1. INTRODUCTION
Jing, a civil servant in Putian, is a slim woman with a shy smile. She is 27 years old and still single. Jing knew that people had started to refer to her as a leftover woman when she came back to her hometown, Putian, after she got her master’s degree in a renowned university in the US. Two years ago, all this changed. At that time, Jing met and fell in love with Zhou, a promising surgeon who worked at the best public hospital in Putian. Zhou is, according to Jing, “a handsome and considerate young guy who always took good care of me.”Footnote 1 A few months after they met, they both believed that they had found the one to spend the rest of their lives with. Zhou asked Jing to marry him, and they began to plan a life together. But the interaction of China’s population policy and their parents’ expectations had created a problem for them.
The one-child policy meant Jing’s parents had no other child to care for them in their old age. As they relied totally on Jing, they insisted that she had to “stay at home”Footnote 2 in order to take care of them after marriage. Zhou’s parents, on the other hand, hoped that they could have a woman married into their family to look after them together with their son. Both Jing and Zhou were caught in the demands of qing Footnote 3 (情), which required them to place family obligations and filial piety above all else. Zhou and Jing tried to negotiate with their parents, but negotiations did not go well. China’s marriage law seemed to offer another way out, as Jing and Zhou had the right to marry whomever they wanted, even without their parents’ consent, and no one could coerce them. Yet Jing and Zhou never insisted on their legal rights or even mentioned them. To them, qing was far more powerful than law. For Jing to invoke the law against her parents was unthinkable. In the end, Jing had to break up with Zhou, the only man she ever loved. Jing did not regret making such a decision, although people around her started to call her leftover woman again. Jing says, “no matter how awesome the guy was, his refusal to take my parents’ interests into consideration made me believe that he was not the one.”Footnote 4
To understand the legal consciousness of ordinary Chinese people and the interactions among individuals in Chinese society, it is not enough to consider their relationship to law alone, but also law’s connection to qing in people’s thoughts and actions. As a long-standing and supremely important concept in China, qing is loosely translated as a sense of humanity, human instinct, human nature, and human relations.Footnote 5 In traditional Chinese legal culture, the concept of qing refers to human nature and the normal feelings or attitudes of the public in particular contexts and circumstances. For example, people’s desire to enjoy a healthy and wealthy life together with their family members is considered the qing of ordinary people, because it is human nature to long for health, wealth, and the wellbeing of their loved ones.Footnote 6 Chinese people believe that law should respect the desires and needs shared by ordinary people and that law should be consistent with qing (法合众人之情).Footnote 7
Ordinary people in China typically look to qing, rather than state law, to distinguish right from wrong.Footnote 8 Historically, Chinese jurisprudence emphasized that qing, li (理, reasonableness), and fa (法, law) should exist in unity, and that all three of these elements formed an indistinguishable whole.Footnote 9 People are well advised that, when a conflict arises, the first thing to be considered is qing, and “only when all such avenues are exhausted does one turn to li …. If this too proves unavailing, one is then forced as a last resort to invoke fa.”Footnote 10 In other words, ordinary Chinese people’s primary emphasis is on qing and only secondarily on fa and li. It is still widely believed that qing lays the foundation of the “real” law.Footnote 11 Thus, qing plays an important role in ordinary Chinese people’s judgement of whether a particular law is just and whether one should invoke the law.
The influence of qing, however, has not been given sufficient weight in the existing literature on Chinese legal consciousness. The relationship between qing and legal consciousness has not been explored by scholars who touch upon Chinese legal consciousness.Footnote 12 Although legal scholars have discussed how qing affects legal services in rural China and how Taiwanese policemen invoke qing to justify their enforcement of the law, these scholars use qing narrowly as renqing, meaning relational and mutual obligations between non-family members.Footnote 13 Renqing, as a norm of reciprocity between non-family members, involves “a giving and a receiving party such that the receiving party owes the giving party an obligation.”Footnote 14 In traditional legal culture, however, discussions of the relationship between qing and law generally understand qing more broadly as what the majority believe to be right or just in a particular situation.Footnote 15 The cultural and social environment within which ordinary people live significantly affects their understandings of qing. The focus of qing, therefore, is whether a certain attitude or behaviour is morally acceptable to the public, rather than interpersonal relationships and reciprocal obligations. Building on this understanding of qing, this article highlights the importance of Chinese people’s demand for qing and demonstrates the relationship between qing and legal consciousness by drawing on my interviews with leftover women.
The primary aim of this article is to investigate how law and qing interact in different ways to shape ordinary Chinese people’s legal consciousness. In my research, I observed two broad categories of interaction between law and qing—namely, law in opposition to qing and law in alliance with qing. To be specific, I identify four forms of legal consciousness when state law is in opposition to qing: (1) avoidance of state law when it conflicts with qing, (2) invocation of qing to mitigate undesirable results of state law, (3) resistance of state law to protect qing and (4) dismissal of state law when breaking the law conforms to qing. On the other hand, when it is perceived that state law is—or should be—in alliance with qing, the legal consciousness that emerges from the interaction of qing and law may be of two kinds: (1) embrace of state law when it enforces qing and (2) perception of state law as too weak when it fails to transform “old” understandings of qing.
