offer (or withhold) assistance to (from) the latter. The rest of the meetings in the sample, however, were different. Thirteen meetings were labeled as featuring “positive obligations.” That is, the legal workers involved revealed that they assumed specific responsibilities to assist certain disputants as a result of social bonds formed outside the workplace. Another eight meetings pertained to the category of “negative obligations.” In those cases, legal workers suggested that they felt compelled to stay out of particular disputes, due to concerns about prior or future ties with the other disputing party.
Together, these analytical procedures enabled a numerical specification of the extent to which the outcomes of case screening varied by disputants’ gender, age, dispute types, fee potential, and social obligations (see Table 2). Below, I discuss in detail how fee potential and social obligations shaped the outcomes of case screening, respectively. With regard to the notation in this article, “M” refers to the face-to-face meetings in the sample, “D” to the follow-up discussions with legal workers, and “I” to the in-depth interviews I conducted.
Table 2. The Outcomes of Case Screening in the Legal Workers’ Offices
Note: A total of 86 disputants, 4 legal workers, and 1 staff member participated in the 62 meetings.
Economically Motivated Case Screening
Table 2 provides the first glimpse into the investigation of economic motivations behind the practice of law in rural China. Of the meetings indicative of high fee potential, 84 percent witnessed legal workers helping out disputants in some ways. By contrast, among the meetings with low fee potential, only 53 percent ended with this outcome. This section draws on several ethnographic examples to shed additional light on the importance of perceived payoff in legal services.
The first example concerns a village elder seeking legal assistance for his retirement pension. On a chilly morning, a villager in his sixties visited the Guxiao office. Hua Lin, a staff member, greeted the elder. The two had a brief conversation, through which Lin learned that the elder's monthly pension was 2.6 yuan short of the official standard. Unhappy with the situation, the elder pondered what he could do under the circumstances (M5). Soon after sending away the elder, Lin turned to me to express her discontent. “2.6 yuan, what are you going to do with that; besides, who would take legal action for merely 2.6 yuan,” Lin asked rhetorically. She then concluded: “I don't have time for folks like this” (D5). As far as the staff member was concerned, whether the elder's grievances contained any legal merits was beside the point. A dispute over such a small amount of money could hardly generate any service fees. Hence, she readily showed the elder to the door without helping him schedule an appointment with a legal worker.
The second example involves a legal worker named Yinxue Li who decidedly turned down a migrant worker's request for legal assistance (M26). During the follow-up discussion, Li explained to me why she dismissed the case without a second thought. Judging from the injuries the migrant worker sustained at work, the compensation he could obtain from his employer was unlikely to exceed 2,000 yuan (about 285 US dollars). As Li weighed fee potential, she asked out loud rhetorically: “how much could he possibly pay [in return for my help]? If I got him 1,000 yuan [as compensation for workplace injuries], he would spare 100 for me? If I got 2,000 yuan, he would share 200 with me?” In the end, she summed up her assessment: “a case like this is pointless” (D26).
Legal workers’ reactions to disputes over eldercare further testify to the effects of perceived payoff on the outcomes of case screening. In Guxiao, Xiqing, and the nearby townships, indigent villagers often found themselves embroiled in disputes with their adult children over eldercare, and many took their complaints to the legal workers’ offices.Footnote 3 Despite that, legal workers rarely intervened. Internal memorandums retrieved from the Guxiao office indicated that, between 2005 and 2009, eldercare disputes comprised less than 3 percent of the cases on file. When asked about his view of village elders’ needs for legal assistance, a legal worker put it this way:
The legal workers’ office is a service-oriented enterprise, not a state agency. We will assist people who can afford our services. As for those who can't do that, we are unable to attend to their grievances. People [stuck in eldercare disputes] should take their problems to the Justice Office and talk to Director Zhang [i.e., a government official in charge of this office]. If village elders contact me for help, I will call Director Zhang. After all, his office is a state agency, and ours is not (I73).Footnote 4
By stressing the distinctions between “service-oriented enterprise” and “state agency,” this legal worker invokes two different logics beneath the practice of law at the grassroots level. The first logic is market based and features rational calculations of costs and profits, while the second stands for nonmarket forces intended to serve the needy with public services. In this account, legal workers’ offices pertain to the market sphere, whereas state agencies squarely fall into the nonmarket category. The legal worker's comments on the separate functions of the market and the state vividly speak to the profound impact of the central government's decadelong reforms intended to commodify legal services in the countryside.
