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Maine's comparative jurisprudence in British Sinology: George Jamieson's interpretation of China's lack of wills
Published online by Cambridge University Press: 06 October 2022
Abstract
Nineteenth-century comparative sciences profoundly informed Sinology, but this field remains largely unexplored. Despite recent attention to the comparative study of Chinese religion, researchers have overlooked the comparative spirit underpinning British understanding of Chinese law. This article addresses this oversight by focusing on George Jamieson's (1843–1920) translation and interpretation of Chinese inheritance law in the Qing Dynasty (1636–1912). Drawing on Henry Maine's (1822–1888) comparative jurisprudence, Jamieson reflected upon China's lack of the legal concept of wills, which was a starting point for him to decipher the different developmental routes of Roman and Chinese law. As a parallel to Maine's comparison of Hindu and Roman law, Jamieson compared Chinese with Roman law, revealing that sacrificial duties to ancestors and underdevelopment of the legal profession were key factors contributing to China's legal particularities.
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42 Henry Maine, Ancient Law (1861) (London, 1917), p. 74.
43 Jamieson, Chinese Family and Commercial Law, p. 4.
44 Ibid.
45 Maine, Ancient Law, p. 88.
46 Ibid.
47 Ibid., p. 130. Emancipated natural sons refer to biological sons who were released by the father from his authority. Thus, they no longer belonged to their father's family. As to how this was done, please see the next paragraph.
48 Maine, Ancient Law, p. 130.
49 Ibid.
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56 Ibid.
57 Ibid., p. vii.
58 Jamieson, ‘The history of adoption’, p. 144.
59 Ibid.
60 Ibid.
61 Ibid.
62 Jamieson, ‘Translations from the Lü-Li’, p. 201.
63 Jamieson, Chinese Family and Commercial Law, p. 3.
64 Gary G. Hamilton, ‘Patriarchy, patrimonialism, and filial piety: a comparison of China and Western Europe’, The British Journal of Sociology 41.1 (1990), p. 95.
65 Ibid., p. 96.
66 Jamieson, ‘The history of adoption’, p. 141.
67 Jamieson, ‘Translations from the Lü-Li’, p. 201.
68 Ibid., p. 195.
69 Jamieson, ‘The history of adoption’, p. 141.
70 Ibid.
71 Ibid.
72 Ibid.
73 Maine, Ancient Law, p. 113.
74 Ibid., p. 114.
75 Ibid.
76 Ibid., pp. 113–114.
77 Ibid., p. 114.
78 Ibid.
79 Ibid.
80 In his later work, he took a more careful approach to believing that ‘people speaking similar languages shared a common racial descent’. Rabban, Law's History, p. 137. But this did not weaken his belief that Indians and Europeans were of the same stock.
81 Ibid., p. 131.
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84 In his later works, he also explored ‘early Teutonic and Irish law’; nevertheless this did not reach beyond this circle. Rabban, Law's History, p. 138.
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87 ‘Conveyance’ refers to the act of transferring property from one owner to another. Here, the term means transference of the entire family from the original head of the family to the heir. This act is more explicitly explained in the next paragraph.
88 Maine, Ancient Law, p. 120. As a matter of fact, there also existed a patrician testament, which is not the prototype for modern wills and is thus given less emphasis by Maine. For patrician testament, see ibid., pp. 116–118. For the same reason, Jamieson did not elaborate on the patrician will either: ‘there was indeed another and contemporaneous form—the patrician will, but for historical purposes that has no interest’. Jamieson, ‘The history of adoption’, p. 144.
89 As early wills took the form of conveyance, the party that took the family from the original head is called the ‘buyer’ or ‘purchaser’ of the family.
90 Maine, Ancient Law, pp. 120–121.
91 Jamieson, ‘The history of adoption’, p. 144.
92 In Roman law, ‘libripens’ means a weigher or balance holder.
93 Maine, Ancient Law, p. 120.
94 Jamieson, ‘The history of adoption’, pp. 144–145.
95 Maine, Ancient Law, p. 120.
96 Ibid., p. 125.
97 Ibid.
98 Jamieson, ‘The history of adoption’, p. 145.
99 Jamieson, Chinese Family and Commercial Law, pp. 6–7.
100 Ibid., p. 7.
101 Ibid.
102 Ibid., p. 3.
103 Ibid. p. 7.
104 Ibid., p. 6.
105 Hamilton, ‘Patriarchy’, p. 94.
106 Ibid., p. 95.
107 Ibid.
108 James Legge (trans.), The Sacred Books of China: The Texts of Confucianism. Part IV: The Lî Kî, XI–XLVI (The Sacred Books of the East 28), (ed.) F. Max Müller (Oxford, 1885), pp. 237–238.