My theory of how the interaction of law and qing shapes ordinary Chinese people’s legal consciousness in everyday life is based on my study of the legal consciousness of “leftover women.” “Leftover women” is a term of recent origin that refers to Chinese women who fail to follow the practice of marrying at an early age. The state media, as well as the public, often regard these women as “leftover” products in the marriage market.Footnote 16 I use this discriminatory term in this article to emphasize that the society has imposed a significant pressure on single women to marry. The data for this article were retrieved from an ethnographic study I conducted in China between July and November 2016. To investigate the impact of official and unofficial laws on leftover women’s choices in marriage and childbearing, I conducted interviews and focus groups with 72 Chinese women, who are—or used to be—leftover women. While this article draws upon all these women’s experience to discuss the social environment and legal framework within which leftover women form their legal consciousness, I mainly focus on seven Putianese women’s narratives to analyze their legal consciousness in great detail as a way to elaborate how the interaction of law and qing affects ordinary people’s legal consciousness.
In Putian, a third-tier city on the south-east coast of mainland China, parents usually expect their daughters to follow the custom of lianggu, a long-standing local custom that requires the husband and the wife to take care of parents, children, and ancestors on both sides of the lineage and not just on the husband’s side. Lianggu, as a customary law, is influential in Putian, since the authority of lianggu resides in local people’s common beliefs regarding filial piety and family relations. In this sense, lianggu is a custom that meets the requirements of qing in Putianese society. By showing how leftover women in Putian strategically engage with state law, customary law,Footnote 17 family relationships, and their own desires when making choices in marriage and childbearing, this article demonstrates that the concept of qing helps explain what would otherwise appear to be people’s “irrational” or “unreasonable” choices and behaviour.
This article also aims to contribute more broadly to theoretical understandings of legal consciousness in the field of law and society research as a whole. First, research on Chinese women’s legal consciousness in terms of family formation shows how people in a Confucian society think and talk about the law when there is a gap between state law and customary law. While recent studies have demonstrated how Chinese people engage with the law directly through litigation, petitioning, or collective action to fight for their labour rights and the rights to withhold gain tax payments,Footnote 18 this article offers insights into Chinese people’s legal consciousness outside the official legal system. In other words, this article emphasizes why people choose not to mobilize the state law and how they act according to what they understand as a broader concept of law, which includes both official and unofficial norms and procedures. Second, this research contributes to discussions of how customary law and state law interact to shape ordinary people’s legal consciousness.Footnote 19 Third, the data presented here advance the understanding of ordinary people’s legal consciousness in a country that is undergoing dramatic economic, cultural, and legal changes.
2. BEING LEFTOVER OR BEING A GOOD DAUGHTER: MARRIAGE AND CHILDBEARING AS A CHINESE DAUGHTER’S FILIAL DUTY
Leftover women face great pressure from their families, since parents in China have a significant influence on their children’s marriage and childbearing.Footnote 20 My interviews reveal that being an unmarried Chinese woman in one’s mid-20s and beyond is often regarded as a “problem” by the woman’s parents and relatives. To some leftover women, their motivations and pressures to marry come from their concern that a failure to find a partner may bring grief and shame to their parents. Quite a few parents in China consider it a crucial part of the parental duty to help their children get married. They become anxious if their children cannot find suitable partners. Many parents of leftover women feel a loss of face when their relatives, friends, and neighbours ask them whether and when their daughters are going to get married.
At the same time, my research shows that Chinese parents often emphasize the importance of carrying on the family line and enjoying family happiness together with their descendants. It is a filial duty for Chinese daughters to give birth to the next generation in order to bring their parent’s family happiness. Many unmarried women, however, are concerned that they may pass their best childbearing age if they cannot find a partner in the near future.Footnote 21 China has prohibited births outside marriage for a long time. Under the official population policy, hospitals cannot offer assisted reproductive technologies to single women or unmarried couples.Footnote 22 Although the shift to the two-child policy in 2015 granted married couples the right to have two children, it did not permit unmarried Chinese women to enjoy the right to be single mothers by choice. This means procreation is only allowed within heterosexual marriage, and leftover women can only do it through the black marketFootnote 23 or by travelling abroad. Dong, a 27-year-old doctor who works at the Centre for Assisted Reproductive Technologies in Putian, confirms that marriage is a prerequisite to using the service of artificial insemination.Footnote 24 According to Dong, the hospital will check the woman’s marriage certificate and birth permit before providing medical treatment. Dong says, “It is the law, and the staff in my hospital need to follow the law strictly.”Footnote 25
It may appear on the surface that leftover women’s pressures come from their parents and relatives, as well as their own concerns about losing the ability to give birth as they get older. In fact, however, the phenomenon of leftover women is a consequence of the interaction of multiple legal orders, including official and unofficial laws. I focus on Putianese leftover women’s experience to investigate how plural legal orders and qing work together to shape ordinary people’s legal consciousness. My findings show that, when Putianese leftover women make their choices in marriage and childbearing, they must deal strategically with official Chinese birth policies; the statutory requirements of filial responsibility; long-standing traditions concerning relations of husbands, wives, parents, and children; and the local custom of lianggu. When Putianese women navigate their way through these complexities, they participate in the construction of legality through their everyday actions and practices. As Michael McCann suggests, legal consciousness is “the ongoing, dynamic process of constructing one’s understanding of, and relationship to, the social world through use of legal conventions and discourses.”Footnote 26 The way leftover women relate to law—both official and customary law—reflects some common but important elements of the legal consciousness of ordinary Chinese people. Granted, Putianese leftover women’s legal consciousness does in some respects reaffirm findings of earlier research on legal mobilization in China, particularly in the sense that individual rights are subordinated to the interests of the family.Footnote 27 More importantly, however, by focusing on the interaction of law and qing to study leftover women’s legal consciousness, this article offers an additional insight into the reasons why people give the highest priority to the interests of their family. Although the discussion that follows focuses on a particular group of Chinese women who face legal and cultural barriers in the process of making choices in marriage and childbearing, my intention is to demonstrate a theory of legal consciousness that can be applied to the study of ordinary people’s legal consciousness in almost every aspect of daily life in Confucian societies.