Socially Motivated Case Screening
Economic incentives, however, were not always the overriding determinants in legal workers’ decision-making in case screening. When faced with social obligations derived from kinship, friendship, and community membership, legal workers often put short-term monetary interests on the back burner. Table 3 speaks to this point with more details. Of the 25 meetings carrying high fee potential, two featured positive obligations, and another three were marked by negative obligations; in those cases, legal workers took very different approaches in case screening, despite perceived high payoff. While the cases featuring positive obligations ended up legal workers assisting the disputants involved, those marked by negative obligations witnessed the former withholding help from the latter. As for the 30 meetings in which low service fees were anticipated, the outcomes of case screening varied considerably. When legal workers perceived positive obligations on their part, they were far more likely to extend help to disputants than otherwise (see Table 3). In short, legal workers often chose to honor their social obligations, in spite of the great variations in perceived fee potential. What could account for this notable departure from profit driven, economically motivated practice of law? I believe that the answer is relational embeddedness, together with the underlying cultural norms and ethics specific to rural townships like Guxiao and Xiqing. The following pages draw on concrete ethnographic examples to elaborate on this point.
Table 3. Case Screening Outcomes across Fee Potential and Social Obligations
PO, positive obligation; N/A, no obligation involved; NO, negative obligation.
Notes: A total of 86 disputants, 4 legal workers, and 1 staff member participated in the 62 face-to-face meetings in the sample.
Exchanging Legal Assistance for Practical Favors
In rural China, villagers regularly assist each other on various occasions. Exchange of favors—such as looking after relatives’ children, attending to neighbors’ fields, and lending a hand to one another's home construction—is part of villagers’ day-to-day endeavors to create and sustain social ties (Reference KipnisKipnis 1997; Reference YanYan 1996). Legal workers in Guxiao and Xiqing are no exception in this aspect. They count on fellow villagers for various favors to meet their practical needs at home. The following examples show how legal workers factored in their practical needs while conducting decision-making at the workplace.
In the first example, a legal worker named Dejin Yan greeted a villager who was seeking help for divorce. Judging from the way the two interacted with each other, it appeared that they had met before (nowhere in the meeting did the two introduce themselves). A few minutes into the meeting, Yan learned more of the villager's marital grievances and claims, and subsequently, promised that he would take a close look at her case. Reassuring as Yan was, the villager somehow felt the need to emphasize her concerns about service fees. A few hundred yuan was all she had at the time. In the face of such concerns, Yan responded with an unusual gesture of generosity: “…that [the fee] is not a big deal. Let's help each other. You don't have to pay the full amount.” Despite Yan's reassurance, the villager proceeded to further stress her financial hardship. Again, Yan comforted the villager by reiterating that the fee was not a problem. After that, he tactfully switched the topic by asking if the villager owned a night cart (i.e., a vehicle used to transport excrement from residence to farmland). Once the villager confirmed that, Yan politely requested a favor. It turned out that, like many residents in Guxiao, Yan did not have a built-in sewage system in his house. Nor did he own a night cart. Every now and then, he must look for help with wastewater treatment (M42). In this example, the legal worker's urgent needs at home trumped his immediate monetary interests and led him to adopt a rather flexible attitude toward service fees. Rather than maximizing potential payoff, he evoked the rhetoric of mutual assistance between fellow villagers by uttering: “Let's help each other.”
The next example further illustrates how legal workers’ practical needs at home are linked to their consideration for social obligations within and outside the workplace. Retrieved from my field notes, the extracts below capture a face-to-face meeting between a disputant and a legal worker named Dejin Yan.
A village elder in her seventies stepped into the office to seek help for her problems. Yan said hello and sat down with the elder right away. The conversation between the two first centered on a divorce lawsuit the elder's daughter-in-law filed recently… In the process of addressing the elder's queries about divorce proceedings, Yan was warm and patient. He explained in detail what kind of evidence was needed in divorce litigation, how debt was divided between husband and wife, how court rulings were made in practice, and so on…Approximately 20 minutes into the meeting, Yan changed the topic and raised several questions regarding a young woman in a nearby village. His queries ranged from the woman's age to height, from family background to employment experience. The elder seemed to be well prepared in her replies. She satisfied Yan's curiosity by addressing his questions one by one… At some point in the meeting, Yan brought up his nephew, an unmarried man in his late twenties. The conversation gradually shifted from the young woman to the nephew (e.g., his age, income, family property, and etc.)… Eventually, the two came to the same conclusion: the young woman had high expectations for her mate, so she might not be a good match for Yan's nephew. Toward the end of the meeting, Yan emphasized that the two stay in touch with each other (M40).
