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Law, Custom, and Social Norms: Civil Adjudications in Qing and Republican China

Abstract

This study examines how law, custom, and social norm interacted in civil justice in Qing and Republican China by looking into 152 civil cases tried in 1912, right after the founding of the Republic of China, and a body of legal interpretations from the Supreme Court during 1912-1929, and certain provisions in the Civil Code of 1929-30--the very first one in Chinese history. It shows that both law and custom were invoked by judges within their moral universe or social norm. It traces how the Supreme Court allowed local customs to be a legal ground for rulings in certain civil disputes, and which customs in civil matters in the Qing and the early Republic were, and which were not, “hardened” into the Civil Code. The interplay between law and custom, mediated by judges with their normative sense of right and wrong, constituted both continuity and change in civil justice between the Qing era and the Republican period. Ultimately, the issues addressed here speak to a larger question of how Chinese jurists, within their judicial discretions, tried to strike a difficult but necessary balance between “law-on-books” and “law-in-action,” while law on the books was undergoing important revisions.

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xxu@cnu.edu
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He wishes to thank the journal's two anonymous reviewers for their helpful comments and suggestions on the earlier versions of the article.

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1. Bodde Derk and Morris Clarence, Law in Imperial China (Cambridge, MA: Harvard University Press, 1973).

2. Bourgon Jerome, “Uncivil Dialogue: Law and Custom Did Not Merge into Civil Law under the Qing,” Late Imperial China 23 (2002): 5090 .

3. Zelin Madeleine, “The Rights of Tenants in Mid-Qing Sichuan: A Study of Land-Related Lawsuits in the Baxian Archives,” Journal of Asian Studies 45 (1986): 499527 ; Zelin Madeleine, “Merchant Dispute Mediation in Twentieth Century Zigong, Sichuan,” in Civil Law in Qing and Republican China, ed. Bernhardt Kathryn and Huang Philip C.C. (Stanford: Stanford University Press, 1994), 249–88; and Zelin Madeleine, Ocko Jonathan, and Gardella Robert, eds., Contract and Property in Early Modern China (Stanford: Stanford University Press, 2004).

4. Mark A. Allee, “Code, Culture, and Custom: Foundations of Civil Case Verdicts in a Nineteenth-Century County Court,” in Civil Law in Qing and Republican China, ed. Bernhardt and Huang, 122–41; Philip C.C. Huang, “Codified Law and Magisterial Adjudication in the Qing,” in Civil Law in Qing and Republican China, 142–86.

5. Huang Philip C. C., Civil Justice in China: Representation and Practice in the Qing (Stanford University Press, 1996); Code, Custom, and Legal Practice: The Qing and the Republic Compared (Stanford University Press, 2002).

6. Buoye Thomas M., Manslaughter, Markets, and Moral Economy: Violent Disputes over Property Rights in Eighteen-century China (New York: Cambridge University Press, 2000).

7. Liang Linxia, Delivering Justice in Qing China: Civil Trials in the Magistrate's Court (Oxford University Press, 2008).

8. Jinfan Zhang, Qingdai Minfa Zonglun (A General Treatise on Civil Law in the Qing Era) (Beijing: zhongguo zhenga daxue chubanshe, 1998), 3840 .

9. Shiga Shuzo, “Zhongguo fawenhua de kaocha” (A Study of Chinese Legal Culture); “Qingdai susong zhidu zhi mingshi fayuan de gaikuo xing kaocha––qing, li, fa” (A Summary Study of the Sources of Civil Law in Qing Litigations––Human Relations, Reason, and Law); and “Qingdai susong zhidu zhi minshi fayuan zhi kaocha––zuowei fayuan de xiguan” (A Study of Sources of Civil Law in Qing Litigations––Custom as a Source of Law), in Ming Qing Shiqi De Minshi Shenpan Yu Minjian Qiyue (Civil Trials and Contracts in Society During the Ming and the Qing), ed. Yaxin Wang and Zhiping Liang (Beijing: Falu chubanshe, 1998), 118 , 19–53, 54–96.

10. Liang, Delivering Justice in Qing China, 243–47.

11. Bourgon Jerome, “Uncivil Dialogue: Law and Custom Did Not Merge into Civil Law under the Qing,” Late Imperial China 23 (2002): 5090 .

12. Jonathan Ocko, “The Missing Metaphor: Applying Western Legal Scholarship tot he Study of Contract and Property in Early Modern China,” in Contract and Property in Early Modern China,192; and Madeleine Zelin, “Managing Multiple Ownership at the Zigong Salt Yard,” in Contract and Property in Early Modern China, 230–68.