3. LEGAL CONSCIOUSNESS AND MULTIPLE LEGAL SYSTEMS: RELATIONSHIP BETWEEN STATE LAW AND CUSTOMARY LAW
3.1 Defining Legal Consciousness
Legal consciousness in this article refers to people’s opinions and attitudes towards the law, the way they engage with the law in everyday life, their perceptions of what the law should be, and their understandings of other people’s beliefs about the law. Although it is true that changes in state laws and policies have had a significant influence on Chinese people’s choices in family structures in recent decades, an overemphasis by researchers on the impact of state law can divert attention from other social norms that play a crucially important role in shaping ideas and expectations of law. With a focus on women’s choices in family formation, I emphasize the importance of viewing legal consciousness as it is constructed “from below” and not just the top-down construction of law by the state. As David Engel suggests, “even if one focuses on ‘official’ law, one still finds a significant dependence on unofficial or customary rule structures to determine norms of reasonableness or fairness.”Footnote 28 While some scholars, focusing more narrowly on official law and formal legal institutions, maintain that state law matters a great deal in shaping legal consciousness,Footnote 29 others decentre state law and stress the importance of other social norms, values, and beliefs in constructing legal consciousness.Footnote 30 In this article, I will suggest that unofficial laws have a major impact on people’s choices in family formation, and therefore it is not possible to understand people’s legal consciousness concerning marriage and family arrangements without a more decentred examination of what people experience as law. Thus, I agree with Hertogh that the study of legal consciousness needs to take people’s own ideas of law and justice into account.Footnote 31
My decentred approach to the analysis of legal consciousness draws on theories of legal pluralism that depict ordinary people choosing among—and sometimes merging—multiple types of legality, some associated with the state and others deriving from custom, religion, or other non-state norms and practices.Footnote 32 Boaventura De Sousa Santos emphasizes the importance of understanding how different types of law interact with one another.Footnote 33 An exclusive focus on state law ignores the fact that people’s legal consciousness is constituted by the intersection of different legal orders, or what Santos calls “interlegality.”Footnote 34 Thus, in Putian, a state-law-first perspective cannot explain why some women actually view themselves as law-abiding citizens when they are breaking the state law. Only by analyzing the interaction of plural legal orders can we understand the different patterns of legal consciousness that I discovered in my fieldwork in Putian.
It might be argued that it is inappropriate to study Chinese legal consciousness in an article focusing on women’s choices in family formation, since this is an area of social life where we should not expect to find much awareness of law at all. As Chou Wah-shan has observed, “attitudes and manners in interpersonal relationships are the hardest areas to reach with the law.”Footnote 35 Chinese people believe that “even an upright official finds it hard to settle a family quarrel” (清官难断家务事) and that “family troubles are not a thing to be talked about in public” (家丑不可外扬). It is true, of course, that Putianese women are generally reluctant to invoke state law or consider the possibility of litigation against parents, relatives, friends, and neighbours who infringe on their choices in marriage and childbearing. Nevertheless, I contend that it is important to ask why these women refuse to mobilize the law and how they engage with non-state law outside the official justice system. The study of legal consciousness has been founded on the non-use of law as well as its formal mobilization,Footnote 36 and therefore the reluctance of Putianese women to invoke state law is an important phenomenon to be explained rather than simply dismissed as ignorance or low legal consciousness.Footnote 37
3.2 The Interaction of State Law and Customary Law
Putianese women’s legal consciousness reflects an area of long-standing concern in Putianese society. The obligations of husbands and wives towards each other and towards their parents and children have been a subject of intense anxiety for many years, and that anxiety has become heightened as a result of changing laws and policies of the Chinese government. The law implementing the one-child policy controlled the number of children each family could have and, at the same time, prohibited sex-selective abortion. As a result, many Chinese families ended up with no male descendant after the strict implementation of the one-child policy since the 1980s. Since it is still widely believed that Chinese parents should rely on adult children, especially sons, to provide old-age support,Footnote 38 parents without a male descendant are concerned that they may have no one to take care of them when they are old.Footnote 39
Since lack of support for the old became an issue under the policy, the Chinese government enacted the Law of the People’s Republic of China on Protection of the Rights and Interests of the Elderly,Footnote 40 stipulating that grown-up children, both daughters and sons, should be filial to their parents by visiting them regularly and supporting them financially.Footnote 41 This law, however, has had a very limited impact in changing Putianese people’s cultural beliefs that, legal requirements notwithstanding, parents ordinarily cannot rely on a married-out daughter for eldercare. This is because Putianese wives who do not choose lianggu are supposed to prioritize the interests of their husbands’ families and provide old-age support to their husbands’ parents rather than their own parents, and the children of the married couple will carry on the husband’s family name.