The extracts above depict the process through which a meeting between a disputant and a legal worker morphed into a gathering for matchmaking. This very transition took place so smoothly that neither party in the meeting displayed a tinge of abruptness. My follow-up discussions with the legal worker and the disputant shed more light on the conversation described above. Indeed, this meeting was not the first encounter between the two. Because of her son's marital problems, the village elder contacted the legal workers’ office before. Through their prior contact, Yan realized that the elder had intimate knowledge of the surrounding villages, thereby an ideal matchmaker for his unmarried nephew. This discovery subsequently led to Yan's attempt to build a long-term relationship with the elder—in a big part by helping her at times she needed legal assistance. The elder, in return, agreed to keep an eye on available young women in hopes of assisting Yan to find a wife for his nephew (D40). Note that neither party mentioned service fees throughout the meeting—a marker for market based legal services. Rather than exchanging services for fees, Yan used his legal expertise to elicit favors from a potential helper, who subsequently offered counter-favors to reciprocate the assistance she received. In this case, legal assistance was given to a disputant—not as a commodity—but rather as a gift intended to pave the way for future exchange of favors. Seen in this light, the practice of law was an integral part of a localized gift economy in rural China (Reference KipnisKipnis 1997; Reference YanYan 1996). By regularly participating in this economy, legal workers sought to satisfy their practical needs in their personal and family lives.
Offering Legal Assistance to Uphold Moral Obligations
In the countryside, not only do opportunity structures whereby villagers seek to satisfy practical needs come with relational embeddedness but also the social ethics toward which they direct their individual actions. In this regard, mianzi (face) and renqing (human emotions) constitute a key dimension of the normative universe villagers have continued to inhabit amid dramatic social changes in rural China. For example, the colloquial term, ge ge mianzi—which literally means face-giving—dictates that individuals situated in the same networks ought to honor one another's social standing publically and symbolically. To what extent and in what ways individuals shall fulfill such moral responsibilities hinges on the strength as well as the properties of the relationship in question (e.g., equal versus hierarchical ties, symmetric versus asymmetric obligations, mutual assistance versus patronage). The stronger social ties are and the more they emphasize relational properties like equality, mutual trust, and reciprocity, the greater responsibilities individuals are supposed to shoulder to safeguard one another's face in public. Similarly, renqing as social ethics demands those embedded in the same networks to empathize with one another's feelings. The closer social ties are, the more they stress emotional bonding as opposed to practicality and rationality, and accordingly, the more seriously individuals are expected to uphold the ethics of renqing (see Reference ChanChan 2009 for an in-depth discussion of relational strength, properties, and normative principles that shape meaning-making processes in economic activities).
In everyday practice of law, legal workers in Guxiao and Xiqing are rarely exempt from the influence of mianzi and renqing. The first example below illustrates this point by describing how and why a legal worker voluntarily slashed service fees in the process of case screening. One day, a disputant in his mid-twenties walked into the Guxiao office, asking if he could consult someone about divorce litigation. Dejin Yan, the aforementioned legal worker, briefly addressed the disputant's questions and then closed the meeting. A few days later, the disputant returned, this time in the company of another man named Zhen Wen. On seeing Wen, Yan wasted no time in diving into the disputant's divorce case by carefully examining his grievances and rights claims. After that, he made an unusual offer. “If you hire us [to represent this case], we'll give you a discount. How about this? You'll pay only eight hundred yuan [for legal services],” Yan said in earnest (M31).
During the follow-up discussions with Dejin Yan, Zhen Wen, and the disputant, I learned that the three men had been connected with one another by virtue of collaboration and community membership. Regarding Yan and Wen, the former was a mentee of the latter, and the apprentice-mentor relationship lasted for several years. Because of this relationship, Yan felt indebted to his former mentor and was compelled to show his respect in a proper way. As for Wen and the disputant, they grew up in the same village, and their families remained close for decades. After learning the disputant's marital problems, Wen recommended his former colleague at the legal workers’ office as a source of help (D31). These revelations put a new perspective on Yan's unusual offer. In the process of case screening, legal workers seldom offered to cut their service fees. After all, they relied on such fees as a main source of income. However, when a former colleague turned up to ask for help, the legal worker involved did everything in his power, including voluntarily slashing service fees. With such a gesture, he conveyed his gratitude by bolstering the colleague's “face” in the eyes of fellow villagers. In that sense, what the legal worker offered was not merely a discount, but rather a symbolic gesture intended to honor social norms such as reciprocity and “face-giving.”
