LITIGATION MASTERS AND THE LITIGATION SYSTEM OF MING AND QING CHINA

Litigation masters (songshi), who flourished in traditional China, have long been associated in the minds of the public with questionable legal behaviour, taking advantage of the lack of legal know-how of plaintiffs. Though they existed outside the law and their existence was constantly castigated by the authorities, they played a very important role in society. This article examine the reality of what it meant for ordinary people to go to law, in an attempt to reassess how the litigation system actually worked, as opposed to how it was described ideally by the state. It first looks at litigation procedures and the trial process, and concludes that the Chinese were extremely litigious, challenging the notion that people preferred to resolve disputes by mediation rather than by going to court. Court procedures were complicated and costs high, and not all plaints submitted to the court were accepted. To ensure that the correct forms were followed, expert help was necessary, and this help often took the form of the litigation master. He acted as proxy for litigants, for he was unable to appear in court in person, and he played a vital role in negotiating with the lower court functionaries whose support was vital for the success of a case. He also wrote plaints in a form acceptable to the courts, and coached litigants in their presentation. The litigation master was often a former civil service examination candidate, and so trained in the kind of writing skills the court required. Failed students often had to choose between becoming a private secretary to a magistrate or a litigation master, and there was a continuum between the two. Thus it was the examination system itself that fostered litigation masters. Because the state refused to recognize litigiousness, it also had to refuse to recognize the lawful existence of litigation masters. Nevertheless they met an important social need.