In fact, the most popular option for Putianese parents to secure their old-age support is to require at least one of their daughters to practise lianggu instead of turning to the state law for help. The custom of lianggu has enjoyed a long history in Putian, but it became extremely popular only in recent years.Footnote 42 Because the cultural belief that “a married out daughter is like spilled water” (嫁出去的女兒，潑出去的水) is still influential in Putian, lianggu offers the wife’s parents a sense of security, since it explicitly requires that both their daughter and their son-in-law must take care of them when they are old. Under lianggu, the married couple supports all parents and ensures that the next generation will carry on the family names of both sides as a way to continue both family lines. Additionally, the couple is responsible for ancestor worship of both families, which includes visiting ancestors’ graves on Tomb-Sweeping Day and on the anniversary of the death.Footnote 43
While lianggu is attractive to wives’ families, parents of the husbands often try to avoid following this practice because of the patriarchal belief that it signifies a failure to have a woman married into the man’s family. Men who have good family backgrounds often refuse to practise lianggu.Footnote 44 Thus, Putianese women’s choices in marital partners are constrained both by their parents’ expectation for them to “stay at home” and by their potential partners’ resistance to following lianggu. Jing says that her parents’ insistence on lianggu makes it almost impossible to find a partner who has both a decent job and a good family background.Footnote 45 Shun, a 28-year-old construction estimator, says there are many Putianese women who became leftover women because of their families’ insistence on lianggu. According to Shun, most of these leftover women spent many years in a relationship, hoping their parents would give up or their boyfriends would eventually agree. In the end, these women had to end the relationship when both sides were unwilling to compromise.Footnote 46
It is true that Chinese parents before the 1920s often arranged marriage for their offspring, and marriage was a family choice rather than a personal one. At that time, love referred to the notion of “favour and gratitude between husband and wife.”Footnote 47 Personal romantic love and pleasure between two individuals were secondary to the survival and prosperity of their families.Footnote 48 The 1950 Marriage Law, however, outlawed arranged marriage and promoted free-choice monogamous marriage.Footnote 49 The 1980 Marriage Law, moreover, replaced traditional notions of love with romantic love by stipulating that divorce should be granted if mutual affection between husband and wife no longer existed. The introduction and enforcement of the one-child policy further emphasized romantic love by challenging the traditional equation of sex with procreation and promoting the notion of “sex for pleasure.”Footnote 50 Therefore, Chinese marriage law has a long history of prohibiting parents’ interference in their children’s freedom of marriage and granting young men and women the right to marry whomever they please.
While Putianese daughters have the right to refuse their parents’ requirement of lianggu and marry their boyfriends without their parents’ consent, it remains a question why they do not consider it an option to invoke state law—either discursively or through formal legal procedures—to solve their problems. In fact, Putianese women themselves often support the practice of lianggu, since they believe that qing requires a person to take care of one’s parents in their old age.Footnote 51 In other words, they are willing to be guided by the customary law of lianggu, because following the custom of lianggu is what an ordinary Putianese people should choose to do under this circumstance.
In sum, Putianese women’s legal consciousness is shaped by plural legal orders dealing with family relations and obligations—including state law, patriarchal customs, “modern” ideas about equal rights and responsibilities, and the unique customary option of lianggu. In the next section, I will explain how Putianese women rely on qing to guide their choices as they navigate their way among different legal orders.
4. HOW THE TENSION BETWEEN LAW AND QING SHAPES THE LEGAL CONSCIOUSNESS OF LEFTOVER WOMEN
Given that Chinese legal culture and philosophy consider qing a primary element that people should take into account when they are trying to settle a dispute or solve a problem, it is not surprising that people rely on qing to judge whether a particular law is just and how they should react to the law. The influences of qing on ordinary people’s legal consciousness can be found almost everywhere in people’s daily lives. For example, people’s emphasis on qing contributes to a belief among Chinese people that substantive justice is much more important than procedural fairness.Footnote 52 In this part, I will argue that the interaction of law and qing plays a crucial role in the construction of legal consciousness among Putianese women. These women rely on qing to find a way to accommodate their desires, beliefs, and ideas about justice in light of the plural forms of legality they recognize in the society in which they live. In the discussion that follows, I will demonstrate how different forms of legal consciousness emerge from two broad categories of interaction between law and qing.