Apart from monetary benefits, legal workers provided special accommodations to disputants with whom they shared strong ties outside the workplace. Ordinarily, legal workers preferred to hold business meetings at their office, thereby shifting the burden of travel to disputants. This preference was understandable, considering the limited public transport and difficult road conditions in Guxiao and Xiqing. This general rule was not unbreakable though. When relational embeddedness came into the picture, legal workers could readily accommodate disputants’ special needs and wants. The example below illustrates how far legal workers could go to fulfill their moral obligations toward family and community. A few months into the fieldwork, I received an unusual request. Yinxue Li, a legal worker from Xiqing, invited me on a trip to visit a client at home (M72). Through this trip, I met a 32-year-old woman, who recently gave birth to a son born outside of her marriage. Determined to start a new family, the woman sought out legal assistance so that she could divorce her husband in a local court. To this end, she reached out to a friend, who happened to be a high school classmate of Li. Later, Li revealed why she agreed to meet the client at home. Soon after the woman started an affair with another man, she went into hiding. Furious, her husband initiated an all-out effort to track down the runaway wife. Considering the woman's dire situation, Li arranged their meetings at private places to minimize the client's risk of exposure and to accommodate her needs for breastfeeding (D72). During the divorce trial, the client was repeatedly subjected to the husband's harassment. To shield the client from spousal harassment, Li accompanied her to the local police station to seek out legal protection (D73).
I must point out that the legal worker's endeavors to accommodate the female client's special needs were rather uncommon among those who practiced law in Guxiao and Xiqing. Over the 17 months of the fieldwork, I noticed one and only one case in which a legal worker repeatedly met with a client outside the office. The general rule, in other words, was to arrange business meetings inside the office so that legal workers could avoid travel-related expenses. Moreover, although legal workers frequently heard complaints of spousal abuse in their daily practice, few made elaborate efforts to protect rural women from domestic violence. Such inaction reflected a profession-wide reluctance to confront husbands and in-laws in largely male-dominated rural communities (see Reference LiLi 2015 for an in-depth analysis of divorce law practice and gender inequality in rural China). Yet, in this particular case mentioned above, the legal worker went out of her way to assist a female client, precisely because the two were related to each other through a mutual friend. Owing to this relational history, the legal worker felt obligated to honor the social ethics, renqing, by displaying her empathy for a runaway wife and by seeking legal protection for her (D72 and D73). In the two examples above, the legal workers involved used their services to display symbolic conformity to social norms central to their client base in the countryside. Seen in this light, the delivery of legal services was part of a moral economy, in which the practice of law was governed by context-specific norms and ethics.
Withholding Legal Services to Avoid Social Fallout
It must be stressed that relational embeddedness can cut both ways. It can facilitate individuals to access information and resources; it can also restrict their opportunities to pursue status and wealth (Reference Chan and UngerChan, Madsen and Unger 1992; Reference KipnisKipnis 1997; Reference WankWank 1996; Reference WilsonWilson 1997; Reference YanYan 1996). A similar parallel can be found in legal practice in the sense that relational embeddedness can incentivize legal workers to help some disputants; it can also dampen their enthusiasm for serving others. In effect, legal workers’ insertion in concrete, durable social relationships can yield reciprocity and social cohesion on one hand, and result in the reproduction of hierarchies and exclusion on the other. In this study, eight meetings in the sample witnessed legal workers coming under negative obligations (see Table 2). That is, those involved in the meetings had no or only weak ties with disputants, but held strong connections with the adversaries. This relational asymmetry often led legal workers to distance themselves from the former in an attempt to maintain important ties with the latter (see Table 3). The examples below demonstrate this point in detail.
At the center of the first example was a medical dispute between a young couple and a clinic in Guxiao. The couple claimed that soon after they checked in the clinic, a botched medical procedure resulted in a stillbirth. The clinic nonetheless denied any negligence in handling the procedure. Upset and frustrated, the couple rushed to the legal workers’ office in hopes of obtaining professional assistance for disputing. A legal worker at the office met the couple and briefly addressed their concerns about medical malpractice litigation (M18). In a week or so, the couple returned twice, repeatedly asking the office to intervene on their behalf. Despite that, the legal workers in the office showed little interest in retaining this case, and none indicated willingness to represent the couple in legal action against the clinic (M19 and M20). In the absence of proper legal representation, the couple eventually opted out of litigation and settled the dispute outside the court.
