This chapter will introduce the concept of the intimate dispute and discuss how laws related to marriage, divorce, and the legal effects of extramarital sex structure such disputes. It is a chief contention of this thesis that in order to understand the meaning of the phenomenon of zhengxinshe as affairs detectives, some headway must first be made toward understanding the socio-legal context in which so-called affairs detectives intervene. This approach represents a marked departure from the ways that the role of zhengxinshe are discussed in both media reports and research coming out of the Central
Police University in that it consciously shifts focus away from zhengxinshe themselves.
It is only once we better understand the interests and behavior of parties to intimate disputes related to extramarital intimacy that it becomes possible to more fully consider what affairs detectives do and how their behavior affects people.
Under ideal conditions, this chapter would sketch a picture of disputants’
interests, attitudes, behavior, and of the way they relate to that law so detailed and complete that the reader would be in a position to predict how, under a given set of circumstances a husband, wife, mistress, or paramour would be likely to behave and why. Of course people are diverse and unpredictable, but, under ideal conditions, we would at least be aware of what factors it is upon which peoples’ divergent behavior turns. To answer the question of what effects the intervention of a zhengxinshe has, then, we would need only to compare intimate disputes in which zhengxinshe appear
with those where they are absent. Unfortunately, there is at present very little empirical research that explains how and why Taiwanese men and women process disputes related to marriage, divorce, and extramarital affairs in particular ways. Furthermore confounding our efforts is the fact that available statistics related to marriage, divorce, and extramarital affairs paint with only the broadest of strokes, and at times may even be more misleading than enlightening.
We can, and will below, examine the letter of the law. But there are aspects in which the plain-letter reading of the law falls short in telling us how the law structures intimate disputes. First, the law is replete with indeterminacy. In real-world terms, this translates to judges’ discretion in determining legal outcomes. According to the
dominant ideologies of “adjudication by law” (依法審判) and judicial independence, discretion is assumed to be exercised by members of the professional judiciary in an isolated, individualist way. In reality, however, trends and patterns in adjudication do exist, and to the extent that lawyers and disputants are aware of these trends, their behavior will respond to them accordingly. That is to say, on a whole, the behavior of the professional judiciary represents once force that structures intimate disputes.
Unfortunately, even when the media, general public, legal professionals, and scholars are aware of these patterns, there is little empirical research of adjudication that the researcher may reference. Secondly, the law plays an important role in the processing and resolution of disputes even when they never make it into the courtroom, but even with extensive ethnographic fieldwork, it would be difficult to understand out-of-court dispute processing.
This chapter will neither attempt to undertake an empirical analysis of trends and patterns in judicial decisions, nor an ethnographic investigation of people’s out-of-court dispute processing. Instead, I will briefly define the concept of the intimate
dispute and review previous research about marriage, divorce, and the legal effects of extramarital sex. By discussing this research with a law and society or sociology of law orientation, it will be possible to consider the way that law likely influences intimate disputes in and out of the courtroom.
Law and society research and the sociology of law are broad fields that encompass a plurality of research methods and ideological orientations, but a key insight that runs throughout them is the distinction between law in books and law in action.21 The former refers to the letter of the law—abstract legal norms—that in a civil law jurisdiction such as Taiwan predominantly comprises statues passed by the
legislature and codified in books. The latter, refers to the ways that legal norms actually operate in society, which might be quite different from the laws’ legislative objectives (
立法理由) and their doctrinally constructed raisons d’être. Scholars have pointed out that people may engage with law in various ways: by using it, avoiding it, or subverting it.22 These two insights function to redirect our attention away from law as the
exclusive purview of lawyers, judges, prosecutors, and other legal elites and toward law as one factor among others in the agentic decision-making of disputants themselves.
Simply put, whatever a grand jurisprudential narrative may say of a law, in the hands of the disputant it may become a tool to further his or her interests. Thus, law and society scholarship offers a more nuanced and productive way of looking at how the law operates in society. According to the now classic formulation by Ewick and Silbey, people may be before the law, with the law, or against the law.23 The first of these corresponds roughly to the view that law is above people and dominates them, and the second figures the law as something that offers a forum for people to pursue their
21Roscoe Pound, Law in Books and Law in Action, AM.L.REV. 12, (1910); Susan S. Silbey, After Legal Consciousness, 1 ANN.REV. OF L.&SOC.SCI. 323 (2005).
22 It should be noted that the bulk of law and society scholarship comes from common law countries.
23 EWICK &SILBEY, supra note 15, at 47-49.
interests. With the third, the law is conceived of as something that people may attempt to circumvent or act to undermine. In the case of intimate disputing, the second two modes are perhaps most salient. The “offended” spouses in extramarital-affair related intimate disputes can and do use criminal adultery to pursue their various material and emotional aims. At the same time, the lawlessness and criminality associated with many extramarital affair-related intimate disputes in which zhengxinshe intervene, suggest that clients of zhengxinshe are simultaneously with and against the law. And,
“adulterers” whom would normally be relegated to the category of “against the law” in such disputes, may also be with the law when they fight back against invasive
investigations with legal means. Ewick and Silbey’s formulation thus helps us understand intimate disputes, yet it also seems that the very nature of the zhengxinshe phenomenon complicates and blurs these distinctions.