4.1 Law in Opposition to Qing
In this section, I use Putianese leftover women’s legal consciousness as an example to show how people engage with state laws that are considered contrary to qing. My findings show that, when people believe state law is in opposition to qing, they hold negative attitudes towards state law and choose to avoid, resist, and dismiss state law, and they invoke qing to mitigate the consequences when the law has already caused undesirable results.
4.1.1 Avoidance of State Law when it Conflicts with Qing
While some Putianese women mention that they felt anguished both physically and emotionally when their parents forced them to break up with boyfriends who refused to practise lianggu,Footnote 53 they never think of deploying state law to protect their rights, nor are they eager to advocate for a legal reform to ensure Putianese women’s freedom of marriage. None of my interviewees chose to exercise their legal right to marry in order to stop their parents from forcing them to leave their boyfriends. Likewise, nobody sued their parents for interfering in their marriage, nor do they consider their parents’ actions to be domestic abuse or violence. Quite the opposite: the women I interviewed repeatedly invoked the concepts of love, duty, reciprocity, traditional virtue, family harmony, and filial piety. All these concepts are considered significant components of qing with respect to family relations between daughters and parents. Putianese women’s emphasis on these concepts reflects the fact that they prioritize the relationship with their parents over freedom of marriage. Jing believes that, no matter how much pressure her parents impose on her to practise lianggu, they are still the ones who care most about her and offer her unconditional love.Footnote 54 Zeng, a 25-year-old orthopaedist, states that parents, rather than husbands or boyfriends, are the only persons a woman can totally trust and rely on.Footnote 55
“We take it for granted that it is the duty of daughters who do not have male siblings to practice lianggu. Very few women choose to challenge their parents.”Footnote 56 This is a version of the most common answer I got when I asked whether they have ever thought of turning down their parents’ requests for practising lianggu. Shun contends that it is better to “stay at home” in order to take care of her parents, as being filial to one’s parents is a traditional virtue in Chinese society.Footnote 57 This is especially the case in a city with influential patriarchal culture, such as Putian. If a woman marries into a Putianese man’s family without choosing lianggu, she is not supposed to spend money on her own parents. Otherwise, her parents-in-law and husband will be very upset.Footnote 58 Tian, a 30-year-old engineer who strongly supports lianggu, says that a traditional Putianese family will not allow their daughter-in-law to participate in the ancestor worship of her birth family.Footnote 59 Therefore, the requirements of being a Putianese wife in a traditional Putianese family make it extremely important for parents who do not have sons to have at least a daughter to practise lianggu. For these parents, their daughter’s refusal to practise lianggu would mean the possibility of having no one to support or take care of them when they are in their old age. Even worse, it is likely that no one will visit their grave to sweep away the dirt after their death.Footnote 60
As supporting one’s parents in old age or being a filial daughter is considered a requirement of qing, my interviewees believe that the custom of lianggu is what they should respect and follow. They perceive a conflict between a woman’s right to choose her own marital partners and the need to protect the interests of her parents. Although the marriage law emphasizes freedom to choose one’s partner and prohibits coercion by a third party, my interviewees hold that it is undesirable to invoke the law against their parents to assert this right. It is true that Chinese society still considers being leftover in the marriage market a mark of shame for both the woman and her family, but leftover women’s insistence on lianggu shows that being leftover is more acceptable to them than acting against qing to fight for their rights. Putianese women’s refusal to use the right against their parents illustrates the first form of legal consciousness I identify from the interaction between qing and law—that is, “avoidance of state law when it conflicts with qing.” When ordinary Putianese people believe that parents cannot rely on a married-out daughter and that an only daughter or the oldest daughter should therefore stay at home to take care of her parents, a Putianese daughter who refuses to practise lianggu will be criticized by her relatives, neighbours, and friends for failing to meet the demand of qing. Because qing plays such a crucial role as Putianese women decide which legal order should take priority, lianggu emerges as more influential than marriage law in governing their behaviour.
4.1.2 Invoking Qing to Mitigate Undesirable Results of State Law
State law is not completely irrelevant in shaping Putianese people’s legal consciousness. For example, state law has a significant impact on people’s understandings of local custom in the interaction of lianggu with China’s population policy—a form of state law that changed people’s family structures substantially in recent decades. China’s birth policy has experienced three important turning points in recent history: the implementation of the one-child policy, the relaxation of the one-child policy, and the shift from the one-child policy to the two-child policy. The one-child policy was first implemented in 1979 in China to curb population growth. Each couple in urban areas was allowed to have only one child with very few exceptions, while, in rural areas, a married couple had the opportunity to give birth to a second child if the first one was a girl. In 2009, all provinces in China allowed couples to have two children if both parents did not have siblings and, in late 2013, the policy was further relaxed in many provinces to allow families to have two children if one of the parents was an only child. The two-child policy replaced the one-child policy in late 2015. In effect since 1 January 2016, the two-child policy allows all married Chinese couples to have two children.