Later, one legal worker revealed what held him back from actively retaining the aforementioned case. Unlike urban residents who could shop around for medical services, residents in Guxiao had few options other than relying on the township clinic, the only public healthcare provider in the area. In this context, staying on good terms with the clinic was more critical for legal workers than helping local residents settle a score with doctors. Speaking of his decision not to be involved in the foregoing dispute, one legal worker sighed: “…displeasing the clinic could cause serious problems for me and my family. Next time I get sick, what am I going to do [if I burn the bridges with the clinic]” (D19). In this case, the legal worker's intention to maintain an amicable relationship with the adversary (i.e., the clinic) outweighed his desire to help the disputants (i.e., the couple). This example is telling because it exposes a grim reality in rural China: concerns about relational embeddedness, when inserted into the practice of law, do not always bring about a more inclusive form of legal services. Rather, such concerns can compel legal workers to side with the more established (or powerful) party in disputes and deny the weaker party crucial opportunities to access justice. The next example elucidates this point by showing how relational embeddedness in legal practice can end up reinforcing existing power structures in Chinese society.
In most cases observed, Yinxue Li, a female legal worker in Xiqing, had friendly rapport with women disputants. However, when a divorced woman visited the office looking for legal assistance for child support, Li was unusually hostile. Although the woman bitterly recounted her struggles to raise a 12-year-old daughter in the wake of divorce, Li remained unmoved. In the end, the woman left the office in disappointment, without securing help for her case (M77). The moment the woman stepped out of the office, a heated discussion ensued between Li and two female villagers who happened to witness the meeting described above. Through their discussion, I learned more of the woman's marital experiences and reputation in the eyes of fellow villagers. According to Li, the woman came from a nearby village and underwent an acrimonious divorce a few years ago. Her attempt to leave the husband not only antagonized her conjugal family, but also left a bad taste in the mouth of fellow villagers. In this account, the ex-husband was described as a laoshiren (an honest and humble man); by contrast, the ex-wife was diao (cunning) and jiao (belligerent). To sum up her view of the woman in need of legal assistance, Li commented: “I don't want to earn her money. He [the ex-husband] is an honest man. A relative of mine lives in that village and knows this very well… Now, she expects us to help her. I wonder who would do that.”
In this case, the legal worker decisively aligned herself with the adversary (i.e., the ex-husband) as opposed to the disputant who actively sought out professional assistance for disputing. This very decision was hardly a coincidence, given the persistence of patrilocal residence patterns in rural China. In this context, women who married into the husband's family and subsequently became divorced often experience serious difficulties in preserving social ties with their former conjugal communities. Men who have stayed close to their natal family, by comparison, rarely encounter this problem in the wake of divorce. This gender difference in relational embeddedness has important implications for women and men's efforts to secure legal services. In the example cited above, the legal worker distanced herself from the ex-wife, an unwelcome outsider in the eyes of villagers. In so doing, the legal worker reconfirmed her membership in the village, and more to the point, avoided social fallout with community insiders, including the ex-husband and his family. This decision, of course, was not without crucial consequences. By denying female divorcees assistance for disputing, the legal profession missed out on an important opportunity to challenge gender-based inequalities in Chinese society, and, in effect, reinforced rural women's structural disadvantages in their pursuit of legal remedies for grievances and disputes.
Using Legal Know-How to Build Political Know-Who
The remainder of this section continues exploring the dark side of relational embeddedness by closely examining the power dynamics among the legal profession, the local state, and rural residents in pursuit of justice. In the wake of the reforms imposed by the Ministry of Justice, local governments severed their formal ties with legal workers in general, and yet continued to keep a tight rein on those who practiced law in the countryside. Under the circumstances, many in the legal profession quickly learned of their political vulnerability and adjusted their practice accordingly. This type of adjustment first manifested itself in symbolism featured by the legal workers’ offices. A few signs in the office space tacitly pointed to the legal profession's allegiance to the Chinese Communist Party. For example, the signboard on each legal worker's desk displayed not only his or her name, job title, and license number, but also a slogan in a bold font: jiang zhengzhi, gu dajü, zhong fuwu, shou xinyong (remain politically conscious, heed societal interests, value quality services, and observe good faith). The first part of the slogan, jiang zhengzhi, originated from a speech delivered by Jiang Zemin in 1995, the then General Secretary of the Central Committee of the Chinese Communist Party. In that speech, Jiang emphatically stressed that party cadres must be conscious of their “political direction, political stance, political discipline, political judgment, and political sensitivity” (Xinhuanet, 8 November 1995). In the following years, jiang zhengzhi, became a catchphrase as part of official propaganda intended to elicit citizens’ support for party lines.