109 Yang Tianyu 楊天宇 (comp.), Liji yizhu 禮記譯注 (Annotations for the Books of Rites) (Shanghai, 1997), Vol. 2, p. 828.
110 Jamieson, Chinese Family and Commercial Law, p. 5.
111 Hamilton, ‘Patriarchy’, p. 92.
112 Ibid., p. 84.
113 Ibid. p. 92.
114 Ibid., p. 93.
115 Ibid., p. 92.
116 Maine, Ancient Law, p. 100.
117 Hamilton, ‘Patriarchy’, p. 85.
118 Jamieson, Chinese Family and Commercial Law, p. 7.
119 Jamieson, ‘Translations from the Lü-Li’, p. 205.
120 Jamieson, Chinese Family and Commercial Law, p. 7.
121 Maine, Ancient Law, p. 20.
122 Ibid., p. 37.
123 Jamieson, ‘The history of adoption’, p. 139. Equity refers to a system of justice that supplements existing laws and is administered by the court of equity.
124 Ibid., p. 139, p. 145. Jamieson adopted Maine's definition of legal fiction as ‘any assumption, which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified’. Maine, Ancient Law, p. 16.
125 Maine, Ancient Law, p. 123.
126 Ibid., p. 24.
127 Ibid., p. 20.
128 Ibid., pp. 20–24.
129 Jamieson, Chinese Family and Commercial Law, p. 7.
130 Jamieson, ‘The history of adoption’, p. 139.
131 Ibid.
132 Jamieson, Chinese Family and Commercial Law, p. 7.
133 Maine, Ancient Law, p. 14.
134 Dang Jiangzhou 黨江舟, Zhongguo songshi wenhua: Gudai lüshi xianxiang jiedu 中國訟師文化－古代律師現象解讀 (Chinese Culture of Song-shi—Interpreting Ancient Lawyers) (Beijing, 2005), pp. 20–33.
135 Dang, Zhongguo songshi wenhua, pp. 64–73; Qiu Pengsheng 邱澎生, ‘Yi fa wei ming: Songshi yu muyou dui mingqing falü zhixu de chongji’ 以法為名：訟師與幕友對明清法律秩序的衝擊 (In the Name of the Law: The Impact of Song-shi and Mu-you on Legal Order in Ming and Qing China), Zhongxi falü chuantong 中西法律傳統 (Legal Tradition in the West and China) 00 (2008), p. 255.
136 Dang, Zhongguo songshi wenhua, pp. 91–141.
137 Ibid., pp. 200–202; Lin Qian 林乾, ‘Songshi dui fa zhixu de chongji yu qingchao yanzhi songshi lifa’ 訟師對法秩序的衝擊與清朝嚴治訟師立法 (The Impact of Song-shi on Legal Order and the Legislations against Song-shi in Qing Dynasty), Qingshi yanjiu 清史研究 (Studies in Qing History) 3 (2005), pp. 1–12.
138 Wu Qi 吳琦 and Du Weixia 杜維霞, ‘Songshi yu songgun: mingqing songshi de shehui xingxiang tanxi’ 訟師與訟棍：明清訟師的社會形象探析 (Song-shi and Litigation Scoundrel: Analysis of the Social Image of Song-shi in Ming and Qing Dynasties), Xuexi yu tansuo 學習與探索 (Study and Exploration) 7 (2013), pp. 146–147; T'ung-tsu Ch’ü, Law and Society in Traditional China (Paris, 1965), p. 285.
139 Jamieson, Chinese Family and Commercial Law, p. 7.
140 Dang, Zhongguo songshi wenhua, p. 249.
141 James Legge (trans.), The Chinese Classics. Vol. 1: Confucian Analects, the Great Learning, and the Doctrine of the Mean (London, 1861), p. 121.
142 Dang, Zhongguo songshi wenhua, pp. 209–211.
143 Qiu, ‘Yi fa wei ming’, p. 246.
144 Jamieson, Chinese Family and Commercial Law, p. 7.
145 Ibid., pp. 7–8.
146 Guo Jian 郭建, Gudai faguan mianmian guan 古代法官面面觀 (Diverse Glimpses into Ancient Judges) (Shanghai, 1993), p. 92.
147 Qiu, ‘Yi fa wei ming’, p. 266.
148 Ibid., pp. 234–235.
149 Ibid., pp. 235–239.
150 Zhang, ‘Shenme shi yizhu?’ p. 402.
151 Wei, ‘Zhongguo gudai jicheng zhidu zhiyi’, p. 161; Ye, Zhongguo minfa shi, p. 436.
152 Hamilton, ‘Patriarchy’, p. 87