It should furthermore be noted that patriarchal bias in a legal system in the form of either formal or substantive gender inequality does not necessarily preclude women from being little more than victims of the law. Even as women are oppressed by some law, they may actively use law to further their interests.24 Elizabeth Schneider’s research25 concerns the victimization of battered women, but may hold some insights for the women involved in intimate disputes as at times both wives and mistresses are perceived as victims—the former of the “humiliation” of “infidelity” and the latter of the social stigma attached to extramarital intimacy and the harshness of criminal adultery law. Schneider writes, “an exclusive focus on women’s victimization is incomplete and limiting because it ignores women’s active efforts to protect themselves and their children, and to mobilize their resources to survive,” while “an exclusive focus
24See also Deniz Kadiyoti, Bargaining with Patriarchy, 2.3 GENDER SOC 274-75 (1988); LINDA R.
HIRSHMAN &JANE E.LARSON,HARD BARGAINS, THE POLITICS OF SEX 1-11 (1998).
25 Elizabeth M. Schneider, Feminism and the False Dichotomy of Victimization and Agency, 38 N.Y.L.SCH.L.REV. 387 (1993).
on women’s agency is shaped by liberal visions of autonomy, individual action, and individual control and mobility, which are equally unsatisfactory without the larger social context of victimization.”26 Thus, in conceptualizing the agency and, where appropriate, oppression of the parties to our intimate disputes, we must be careful to walk a middle road—and be circumspect. Even when female disputants seem able to mobilize legal and other resources to further their interests, this does not mean that they have cast off social stigma or other disadvantages. And, when women chose not to use particular resources available to them, we would be remiss to assume that they are powerless victims incapable of doing so.
To some extent, these insights from law and society scholarship may appear to be doing little more than formalizing common sense. Yet, even if this is so, such formalization is needed to bring common sense to bear in an area of scholarship in which it is often sorely lacking. A research orientation informed by these insights runs counter to the entrenched and powerful tradition of legal scholarship in Taiwan,
Rechtsdogmatik (Ger. legal dogmatism).27 This dominant discourse, it is fair to say, operates (and in effect maintains its dominance) by narrowing the scope of
jurisprudential knowledge production to the abstract discussion of legal norms, principles, and doctrines, thereby effectively eliding social reality. (Social reality is awfully messy, after all.) In electing to focus on the agentic behavior of parties to intimate disputes, we are, the, writing against this dominant tradition.
26 Schneider, supra note 25, at 387, 389.
27 This is not to deny the existence of an influential counter tradition of empirical legal scholarship in Taiwan. See Empirical Legal Studies in Taiwan,
http://tadels.law.ntu.edu.tw/english/about_the_project_2.php (last visited Jul. 28, 2013).
One of this thesis’s most significant moves in this direction is the decision to focus on out-of-court bargaining.28 In their seminal 1979 article “Bargaining in the Shadow of the Law: The Case of Divorce,”29 Robert H. Mnookin and Lewis
Kornhauser argue persuasively that the vast majority of important decisions about how a marriage will be ended as well as how spouses will allocate their post-dissolution assets, responsibilities, and rights are made outside of the courtroom even though a judge technically will have the final say. This is not to say that the law is not important in these cases, however. On the contrary, husbands and wives make choices based on their ability to reasonably predict the outcome of litigation if they were to decide to go to court. In the Taiwanese context, these decisions are available to them because in principle civil law suits are initiated by litigants (民事不告不理), and the fact that criminal adultery is an Antragsdelikt (告訴乃論之罪), meaning that a prosecution will only be pursued at the behest of the “offended” spouse. Notably, this research indicates that the various interests of spouses in divorce proceedings are interchangeable to an extent unforeseeable from mere reference the letter of the law.30 Unfortunately there is no similar study of the dynamics of out-of-court bargaining and divorce in Taiwan.
Admittedly, the legal mechanisms for divorce and the post-dissolution allocation of assets, rights, and responsibilities are different in the United States and Taiwan, not to mention different judicial attitudes, but it stands to reason that the basic insights of Mnookin and Kornhauser’s work should hold true for Taiwan. That is, parties to divorce disputes (or other intimate disputes) will use the legal tools available to them to
28 It would normally be difficult to observe out-of-court bargaining without fieldwork, but the judicial decisions drawn on in this thesis reveal a considerable amount of out-of-court bargaining. Husbands, wives, and “adulterers” concluded numerous contracts as the result of out-of-court bargaining, and these were later challenged in court, meaning that some of what happened out of court is preserved in court documents.
29 Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.REV. 957 (1979).
30 For example, a spouse might be willing to concede some access to his or her children in exchange for lower child support payments.
further their various interests, but often, and likely most often, resolve what can be resolved out of court to avoid transactional costs. The rational and high-minded abstractions of jurisprudential doctrine may be significant insofar as they shape
disputants’ legal consciousness and thus their behavior, but the researcher cannot expect social reality to be but most narrowly reflected in legal text books and treatises. The intimate dispute then, must be understood as something structured by the law, but not determined by the law—something that may always potentially eventuate in court proceedings, but that is also laden with incentives to avoid court proceedings. To borrow Mnookin and Kornhauser’s wording, Taiwanese intimate disputes involving illicit intimacy are processed in the shadow of the law. What happens in the shadows is indeed difficult if not impossible to observe, but shadows are the product of light. By analyzing what we can shed light on, we are able to make reasoned deductions about what is largely unobservable.