Note that the legal workers’ offices did not stop at window dressing in showcasing their allegiance to the Chinese Communist Party and its local representatives. Rather, internal memorandums retrieved from the offices indicated that legal workers went to great lengths to cultivate enduring relationships with political elites at the grassroots level. Below is an excerpt from the minutes of a meeting, documented by a legal worker on August 2, 2007. During the meeting, the office director, Xin Wang, highlighted several initiatives:
I have several suggestions regarding how to consolidate our relationships with the local governments. First, we should seek to establish formal ties with township governments by providing them with regular legal consultation. Second, we ought to routinely brief the Party Committee [i.e., the Chinese Communist Party's organ within the township government] about our practice. Third, our connections with the Justice Office [i.e., a township-level state agency in charge of legal affairs] shall be strengthened. Fourth, greater efforts are needed to build strong ties with government officials and village leaders. Last but not least, when dealing with sensitive cases, legal workers should seek my input as well as advice from government officials.
The excerpt above provides a rare glimpse into the legal profession's elaborate endeavors to tap into the grassroots power structures, ranging from village-level governance to township governments, from administrative units to party organs. Those efforts from time to time made their way into legal workers’ case screening and processing, as the following pages reveal. In this study, nine out of the 62 meetings in the sample featured villagers airing grievances against government officials, police officers, and village leaders (see Table 1). Those grievances involved a wide range of social problems in the countryside, including cadre corruption (M11), inadequate pensions (M4, M5, and M14), forced family planning (M83), and illegal land expropriation (M81). On encountering these grievances, legal workers almost never pursued legal action against local political elites. Indeed, internal memorandums indicated that over the past decade the Guxiao office did not process a single administrative lawsuit—the type of litigation enabling citizens to hold state agencies accountable for wrongdoings. The example below presents a close-up look at how and why legal workers tiptoed around disputes implicating local political elites.
On a spring day, a female villager stepped into the legal worker's office to complain about a village chief named Dong Zhao. Her presence immediately drew attention from the office director, Xin Wang, and two legal workers, Dejin Yan and Jun Liu. From the villager's accounts, the director and the legal workers learned of Zhao's illicit conduct. To line his pockets, Zhao embezzled public funds and extracted cash from a number of families in his village. Due to his false promises, several families lost access to farmland and suffered considerable financial losses. On hearing the villager's accusations, the director and the two legal workers formed the same opinion: Zhao should be subjected to criminal investigation. This legal opinion, however, did not lead to subsequent attempts on the part of the office to assist the villager to access justice. Rather, after a brief chat with the villager, the director went back to his paperwork. Liu, one of the legal workers at the scene, slid into silence as well. Yan, the other legal worker, carried on the conversation with the villager by insinuating that she could land herself in trouble as a result of her attempt to expose Zhao's wrongdoings. According to Yan, the fact that the villager had sent cash to Zhao could render her susceptible to charges of bribery (M11).
During the follow-up discussion, Yan divulged that it was not the first time he heard of the village chief's wrongdoings. Over the years, villagers had launched a number of initiatives in hopes that they could bring down the chief. To derail those attempts, the chief built his circle of influence by cultivating strong ties with government officials at higher levels. When asked about his relationship with this circle, Yan responded tactfully: he frequently played mahjong with the chief. A hint as such was rather revealing, given the social significance of mahjong in Guxiao, Xiqing, and the nearby townships. Here, a mahjong table constituted a key locale where people fostered and maintained relationships with one another. Within this milieu, to suggest that someone was a mahjong buddy was equivalent to acknowledging him as a key figure in one's social circles. The legal worker's revelation cast new light on his attempt to block the villager's pursuit of justice. Embedded in the chief's circle of influence, the legal worker wasted no time in aligning himself with the local political elites and turned his back on a disputant desperately in need of legal assistance. Consistent with decadelong research on the Chinese legal profession, these findings bring to the fore a dark reality in rural China: as law practitioners consolidated their connections with political elites at the grassroots level, they often undermined or even derailed citizens’ endeavors to mobilize the official justice system to actualize important rights on the books (also see Reference LiuLiu 2011; Reference MichelsonMichelson 2007; Reference LiLi 2011).