13. Man un Kwan, “Custom, the Code, and Legal Practice: The Contracts of Changlu Salt Merchants in Late Imperial China,” in Contract and Property in Early Modern China, 269–97.

14. Linxia Liang, Delivering Justice in Qing China, 239–40.

15. One scholar adopted a similar approach to studying how Qing jurists differentiated various types of litigations that, in Western legal parlance, would range from “criminal” to “civil.” See Deng Jianpeng, “Classifications of Litigation and Implications for Qing Judicial Practice,” in Chinese Law: Knowledge, Practice and Transformation, 1530s to 1950s, ed. Chen Li and Zelin Madeleine (Leiden: Brill, 2015), 1746 .

16. Huang, “Codified Law and Magisterial Adjudication in the Qing,” 170–71; Shiga Shuzo, “Zhongguo fawenhua de kaocha” (A Study of Chinese Legal Culture); “Qingdai susong zhidu zhi mingshi fayuan de gaikuo xing kaocha––qing, li, fa” (A Summary Study of the Sources of Civil Law in Qing Litigations––Human Relations, Reason, and Law), 13–14.

17. Xu Xiaoqun, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901–1937 (Stanford: Stanford University Press, 2008), 6365 .

18. Although this article highlights the continuity between the Qing and the Republic in civil justice, recent scholarship points out the similar continuity in criminal justice as well. See, for example, Neighbors Jennifer, “The Long Arm of the Qing Law? Qing Dynasty Homicide Rulings in Republican Courts,” Modern China 53 (2009): 337 ; and Daniel Asen, “Old Forensics in Practice: Investigating Suspicious Deaths and Administering Justice in Republican Beijing,” in Chinese Law, 321–41.

19. Daqing Fagui Daquan (A Complete Compilation of Laws and Regulations of the Great Qing) (Zhengxue she, 1909), 11:2.

20. Qingmo Choubei Lixian Dangan Shiliao (Archival Sources on the Preparation for Constitutional Government in the Late Qing) (Beijing: Zhonghua shuju, 1979), 833–37.

21. Qingmo Choubei Lixian Dangan Shiliao, 911–13.

22. Guangdong Sifa Wuri Bao (Guangdong Judicial Fifth-Day Journal), 1912, No.1, “Public Documents Section,” 1. (In the first 5 months of 1912 the journal was published as Fifth-Day Journal before it became Weekly Journal.)

23. Daqing Fagui Daquan, 11:2–15.

24. Sheng Zhang, Minguo Chuqi Minfa De Jindaihua (The Modernization of Civil Law in the Early Republic of China) (Beijing: Zhongguo zhengfa daxue chubanshe, 2002), 2324 .

25. Qicheng Li, “Wanqing Difang Sifa Gaige Chengguo Zhi Huiji” (A collection of the late Qing judicial reform achievements), in Qingqi Wang, ed. Gesheng Shenpanting Pandu (Trial Documents from Courts in Various Provinces) (Beijing: Beijing daxue chubanshe, 2007), 23 .

26. Jiangsu Sifa Huibao (Jiangsu Judicial Reports), 1912, No.1, “Records,” 1a–3b; “Court Decisions,” 9b–13a.

27. Guangdong Sifa Xingqibao (Guangdong Judicial Weekly), July 28, 1912, No. 21, 64–67.

28. Jiangsu Sifa Huibao (Jiangsu Judicial Reports), September 1912, No. 6 “Court Decisions,” 13b–17a. Because the provisions on civil matters in the Current Criminal Code of the Great Qing were the same as those in the Law and Sub-Statutes of the Great Qing, when a judge invoked the “Qing law” in general, it could mean either version.

29. Jiangsu Sifa Huibao (Jiangsu Judicial Reports), November, 1912, No.8 “Court Decisions,” 21b–25a.

30. Guangdong Sifa Xingqibao (Guangdong Judicial Weekly), July 28, 1912, No. 21, 58–62.

31. Ibid., June 30, 1912 No. 17, 95–98.

32. Jiangsu Sifa Huibao (Jiangsu Judicial Reports), September 1912, No.6, “Court Decisions,” 27a–31a.

33. Guangdong Sifa Xingqibao (Guangdong Judicial Weekly), August 25, 1912, No.25, 70–72.

34. Ibid., July 21, 1912, No.20, 53–58.

35. Ibid., 1912, No.2, “Public Documents,” 36–39.

36. Ibid., July 7, 1912, No.18, 59–62.

37. Linxia Liang, Delivering Justice in Qing China, 165–69.

38. Guangdong Sifa Xingqibao (Guangdong Judicial Weekly), June 30, 1912, No.17, 69–72.

39. Ibid., July 14, 1912, No.19, 19–21.

40. Actually, neither an unconditional sale nor a conditional sale of a real estate should affect its tenant under the Qing law and custom, but this was not a normal land sale transaction.