Born and raised under the strict one-child policy, all my interviewees in Putian started their descriptions of the local custom of lianggu by pointing out the impact of the one-child policy on ordinary Putianese people’s family structures and attitudes towards marriage. The legal framework is so influential that all women I interviewed in Putian maintain that there is a close linkage between China’s population policy and their choices in marriage and childbearing. The most significant influence of China’s population policy, according to these women, is that it has made lianggu a popular practice in Putian. In her interview, Lu, a 29-year-old civil servant, told me that, after the implementation of the one-child policy, many families in urban areas of Putian ended up having a single daughter, while many families in rural areas had two daughters. The lack of a son made it necessary to have a daughter to practise lianggu in order to take care of the old and carry on the family name and property.Footnote 61
At the same time, matrilocal marriages—which were customarily practised under some circumstances—are also being replaced by lianggu, because China’s one-child policy made it almost impossible for the husbands’ families to accept them. As Lu explains:
Putianese parents without male descendants used to ask at least one of their daughters to choose a matrilocal marriage. As a result of the one-child policy, many Putianese men in our generation do not have male siblings. If the only son of the family agrees to marry into the wife’s family, the man’s birth family will have no sons to rely on because the married-out son is not supposed to take care of his birth family anymore. The man’s parents usually do not allow their son to marry into the wife’s family. Thus, parents of Putianese women need to compromise on this and ask their daughters to choose lianggu instead.Footnote 62
In this case, China’s population policy contributes to the prevalence of lianggu by transforming ordinary people’s family structures, familial relationships, and understandings of the local custom of lianggu. At the same time, following the custom of lianggu represents Putianese daughters and their parents’ strategy to mitigate one of the most unfortunate consequences of the one-child policy, namely having no male descendants to support the older generation. As the one-child policy ignores qing, Putianese daughters and their parents must invoke qing themselves to deal with the undesirable outcomes caused by this form of state law.
In order to mitigate this negative result of the one-child policy, Putianese daughters choose their partners strategically. Being the eldest daughter of her family, Tian stated that she would ask the man at the very beginning of their relationship whether he could accept lianggu, because she would not want to waste her time on those who could not. For Tian and some other leftover women in Putian, being leftover in the marriage market is more acceptable than being a daughter who turns down her parents’ requests to provide old-age support. Tian takes it for granted that it is her responsibility to practise lianggu in order to secure the interests of her parents and make them happy. According to Tian, choosing lianggu is almost the best thing she can think of to show how grateful she is to her parents.Footnote 63 In fact, virtually all of my interviewees tended to show sympathy for their parents who were deprived of the chance to have a male descendant because of the one-child policy. Their willingness to follow the practice of lianggu offers their parents a sense of security regarding their eldercare. Therefore, choosing lianggu illustrates a form of legal consciousness in which qing directly redresses negative social outcomes arising from state law.
4.1.3 Resistance of State Law to Protect Qing
China’s one-child policy makes it difficult for parents to continue their family lines if they do not have male descendants. Lianggu improves the situation by requiring a couple to carry on the family line of both sides. In order to achieve this end, it is ideal for each married couple to have at least two children.Footnote 64 In most cases, Putianese women who choose lianggu will give birth to two children, regardless of whether it is legal or not. Shun is an interviewee who did this. She told me that she was determined to have two children even before the law allowed her to do so. According to Shun:
I am going to give birth to the second child as soon as possible because the second one will carry on my family name. I do not think the shift to a two-child policy makes any difference to me regarding how many children I will have. Since I had chosen lianggu, my parents and my parents-in law had reached an agreement that we would have two children when we got married. And this was before the shift to the two-child policy. I understood I would be charged the social upbringing fee, but I thought it was ok. I would pay the fine for violation of the one-child policy. I did not even care how much I would pay because I knew I would still choose to give birth to the second one. I deliberately chose to work in a private company because my boss would not need to take responsibility if I had the second child. If I had a government-related job, my supervisor and other colleagues might be criticized and punished for their failure to prevent me from bearing the second child. I did not want to become a trouble-maker in my workplace. After the shift to the two-child policy, I left the private company, and now I work for the government instead.Footnote 65
Shun does not view herself as a victim of the one-child policy, nor does she feel guilty about planning to violate the population policy. Instead, she identifies herself as a law-abiding citizen and a good worker.Footnote 66 Before the shift to the universal two-child policy, choosing to work for private companies or finding a non-permanent job in order to have two children was a popular strategy for Putianese women who wished to follow lianggu and fulfil their filial duty by passing down their family names. Some women chose to quit their government job shortly before they gave birth to the second child. The legal consciousness of Shun and other women who strategically engaged with the law to have more children exemplifies yet another form of legal consciousness: resistance of the law to protect qing.