Discussion
By introducing the concept of relational embeddedness into sociolegal research, this study strives to achieve three goals. First, it expands our knowledge of sociocultural constraints on economic incentives in the practice of law. Previous research has identified a list of factors that mediate law practitioners’ profit seeking behavior, including professionalism (Reference KritzerKritzer 1984), ideological commitments (Reference Menkel-Meadow and MeadowMenkel-Meadow and Meadow 1983; Reference SandefurSandefur 2007), reputational concerns (Reference Daniels and MartinDaniels and Martin 1999; Reference KimKim 2009a; Reference JohnsonJohnson Jr. 1980-81; Reference KritzerKritzer 1998), legal environments (Reference TrautnerTrautner 2011), and geographic markets (Reference Daniels and MartinDaniels and Martin 1999; Reference Van HoyVan Hoy 1999). This study builds on and extends this line of inquiry by adding a new parameter to this list, namely, relational embeddedness. More importantly, it spells out to what extent and in what ways noneconomic motivations constrain law practitioners’ cost-effective calculations in the delivery of legal services.
Second, this study exemplifies a critical reflection on conventional wisdom about the embedded nature of legal practice. Sociolegal scholars have long been interested in the role social capital, networking, and guanxi play in the development of legal careers. Along this line, many have explored how social capital helps lawyers improve work satisfaction (Reference Kay and WallaceKay and Wallace 2009), boost collegial support and trust (Reference Kay and HaganKay and Hagan 1999; Reference WallaceWallace 2013), promote career commitment (Reference Kay and HaganKay and Hagan 2003), enhance professional competence (Reference LevinLevin 2004), obtain higher income and status (Reference Heinz, Nelson, Sandefur and LaumannHeinz et al. 2005; Reference KimKim 2009b; Reference Kim, Laumann, Buskens, Raub and SnijdersKim and Laumann 2003), mitigate market uncertainty (Reference KimKim 2009a), and secure partnership and promotion within law firms (Reference Kay and HaganKay and Hagan 1999). Some have also examined how networking contributes to lawyers’ efforts to build coalitions among different constituencies and, in turn, paves the way for concerted policy-making (Reference Heinz, Paik and SouthworthHeinz, Paik, and Southworth 2003; Reference Paik, Heinz and SouthworthPaik, Heinz, and Southworth 2011; Reference Paik, Southworth and HeinzPaik, Southworth, and Heinz 2007). Within this scholarship, social capital is often construed as inherently positive resources lawyers mobilize to advance their career goals (Reference DinovitzerDinovitzer 2006). Similarly, in recent studies of lawyers in urban China, researchers have mainly focused on the beneficial effects of guanxi in legal practice. Within this literature, guanxi is all too often viewed as a set of assets lawyers utilize to pursue their economic and social interests. It is suggested that, with the help of guanxi, lawyers manage to reduce professional difficulties in criminal defense (Reference Liu and HallidayLiu and Halliday 2011; Reference MichelsonMichelson 2007), boost business competitiveness (Reference LiuLiu 2011; Reference Lo and SnapeLo and Snape 2005), fend off unlawful rent seeking (Reference MichelsonMichelson 2007), and insert their influences on judicial and regulatory decision-making (Reference LiLi 2011; Reference Potter, Gold, Guthrie and WankPotter 2002; Reference WilsonWilson 1997). In short, much of the research on legal professions in the United States and in China views social capital, networking, and guanxi in a positive light, and scholarly attention has largely been directed at the inquiries of the benefits law practitioners receive as a result of their embeddedness vis-à-vis the state, the market, local communities, and international society.
