Now, we will set about constructing a conceptual framework that allows us to query the role of zhengxinshe in people’s intimate affairs. Our goal is, more precisely, to understand this intervention of zhengxinshe from all actors’ points of view and as against the backdrop of a particular constellation of legal norms. We do so by
introducing a set of concepts that will serve to refine each element in an intimate dispute.
These include, actors, the intimate dispute, actors’ interests, legal norms, and social norms.
A dispute is a conflict between the interests of multiple parties that has become manifest as such. That is, it the parties have realized that their interests are at odds, and
this realization is perceptible to one another, even if they have not taken action. In other words, people have a problem, and are aware of it. What is more complex is the
position of a dispute vis-à-vis the law and the legal system and by extension the state.
This is because we need to acknowledge the role of the law and the legal system when disputes that don’t eventuate in courtroom confrontations. The vast majority of disputes in any society develop, persist, and dissipate, resolve, or otherwise terminate without the involvement of courts or other state actors such as the police or administrative agencies. When state actors do become involved, it may be because one or more parties to the dispute calls on state actors to further his or her own goals. Once state actors are involved there are many trajectories a dispute might follow. This could involve
mediation or criminal or civil proceedings. The dispute could be resolved in a state setting such as a court, or it could eventually come to an end in private. In other words, state involvement in disputes is common, but not necessary to a problem’s being
considered a dispute.
Somewhere in the law and society research’s notion of dispute is built in the dispute’s relationship with law and the legal system. Thus, even when a dispute is processed without the involvement of a state actor, the law and the state are still present.
That law allows one party to invoke state actors for a plethora of reasons, even when he or she does not. The threat of doing so may be enough to cause other actors to act in ones favor. To engage in conflict in a modern rule of law state, is to engage in conflict that is on some level always legal. This is not to say that legal norms always play a determining or even significant role, but their existence always matters. What the researcher or jurist believes to be legal, however, might diverge markedly from the thinking of the disputant him or herself. The concept of “legal consciousness” shifts our focus away from the normative and idealist conceptions of jurists and toward the
way that “ordinary people”—our disputants envisage and approach the law.31 Since this thesis does not include a fieldwork component there will be limitations on the extent to which legal consciousness can be observed, but we can gain insights from the
arguments of litigants in the case studies of Chapter Four. Moreover, the some aspects of the public visibility of zhengxinshe as affair detectives may serve as proxies for legal consciousness as they allow us to speculate about the impressions the public would form when confronted with countless media reports and advertisements spread by the industry itself.
Silbey points out that the concept of legal consciousness must be used to do more than draw attention to what people think about the law, and how this affects their behavior. “Legal consciousness as a theoretical concept and topic of empirical research developed to address issues of legal hegemony, particularly how the law sustains its institutional power despite a persistent gap between the law on the books and the law in action,” she writes. Cutting to the heart of a fundamental quandary of law and society research that has bearing on any investigation of disputing behavior in rule of law contexts, she asks, “Why do people acquiesce to a legal system that, despite its promises of equal treatment, systematically reproduces inequality?”32 In the context of this thesis, these insights translate to the queries, among others, that despite the highly visible elements of criminality and lawlessness surrounding the zhengxinshe industry, why are so many people willing to employ these businesses services? To what extent do those investigated by zhengxinshe feel the experience to be unjust, and to what extent do they fight against it using legal or other means? And, why do spouses who have been “cheated on” elect to be complicity in a state of affairs that indirectly limits their own sexual autonomy as well by reinforcing the power of criminal adultery?
31 EWICK &SILBEY, supra note 15, at 15-32.
32 Silbey, supra note 21, at 323.
We are speaking here not of all disputes, but of intimate disputes in particular.
What then, about the modifier intimate? Intimacy is a vague concept, but certainly refers to a high degree of proximity and closeness of human relationships that we reserve for our family, whether by blood or marriage, for or longtime friends. We often associate intimacy with private spaces that are not visible to strangers or the public at large, the home for instance. This is not always the case, however, and intimacy can be meaningful for the very reason that it is highly public, as when a young couple holds hands on the street signaling to the world that they are an item. Intimacy is, by nature, suggests kind of trust; by establishing proximity to another we may be better understood and supported, but we also render ourselves vulnerable. Intimacy and sexuality are related, but the former is not limited to the latter. Normative sexual relationships are characterized by a high degree of intimacy between lovers or spouses, but intimacy is also used to describe the proximity, confidence, and affection between parents and children, other family members, and friends.