41. Guangdong Sifa Xingqibao (Guangdong Judicial Weekly), August 18, 1912, No. 24 62–64.

42. Jiangsu Sifa Huibao (Jiangsu Judicial Reports), June 1912, No. 3, “Court Decisions,” 1a–1b.

43. Ibid., April 1912, No. 1, “Decisions of Courts,” 9b–13a.

44. Ibid., June 1912, No. 3, “Decisions of Courts,” 18b–20a.

45. For comparison, under a ruling by the Supreme Court in 1914, a concubine (as opposed to a wife) surviving a family head did not have the right to appoint or annul an heir to his properties. See Bernhardt Kathryn, Women and Property in China, 960–1949 (Stanford: Stanford University Press, 1999), 178–83.

46. Jiangsu Sifa Huibao (Jiangsu Judicial Reports), November 1912, No. 8, 15a–17b.

47. Faling Zhoukan (Law and Ordinance Weekly), 1915, No.100, 2.

48. See Shen Xie, Shijie Chen, and Jichi Ying, eds., Minxingshi Caipan Daquan (A Complete Compilation of Civil and Criminal Decisions) (Shanghai: Xinji shuju, 1937; new edition, Beijing: Beijing daxue chubanshe, 2007), 49–52, 238–41.

49. Wei Guo, ed. Minguo Daliyuan Jieshili Quanwen (A Complete Compilation of the Supreme Court Legal Interpretations) (1930; reprint, Beijing: falü chubanshe, 2014), 568–70.

50. Ibid., 658, 1174–75.

51. Ibid., 1324.

52. Ibid., 612–13

53. Ibid., 905.

54. Ibid., 991–92.

55. Ibid., 577; 851.

56. Ibid., 704.

57. Ibid., 1133, 1263–64.

58. Ibid., 1386.

59. Ibid., 1388–89.

60. Zhejiang Lüshi Gonghui Baogaolu (Reports of the Zhejiang Bar Association), 1929, No.111, 1211–12.

61. Xu, Trial of Modernity, 39–40, 98–99.

62. Zhonghua Minguo Xianxing Fagui Daquan (A Complete Compilation of Current Laws and Regulations of the Republic of China) (Shanghai: Shangwu yinshuguan, 1934), Section Chou, 15.

63. Ibid., 33–34.

64. Ibid., 52–53.

65. Falü Pinglun (Law Review) 15 (1947): 80. (The journal stopped publication in 1937 at Vol.14 and did not resume until 1947; therefore, the first issue of Vol.15 covered important judicial documents during 1938–46).

66. Zhonghua Minguo Xianxing Fagui Daquan (A Complete Compilation of Current Laws and Regulations of the Republic of China), 64.

67. Bernhardt, Women and Property in China, 183–86.

68. Zhonghua Minguo Xianxing Fagui Daquan (A Complete Compilation of Current Laws and Regulations of the Republic of China), 64.

69. For more on the Nationalist ideology about gender equality and its impact on law and justice, see Bernhardt, Women and Property in China; Kuo Margaret, Intolerable Cruelty: Marriage, Law, and Society in Early Twentieth-Century China (Lanham, MD: Rowman and Littlefield, 2012); and Tran Lisa, Concubines in Court: Marriage and Monogamy in Twentieth-Century China (Lanham, MD: Rowman and Littlefield, 2015).

70. Wei, Minguo Daliyuan Jieshili Quanwen (A Complete Compilation of the Supreme Court Legal Interpretations), 1405–6.

71. Falü Pinglun (Law Review) 13 (1935): 24 .

72. For a survey of civil justice in China that covers the Qing era through the post-Mao era, see Huang Philip C. C., Chinese Civil Justice: Past and Present (Lanham, MD: Rowman and Littlefield Publishers, 2010).

He wishes to thank the journal's two anonymous reviewers for their helpful comments and suggestions on the earlier versions of the article.

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
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