The current study does not dispute the possibility that law practitioners can greatly benefit from their insertion into various types of social relationships. Rather, by applying a different concept, namely, relational embeddedness, to the studies of legal professions, I seek to foreground a reality much of the previous research omits: social connectedness can generate not only benefits and advantages, but also obligations and liabilities on the part of law practitioners. In this regard, the case of Chinese legal workers proves to be rather illuminating. With deep roots in rural communities, legal workers are routinely obliged to offer assistance—not in the form of paid services, but as favors and gifts—to fellow villagers. Under certain circumstances, they are compelled to withhold otherwise rightful services from disgruntled disputants in hopes of preserving their community membership and crucial ties with local political elites. The legal profession's insertion into the social and political fabric of rural China, in other words, produces divergent obligations toward family, community, and the local state. Furthermore, such insertion does not equally benefit rural residents of diverse socioeconomic and political standing.
Here, I must underscore the problematic side of relational embeddedness existing research overlooks. To honor their obligations toward family, community, and the local state, Chinese legal workers often wind up siding with the more powerful parties in disputes (e.g., adult children, rural men, and state agents) and, in meanwhile deny weaker parties (e.g., indigent elders, divorced women, and rural residents embroiled in disputes with local authorities) the opportunities to use professional services for disputing. In those instances, social divisions based on age, income, gender, and political status tacitly impinge on legal workers’ decision-making process. As a result, legal workers’ embeddedness in rural communities generates—not a more inclusive or progressive form of services—but rather the entrenchment of existing hierarchies and inequalities. Additionally, their efforts to tiptoe around disputes implicating local political elites can further reinforce the legal profession's systemic subordination to the Chinese party-state.
Third, by inserting the notion of relational embeddedness into sociolegal research, this study seeks to renew scholarly interest in context-specific norms and ethics undergirding the practice of law. Over the past three decades, observers of contemporary China have repeatedly noted the persistence of certain cultural norms and practices in Chinese society, mianzi, renqing, and guanxixue (i.e. the discourse associated with the Chinese term, guanxi), to name but a few examples. Many have realized that the rise of market economy, the rule of law, and globalization has not diminished the role of local norms and customary practices in economic activities in general and legal practice in particular (Reference ChanChan 2009; Reference LiuLiu 2011; Reference MichelsonMichelson 2007; Reference Potter, Gold, Guthrie and WankPotter 2002; Reference YangYang 2002). Largely consistent with this view, the current study confirms that legal reforms initiated by the central government have produced profound changes in the delivery of legal services in the countryside. Despite that, as legal workers reinvent themselves from state sector members to market based service providers, they have continued to demonstrate a type of cultural sensitivity tailored to their client base in the countryside. To understand why and how the legal profession sustains such sensitivity, we must have a solid grip on the primacy of relational embeddedness in the practice of law.
In conclusion, this study offers three lessons that are applicable within and outside the Chinese context. First, the embedded nature of legal practice generates not only strategic advantages, but also social liabilities as well as moral obligations on the part of law practitioners. Second, the concept of relational embeddedness allows us to better capture the negative side of the embedded nature of legal practice—a reality previous research often overlooks. This becomes theoretically and methodologically possible, because this new concept—unlike related notions such as social capital—does not view social connectedness as intrinsically positive or beneficial, thereby rendering it possible to unpack divergent outcomes resulting from the legal profession's insertion into diverse social spaces. As law practitioners strive to consolidate their embeddedness in certain social spaces, they all too often fall short of transcending, let alone transforming, extant divisions and hierarchies. This is precisely why future research ought to pay closer attention to the social processes and mechanisms that amplify the problematic side of social connectedness in legal practice. This brings to the third lesson of the current study: future research shall continue to cultivate close-to-the-ground knowledge of context-specific norms and practices. After all, the practice of law is, and will always be, loaded with meaning making. Hence, it is critical to examine how cultural norms and practices that shape such meaning-making processes come to reinforce and reproduce social and political stratification via the practice of law.
Finally, it must be noted that there are certain caveats in generalizing this study's findings beyond the context of rural China. Law practitioners in other environments may not be as geographically, socially, or culturally integrated into the communities they serve as Chinese legal workers have been. The lack of spatial and social proximity, in turn, may endow law practitioners with greater freedom than otherwise to circumvent cultural norms and ethics central to their client base—many may not feel the urgency to uphold moral obligations stemming from social relationships formed outside the workplace. Furthermore, law practitioners in other countries may not be under tight control of the local state as Chinese legal workers have been. In the absence of systemic subordination to an overbearing state, law practitioners may find themselves in much less vulnerable positions in relation to political elites, thereby demonstrating greater willingness to challenge and even to transform entrenched power structures. In short, it is crucial to take into consideration the larger social and political contexts in scholarly efforts to assess the import of relational embeddedness in the practice of law.