One important feature of this third form of legal consciousness is that people are quite willing to accept responsibility for the consequences of violating the state law. These women emphasize that taking responsibility for one’s own actions is required of any good citizen. Nonetheless, qing justifies their violation of law from two aspects. First, as the population policy has not taken account of qing, ordinary people prioritize local custom over state law to guide their behaviour. Second, since being responsible for one’s own actions is a vital requirement of qing, people do not try to escape punishment for their direct resistance of state law. Qing explains how Putianese women can reconcile their lawbreaking behaviour and their perceptions of themselves as law-abiding citizens. In this sense, a focus on the role of qing clarifies the legal consciousness of women by highlighting not only their reluctance to use the law, but also their direct resistance to it.
4.1.4 Dismissal of State Law when Breaking the Law Conforms to Qing
Shun illustrates another form of legal consciousness by focusing on the limited efficacy of official efforts to enforce the law that prohibits childbearing out of wedlock. While China’s current population policy encourages each married couple to have two children, relevant laws and policies still deny leftover women’s reproductive rights and constrain childbearing within marriage. In rural China, however, villagers consider a couple as married once they invite their relatives and friends to a wedding banquet. Thus, it is not unusual for the couple to live together after the wedding banquet and have babies without going through the legal process of getting married.Footnote 67 Shun argues that law’s restrictions have only a limited impact on childbearing out of wedlock, and therefore she concludes that obedience to the law is unimportant when the majority do not think breaking it is against qing. She says:
Quite a few couples in Putian have already had a child or even several children before they are legally married. Many friends of mine did not go through the legal process of marriage when they gave birth, and the local cadres did not mind as long as they were engaged or had a wedding banquet in the village.Footnote 68
In Shun’s opinion, the state law is not effective, as many people manage to give birth outside marriage without being punished. Indeed, in most cases, local cadres are themselves members of the village society, and they share a similar understanding of qing with villagers. Village cadres are reluctant to report those who break the law if the actions of these villagers are compatible with qing.
Thus, the legal consciousness of Shun, her friends, and the village cadres reflects the old saying that “law should not, and could not penalise the majority” (法不责众). This saying means that, if the majority breaks a particular law out of the belief that doing so conforms to the requirements of qing, then qing should prevail and the law should not punish them. As long as many people participate in the practice, the majority has justice on its side.Footnote 69 The main feature of this form of legal consciousness is that, when state law is against qing, ordinary people’s beliefs about what the law should be are more influential than state law itself in shaping people’s legal consciousness.
To summarize, these four forms of legal consciousness illustrate that, when people hold negative attitudes towards state law, they tend to use qing rather than the law to guide their behaviour—and they believe qing can fix the undesirable consequences of the state law.
4.2 Law in Alliance with Qing
In a society that is undergoing dramatic economic, cultural, and legal changes, it is not surprising for qing to differ from what it used to be. The fact that people believe law is secondary to qing does not necessarily mean that people do not expect the law to reinforce qing or promote new understandings of qing as conditions change. Putianese women’s legal consciousness shows that, when law is—or could become—congruous with qing, people anticipate that law should play a more important role in enforcing qing or transforming old understandings of qing to help it catch up with social changes.
4.2.1 Embrace of State Law when it Enforces Qing
Although Putianese people consider it normal for a couple to give birth without going through the legal process of getting married, people still attach a stigma to single mothers and assume that women who give birth out of wedlock are immature, irresponsible, and lacking in the ability to control their own bodies. Even some leftover women themselves share this belief, which serves as the principal barrier to their childbearing in Chinese society. It is predictable that people may develop a more inclusive attitude in the future towards mothers who are single by choice. At this moment, however, childbearing out of wedlock goes against Putianese people’s understandings of qing, as the majority still believes it is immoral for a single woman to become a mother.
Dong contends that the law’s prohibition of childbearing out of wedlock is a way to protect single women.Footnote 70 According to Dong, many women went to the hospital to give birth to a second child because the first one was taken away by their ex-friends. She is afraid that, if the law allows births outside marriage, there will be more women suffering from this kind of experience.Footnote 71 As leftover women, Zeng and Jing both agree that the state restricted childbearing under law to married women in order to protect single women. Zeng suggests that, if the law allowed single women to give birth, it would increase the likelihood that irresponsible men will insist on having unprotected sex and will refuse to marry the women after their children are born.Footnote 72 Jing maintains that the time is not ripe for legalizing unmarried women’s reproductive rights, because being single mothers by choice is not congruous with the majority’s current understandings of family and motherhood.Footnote 73
Dong, Zeng, and Jing demonstrate a distinctive form of legal consciousness with regard to official Chinese population policy prohibiting childbearing out of wedlock: embrace of the law when it enforces qing. These women believe that, if a single woman becomes a mother, she will have to suffer from abandonment or discrimination, and thus state law should protect them by constraining childbearing within marriage. Indeed, my interviewees fail to acknowledge that women have the right to choose any kind of family structure, including a single-parent family. Their legal consciousness, however, reflects a prevalent belief among ordinary people that state law should protect its citizens by punishing those who act against qing. One important feature of this form of legal consciousness of is that state law has been considered a source of support for qing and not in opposition to it.