Intimacy is usually thought of in positive terms, something desirable or even a necessary part of a happy, fulfilling life. But this does not mean that intimate
relationships are equal. In fact, a power differential is a defining element of aspect of many intimate relationships, such as those between children and their parents, and those between men and women. Furthermore, intimate relationships can, and often are, sites of coercion, oppression and violence.
For these reasons, intimate disputes are qualitatively different from other types of disputes. First and most importantly, the parties to intimate disputes already know each other very well. Most disputes in daily life—with the possible exception of those arising from traffic accidents—occur between acquaintances. In other words, usually the dispute is not coterminous with the disputants’ relationship. But the lives of those
connected by intimate relationships are likely to be intertwined on many levels. This is certainly true of husbands and wives who share bank accounts, places of work,
domiciles, friends, families and support networks. Thus, simply distancing themselves from one other is often not a feasible strategy for dissipating or resolving a dispute.
And, the escalation of an intimate problem into an intimate dispute may bring considerable financial, social, emotional, and even physical costs. The choice to involve a state actor may be all the more risky. It could lead to an irrevocable rend in the intimate relationship. We may think of this difference in terms of transactional costs.
In taking any disputes to a court of law, a disputant is setting him or herself up to bear transactional costs—the cost in terms of time and money that must be footed to use a court. But in the case of intimate disputes, the potential cost may amount to damaging or effectively terminating ones relationship with a close friend, lover, spouse, child, or other relative. Furthermore, when the intimate details of one’s “private” life are revealed to multiple strangers and the state he or she may be subject to increased ridicule or humiliation. This ridicule and humiliation could be considered another kind of transactional cost—an emotional transactional cost.
Society looks upon intimate disputes differently from other kinds of disputes.
The very existence of an intimate conflict could draw disapproval or censure from those around the disputants as well as from society. Parties to a traffic accident or a
neighborhood dispute maybe be faulted as overly stubborn or hotheaded, but this criticism is not likely to be expressed in strong moral terms. A particular set of moral values is reserved for judging conflict among family members. Family members may be considered selfish for pursuing their own interests over those of the family, or risk such labels as “bad” wife or unfilial child. Furthermore, there is a strong social
proscription against involving state actors in family affairs. This is often represented as
the phrase “Law should stay out of the home” (法不入家門).33 While this norm has become much less absolute in recent decades, those actors that take their intimate disputes to court may be seen as at fault regardless of the specific circumstances of their dispute.
The dynamics identified above likely apply to many kinds of intimate disputes.
For the purposes of this chapter, however, we will limit our discussion to those intimate disputes that involve a marriage and an extramarital affair. Again, this selective
reduction is effected in order to develop as sufficiently simple model, and identify particular legal dynamics. Social expectations aside, the institution of marriage confers certain rights and responsibilities on spouses to which those engaged in other sorts of intimate, romantic, and sexual relationships are not subject. “Third” parties to intimate relationships are also treated differently when a marriage exists. A primary goal of this model is elucidating these particular rights and responsibilities.
We are, then, essentially positing an intimate dispute that consists in what is commonly called a love triangle. It is a triadic dispute in which two parties, spouses, are connected by marriage, but the third party is not connected to anyone by marriage.
One spouse, “the adulterer,” is connected to both of the others by intimate relationships.
The other spouse, the one being “cheated on” is only connected to his or her spouse through an intimate relationship. The “adulterous” third party (相姦人) is connected only to the “adulterer.” Thus, the dispute is in no way symmetrical.
Why not call this a “marital dispute” or “extramarital affair dispute”? In fact, a main objective of this conceptual framework is to avoid defining the dispute in terms of marriage or the transgression of marital mores and legal obligations (adultery). While it is necessary to be cognizant of the moral underpinnings of this form of dispute, we want
33參見李立如，法不入家門？家事法演變的社會學分析，中原財經法學，10期，頁41-45（2002）。
to avoid reproducing moral judgments against disputants—that is, privileging the relationship between the adulterer and the adulterous third party over the relationship.
Part of the utility of the concept of intimacy here is that it covers both the intimacy between the spouses and the intimacy between the adultery and adulteress.
The three members of the triadic intimate dispute have different, but overlapping interests. Individuals’ behavior is affected by social norms as well as legal norms, but is by no means beholden to them. Personal preferences and other exigencies must be taken into account. Thus, no actor’s interests can be considered unitary without assuming and overly rigid and narrow model.