4.2.2 Perception of State Law as Too Weak when it Fails to Transform “Old” Understandings of Qing
A final form of legal consciousness is evident among interviewees who view law as potentially useful in promoting new understandings of qing. Unfortunately, in their view, state law falls short of achieving the desirable transformation of social and cultural norms regarding leftover women. For example, Yue, a 27-year-old medical laboratory scientist, was the only Putianese women in this study to suggest that single women should be granted reproductive rights.Footnote 74 According to Yue, some women desire for valid reasons to become single mothers by choice, but the current social environment makes it difficult to do so. She herself would probably not choose to be a single mother, even if it were legalized, because it might endanger her relationship with her father, a traditional Putianese man, who firmly believes that it is immoral to give birth outside marriage. Yue argues that law’s refusal to legalize single women’s reproduction reinforces the widespread belief that becoming a single mother by choice is morally unacceptable.Footnote 75
In Yue’s view, the law is rather weak in protecting single mothers from the pressure imposed by family members as well as by society in general, as many people do not consider leftover women’s reproduction as consistent with qing. But Yue views people’s understandings of qing as malleable—they may change at different times and under different situations. Yue believes that state law needs to shoulder the responsibility of helping to challenge social discrimination against single mothers. This distinctive form of legal consciousness, therefore, perceives the law as too weak, when it could potentially be more useful to help transform qing. People such as Yue may adopt this form of legal consciousness when local customs and other social norms are not inclusive enough to accommodate the needs of people who disagree with the dominant understandings of qing. They may then look to state law to transform qing to ensure social justice—but the inability of law to achieve this goal generally leaves them disappointed and even disillusioned.
To summarize, by exploring the legal consciousness of ordinary Putianese women born and raised under the one-child policy, I have detected two broad ways in which the interaction of law and qing relates to Chinese people’s thoughts and actions. I argue that these variations of legal consciousness result from the dynamic relationship between qing and legal orders—both state and non-state. Ordinary Chinese people invoke qing to form their own ideas of justice and fairness and decide whether they should prioritize a particular legal order over others. If people consider a particular legal order as conflicting with qing, they choose to avoid or resist it. At the same time, they may turn to other legal orders that meet the demands of qing. When the outcomes of state law endanger their interests, people may deploy qing to confront the problems arising from state law. When the majority considers breaking a certain official law is consistent with qing, people will dismiss state law and view those who violate it as law-abiding citizens. On the other hand, when state law supports and reinforces qing, people embrace it and expect it to protect the citizens. As the meanings of qing are subject to the ever-changing social environment within which people form their understandings of it, people expect that state law should play a positive role in transforming qing in order to create harmony, respect, and justice in society.
5. CONCLUSION
In this article, I have analyzed how law and qing interact in different ways to shape ordinary Chinese people’s legal consciousness. I have illustrated the interaction of law and qing by examining the legal consciousness of Putianese leftover women concerning their choices in marriage and childbearing. Leftover women in Chinese society suffer both from people’s discrimination for remaining single and from state law’s restrictions on her reproductive rights. The legal consciousness of Putianese leftover women is shaped not only by state law, but also by other types of legal orders working together to constrain and enable their behaviour. The women rely primarily on qing as they navigate their way among these different legal orders. A close look at their legal consciousness reveals that the interaction of law and qing has a powerful impact on how ordinary Chinese people think about the law, what they consider as the law, and how they engage with different legal orders.
In Chinese society, one can observe countless other examples of the various forms of legal consciousness identified in this article. For instance, even an unlicensed street vendor in China may experience all these six forms of legal consciousness on a daily basis. Many unlicensed street vendors sell their goods in residential areas in China, since they believe—and most ordinary Chinese people would agree with them—that breaking the law under these circumstances is not against qing. People usually avoid the law and choose not to call the police to report these vendors, since it would conflict with qing if they were to make it difficult for these poor people to make a living. Some people even resist the law in order to protect qing by helping the vendors protect their goods and property in police raids. When the vendors and other people see police using violence during law enforcement, they embrace the law by reminding the police of the law prohibiting police brutality. When violent law enforcement occurs, ordinary citizens are often disappointed that the law is too weak to promote qing by transforming the officers’ arrogant assumption that they are superior to ordinary citizens. As this example illustrates, we can see that ordinary Chinese people’s legal consciousness is significantly influenced by the relationship between law and qing in almost every aspect of their daily life.
In short, although this article focuses on Putianese women’s legal consciousness, it provides a theory to facilitate better understandings of ordinary Chinese people’s legal consciousness by bringing qing into the picture. This theory helps to explain ordinary Chinese people’s legal consciousness either when the law is in opposition to qing or when it is in alliance with qing. As ordinary Chinese people generally look first to qing rather than state law when they try to achieve justice in almost every aspect of life, this theory can be applied to future studies in Chinese society and should not be confined to research involving interpersonal relationships in a familial context. Legal consciousness research in China could benefit from a more extensive consideration of qing as a concept that mediates between the demands of state law and the multiple forms of non-state legality that still influence the daily lives of Chinese citizens.
APPENDIX: INTERVIEWEES CITED IN THE ARTICLE (ALL NAMES ARE PSEUDONYMS)
